Sexual and Other Unlawful Harassment Handbook Statement [20+ Employees]
When to Include This Statement
Employers covered under Title VII of the Civil Rights Act of 1964 (Title VII), Title I of the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA) should consider including this statement in their handbook. To be covered under these laws, employers must have 15 or more employees (for the Title VII and the ADA) and 20 or more employees (for the ADEA), for each working day in each of 20 or more calendar weeks in the current or preceding year.
Even those employers that do not meet the 15/20-employee threshold should strongly consider including a statement that prohibits harassment on the basis of a protected category and informs employees about the appropriate channels for complaints.
An "employer" for purposes of Title VII, the ADA and the ADEA includes employment agencies, labor organizations and joint labor-management committees.
To determine whether an employer has 15 or 20 or more employees, the employer must count all individuals on the payroll, including part-time employees and employees such as managers and supervisors. Under some circumstances, even foreign employees of a US-controlled corporation may be counted toward the threshold.
Properly classified independent contractors are generally not considered employees.
Whether a shareholder/director is counted toward the required number of employees is generally dependent on the degree of control exercised by the entity over that person, and courts have used various standards and factors that apply to this analysis.
It is possible to aggregate the employees of two or more closely interrelated entities into a single employer in order to satisfy the minimum number of employees.
Courts disagree as to whether the workforces of joint employers may be aggregated to establish the number of employees' requirement. Because the law varies in certain jurisdictions with regard to some of the considerations listed above, it is recommended that if an employer's workforce is close to the 15/20-employee threshold, the employer should consult with legal counsel before making a conclusion as to whether it is a covered entity.
Customizable Handbook Statement
Sexual and Other Unlawful Harassment
[Company Name] is committed to providing a work environment that is free of illicit harassment. As a result, the Company maintains a strict policy prohibiting sexual harassment and harassment against applicants and employees based on any legally-recognized basis, including, but not limited to: veteran status, uniformed servicemember status, race, color, religion, sex, age (40 and over), pregnancy (including childbirth, lactation and related medical conditions), national origin or ancestry, physical or mental disability, genetic information (including testing and characteristics) or any other consideration protected by federal, state or local law. All such harassment is prohibited.
Our anti-harassment policy applies to all persons involved in our operations and prohibits harassing conduct by any employee of [Company Name], including nonsupervisory employees, supervisors and managers. This policy also protects employees from prohibited harassment by third parties, such as vendors, clients, or temporary or seasonal workers. If such harassment occurs on the job by someone not employed by [Company Name], the procedures in this policy should be followed.
Sexual Harassment Defined
Sexual harassment includes unwanted sexual advances, requests for sexual favors or visual, verbal or physical conduct of a sexual nature when:
- Submission to such conduct is made a term or condition of employment; or
- Submission to, or rejection of, such conduct is used as a basis for employment decisions affecting the individual; or
- Such conduct has the purpose or effect of unreasonably interfering with an employee's work performance or creating an intimidating, hostile or offensive working environment.
Sexual harassment also includes various forms of offensive behavior based on sex. The following is a partial list:
- Unwanted sexual advances.
- Offering employment benefits in exchange for sexual favors.
- Making or threatening reprisals after a negative response to sexual advances.
- Visual conduct: leering, making sexual gestures, displaying of sexually suggestive objects or pictures, cartoons, posters, websites, emails or text messages.
- Verbal conduct: making or using derogatory comments, epithets, slurs, sexually explicit jokes or comments about an employee's body or dress.
- Verbal sexual advances or propositions.
- Verbal abuse of a sexual nature, graphic verbal commentary about an individual's body, sexually degrading words to describe an individual, suggestive or obscene letters, notes or invitations.
- Physical conduct: touching, assault, impeding or blocking movements.
- Retaliation for making reports or threatening to report sexual harassment.
Other Types of Harassment
Harassment on the basis of any legally protected classification is prohibited, including harassment based on veteran status, uniformed servicemember status, race, color, religion, sex, age (40 and over), pregnancy (including childbirth, lactation and related medical conditions), national origin or ancestry, physical or mental disability, genetic information (including testing and characteristics) or any other consideration protected by federal, state or local law. Prohibited harassment may include behavior similar to the illustrations above pertaining to sexual harassment. They include conduct such as:
- Verbal conduct including threats, epithets, derogatory comments or slurs based on an individual's protected classification;
- Visual conduct including derogatory posters, photography, cartoons, drawings or gestures based on protected classification; and
- Physical conduct including assault, unwanted touching or blocking normal movement because of an individual's protected status.
