Written Policies and Procedures Don't Provide a "Safe Harbor"

“…there are no safe harbors for employers based on the written content of policies and procedures. Even the best policy and complaint procedure won’t alone satisfy the burden of proving reasonable care…if the employer failed to implement its process effectively.”

I've posted these words before and I am posting them again because they are extremely important. Many employers will point to their anti-discrimination, anti-harassment, and anti-retaliation policies, whenever an employee insinuates or outright states that there is a race-based problem in the workplace. Employers can't wait to spit out lines such as:

--"We've got policies prohibiting that behavior;"

--"We don't tolerate that kind of stuff here;" and

--"That's not how we conduct business."

Everything goes back to the written policies, while enforcement of those policies seems to go by the wayside.

But, as the EEOC states, having written policies prohibiting violations of federal statutes ISN'T ENOUGH because there are NO SAFE HARBORS based on written policies alone.

So, if your employer wasn’t taking the necessary steps to ensure that its anti-harassment polices were properly enforced, your employer can wave a hard copy of their anti-harassment policy all day and all night and it won’t do them any good. Simply having a written anti-harassment policy won’t protect them from allegations of harassment nor will it prove that your employer has not violated Federal law.

For example, let’s say you’ve been harassed by your supervisor for approximately 5 months. You’ve tried to talk to your supervisor about the problem, but, since it hasn’t stopped the harassment, you’ve finally gotten the nerve to speak to the head of your department, as well as to Human Resources. In fact, you’ve had conversations with Human Resources repeatedly. Unfortunately, the harassment escalates--now that your supervisor knows you’ve gone over his or her head--and the offensive work environment continues for another 7 months. During that time, you lose weight, you can’t sleep, you are unable to get your job done because of the mistreatment, and you’re denied a promotion that you were promised at the beginning of the work year.

Suddenly, other staff begin to complain about the supervisor and Human Resources finally steps in to put the supervisor on written warning. The supervisor is also sent to supervisor’s training and is put on probation. HR sends out an email statement to all staff declaring, “As our policy states, we won’t tolerate harassment of any kind. We have identified a problem with one supervisor and have taken appropriate action to bring the behavior to an immediate end.”

Guess what?

The fact that HR finally did something may not mean squat under Federal law.

Your company has a written policy against harassment. However, during the 12 months you were being harassed they didn’t take any steps to prevent or stop the harassment. It doesn’t matter if your company’s HR department immediately put a stop to the harassment after other people began to complain.

In this example, you complained and you had been doing so for some time. While HR and the company did nothing, damage was done to you professionally, emotionally, and possibly physically (e.g., high blood pressure, depression, etc.)

Therefore, your company may not be able to successfully argue that the existence of their written policy and their final response is evidence they made a proper and forceful reaction to the illegal behavior. Your company may be liable for damages because they are responsible for the existence, length, and severity of the behavior and, ultimately, for the consequences to your career, such as being denied a promotion by your harasser.

This is especially true if knowledge of your harassment was widespread in your department or throughout the company and no one with authority ever did anything about it. The law expects employers to not only prevent harassment, but to take immediate corrective action to stop harassment. Employers are held to that standard, among others.

In this example, you may have legal recourse because your company did not show reasonable care in effectively implementing its own policies in a timely fashion. When you combine the slow response, which allowed the harassment to continue and escalate, with the company’s own policies, which may have listed penalties for harassment that were not taken by your employer until a year after the harassment began, you can see how you go about building and documenting a case that uses your company’s own policies against them and shows how they intentionally mishandled your complaint.