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An Important Discrepancy in Workplace Harassment Policies, Law

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With the rise of the #MeToo movement, companies across industries and of every size are taking a closer look at their policies and training against harassment, of all forms, to determine whether changes need to be made. While every policy could use a refresh now and then, one sentence commonly found in harassment policies is outdated: the requirement that targets of harassment say “no.”

When the Supreme Court’s Faragher and Ellerth decisions came out in 1998, the harassment policy was born. Attorneys quickly seized onto the language in the decisions to find nuggets to use in crafting language to fit the newly created affirmative defense. One piece they added was that a target of harassment must indicate that the conduct or comments were unwelcomed. The policy now read that if an individual thought she or he was subjected to harassment, they were required to tell the harasser to stop or say that they did not appreciate the comments or conduct.

Yet, this is not what the law requires. Yes, the law requires the comments or conduct be unwelcomed to be actionable sexual harassment, but there’s no requirement that a target of harassment say or do anything.

So, why include this obligation in a harassment policy? Because it made it easier to determine whether harassment occurred. Leaders (and some HR professionals) could find that the conduct isn’t harassment because the target didn’t say stop. By not finding harassment – by over-relying on this requirement in the policy – leaders implied that the conduct was okay. This easy determination also tamped down the possibility that targets of harassment would report it because they saw that leaders wouldn’t take action. What happened? Harassment permeated our workplaces.

Determining whether conduct is welcomed should not be difficult. Did she ask to be touched? Did he ask to overhear the dirty joke? It is not a difficult determination to make, and employers often determine that the conduct itself – even if welcomed – should not happen in their workplaces. Dirty jokes, repeated requests for dates, touching, and anything else that could be considered harassment doesn’t belong in the workplace, regardless of whether the conduct is welcomed or not.

We do a disservice to our employees if we require them to do anything in our harassment policy. The policy exists to set expectations of what harassment is, and whether employers will condone harassment that creates an uncomfortable work environment. With the definitions and examples of harassment, employees learn this expectation.

Instead of requiring action, the policy should give employees options to report harassment – report it to any manager and/or human resources, call an ethics hotline, etc. – but it should not require them to report it. Encouraging reporting is all employers can really ask. Including statements like “we can’t do anything to stop harassment unless we know about it” articulates why employers need to know.

With managers, however, it’s different. Because managers are the organization, for all intents and purposes, their failure to report potential harassment creates liability for their employers. Employers should include language that directs managers to tell HR as soon as they learn or perceive that harassment is occurring or has occurred. Their failure to report harassment means an employer loses the affirmative defense the policy made possible.

Employers are responsible for providing a harassment-free workplace. The law does not place any obligations on our employees. Requiring them to take action or say “no” goes above the law and shifts the burden to employees. Instead, employers should encourage employees to talk to company leadership and share when they feel uncomfortable. Most importantly, employer should address their concerns immediately. Together, we can help put an end to harassment in the workplace.