First Missing Element: Many of these policies distributed to employees address only the topic of sexual harassment and sex discrimination. What's missing is a broader statement that prohibits all forms for illegal harassment and illegal discrimination, not just sexual.
Federal and state civil rights and anti-discrimination laws protect employees from many kinds of harassment and discrimination, not just sex-related. A solid policy, one that helps give the employer a basis for defending against charges of illegal harassment and illegal discrimination, needs to clearly tell employees that:
"The Employer prohibits harassing and discriminatory behavior in the workplace or while employees are performing duties for the Employer, directed at any individual or individuals because of their race, color, religion, creed, sex, gender, national origin, age, veteran status, handicap or disability, genetics, or any other legally protected characteristic or status."
Second Missing Element: Many harassment and discrimination policies distributed to employees do not have examples of harassing and discriminatory behavior. Or they have only examples of sexually harassing behavior. What are missing are examples of a variety of types of illegally harassing and discriminatory behavior.
When an employer's policy fails to clearly tell employees what illegal harassment and illegal discrimination are, and fails to give employees specific examples of prohibited behavior, employees who are charged with violating the policies can argue this defense: "I didn't know what I was doing was prohibited. I didn't know what I was doing was illegal. I didn't know what I was doing was objectionable."
Here is some sample language illustrating examples that an employer can include in a policy prohibiting harassment and discrimination. Before finalizing your own policy on this topic, it is important to obtain the guidance of a Human Resources professional and attorney familiar with your type of business and workplace and with employment law.
Harassment and Discrimination Examples
Sexual harassment means unwelcome sexual advances, requests for sexual favors, and all other verbal or physical conduct of a sexual or otherwise offensive nature, especially when:
1. Submission to such conduct is made either explicitly or implicitly a term or condition of employment.
2. Submission to or rejection of such conduct is used as the basis for decisions affecting an individual's employment.
3. Such conduct has the purpose or effect of creating an intimidating, hostile or offensive working environment.
Examples of prohibited behaviors that an employee or employees may consider sexual harassment include:
- Sexually offensive comments, jokes, innuendoes and other sexually oriented statements directly from one employee to another employee.
- Sexually oriented pictures, photos and illustrations displayed in the workplace to the view of employees or the public.
- Spoken or written comments relating to a person's sex, sex life, body, or sexual activities.
- Any unwelcome advance or contact of a sexual nature.
- Sexually oriented comments about a person's body or behavior.
- Showing or displaying pornographic or sexually explicit objects or illustrations in the workplace or while performing duties for the Employer.
- Writing and/or sending sexually offensive notes, memos, emails, faxes, or other communications.
- Sexual-type touching, such as groping, kissing, fondling.
- Requests for sexual favors in return for rewards on the job.
- Threats against an employee if the employee refuses sexual favors.
- Using sexually demeaning words such as "girl," "honey," "bitch," "babe," "doll" when referring to another.
- Conduct of a sexual nature that makes the targeted person feel uncomfortable, humiliated, embarrassed, or unsafe.
The Employer prohibits any and all harassing and discriminatory behavior in the workplace or while performing duties for the employer, directed at any individual or individuals because of their race, color, religion, creed, sex, gender, national origin, age, veteran status, handicap or disability, or any other legally protected characteristic or status.
Examples of prohibited behaviors that are harassing and/or discriminatory include:
- Expressing comments, jokes, puns, innuendoes, bantering, and teasing that demean, insult, or offend another person or persons.
- Expressing words, names, and statements that demean, insult or offend another person or persons.
- Leering, gawking, and making other nonverbal gestures that demean, insult or offend another person or persons.
- Posting or displaying pictures, photos, illustrations or objects in the workplace that demean or offend another person or persons.
Intimidating, coercing, or taking negative or harmful action against, or threatening to take negative or harmful action against an employee because of that person's legally protected characteristic or status. A person's legally protected characteristic or status includes race, color, religion, creed, sex, gender, national origin, age, veteran status, handicap or disability.