What should be included in a sexual harassment policy?

By Denise Kay, Esq, EPS Senior Consultant

A strong written policy is the foundation of a good sexual harassment prevention program. It sends a clear message to the workforce and any other interested outside parties that the organization prohibits sexual harassment and any other form of unlawful harassment. It also instructs victims on reporting procedures and guarantees that corrective action will be taken to remedy unlawful behavior if and when it occurs.

Components of a Sexual Harassment Policy:

• Prohibition of harassment
• Definition of harassment
• Complaint/Investigation procedures
• Corrective action
• Prohibition against retaliation
• Written acknowledgment

A Sexual Harassment policy should start with a definition. The Code of Federal Regulations, 29 CFR 1604.11, provides a solid starting point explaining that sexual harassment is unwelcome sexual behavior that unreasonably interferes with the work environment and provides specific examples of prohibited  behavior. The policy should spell out a legitimate, non-threatening, and non-intimidating complaint procedure.

A critical component is that the victim has options with respect to whom to make the report. The policy should also include a statement that every complaint will be investigated. A commitment to remedying sexual harassment is paramount and the policy should include a strong statement that corrective action will be taken against anyone deemed to have violated the sexual harassment policy.

The policy should also address confidentiality. Due to the employer’s obligation to investigate and address any known concerns of sexual harassment, the employer should not guarantee complete confidentiality; however, the policy should state that confidentiality will be maintained to the extent possible, and the confidentiality clause extends to all parties involved. A fear of retaliation often inhibits complaints so the policy should make clear that the company prohibits retaliation and explain that a prohibition against retaliation means that no adverse employment action will be taken against anyone who makes a report or assists in an investigation of sexual harassment.

The policy should direct anyone who experiences retaliation to report it immediately through the policy’s complaint procedure. Finally, a sound policy should require a written employee acknowledgement that the employee has read and understands the policy and has had the opportunity to ask questions regarding the policy.