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Wills & Probate

Should an employer have a written anti-harassment policy?

All employers should have a written anti-harassment policy and a corresponding complaint and investigation procedure. Employers who do not have such a policy may open themselves up to liability in instances when a supervisor is charged with harassing an employee. Frequently in such circumstances the first question by an investigator is: ”Do you have an anti-discrimination or harassment policy?” and “Did you provide training to your employees on these issues?” A negative response implies this was an issue the employer did not care to address.

 

Additionally, employees who have been the subject of harassment have a duty to report it to the employer. Having a complaint procedure in place provides employees with a means to do this - and employees who do not use the procedure to notify the employer of the harassment may have difficulty winning a harassment lawsuit against the employer.

 

Employers should post their anti-harassment policy in a prominent place at work and distribute it to all employees. Employers should explain what harassment is to their employees, and that it is not tolerated in the workplace. Employers also may want to provide their managers and supervisors with training so that they understand what harassment it is, how to recognize it in the workplace and the correct way to handle employee complaints.

 

This policy should also contain a reasonable complaint process for employees. A policy that requires an employee to complain to his or her supervisor will not be considered reasonable if the supervisor is the person harassing the employee. There must be alternatives for the employee if the designated intake officer is the harasser. The procedures should be as easy to follow as possible. A policy that requires the employee to submit a written, witnessed complaint to one far off officer of the company may be considered unduly burdensome or intimidating, and more likely to discourage than encourage complaints.

 

It is also important that the complaint and investigation procedures are completed fairly for all employees. While there may need to be some changes in the types of inquiries that are made based on the type of complaint, to ensure the fairness of the procedure, employers should take care that their anti-harassment policies are applied uniformly.  It is best to have someone out of the immediate chain of command do an investigation and the results be written.  The report should not be kept in the employee’s personnel files, but in separate human resources files to protect from inadvertent disclosure.