“See no evil, hear no evil” anti-harassment policies can be successfully challenged.
In order to escape liability, federal law strongly recommends that employers adopt an anti-harassment policy. For instance, an anti-sexual harassment policy prohibits sexual harassment in the workplace.
Having an anti-harassment policy suggests that the employer is taking affirmative measures to prevent harassment in its workplace. However, there are workplaces where a routine anti-harassment policy is simply ineffective.
Many organizations, such as school districts, have a central administrative office and many separate facilities spread over a wide area. The anti-harassment policy instructs employees to submit their complaints to the central administrative office.
However, employees, who are not located at the central administrative office but at a distant separate facility, are unable to visit the central administrative office during business hours. Furthermore, the central administrative office is usually closed in the evening and over the weekend.
As a practical matter, the central administrative office is not accessible to all employees who wish to file harassment complaints in person. This fact can discourage employees who wish to file harassment complaints, which makes the anti-harassment policy ineffective.
In addition, anti-harassment policies generally do not require managers, who are located at the separate facilities, to report incidents of harassment to the central administrative office. These managers are generally not trained to report incidents of harassment, that they learn about through informal channels, to the central administrative offices. As a result, anti-harassment policies and procedures are dysfunctional, which allows incidents of harassment to go unreported.
An employers should not be able to shield themselves from liability and damages in court by means of ineffective and dysfunctional anti-harassment policy. Courts have found some anti-harassment policies defective:
1) when management level employees who have knowledge of an incident of sexual harassment are not required to report that information to those who are in a position to take appropriate action. Varner v. Nat’l Super Markets, Inc., 94 F.3d 1209, 1214 (8th Cir. 1996) (“a procedure that does not require a supervisor who has knowledge of an incident of sexual harassment to report that information to those who are in a position to take appropriate action falls short of that which might absolve an employer of liability”); and,
2) when the facility where the harassment occurs is in a different location from the facility where the employee is expected to submit his or her harassment complaint. Wilson v. Tulsa Junior College, 164 F. 3d 534, 541 (10th 1998) (finding a policy deficient in part because employees were directed to make complaints to an official who was “located in a separate facility” and inaccessible during some work hours).
Bryan A. Chapman, Esquire