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How to Modernize an Anti-Harassment Policy to Meet Your Small Business Needs

#lynchlawfirm #lynchlaw #lynchpintoyoursucess #workplaceinvestigations#512law #austinattorney April 13, 2020

Revisiting an anti-harassment policy makes good sense for small business owners. It’s a way to mold a  work culture, review updates to state and federal EEOC laws, and create the kind of work environment that makes employees feel safe and comfortable. Here is a checklist of items to peruse as you review your own small business anti-harassment policy.

  1. Expand anti-harassment policies to include other protected classes. Harassment, whether against a person’s race, ethnicity, religion, age, or sex, is prohibited by law. It’s easy to focus solely on sexual harassment. It does receive a lot of media scrutiny. Yet, don’t leave your small business open to litigation by fact that other types of harassment are just as unlawful. In your policy, state that harassment based on sex, which now includes pregnancy, gender identity, and sexual orientation, is illegal and will not be tolerated. But also state that harassment based on disability, national origin, color, or genetic information is just as unlawful according to the EEOC.

  2. Clearly state what conduct is unacceptable, even if not unlawful. The behavior must meet specific criteria for harassment to be illegal under federal and state law. It must be pervasive or severe enough to create a hostile work environment. Yet stating what conduct is not allowed as your employee accomplishes two things. It establishes the type of work culture you want for your small business while also saying that, as a small business owner, certain conduct is unacceptable and will not be tolerated even if it is not unlawful. A good example would be the use of name-calling or taunting to humiliate or mock another employee’s religion or national origin, which is genuinely harassing behavior. If it was a one-time, isolated occurrence of a comment or a joke ignorantly told without malice, it qualifies as just offensive workplace conduct. While bad conduct may need to be addressed, it is not behavior punishable by federal or state law. However, you can state, “while not illegal, the following conduct is unacceptable and will not be tolerated…..”

The idea is to stop the bad behavior before it reaches illegality with an anti-harassment policy that promotes good behavior. If you want a work culture that drives potential applicants to apply and creates a loyal workforce from within, you should be clear about what conduct is not tolerated. Also, make sure to note that employees can come to you with concerns so that they know if they need to talk to you, they have that option. Iterate those conversations between employer and employee are held in the strictest confidence.

  1. Include real-world examples to help define acceptable behavior in your small business workplace. Giving examples about what behavior constitutes harassment against protected classes places it in perspective for employees. The increase of insults, racial slurs, and ‘go back’ comments in the workplace are good examples of harassment based on national origin, which is punishable by law

  2. but strictly forbidden in your small business.  Another real-world example would be prohibiting hate language, such as the “N-word.”  According to a NewsWeek article, almost all members of the LGBT community have experienced some form of harassment or misconduct on the job. However, small business owners can turn this around. This SHRM article about how HR and small businesses are more inclusive of LGBTQ employees on the job is a start in the right direction.

  1. Include other forms of sexual harassment, not just Quid Pro Quo. You’ll want to expand beyond the definition of sexual harassment as quid pro quo, where an employee submits to sexual advances for a promotion.  Your anti-harassment policy cover pregnancy, stereotypical statements about men and women, and sexual bantering or jokes. Also, comments about one’s sexual desirability, whether approvingly or dismissively, are considered harassment whenever that harassment becomes pervasive or severe enough to create an intimidating, hostile, and offensive work environment that interferes with work productivity and job opportunities.

    In your policy, be sure to include that sexual harassment can happen to anyone who sees or overhears the offensive conduct and is affected by it. They do not necessarily have to be an employee to be a victim of harassment. For example, when someone overhears sexually explicit jokes or offensive comments directed at another individual. Other verbal behavior considered sexual harassment includes:

  • Discussions of sexual activity or prowess

  • Comments made about the physical attributes of an employee

  • The use of crude or offensive language, such as insults or innuendos

  • Using derogatory or inappropriate terms, such as “babe”

  • Telling offensive or sexually-graphic jokes

  • Displaying sexually explicit or offensive materials

  1. Extend the enforcement of the anti-harassment policy beyond written or spoken language. In the procedure, be evident that inappropriate or prohibited behavior extends to email, text messages, and social media. You could say, “Our anti-harassment policy extends to posts and tweets on social media as well as email and text messaging when it is about or seen by our customers and other employees….”  Once others see social media posts, emails, and texts, it becomes an issue of correction. 

  2. Consider how the policy applies. The rules of conduct under your policy should apply to employees and non-employees. Depending on the type of business, non-employees could include customers, visitors, volunteers, and donors. Just as you prohibit employees from engaging in misconduct with a non-employee, they should use the complaint procedure to file against a non-employee who subjects them to harassment. Lastly, ensure that your policy covers prohibited behavior or misconduct off-site at corporate events, whether for charity, a company party, or a picnic.