Developing an Effective Harassment Complaint Procedure
The U.S. Supreme Court's 1998 decisions in Faragher and Ellerth* provided guidance on how employers can protect themselves against certain types of harassment suits brought under Title VII. The concept of reasonableness is essential to the affirmative defense set forth in these cases-the employer's reasonableness in taking care to prevent or correct any workplace harassment and the employee's unreasonableness in failing to take advantage of opportunities offered by the employer to remedy the harassment. The employer's harassment policy and procedures for reporting harassment claims are critical in resolving questions of reasonableness.
A recurring issue with harassment reporting procedures is whether an employer is deemed to have notice of a harassment complaint if the employee lodges the complaint with someone other than the person designated in the harassment policy to receive complaints. For example, if the firm's policy requires employees to report harassment to a specific person, is the firm considered to be on notice if the employee instead reports the harassment to an immediate supervisor? The answer to this question depends on whether the firm had a "reasonable and effective complaint procedure" in place and whether the employee's reporting was an "unreasonable" failure to take advantage of this procedure.
The following suggestions should help you develop reasonable and effective complaint procedures.
| (1) | Designate by name and title a specific management employee as the person to whom employees should report instances of harassment. |
| (2) | Communicate the designee's contact information - address, telephone number, and e-mail address - to all employees. |
| (3) | Designate an alternate person or people to whom complaints can be reported if the primary person is unavailable. |
| (4) | Ensure that the people identified to receive complaints are accessible to employees on a regular basis. |
| (5) | Ensure that the complaint procedure is communicated to all employees. Cover the harassment policy and reporting procedure in employee orientation materials and post the policy on bulletin boards in employee work areas. |
| (6) | Have each employee sign a written statement acknowledging that he or she has received and understands the harassment policy and complaint procedure. |
| (7) | Review the harassment policy and complaint procedure with employees on a regular basis and obtain written acknowledgement of the reviews. |
| (8) | Reissue the complaint procedure whenever the designated complaint recipients are changed and obtain a written acknowledgement that employees have received the revised procedure. |
| (9) | Maintain all acknowledgements in the employees' personnel files. |
All managers, even those not designated to receive harassment complaints, should be trained on how to recognize illegal harassment in the workplace and to report any harassment complaints to the appropriate person for investigation. No harassment complaint should ever be ignored. An employer may be held liable in a harassment suit if its management knew or should have known of the harassment.
An effective complaint procedure is only part of a complete harassment policy. You should consult experienced labor and employment counsel to develop an effective harassment policy and complaint procedure that is appropriate for your specific workplace.
By John Lowrie, an associate with Ford & Harrison LLC, a national labor and employment law firm representing management exclusively. http://www.fordharrison.com
The following article appears in the Spring 2003 EmployerGardian. For more information on the Faragher and Ellerth decisions referenced above, refer to Employer Liability for Unlawful Harassment by Supervisors in the Summer 2001 EmployerGardian.
