A policy prohibiting workplace harassment and instructing employees on how to report it is only as effective as the training supervisors and employees receive and the level of accountability the employer requires. The federal district course case of King v. Interstate Brands Corp. offers a valuable lesson for employers that having a good policy might not be enough.
King alleged that a supervisor frequently used racial slurs to talk about him and other black employees. When complaints were logged about the supervisor with HR, the supervisor responded by claiming to be upset with the implication he was racist. King concluded that enough was enough, and eventually sued, alleging racial harassment. The employer argued that because they had a proper harassment policy, it had “exercised reasonable care to prevent and correct promptly” incidents of harassment. The company also argued that King failed to avail himself of this policy (the Farragher defense).
In rejecting the employer’s defense and permitting the case to go to trial, the court stated that “There is sufficient evidence upon which a reasonable juror could find that King was subject to such severe and pervasive harassment as to change the terms and conditions of his employment.” Furthermore, the company’s anti-harassment policy was not communicated to the workforce (other than in the employee handbook) and was not enforced. According to the court, the totality of the employer’s actions “all suggest that a reasonable black employee would hesitate about complaining to IBC supervisors or HR about alleged harassment.”
To make sure that your employment policies “work” to either identify harassment or defend against a harassment claim, we’d recommend these steps:
- Be sure that the policy is comprehensive, covering discrimination, harassment, and retaliation.
- Don’t just rely on the Employee Handbook to communicate the policy.
- Include the policy in an employee handbook, post it in the workplace, and review the policy annually with all employees.
- Have employees sign acknowledgement of the policy.
- Provide employees with multiple options to report a policy violation.
- Investigate all claims promptly and thoroughly.
- Take appropriate disciplinary or remedial action.
- Make the policy a cultural requirement within the workplace, training supervisors and managers to report any potential violation, even if it is due to the behavior of a peer or superior.
Article courtesy of Worklaw® Network firm, Lehr Middlebrooks Vreeland (www.lehrmiddlebrooks.com).
