Hostile Work Environment Claim Defeated Where Employer Disseminated Anti-harassment Policy
Employers are regularly sued by disaffected employees claiming to be the target of racial discrimination or sexual harassment by supervisors or coworkers. The allegations usually allege that the employer failed to
• institute a clear and comprehensive anti-harassment policy
• disseminate the anti-discrimination and anti-harassment policy to employees
• establish a complaint procedure
• conduct a prompt, thorough and unbiased investigation
• provide remedial action and protection for the victim
• impose meaningful and appropriate discipline on the violator
In the recently decided case (D.M. v. Walgreen Pharmacy, Inc.) the court examined these allegations and affirmed the dismissal of a sexual harassment and hostile work environment claim where the employer took prompt action to investigate the situation and the employer had established and had in place a well-publicized, comprehensive anti-harassment policy. The employer took affirmative steps to disseminate the policy through an orientation program.
Significantly, the plaintiff’s claim that she never received the orientation or policy, which is frequently alleged by sexual-harassment plaintiffs, was insufficient to salvage her claim, in light of testimony by other employees that the policy was disseminate at orientation.
This case reemphasizes the extreme importance for employers to adopt, disseminate a non-harassment policy and responding to complaints received from employees.
It is a poor risk management strategy to rely on the testimony of witnesses to prove that notwithstanding the fervent denials of the claimant, the ant-harassment policy and the process for handling claims was explained to the employee. A far better and simpler way to establish the defense is for the employer to establish a mandatory new-employee orientation which can be handled by someone from the human resources department or in small companies that do not have a full fledged human resources department, by the manager of the department to which the new employee was assigned.
It is beneficial to institute an orientation program which has a checklist of items to be covered and to create a packet to be handed to the employee that includes the employee handbook, list of prohibited conduct, policies and procedures for addressing complaints, and a separate acknowledgment of receipt by the employee of these important company documents. If the personnel files maintained by the employer contain the report to management that the orientation was held and attended by the employee and the acknowledgment of receipt signed by the employee that the important company rules, policies and protocols were provided to the employee, then defense counsel won’t have to prepare and call to the witness stand other employees to controvert the assertion of the plaintiff that he / she was unaware of the company policies because they were never distributed.
Well managed companies conduct at least once a year and group meeting with employees. This presents an opportunity for the employer to present the “state of the company” and explain any new policies or programs that relate to operations, company-sponsored health insurance benefits, accident and illness prevention program, health and wellness programs and key provisions of behavior and performance expectations which need emphasis. A one-page handout that sets forth the agenda for the meeting and contains excerpts from the employee handbook (e.g. alcohol and substance abuse prevention, sexual harassment prevention will demonstrate the company’s focus on workplace behavior and the policies implemented to prevent any and all forms of unlawful discrimination, harassment or retaliation in the workplace.
Tags: acknowledgment of receipt, addressing complaints, alcohol and substance abuse prevention, checklist of items, employee handbook, handout, list of prohibited conduct, orientation, policies and procedures, retaliation, sexual harassment prevention