Fall 2008It is a challenging economic time for both employers and employees. Employees are concerned about their jobs, and employers are concerned about legalities. With layoffs looming in many communities and industries, employment-related lawsuits will undoubtedly increase. In addition, the holidays are coming, and they provide special fodder for employment-related litigation.
While many employers may scale back holiday celebrations this year, any gathering of employees may create an opportunity for accusations of harassment, especially when alcohol is involved. Holidays are also often a time of increased stress, when employees are concerned with their financial situations as well as the possibility for job loss as a result of budget cuts. Over-indulgence in alcohol during the holidays adds even more fuel to the fire.
Every employer should have in place a written harassment policy that specifically states what type of conduct (verbal, visual, or physical) can constitute impermissible harassment. The policy should contain examples of prohibited conduct, the legal definition of harassment, the names or titles of those to whom concerns should be reported, and a strict prohibition against retaliation for complaining. Claims of retaliation are increasing nationwide even when the underlying conduct does not rise to the level of unlawful harassment. But a policy should not contain a promise of confidentiality because if a concern is raised, the employer has a duty to investigate and take corrective measures to address the problem. Often, strict confidentiality is not an option, especially if a public-record request for documents is made subsequent to an investigation.
In addition to having a written harassment policy, it is essential to train employees regarding harassment. The ideal time to do a refresher course on your antiharassment policy is before the holiday party. Remind employees that all forms of harassment are prohibited, whether based on sex, race, national origin, religion, age, sexual orientation, marital status, or disability. In advance of the holiday party, remind employees not to engage in unwelcome physical conduct, request sexual favors, or make racist or sexist jokes. An effective reminder of your harassment policy is the including of a written copy with paychecks. Another is to do formal training to emphasize your commitment to a harassment-free workplace.
Ensure that employees understand that harassment runs horizontally as well as vertically, i.e. harassment is prohibited between co-workers as well as between superiors and subordinates. Emphasize that harassment is prohibited at all related events, not merely during working hours, and ensure that employees understand the complaint procedure and your policy against retaliation. Remember that the employer has an obligation to respond if it learns of or observes harassment. Consequently, management awareness at holiday parties is essential. Be on the lookout for conduct that may be inappropriate, including overindulgence in alcohol.
If a holiday party is in your plans, look for creative and positive steps to ensure acceptable conduct. For example, if employees consume alcohol, consider providing free alternative transportation.
Although the holidays may be an unusually busy time and stressful for everyone, a few hours spent in prevention and harassment training may prevent problems and an expensive lawsuit in the new year.
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