By Kevin C. Donovan, Esq. of Wilson Elser Moskowitz Edelman & Dicker LLP
It has been a long time since the 1991 Clarence Thomas Supreme Court confirmation hearings brought the issue of sexual harassment to the forefront of public consciousness. Hundreds of thousands of unlawful harassment claims later, most employers have policies in place announcing their opposition to harassment and providing employees with avenues to complain and seek redress.[1] Yet the fact that thousands of claims continue to be filed each year, costing employers tens of millions of dollars in damages and attorneys’ fees, indicates that problems remain. Constant changes in the law make formulating the right unlawful harassment policy a continuing challenge. Indeed, sometimes an employer’s well-intended policy simply seeking to combat unlawful harassment can lead to unanticipated legal liability. This article addresses key issues and offers practical guidance for adopting the right policy.
What Is Unlawful “Hostile Workplace” Harassment?
Reduced to its simplest formula, “hostile workplace” unlawful harassment is conduct directed against an individual because of his or her membership in a protected class that causes the workplace to be “hostile” within the meaning of the law.[2] How many instances of harassment, the types of conduct that will be considered harassing and at what point the working environment will be considered legally “hostile” depend on a multitude of factors.
Explicitly racial jokes, sexual comments or expressed hostility toward a particular religion or ethnic background are rather easy to characterize as forbidden conduct, but other conduct can also lead to claims. Indeed, the offending conduct need not be “sexual” to give rise to a sexual harassment claim.
In one case arising out of a New Jersey workplace, a woman claimed that her co-workers, all male, went to great lengths to make her feel unwelcome and thus made the workplace “hostile.” The woman gave as one example an incident in which all the men came into the office smoking cigars shortly after she mentioned that she was allergic to cigar smoke. The court ruled that that incident could be used as evidence of sexual harassment because the harassment was directed at the plaintiff because of her gender/sex.
The absence of any bright line identifying what conduct may be considered unlawful harassment is among the issues that make this subject challenging to address.
Why an Unlawful Harassment Policy at All?
Some jurisdictions require employers to create and maintain unlawful harassment polices, sometimes in connection with mandatory training of all or part of the workforce. See, e.g., Cal. Gov. Code § 12950; Conn. Gen. Stat. § 46a-54; ALM GL ch. 151B, § 3A (Massachusetts); R.I. Gen. Laws § 28-51-2. Even if not mandated by law, however, employers are wise to adopt such policies.
An employer’s well-crafted unlawful harassment policy serves many positive purposes. First, such a policy is designed to protect the employer’s workforce from having to endure conduct in the workplace that is both wrong and unlawful. Employers obviously applaud such a goal. Second, the policy helps the employer ensure that if there are problems, they are brought forward so they can be addressed. Again, this makes good business sense. Finally, the proper policy can be a vital defense for the employer if a legal claim is nevertheless made by an alleged victim of harassment.
An employer may face a lawsuit or administrative charge filed by an employee (or often, an ex-employee) who never complained of harassment previously. The absence of any prior complaint in the face of a strong policy against harassment provides the employer with a powerful argument that the harassment did not happen or even if something did happen, it could not have been as offensive as the individual now claims (or she would have complained). That eminently logical argument may resonate with a jury as simple common sense.
In addition, well-established case law may apply to bar the harassment claim based on the plaintiff’s failure to report the supposed harassment where the employer has a known policy against harassment. E.g., Faragher v. City of Boca Raton, 524 U.S. 775 (1998); see also Heitzman v. Monmouth County, 321 N.J. Super. 133 (App. Div. 1999) (employer defeats an alleged hostile work environment claim by showing "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.") (citations omitted), overruled in part on other grounds by Cutler v. Dorn, 196 N.J. 419 (2008).
What then, should a well-crafted unlawful harassment policy contain?
The Policy Should Identify What Is Unlawful Harassment
Harassment requires both offensive conduct and an intent to target a person because of his or her membership in some protected class. An unlawful harassment policy can explain this legal definition to the workforce so they can avoid committing harassment before they inadvertently do it, or take steps to stop it if they feel they are a victim of it.
Keeping in mind that there is no all-encompassing definition, cautious employers know that the first line of defense against a claim of harassment is letting its entire workforce, management and non-management, know that unlawful harassment will not be tolerated. In that regard, the employer’s policy should let the workforce know what is, or can be, considered harassment. Ideally, a policy should not simply provide the legal definition of harassment (summarized above), but provide examples of verbal and non-verbal actions that could be construed as harassing. The more education that is provided, the less likely that someone will inadvertently fall into a situation in which he or she commits an act that the law considers potential harassment.
The policy should ensure that employees know that harassment is not limited to “sexual” harassment, but includes harassment based on any “protected” classification (i.e., age, citizenship, disability, gender, national origin, race, religion, sex, sexual orientation or any other characteristic protected under applicable law).
Not only will identifying harassment for the workforce help prevent it from ever occurring, but providing such education will make it more difficult for an employee later to claim that he or she was not aware of the right to complain about the conduct at issue. An employer does not want a plaintiff’s lawyer to be the first to advise an employee that what he or she was experiencing was illegal.
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