Anti-harassment policies are nothing new and we would be shocked to find an employee handbook without one.
But, have they really worked?
In the #MeToo era, it has become clear that these policies have not really been effective and employers are facing increasing scrutiny over why they cannot prevent harassment, and how they handle claims of harassment once they are filed.
Layering onto this is recent federal and state legislation, which makes harassment more expensive and public — like the federal tax law that prohibits companies from deducting harassment settlements if the settlement is subject to a nondisclosure agreement, and New York State’s anti-harassment legislation which will prohibit mandatory arbitration of those claims.
These laws coupled with the increased scrutiny make it essential for employers of all sizes to take a hard look at their anti-harassment program, and determine whether it is doing its job — namely: preventing, disclosing, and dealing with bad behavior in the workplace, before that behavior becomes a lawsuit or explodes on the front page.
So what does an effective harassment program look like and how is it implemented?
The EEOC recently published new informal guidance that is an excellent starting place for employers. Appropriately titled, “Promising Practices for Preventing Harassment,” this guidance has been in process for years and is nothing really new.
Even so, that does not make it bad. Indeed, the informal guidance should cause employers to go back to the basics. This guidance serves as a reminder for best practices and gives employers a roadmap for what the EEOC will be looking at when it is investigating harassment claims. For that reason, it is a good resource.