As an employer, what sort of complaint or grievance procedure should I put in place?
UPDATED: June 19, 2018
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Employers may be held liable for two types of sexual harassment. The first type is quid pro quo harassment, which typically involves a supervisor or manager discriminating on the terms or conditions of employment, or in hiring and firing, based on gender or sex. The second type is hostile work environment, where an employee is made to feel uncomfortable at work based on gender or sex. The people responsible for the harassment or for creating a hostile work environment may be other employees, or supervisors.
The elements that make up these forms of harassment can be many and varied, which means preventing every occurrence of harassment can be difficult to impossible. Thus, in order to avoid serious liability for these types of sexual harassment, employers need to have an effective grievance or complaint procedure in place. The complaint or grievance procedure must meet certain criteria.
Reasonable Efforts to Prevent Sexual Harassment
To avoid liability for sexual harassment or to mitigate the damages that an employer may be liable for, employers must exercise "reasonable care" to avoid harassing behavior. Harassing behavior includes unwanted flirtation and any other type of discrimination or mistreatment based on sex or gender.
Both Equal Employment Opportunity Commission (EEOC) guidelines for enforcement and case law indicate that part of reasonable care is having a well-publicized anti-harassment procedure in place that clearly specifies what behaviors are prohibited. Another part of reasonable care involves having a complaint, or grievance, procedure in place that employees can follow.
In order to avoid liability, the employer not only has the burden of proving that they have effective policies and procedures in place, but they also have the burden of proving that they follow through on investigating complaints and enforcing anti-harassment policies. Additionally, employers must be able to prove that the employee claiming harassment failed to take advantage of these available procedures.
Defining an Effective Sexual Harassment Complaint Procedure
While there are no specific requirements that employees must meet, the EEOC guidelines include tips and advice for employers, in the hope that it will help employers meet their reasonable care requirement. These guidelines specifically address the complaint procedure. First, the complaint procedure should be clearly outlined, and employees must know what it is and how to invoke it.
Second, employers should provide employees with the opportunity to file complaints through multiple avenues, where at least one does not involve the direct supervisor or supervisor(s) of the employee. If a supervisor is the one engaging in the harassing behavior, it would not be reasonable to expect the employee to complain to the harasser. Generally, employers should provide the opportunity to report complaints to someone entirely outside of the chain of command. This person should not have regular authority over employees that may have potential complaints; generally, a human resources professional is a good employee to turn to with complaints.
Confidentiality and Retaliation in Harassment Claims
An effective complaint procedure must make clear to employees that all complaints will be kept in strict confidence whenever possible. In addition, it is essential that employers clarify that employees will face no retaliation as a result of making complaints. If an employee feared that he or she would face adverse action for reporting harassment, it would not be reasonable to expect that employee to report any problems.
Investigation and Follow-Up of Sexual Harassment Complaints
Employers must not only have internal complaint policies in place, but they should also have mechanisms available for investigating complaints thoroughly and in a timely manner. When determining whether an employer exercised reasonable care to prevent sexual harassment, the employer's history of investigating past complaints, as well as their actions in the specific case, will both come into question.