Students are required to draft an anti-discrimination/harassment/retaliation policy using the guidelines found in the following sources: All the Module Lectures, but in particular Module 6 (its policy checklist, Powerpoint slides and other materials on discriminatory harassment. Also consult the information provided in the textbook; and the information found in the supplemental readings.
Students may review review policies from other sources; however, adhering to Nova’s plagiarism policy as stated in the Disclaimer below, your assignment is not to be whole or partial policies from your place of employment or be taken completely from other sources. The purpose of the policy assignment is for you to review the suggested requirements for such a policy, as well as sample policies, and then draft your own policy based on your research. Any sources used in the preparation of this written assignment must be cited under “Sources” at the end of the draft policy in sufficient detail so that these sources can be checked.
Module 6-7 Lecture
Anti-Discrimination, Harassment and Retaliation Policy
As part of the employer’s defense to a discrimination, harassment or retaliation complaint, the employer should have established an anti-discrimination, harassment and retaliation policy. This policy should be disseminated among all employees. Newly hired employees should be given a separate copy of this policy as part of their orientation process. This policy should be explained to the new hire who should be required to sign a receipt for this policy and this receipt should be placed in the newly hired employee’s personnel file.
The policy should contain the following provisions at the minimum, which are described in more detail below:
- A clear explanation of prohibited conduct;
- Assurance that employees who make complaints of policy violation or provide information related to such complaints will be protected against retaliation;
- A clearly described complaint process that provides at least two accessible avenues of complaint;
- Assurance that the employer will protect the confidentiality of complaints to the extent possible;
- A complaint process that provides a prompt, thorough, and impartial investigation; and
- Assurance that the employer will take immediate and appropriate corrective action when it determines that a policy violation has occurred.
Anti-Discrimination/Harassment: An employer’s policy should make clear that it will not tolerate discrimination or based on sex (with or without sexual conduct), race, color, religion, national origin, age, disability, and protected activity (i.e., opposition to prohibited discrimination or participation in the statutory complaint process). This prohibition should cover discrimination or harassment by anyone in the workplace – supervisors, co- workers, or non-employees. Management should convey the seriousness of the prohibition. One way to do that is for the mandate to “come from the top,” i.e., from upper management.
The policy should encourage employees to report discrimination or harassment before it becomes severe or pervasive. While isolated incidents of discrimination or harassment generally do not violate federal law, a pattern of such incidents may be unlawful. Therefore, to discharge its duty of preventive care, the employer must make clear to employees that it will stop discrimination or harassment before it rises to the level of a violation of federal law.
Anti-Retaliation: An employer should make clear that it will not tolerate adverse treatment of employees because they report a policy violation or provide information related to such complaints. Such a policy and complaint procedure will not be effective without such an assurance.
Management should undertake whatever measures are necessary to ensure that retaliation does not occur. For example, when management investigates a complaint of a policy violation, the official who interviews the parties and witnesses should remind these individuals about the prohibition against retaliation. Management also should scrutinize employment decisions affecting the complainant and witnesses during and after the investigation to ensure that such decisions are not based on retaliatory motives.
Complaint Procedure: An employer’s complaint procedure should be designed to encourage victims to come forward. To that end, it should clearly explain the process and ensure that there are no unreasonable obstacles to complaints. A complaint procedure should not be rigid, since that could defeat the goal of preventing and correcting illegal conduct as well as conduct that violates company policies. When an employee complains to management about alleged conduct, the employer is obligated to investigate the allegation regardless of whether it conforms to a particular format or is made in writing.
The complaint procedure should provide accessible points of contact for the initial complaint. A complaint process is not effective if employees are always required to complain first to their supervisors about alleged conduct, since the supervisor may be the perpetrator. Moreover, reasonable care in preventing and correcting discrimination, harassment or retaliation requires an employer to instruct all supervisors to report complaints of such alleged conduct to appropriate officials.
It is advisable for an employer to designate at least one official outside an employee’s chain of command to take complaints. For example, if the employer has an office of human resources, one or more officials in that office could be authorized to take complaints. Allowing an employee to bypass his or her chain of command provides additional assurance that the complaint will be handled in an impartial manner, since an employee who is required to make such report to his or her supervisor may feel that officials within the chain of command will more readily believe the supervisor’s version of events.
It also is important for an employer’s policy and complaint procedure to contain information about the time frames for filing charges of unlawful conduct with the EEOC or state fair employment practice agencies and to explain that the deadline runs from the last date of unlawful conduct, not from the date that the complaint to the employer is resolved. While a prompt complaint process should make it feasible for an employee to delay deciding whether to file a charge until the complaint to the employer is resolved, he or she is not required to do so.
Confidentiality: An employer should make clear to employees that it will protect the confidentiality of allegations to the extent possible. An employer cannot guarantee complete confidentiality, since it cannot conduct an effective investigation without revealing certain information to the alleged perpetrator and potential witnesses. However, information about the allegations should be shared only with those who need to know about it. Records relating to complaints should be kept confidential on the same basis.
A conflict between an employee’s desire for confidentiality and the employer’s duty to investigate may arise if an employee informs a supervisor about alleged conduct, but asks him or her to keep the matter confidential and take no action. Inaction by the supervisor in such circumstances could lead to employer liability. While it may seem reasonable to let the employee determine whether to pursue a complaint, the employer must discharge its duty to prevent and correct illegal conduct. One mechanism to help avoid such conflicts would be for the employer to set up an informational phone line that employees can use to discuss questions or concerns about problematic conduct on an anonymous basis.
Prompt Investigation: An employer should set up a mechanism for a prompt, thorough, and impartial investigation into allegations. As soon as management learns about the complaint, it should determine whether a detailed fact-finding investigation is necessary. For example, if the alleged perpetrator does not deny the accusation, there would be no need to interview witnesses, and the employer could immediately determine appropriate corrective action.
If a fact-finding investigation is necessary, it should be launched immediately. The amount of time that it will take to complete the investigation will depend on the particular circumstances. If, for example, multiple individuals were allegedly subject to the conduct, then it will take longer to interview the parties and witnesses.
It may be necessary to undertake intermediate measures before completing the investigation to ensure that further illegal conduct does not occur. Examples of such measures are making scheduling changes so as to avoid contact between the parties; transferring the alleged perpetrator; or placing the alleged perpetrator on non-disciplinary leave with pay pending the conclusion of the investigation. Careful consideration and perhaps consultation with legal counsel should occur before the complainant is involuntarily transferred or otherwise burdened, since such measures could constitute unlawful retaliation.
The employer should ensure that the individual who conducts the investigation will objectively gather and consider the relevant facts. The alleged perpetrator should not have supervisory authority over the individual who conducts the investigation and should not have any direct or indirect control over the investigation. Whoever conducts the investigation should be well trained in the skills that are required for interviewing witnesses and evaluating credibility.
(Sources: Equal Employment Opportunity Commission, MG Services LLC)