Because the Faragher affirmative defense to illegal harassment grew out of the seeds we planted in my amicus brief for SHRM in the United States Supreme Court, I treat harassment policies and their complaint procedures with extra tender love and care. If the Human Resource Professional is going to be the gardener who prevents internal harassment complaints from growing into lawsuit weeds, every word in the policy must be chosen with the knowledge that it will be placed under a microscope by your employees, your employees’ attorneys, and possibly the EEOC or the NLRB.
Let’s start with a quick refresher on the Faragher affirmative defense: an employer will not be held liable for illegal harassment by a supervisor that does not culminate in a tangible employment action if the employee does not take advantage of the employer’s harassment policy and complaint procedure and thereby give the employer the opportunity to take appropriate remedial measures.
To borrow a sports analogy: if a great (affirmative) defense is your best offense, you need a great policy. Here are three tips:
1. “Any” is too many.
In good complaint procedures, there are multiple portals for the receipt of a complaint -- not just the employee’s immediate supervisor. Additional good choices for complaint recipients are: the employee’s Department Head and the Director of Human Resources. An additional bad choice is “any supervisor.”
I understand the thinking behind this bad choice: the employee should be able to find someone he/she is comfortable with to complain. But, here’s what happens: invariably, when an employer believes that it has a great Faragher affirmative defense because there was no complaint, the employee will identify a former disgruntled supervisor as the complaint recipient. That former supervisor will be all too happy to testify, under oath that, indeed, the employee complained to him/her and the former supervisor also brought it to the attention of someone higher up in the company -- who just happens to be the same person whom he/she blames for getting him/her fired. And, poof, the Faragher affirmative defense goes up in smoke -- which is why “any supervisor” is too many.
2. Not all “harassment” is illegal.
Your employees are harassed daily. Just ask them. They are harassed when they miss deadlines, fail to meet sales/production targets, come in late, and the list goes on. I’m not advocating harassment as an effective management tool; but, when a supervisor gets on an employee’s case, constant nagging is perceived as harassment by the “victim.”
And, the next thing you know, that employee is in your office to complaint that his/her supervisor violated company policy by harassing him/her. That employee will come armed with a copy of your handbook with the page containing your harassment policy (flagged and highlighted). “See,” you will be told, “it says: ‘The Company has a strong policy against harassment and it will not be tolerated.” You, of course, respond: “The policy is meant to cover illegal harassment based on protected characteristics.” But, you will hear: “I don’t care what you say now. That’s NOT what the policy says and I’m being harassed and expect you to make it stop.”
When it comes to your handbooks, say what you mean and mean what you say.
3. Too many “requirements”
I get it. We are justifiably over-zealous in our quest to stamp out illegal harassment. Therefore, far too many policies I review say: “An employee who feels that the Company’s policy against illegal harassment has been violated is required to report this to … .”
So, does “required” mean that the failure to meet this reporting requirement will result in discipline? Of course not. Well, if the word “required” doesn’t create a disciplinary situation in the harassment/complaint policy, doesn’t that imply that the use of the word “required” in other policies has the same watered-down meaning? One would hope not. But, if “every word counts,” how are you going to get out of this one?
Easy. Don’t use “required.” My suggested substitute is “strongly encourage.” It makes the same point with much less downside.
Unlike “required,” the words “strongly encouraged” will also keep the company out of the EEOC and NLRB “dog house.” Both government agencies are very protective of their turf. They have been known to twist the word “required” into a prohibition by the employer that precludes employees from filing charges with the EEOC and the NLRB.
The words “strongly encouraged” are far less likely to be interpreted as an “exclusivity” requirement.
4. To be continued.
This blog is starting to morph into an article. I have at least three more tips for your discrimination/harassment policies. I’ll put them into my next blog.
And, to think, we owe all of these tips to a life guard on the beaches of Boca Raton, Florida, named Beth Ann Faragher, and SHRM’s amicus brief in the United States Supreme Court.
Allan H. Weitzman is a Florida Supreme Court Certified Circuit Court Mediator and Florida Bar Board Certified Labor and Employment Attorney – a combination of specialized certifications that are held by very few others. He is the Founder of Weitzman Arbitration & Mediation Services LLC.
Allan retired from the practice of law on October 31, 2017. Prior to his retirement, all of those 44+ years were at the Proskauer law firm, where Allan was first a summer associate, then an associate and ultimately a partner in Proskauer’ s Labor & Employment Law Department, where he also served as head of the labor and employment team in Proskauer’ s Boca Raton office for 23 years after his 21 years in Proskauer’ s New York Office. He also was co-head of the Disability, Accommodations & Leave Management Group, co-head of the Policies, Handbooks & Training Group and co-head of the Non-Compete and Trade Secrets Practice Group.
During his career, Allan’s practice was multifaceted. Much of the time he was either litigating in state or federal court at the trial and appellate levels. He also appeared before administrative agencies responsible for the enforcement of the numerous antidiscrimination laws and before the National Labor Relations Board. His experience includes negotiating collective bargaining agreements and arbitrating contract disputes. In addition, Allan provided valuable day-to-day and crisis advice to clients in a wide range of businesses and industries, including retailers, banks, office supply companies, insurance, securities, health care, investigators, lodging and gaming, restaurants, television networks, high end fashion design, maritime, charitable organizations, public utilities, sports and entertainment, beer distributors, not-for-profits, importers, manufacturing facilities, staffing companies, construction, aerospace, transportation, higher education, museums, technology, country clubs and airlines. On any given day, the scope of his practice included personnel policy planning, sexual harassment and avoiding litigation when terminating employees.
Corporations also called upon Allan when their former employees engaged in conduct that violated their non-compete agreements. In that regard, Allan took a case all the way to the Supreme Court of Florida and successfully argued that a successor employer can enforce a non-compete agreement signed with a former employer, even when the agreement does not contain a successors and assigns clause and where the employees have not consented to its assignment (Corporate Express Office Products, Inc. v. Phillips, 2003 WL 1883697 (Fla. April 17, 2003)).
On behalf of the Society for Human Resource Management (“SHRM”), Allan and his partner, Paul Salvatore, submitted the amicus brief to the U.S. Supreme Court in Faragher v. City of Boca Raton. The employer's “affirmative defense” that was adopted by the Supreme Court in Faragher was based on the argument made by Allan and Paul that employees who bypass an employer's internal complaint procedure should not benefit from a strict liability standard. Allan also co-authored SHRM's amicus brief in Chapman v. AI Transport, in which he successfully argued that an employer's subjective impressions could be used as valid criteria in its employment decisions. In 2004, Allan co-authored another Supreme Court amicus brief on behalf of SHRM. This time his arguments in the Suders case persuaded the Court to conclude that a constructive discharge was not necessarily a tangible employment action that would deprive an employer of the availability of the Faragher affirmative defense.
Allan was named three times by Best Lawyers as “Lawyer of the Year” in Labor Law - Management, Fort Lauderdale (2017), Employment Law - Management, Fort Lauderdale (2016) and Employment Law - Management, Miami (2013).
Allan has earned a first tier Chambers ranking for his outstanding employment law work every year since 2007, naming him “first-class” and a “notable practitioner” who is an “excellent advocate with strong ethics and an unrivalled understanding of business.” He was also described as “amazingly bright” and held out as “bringing the best of both worlds: legal acumen and superb business judgments.” “He gets to the point in the most efficient and effective manner – he has the highest professional standards.”
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