One common mistake I encounter is an employer adopting an anti-harassment policy prohibiting “all harassment” rather than just “unlawful harassment” without an understanding of the distinction or potential consequences of the language choice.
Under federal law and the laws in the state of Washington, as in many states, an employer is not required to maintain a workplace free from all harassment. Harassment is made unlawful only when it is because of race, age, sex, disability, or other status protected by applicable law and only when the conduct is sufficiently severe or pervasive. (A general anti-bullying law, which has not passed in Washington, would be an exception to this rule.) A policy prohibiting “unlawful harassment” simply agrees to comply with existing law.
A policy prohibiting “all harassment,” on the other hand, arguably goes beyond what the law requires. Employees often claim that employers, by using such language, have undertaken a duty to maintain a workplace free from any and all harassment regardless of the reason for the conduct, its severity, or its pervasiveness. Thus, the language creates legal risks for employers that otherwise would not exist. And I have seen many claims that fail under the “unlawful harassment” language but survive under the “all harassment” language.
A good case can be made for adopting either type of language in the policy, but the decision should be made only after understanding and weighing the pros and cons of the different language to avoid creating unintended risks.
In my experience as a manager before going to law school and in my practice as an management-side employment lawyer, many discharged employees fail to accept any responsibility for the discharge. How many times has a friend told you, “I was let go for poor performance, and, you know, they were right.” Instead, the employees often jump to the conclusion that their age, race, age, sex, disability, or other protected status was the cause of the discharge.
Robin E. Shea has written an excellent post on her Employment & Labor Insider blog that outlines nine signs an employee will lose a age discrimination lawsuit. Many of her signs, which apply to more than just age claims, go to the issue of why, despite the employee’s mistaken beliefs, the discharge was lawful. These include such truisms as:
- The actions of some employees actually warrant discharge;
- Not all unfair treatment is unlawful; and
- Discharged employees rarely have all the facts.
I read a lot of information from agencies such as the EEOC, DOL, and NLRB designed to educate employees about their rights under the law. I applaud those efforts. But I would like to see more information like that discussed by Robin Shea so that employees get more of a balanced view of the law.
Maria Ogneva from Yammer, an internal social network product for companies, recently wrote an article highlighting several tips on getting employees to buy-into your social media policy. I especially like her focus on educating, empowering, and teaching employees WIIFM (“What’s In It For Me”) rather than on disciplining them:
The best way to ensure buy-in to your social media policy is not through threat of disciplinary action. Rather, it’s by providing education and resources, and building the right processes.
She also included in her article an outstanding video on the topic prepared by, of all things, the Department of Justice in Victoria, Australia. Check it out!