Any employee who believes that he or she has been subjected to prohibited harassment, discrimination or retaliation by a co-worker, supervisor, agent, client, vendor or customer of [Company Name], or who is aware of such harassment, discrimination or retaliation of others, should immediately provide a written or verbal report to his or her supervisor, any other member of management or Human Resources [or insert name of appropriate company representative or department] regarding such incidents.
After a report is received, a thorough and objective investigation by management will be undertaken. The investigation will be completed and a determination made and communicated to the employee as soon as practical.
If a complaint of prohibited harassment or discrimination is substantiated, appropriate disciplinary action, up to and including termination of employment, will be taken.
The federal Equal Employment Opportunity Commission (EEOC) and equivalent state agencies will accept and investigate charges of unlawful discrimination or harassment at no charge to the complaining party. The nearest office of the EEOC and equivalent state agencies can be found by visiting the EEOC's website at www.eeoc.gov.
Protection Against Retaliation
Retaliation is prohibited against any person by another employee or by [Company Name] for using this complaint procedure, reporting proscribed harassment or discrimination, objecting to such conduct or filing, testifying, assisting or participating in any manner in any investigation, proceeding or hearing conducted by a governmental enforcement agency. Prohibited retaliation includes, but is not limited to, termination, demotion, suspension, failure to hire or consider for hire, failure to give equal consideration in making employment decisions, failure to make employment recommendations impartially, adversely affecting working conditions or otherwise denying any employment benefit.
Employees should report any retaliation to their supervisor, any management team member or Human Resources [or insert name of appropriate company representative or department]. Any report of retaliatory conduct will be investigated in a thorough and objective manner. If a report of retaliation prohibited by this policy is substantiated, appropriate disciplinary action, up to and including termination of employment, will be taken.
Guidance for Employers
- This statement is intended to be used by employers with 20 or more employees. Employers with 15 - 19 employees that wish to provide the same protections as an employer with 20 or more employees may use this statement, but at a minimum, should use the Sexual and Other Unlawful Harassment Handbook Statement [15-19 Employees].
- Harassment and potential harassing behavior can take many forms. For example, same-sex harassment, hostile work environment and third-party (e.g., vendors or customers) harassment are all forms of harassment.
- Ensure that employees carefully review and understand this policy and train employees on conduct prohibited under the policy and on complaint procedures and the Company's policy against retaliation.
- A handbook should include a description of the complaint system that is available for complaints of discrimination and/or harassment. The handbook only needs to describe the complaint system one time, so long as it is clear that the complaint system is available for all kinds of complaints.
- Consider implementing a multi-channel complaint system to allow various ways for employees to make a complaint as well as interim measures (such as a temporary transfer or non-disciplinary leave of absence with pay) to avoid potential bullying and harassment during an investigation.
- Train supervisors and managers on the parameters of this policy, including what is considered harassment and what to do if/when a complaint regarding harassment or alleged improper conduct occurs in the workplace. Also train supervisors and managers on the strict prohibition against any retaliation against an employee who makes a good faith complaint of harassment, including an explanation of the different forms retaliation can take.
- Identify and train an investigator(s) and conduct a thorough, documented investigation of every complaint. During any investigation and follow-up, maintain confidentiality to the extent possible while conducting a thorough investigation.
- When an investigation results in a finding of wrongdoing, take immediate and appropriate corrective action. Reiterate the company's zero-tolerance policy with regard to harassment and/or retaliation.
- On March 18, 2015, the General Counsel of the National Labor Relations Board (NLRB) released guidance (the "Report") wherein the NLRB indicated that workplace rules that infringe on employee rights to argue and debate with one another about unions, management and workplace conditions may be unlawful, even when those debates involve terms or tactics that are intemperate, negative, inappropriate, etc. As a result, prohibitions against negative, inappropriate or generally harassing conduct may be considered unlawful. Employers should consult with legal counsel to ensure that their workplace bullying and other personnel policies do not unlawfully infringe upon employee rights under the National Labor Relations Act (NLRA).
- Be aware that the NLRB also considers it unlawful to require cooperation with company investigations without limitation because the requirement could be interpreted as requiring an employee to cooperate in an unfair labor practice investigation or else risk being disciplined. Employee participation in an interview as part of an unfair labor practice investigation must be completely voluntary.
- In addition, the NLRB has found certain blanket rules requiring that employees keep investigations confidential to be overbroad and unlawful. To justify a prohibition on employee discussions during ongoing investigations, the NLRB requires employers to demonstrate a specific need for confidentiality, such as the need to protect witnesses, the danger that evidence will be destroyed, the danger that testimony will be fabricated or the need to prevent a cover-up.
- Check back in with a complaining employee after the resolution of a complaint to determine whether the employee feels the matter has been properly addressed or has experienced retaliatory or additional harassing conduct.
- Be aware that some state laws impose specific requirements regarding anti-harassment training for supervisors.