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EEOC: Promising Practices for Preventing Workplace Harassment (Nov. 2017)

As many employers recognize, adopting proactive measures may prevent harassment from occurring. Employers implement a wide variety of creative and innovative approaches to prevent and correct harassment.

The Report of the Co-Chairs of EEOC’s Select Task Force on the Study of Harassment in the Workplace (“Report”) identified five core principles that have generally proven effective in preventing and addressing harassment:

Committed and engaged leadership;
Consistent and demonstrated accountability;
Strong and comprehensive harassment policies;
Trusted and accessible complaint procedures; and
Regular, interactive training tailored to the audience and the organization.

The Report includes checklists based on these principles to assist employers in preventing and responding to workplace harassment. The promising practices identified in this document are based primarily on these checklists. Although these practices are not legal requirements under federal employment discrimination laws, they may enhance employers’ compliance efforts.

A. Leadership and Accountability

The cornerstone of a successful harassment prevention strategy is the consistent and demonstrated commitment of senior leaders to create and maintain a culture in which harassment is not tolerated. This commitment may be demonstrated by, among other things:

Clearly, frequently, and unequivocally stating that harassment is prohibited;
Incorporating enforcement of, and compliance with, the organization’s harassment and other discrimination policies and procedures into the organization’s operational framework;
Allocating sufficient resources for effective harassment prevention strategies;
Providing appropriate authority to individuals responsible for creating, implementing, and managing harassment prevention strategies;
Allocating sufficient staff time for harassment prevention efforts;
Assessing harassment risk factors and taking steps to minimize or eliminate those risks; and
Engaging organizational leadership in harassment prevention and correction efforts.

In particular, we recommend that senior leaders ensure that their organizations:

Have a harassment policy that is comprehensive, easy to understand, and regularly communicated to all employees;
Have a harassment complaint system that is fully resourced, is accessible to all employees, has multiple avenues for making a complaint, if possible, and is regularly communicated to all employees;
Regularly and effectively train all employees about the harassment policy and complaint system;
Regularly and effectively train supervisors and managers about how to prevent, recognize, and respond to objectionable conduct that, if left unchecked, may rise to the level of prohibited harassment;
Acknowledge employees, supervisors, and managers, as appropriate, for creating and maintaining a culture in which harassment is not tolerated and promptly reporting, investigating, and resolving harassment complaints; and
Impose discipline that is prompt, consistent, and proportionate to the severity of the harassment and/or related conduct, such as retaliation, when it determines that such conduct has occurred.

In addition, we recommend that senior leaders exercise appropriate oversight of the harassment policy, complaint system, training, and any related preventive and corrective efforts, which may include:

Periodically evaluating the effectiveness of the organization’s strategies to prevent and address harassment, including reviewing and discussing preventative measures, complaint data, and corrective action with appropriate personnel;
Ensuring that concerns or complaints regarding the policy, complaint system, and/or training are addressed appropriately;
Directing staff to periodically, and in different ways, test the complaint system to determine if complaints are received and addressed promptly and appropriately; and
Ensuring that any necessary changes to the harassment policy, complaint system, training, or related policies, practices, and procedures are implemented and communicated to employees.

To maximize effectiveness, senior leaders could seek feedback about their anti-harassment efforts. For example, senior leaders could consider:

Conducting anonymous employee surveys on a regular basis to assess whether harassment is occurring, or is perceived to be tolerated; and
Partnering with researchers to evaluate the organization’s harassment prevention strategies.

B. Comprehensive and Effective Harassment Policy

A comprehensive, clear harassment policy that is regularly communicated to all employees is an essential element of an effective harassment prevention strategy. A comprehensive harassment policy includes, for example:

A statement that the policy applies to employees at every level of the organization, as well as to applicants, clients, customers, and other relevant individuals;
An unequivocal statement that harassment based on, at a minimum, any legally protected characteristic is prohibited;
An easy to understand description of prohibited conduct, including examples;
A description of any processes for employees to informally share or obtain information about harassment without filing a complaint;
A description of the organization’s harassment complaint system, including multiple (if possible), easily accessible reporting avenues;
A statement that employees are encouraged to report conduct that they believe may be prohibited harassment (or that, if left unchecked, may rise to the level of prohibited harassment), even if they are not sure that the conduct violates the policy;
A statement that the employer will provide a prompt, impartial, and thorough investigation;
A statement that the identity of individuals who report harassment, alleged victims, witnesses, and alleged harassers will be kept confidential to the extent possible and permitted by law, consistent with a thorough and impartial investigation;
A statement that employees are encouraged to respond to questions or to otherwise participate in investigations regarding alleged harassment;
A statement that information obtained during an investigation will be kept confidential to the extent consistent with a thorough and impartial investigation and permitted by law;
An assurance that the organization will take immediate and proportionate corrective action if it determines that harassment has occurred; and
An unequivocal statement that retaliation is prohibited, and that individuals who report harassing conduct, participate in investigations, or take any other actions protected under federal employment discrimination laws will not be subjected to retaliation.

In addition, effective written harassment policies are, for example:

Written and communicated in a clear, easy to understand style and format;
Translated into all languages commonly used by employees;
Provided to employees upon hire and during harassment trainings, and posted centrally, such as on the company’s internal website, in the company handbook, near employee time clocks, in employee break rooms, and in other commonly used areas or locations; and
Periodically reviewed and updated as needed, and re-translated, disseminated to staff, and posted in central locations.

C. Effective and Accessible Harassment Complaint System

An effective harassment complaint system welcomes questions, concerns, and complaints; encourages employees to report potentially problematic conduct early; treats alleged victims, complainants, witnesses, alleged harassers, and others with respect; operates promptly, thoroughly, and impartially; and imposes appropriate consequences for harassment or related misconduct, such as retaliation.

