Preventing Workplace Harassment, Discrimination, and Retaliation

D EVELOPING AN A NTI -H ARASSMENT , D ISCRIMINATION , AND R ETALIATION P OLICY

Section 10

Some harassing behavior may not be sufficiently severe or pervasive enough to violate the law, but is still unproductive and offensive. A public agency is well-advised to prohibit inappropriate behavior even if that behavior does not reach the level of illegal harassment, discrimination, or retaliation. Employer standards for conduct should not mirror the law for two reasons. First, prohibiting inappropriate behavior enables an employer to take corrective action at an early stage, thus preventing more severe and potentially unlawful conduct from developing. Second, if the employer’s policy simply recites the legal standard, the employer could be held to have admitted that illegal conduct occurred if it finds that the conduct violated its policy. Any such finding could be used against the employer as an admission if litigation develops. For these reasons, employers should adopt a “zero tolerance” policy. Zero tolerance policies prohibit any abusive conduct, harassment, discrimination, and retaliation, whether or not the conduct meets the threshold of being either severe or pervasive. A. C ONTENTS OF THE P OLICY DFEH Regulations effective April 1, 2016 set forth new requirements regarding employer policies regarding prevention of harassment, discrimination, and retaliation. Not only do the new laws require employers to have a policy, the policy must also:

1. Be in writing.

2. List all current protected categories covered under the Act.

3. Indicate that the law prohibits co-workers, third parties, supervisors, and managers from engaging in conduct prohibited by the Act.

4. Set forth a complaint process that ensures complaints receive:

a. Employer confidentiality, to the extent possible;

b. A timely response;

c. Impartial and timely investigations by qualified personnel;

d. Documentation and tracking for reasonable progress;

e. Appropriate options for remedial actions and resolutions; and

f.

Timely closures.

5. Provide a complaint process that does not require an employee to complain directly the employee’s supervisor, by providing additional avenues to lodge complaints, such as a. Direct communication with a designated representative, Human Resources manager, EEO officer, other supervisor, or ombudsperson;

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 44