Question: I follow all of California’s requirements for posting notices and providing harassment prevention training to employees, but are there additional steps I can take to further minimize the risk of harassment in the workplace?
Answer: Yes, the U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued its “promising practices” for the prevention and remediation of unlawful employment harassment for federal agencies. While the EEOC specifically directed its guidance toward federal agencies, private employers can also benefit from the EEOC’s helpful recommendations for mitigating and addressing harassment in the workplace.
The EEOC suggests that employers annually distribute to all employees the company’s harassment prevention policy which states that harassment is not tolerated, identifies the types of prohibited conduct, indicates ways to report harassment, and the consequences for engaging in harassment and retaliation. The EEOC also advises employers to clearly set forth, in their harassment prevention policies, who is responsible for taking corrective action. In addition to keeping this policy prominently posted, employers should also consider making the posting accessible in electronic form and readily available to all employees, including those with disabilities.
Employers should consider establishing multiple methods for employees to report potential harassment. Most employers already inform employees that they should report potential harassment to the employee’s immediate supervisor, human resources, or any other supervisor. The EEOC further recommends that employers consider establishing other avenues for reporting potential harassment such as hotlines, websites, portals, ombudspersons, or personnel in an anti-harassment program.
It is prudent to periodically evaluate the state and effectiveness of your harassment prevention program and efforts to prevent and address harassment in the workplace. For instance, employers should periodically evaluate potential harassment risk factors in the workplace to identify and take preemptive measures to mitigate those risk factors. The EEOC also suggests that employers may carefully consider establishing policies regarding employees’ eligibility for promotions, performance awards, or serving in a supervisory role when it is determined an employee violated the harassment prevention policy.
The EEOC suggests that employers can enhance the effectiveness of their harassment prevention training when that training is championed by senior management, regularly revised and updated as needed, tailored to include relevant examples for the specific workplace setting, and conducted virtually or in-person in small groups to foster employee engagement and participation. Employers should also seek feedback and input from participants to improve the effectiveness of the harassment prevention training.
The EEOC guidance also addressed online and virtual harassment. It recommended that employers dispel the assumption that nothing can ever be done about anonymous harassment occurring on an employer’s network. In addition, employers should make efforts to attempt to identify individuals who engage in such anonymous harassment. Employers may also want to review their security and accessibility protocols for their virtual platforms, internal websites, and online services to minimize potential outside breaches and the extent of anonymous communication allowed on those platforms.
Employers should also ensure that reports of harassment are well-documented. The EEOC suggests that employers consider formalizing a complaint tracking system to record and track harassment allegations, and which identifies when the employer was notified, details about the alleged harassment, the beginning and conclusion dates of any investigation, the identity of the investigator, the results of the investigation, any preventative or corrective action taken, and identifying the person responsible for taking corrective action.
The EEOC “promising practices” guidance is available here: https://www.eeoc.gov/federal-sector/reports/promising-practices-preventing-harassment-federal-sector.