By Peter J. Ennis, Esq., Buchanan Ingersoll & Rooney, PC
For employers who do not want a formal employee handbook, the two policies I recommend having are an equal employment opportunity (EEO) policy and a policy prohibiting unlawful harassment. While there will not be many occasions where an employer will use an EEO policy in an affirmative manner, most, if not all, employees expect their employer to adhere to such policies. On the other hand, the failure to have a policy and/or a policy that is poorly written will be used against the employer in any discrimination claim.
In regard to anti-harassment policies, some employers think that such behavior will not occur in their workplace and, if it does, they will be able to take care of it. One thing I have learned in 30 years of representing employers is that anyone can engage in unlawful harassment, regardless of their position, education or job duties. The failure to have a policy will be used against an employer faced with such charges, particularly where an employee says that s/he did not know what to do when faced with unlawful discrimination or harassment. Therefore, it is important for employers to have written policies on both topics.
Information to Include In an EEO Policy
An EEO policy can very short. It has to address three topics. First, it should say that the employer is committed to being an equal opportunity employer.
Second, it should prohibit “unlawful” discrimination on the basis of any protected classification, and the key classifications applicable in your state or municipality should be listed. This includes race, color, sex, national origin, age (40 and over), disability, and the catchall “or any other classification protected by law.” An example where a particular state or municipality can make a difference is the City of Pittsburgh. If your business is in Pittsburgh, then I recommend adding “sexual orientation” to that list because there is a City Ordinance prohibiting such discrimination and it is important that both management and employees be aware of it.
I put “unlawful” in quotes in the preceding paragraph because there may be situations where an employer discriminates for or against some employees, but that would not be unlawful. For example, older employees can be treated differently in some situations in terms of life and disability insurance. In addition, employers may be required to discriminate in favor of disabled employees by giving them some accommodation that would not be given to other employees.
Third, the policy should say that the prohibition against unlawful discrimination applies to all terms and conditions of employment, and a representative list of those terms and conditions should be included.
Information to Include In an Anti-harassment Policy
Many employers combine their EEO and anti-harassment policies. If you draft a separate policy, it should define harassment as a form of unlawful discrimination which is prohibited and it should list all of the protected classifications listed in the EEO policy.
Many employers use the EEOC’s definition of harassment or sexual harassment in their policies (e.g., the EEOC refers to severe and pervasive conduct, and with sexual harassment refers to such things as where submission to such behavior is made the basis for some term or condition of employment, such as a raise or a promotion). I do not like using such language because the EEOC is defining a standard for purposes of liability, while an employer’s policy should be intended to create a zero tolerance workplace. In other words, even though conduct may not be the basis for liability under the EEOC’s definition, it could still constitute a violation of the employer’s policy.
Next, the policy should say that it applies to harassment by anyone who comes into contact with employees, from officers and directors of the company to visitors and vendors.
I think it is a best practice to say that management may ask that any complaint be put in writing (although do not make that a requirement). In addition, an anti-harassment policy must identify the names of positions to whom complaints can be brought. Many policies say that the employee can talk to his/her supervisor. I do not think such policies are wise because supervisors are usually ill equipped to deal with such complaints. Therefore, I try to limit it to a few people of different genders who are given training on how to handle and investigate such complaints.
The policy should say that all complaints will be investigated “promptly” and in as confidential manner as “reasonable.” Some policies refer to “immediately” and/or in as confidential manner as “possible.” Those standards are not required by the law and are rarely followed. Therefore, they create false expectations for both sides and can be used against the employer.
The policy should state that, based on the investigation, appropriate “corrective action” will be taken up to and including discharge. I do not use the phrase “disciplinary action” because, in some circumstances, formal discipline may not be imposed.
Finally, the policy should prohibit retaliation against anyone who files a complaint in good faith.
Are There Downsides to Having an EEO or Anti-Harassment Policy?
No. Such policies cannot be used against an employer unless the employer fails to comply with the policy. In such cases, however, it is not the policy that is the problem, it is the employer’s conduct.
Best Practices in Drafting an EEO or Anti-Harassment Policy.
I have tried to set forth the best practices above. The one thing I would add is that it is not enough to have a policy. The policies have to be distributed to employees, the employer needs to be able to prove that the employees received them, and the employer has to provide regular training to its managers and employees on the policies, and additional training to any manager or HR professional who may be involved in receiving and investigating a complaint.