Workplace harassment is one of the many problems that Louisiana employers may encounter. The national media has recently published several stories concerning high-profile cases of sexual predation and harassment. In addition, stories have surfaced in Southeast Louisiana of allegedly rampant sexual harassment at a New Orleans-based restaurant group. While recent media accounts have focused on sexual harassment, harassment may also be based on disability, religion, age, race, gender, and a variety of other traits. While employers cannot entirely erase the risk of unlawful harassment in a particular workplace, there are well-established methods of preventing harassment and addressing harassment claims if they do arise.
The Supreme Court of the United States has outlined the contours of unlawful harassment claims and set forth practical steps for employers to take to prevent harassment in the first place and defeat claims if harassment has occurred. To prevent harassment, employers may want to consider implementing a legally effective anti-harassment policy and sharing the policy with all employees; training employees and supervisors (who have special duties in this area) on the anti-harassment policy; and having human resources administer the policy, investigate claims, and take remedial and disciplinary action, if necessary.
A legally effective anti-harassment policy may contain several key parts. Employers can identify and provide examples of harassing behaviors in easy-to-understand language in their anti-harassment policies. The policy can also set out a clear, anonymous, and unintimidating avenue for an employee to make a complaint or seek assistance with any workplace issue, so that the employee can communicate without fear of alerting a supervisor or other potential harasser. Some employers refer employees to a hotline number managed by a third party to insulate the company from claims of reprisal, but employees may also prefer speaking confidentiality with a peer who has been designated and trained as an ombudsman for employer-employee relations.
An anti-harassment policy can also apprise an employee of the employer’s policy against retaliation and do more than just pay lip service to that guarantee. In particular, employers may want to implement a policy that fully discloses the timeline and methodology for investigations of disputes and reassures the employee that the employer will work to reach an effective outcome that includes the employee in communications before any actions are taken. The policy could also make employees aware that although some disputes can be resolved through informal conciliation or training, others may result in the termination of harassers or other discipline, as necessary.
Additionally, an employer may want to consider a forward-looking anti-harassment policy that does not contain “legalese” or imply to employees that they must identify a legal violation to make a worthy complaint. For example, an employer could encourage employees to reach out if they feel unhappy about an interaction or negative about a policy or job assignment. Otherwise, an employee may not recognize that an uncomfortable relationship has become “harassment” until the situation has become too difficult to remedy outside the court system.
Employers may want to distribute their anti-harassment policies to all employees. This typically occurs by disseminating the policy in the employee handbook but may also occur through an internal website designed to share company information with employees.
Effective harassment prevention may require periodic training and is likely to be most effective when it is tailored to the organization and its particular audience. Employers should provide anti-harassment training to new hires, to supervisors, and to all employees on an annual or other recurrent basis. The training can remind employees of the company’s anti-harassment policy, provide examples of prohibited behaviors, remind employees of the company’s complaint mechanisms, assure employees that reports of harassment will be treated confidentially and investigated, and state that no one who reports harassment will be retaliated against. Training can also be provided to teach civility or respect at work, because uncivil behavior often masks unlawful behavior or precedes it. If another language is the first language of employees, anti-harassment documents can be translated into that language, and training can be conducted in that language as well.
Finally, employers will want to periodically review their harassment prevention policies to ensure that they are effective and up to date with current developments.