WHAT MUST A CALIFORNIA ANTI-HARASSMENT POLICY INCLUDE?
Sexual harassment lawsuits filed in California are increasing. They come in all shapes and sizes, such as a male employee can be accused of sexual harassment for staring at a female employee. Sexual jokes and cartoons in the workplace, whether verbally or by email, is a common basis for a harassment lawsuit. California law requires employers to have written anti-harassment prevention policies. Harassment claims are not just limited to sexual harassment
Sexual harassment lawsuits filed in California are increasing. They come in all shapes and sizes as a male employee can be accused of sexual harassment for staring at a female employee. Sexual jokes and cartoons in the workplace, whether verbally or by email, is a common basis for a harassment lawsuit. California law requires employers to have written anti-harassment prevention policies.
Harassment claims are not just limited to sexual harassment. Employees can claim harassment based on sex, race, and any of the following protected classifications.
Employers must distribute its anti-harassment policy to its employees. The California Department of Fair Housing and Employment recently created guidelines to help California Employers which can be found at: https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/DFEH-Workplace-Harassment-Guide.pdf 2
The policy should comply with the following California regulations:
o (1) Is in writing (it can be its own policy and/or a part of a handbook);
o (2) Lists all current protected categories covered under the Act (For example, company prohibits harassment based on gender, race, religion, etc.);
o (3) Indicates that the law protects coworkers and third parties, as well as supervisors and managers who feel harassed by a third-party, like a vendor, independent contractor, or an employee feeling uncomfortable seeing one harass another at work;
o (4) Creates a complaint process to ensure that complaints receive, and has a manager/person other than the harasser to complain to;
(A) An employer's designation of confidentiality, to the extent possible (for example, the complaint will be kept confidential and communicated to those on an as-need basis only for the investigation);
(B) A timely response – that the employer will commit to investigating it promptly and effectively (this means do not delay if an employer is on vacation or let the employee know of said circumstances and have a quick alternative procedure);
(C) Impartial and timely investigations by qualified personnel (the investigator must be neutral, not-bias and pro-management. It is helpful to retain an outside person with sufficient training but not required);
(D) Documentation and tracking for reasonable progress (the employer must document the dates of the interviews and the conversations. The employer must meet with the employee complaining and obtain his or her or other witnesses, evidence of documents, if any, and to get their side of the story. The investigator must interview the alleged harasser and obtain his witnesses and/or documents. The investigator must interview all witnesses on both sides and not form an opinion without a thorough investigation. If it is a quick superficial investigation, an employee could sue over such.
(E) Appropriate options for remedial actions and resolutions (for example, have a provision stating to the effect that appropriate discipline and/or remedial measures will result depending on the outcome of the investigation); and
(F) Timely closures (this could include a follow with the alleged employee complaining and the alleged harasser).
o (5) Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following:
(A) Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or (writing is the best)
(B) A complaint hotline; and/or (C) Access to an ombudsperson; and/or (D) Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.
o (6) Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training, pursuant to section 11024 of these regulations.
o (7) Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
o (8) States that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.
o (9) Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
o (10) Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
o (11) Dissemination of the policy shall include one or more of the following methods:
(A) Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return;
(B) Sending the policy via e-mail with an acknowledgment return form;
(C) Posting current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies;
(D) Discussing policies upon hire and/or during a new hire orientation session; and/or
(E) Any other way that ensures employees receive and understand the policies.
(F) Any employer whose workforce at any facility or establishment contains 10 percent or more of persons who speak a language other than English as their spoken language shall translate the policy into every language that is spoken by at least 10 percent of the workforce.
Corfee Stone & Associates creates and/or revises anti-harassment policies for employers for a competitive flat fee. We create and/or update handbooks as well. Please contact Ms. Catherine M. Corfee at 916-487-5441.