We’re now in the home stretch of my tips for harassment policies and complaint procedures. (It’s not exactly like America Pharoah’s “home stretch” run for the Triple Crown – but close!)
“Pregnancy” as a Protected Characteristic
My first tip creates a very cathartic experience because it forces me to admit that nobody’s perfect, including me. In my case, the “no-harm/no-foul” rule saved me. But, there was once a client who wasn’t as lucky.
The client had an EEOC pregnancy discrimination charge and, lo and behold, the long list of protected characteristics in the company’s harassment policy did not include pregnancy. How embarrassing!
Fortunately for me, this client’s policy was not one that was adopted from my model policy at the time. Had that been the case, this omission would have been my fault.
Go back and look at your policy. Does the list of potential characteristics include “pregnancy”? If not, it’s a common mistake that I’ve seen repeated many times. It happens because when the protected characteristics from Title VII are meticulously copied, “pregnancy” is not there!! Pregnancy discrimination did not become the law of the land until 1978.
Strict Confidentiality Requirements
In my more recent review of client handbooks, I’m happy to report that the problem with employers promising “strict confidentiality” for those who make complaints has been all but eliminated. Instead, the magic words now read: “complaints will be kept confidential to the extent feasible and consistent with the Company’s obligation to investigate the complaint and, if appropriate, take remedial action.”
Today’s “hot topic” problem that I am seeing is when the policy requires that “the complaining employee must keep his/her complaint in strict confidence.”
Employers put this in their policies to protect the integrity of the investigation, to avoid witnesses “getting their stories straight,” and to avoid situations where those involved may “destroy evidence” if they learn about the complaint.
The problem is that a broad strict confidentiality requirement offends both the EEOC and the NLRB. The EEOC takes the position that “strict confidentiality” deters a complaining employee from filing an EEOC charge. The NLRB takes the position that, among other things, “strict confidentiality” interferes with protected concerted activity by, for example, preventing victims from talking to others to find out if they were victims of the same treatment.
My practical advice to employers who have “strict confidentiality” in their complaint procedure is to take it out. But, in appropriate circumstances, when the fear of destroying the integrity of the investigation is an actual risk and not a hypothetical one, “ask” but don’t “require” that the complaining employee not discuss the complaint with potential witnesses.
The “Surgeon General’s Warning”
I’ve saved the best for last.
As I’ve written before, we submitted SHRM’s brief to the United States Supreme Court in Faragher v. City of Boca Raton. Our argument was the basis for the Supreme Court’s creation of the “Faragher affirmative defense.”
Being so proud of our win in the Supreme Court, I tried to think of ways that employees might try to get around the affirmative defense in situations in which they did not complain. So, one day, while on my daily run, I came up with the “Surgeon General’s Warning.” My goal was to have something in the complaint procedure that I could use at a deposition when the employee said, “I didn’t know I had to complain.” Here’s what I created:
IMPORTANT NOTICE TO ALL EMPLOYEES: Employees who have experienced conduct they believe is contrary to this policy have an obligation to take advantage of this complaint procedure. An employee’s failure to fulfill this obligation could affect his or her rights in pursuing legal action. Also, please note, federal, state and local discrimination laws establish specific time frames for initiating a legal proceeding pursuant to those laws.
Today, over 17 years after the Faragher decision, this magic box has been copied far and wide by employers and their legal counsel. Nothing makes me happier than to see that someone else has copied my idea. I’ll also be happy to know that some of you will use it in the future.
The next time we “talk” will be live and in person on June 29 at 2:00 p.m. at my Mega Session at the SHRM Annual Conference & Exposition in Las Vegas. My topic, of course, will be “Employee Handbooks: Every Word Counts.” What else would you expect?