For example, an effective harassment complaint system:

Is fully resourced, enabling the organization to respond promptly, thoroughly, and effectively to complaints;
Is translated into all languages commonly used by employees;
Provides multiple avenues of complaint, if possible, including an avenue to report complaints regarding senior leaders;
Is responsive to complaints by employees and by other individuals on their behalf;
May describe the information the organization requests from complainants, even if complainants cannot provide it all, including: the alleged harasser(s), alleged victim(s), and any witnesses; the date(s) of the alleged harassment; the location(s) of the alleged harassment; and a description of the alleged harassment;
May include voluntary alternative dispute resolution processes to facilitate communication and assist in preventing and addressing prohibited conduct, or conduct that could eventually rise to the level of prohibited conduct, early;
Provides prompt, thorough, and neutral investigations;
Protects the privacy of alleged victims, individuals who report harassment, witnesses, alleged harassers, and other relevant individuals to the greatest extent possible, consistent with a thorough and impartial investigation and with relevant legal requirements;
Includes processes to determine whether alleged victims, individuals who report harassment, witnesses, and other relevant individuals are subjected to retaliation, and imposes sanctions on individuals responsible for retaliation;
Includes processes to ensure that alleged harassers are not prematurely presumed guilty or prematurely disciplined for harassment; and
Includes processes to convey the resolution of the complaint to the complainant and the alleged harasser and, where appropriate and consistent with relevant legal requirements, the preventative and corrective action taken.

We recommend that organizations ensure that the employees responsible for receiving, investigating, and resolving complaints or otherwise implementing the harassment complaint system, among other things:

Are well-trained, objective, and neutral;
Have the authority, independence, and resources required to receive, investigate, and resolve complaints appropriately;
Take all questions, concerns, and complaints seriously, and respond promptly and appropriately;
Create and maintain an environment in which employees feel comfortable reporting harassment to management;
Understand and maintain the confidentiality associated with the complaint process; and
Appropriately document every complaint, from initial intake to investigation to resolution, use guidelines to weigh the credibility of all relevant parties, and prepare a written report documenting the investigation, findings, recommendations, and disciplinary action imposed (if any), and corrective and preventative action taken (if any).

D. Effective Harassment Training

Leadership, accountability, and strong harassment policies and complaint systems are essential components of a successful harassment prevention strategy, but only if employees are aware of them. Regular, interactive, comprehensive training of all employees may help ensure that the workforce understands organizational rules, policies, procedures, and expectations, as well as the consequences of misconduct.

Harassment training may be most effective if it is, among other things:

Championed by senior leaders;
Repeated and reinforced regularly;
Provided to employees at every level and location of the organization;
Provided in a clear, easy to understand style and format;
Provided in all languages commonly used by employees;
Tailored to the specific workplace and workforce;
Conducted by qualified, live, interactive trainers, or, if live training is not feasible, designed to include active engagement by participants; and
Routinely evaluated by participants and revised as necessary.

In addition, harassment training may be most effective when it is tailored to the organization and audience. Accordingly, when developing training, the daily experiences and unique characteristics of the work, workforce, and workplace are important considerations.

Effective harassment training for all employees includes, for example:

Descriptions of prohibited harassment, as well as conduct that if left unchecked, might rise to the level of prohibited harassment;
Examples that are tailored to the specific workplace and workforce;
Information about employees’ rights and responsibilities if they experience, observe, or become aware of conduct that they believe may be prohibited;
Encouragement for employees to report harassing conduct;
Explanations of the complaint process, as well as any voluntary alternative dispute resolution processes;
Explanations of the information that may be requested during an investigation, including: the name or a description of the alleged harasser(s), alleged victim(s), and any witnesses; the date(s) of the alleged harassment; the location(s) of the alleged harassment; and a description of the alleged harassment;
Assurance that employees who report harassing conduct, participate in investigations, or take any other actions protected under federal employment discrimination laws will not be subjected to retaliation;
Explanations of the range of possible consequences for engaging in prohibited conduct;
Opportunities to ask questions about the training, harassment policy, complaint system, and related rules and expectations; and
Identification and provision of contact information for the individual(s) and/or office(s) responsible for addressing harassment questions, concerns, and complaints.

Because supervisors and managers have additional responsibilities, they may benefit from additional training. Employers may also find it helpful to include non-managerial and non-supervisory employees who exercise authority, such as team leaders.

Effective harassment training for supervisors and managers includes, for example:

Information about how to prevent, identify, stop, report, and correct harassment, such as:
Identification of potential risk factors for harassment and specific actions that may minimize or eliminate the risk of harassment;
Easy to understand, realistic methods for addressing harassment that they observe, that is reported to them, or that they otherwise learn of;
Clear instructions about how to report harassment up the chain of command; and
Explanations of the confidentiality rules associated with harassment complaints;
An unequivocal statement that retaliation is prohibited, along with an explanation of the types of conduct that are protected from retaliation under federal employment discrimination laws, such as:

Complaining or expressing an intent to complain about harassing conduct;
Resisting sexual advances or intervening to protect others from such conduct; and
Participating in an investigation about harassing conduct or other alleged discrimination; and
Explanations of the consequences of failing to fulfill their responsibilities related to harassment, retaliation, and other prohibited conduct.

To help prevent conduct from rising to the level of unlawful workplace harassment, employers also may find it helpful to consider and implement new forms of training, such as workplace civility or respectful workplace training and/or bystander intervention training. In addition, employers may find it helpful to meet with employees as needed to discuss issues related to current or upcoming events and to share relevant resources.

The complete report is available here.

By | 28. Nov 2017 | Recent News | Comments Off on EEOC: Promising Practices for Preventing Workplace Harassment (Nov. 2017)

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