What should be in my mandatory harassment prevention policy?

Employers in California must inform employees about their protections against harassment, discrimination and retaliation in the workplace. This is part of the employer’s duty to take all “reasonable steps” to ensure a workplace free from harassment.

This obligation includes posting and notice requirements, harassment-prevention training and creating harassment-prevention policies for employee handbooks. If a harassment-prevention policy is not already in your employee handbook, you should add the policy now.

Steps one through four outline the minimum legal requirements for a harassment prevention policy under California law. Keep in mind that your harassment-prevention policy must be in writing.

1. Cover Required Topics

Your policy should:

• List all protected classes covered under the Fair Employment and Housing Act.
• Clearly describe the types of conduct that constitute harassment under state and federal laws.
• State that the law prohibits supervisors, managers, co-workers and third parties that the worker comes into contact with from engaging in harassing conduct.
• Explain that the employee does not need to complain directly to their supervisor or directly to the harasser and provide an alternative complaint mechanism, including but not limited to the following:
  • Direct oral or written communication with a designated company representative, such as an HR manager, EEO officer or other supervisor;
  • A complaint hotline;
  • Access to an ombudsperson; and/or
  • Identification of the CRD or the EEOC as additional avenues for lodging complaints.
• Instruct supervisors to report any complaints of misconduct to a designated company representative (such as an HR manager) so that the company can try to resolve the claim internally.
• Explain your process for investigating all complaints of misconduct — harassment as well as other prohibited conduct. Indicate that you will conduct a fair, timely and through investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
• Include a statement that if at the end of the investigation misconduct is found, your company will take appropriate corrective and remedial measures (which can include discipline and other measures such as future training).
• State that confidentiality will be kept, to the extent possible. However, the policy should not indicate that the investigation will be kept completely confidential.
• Make clear that an employee has the right to complain about harassment or participate in any workplace investigation without fear of retaliation.

2. Explain Your Internal Complaint Process

You have an obligation not only to prevent harassment but, if an allegation arises, to promptly correct any harassing behavior. Taking such steps can help reduce liability.

Your policy should clearly explain your process for raising a harassment claim and provide alternate avenues for raising complaints so that an employee can bypass their supervisor if, for example, the supervisor is the one engaging in the harassment.

You are legally required to create a complaint process that ensures that complaints receive:

• A designation of confidentiality, to the extent possible
• A timely response
• An impartial and timely investigation by qualified personnel
• Documentation and tracking for reasonable progress
• Appropriate options for remedial actions and resolutions
• Timely closure

3. Address Multi-Lingual Workplaces

Under California law, if your workforce at any facility or establishment contains 10 percent or more of persons who speak a language other than English as their spoken language, you must translate your policy into every language spoken by at least 10 percent of the workforce.

Employers with multi-lingual workforces should take steps to make sure that anti-harassment policies are clearly communicated and effective:

• Translate policies and communicate them in the language(s) spoken by your workforce, as required by law.
• If possible, provide a complaint mechanism that identifies an official who speaks the language(s) of your workforce or explain that an interpreter will be provided, if necessary.

4. Distribute Your Policy

You must distribute your harassment prevention policy using one or more of the following methods:

• Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return;
• Sending the policy via e-mail with an acknowledgment return form;
• Posting current versions of the policies on a company intranet with a tracking system that ensures all employees have read and acknowledged receipt of the policies;
• Discussing policies upon hire and/or during a new hire orientation session; and/or
• Any other way that ensures employees receive and understand the policies.

Distribute your anti-harassment policy to all employees, volunteers and unpaid interns. As a good practice, you should distribute the policy to any independent contractors as well.

• Sample harassment, discrimination and retaliation prevention policies can be found in Employee Policies & Handbook.

5. Consider Addressing Employee Relationships

In an effort to avoid potential sexual harassment lawsuits, some employers request that co-workers in a recognized romantic relationship sign a Consensual Relationship Agreement.

• Consensual Relationship Agreement

In the agreement, the co-workers acknowledge the relationship as totally voluntary and pledge to behave professionally during and after the relationship.

The policy may include a prohibition against dating relationships between management or supervisory personnel and the people they supervise.

The co-workers should also acknowledge that the company maintains a policy forbidding sexual harassment, and that the policy includes a process to follow if sexual harassment occurs.

6. Implement Your Policy

To implement your sexual harassment policy, use the Harassment Prevention Policy Implementation Checklist.

• Harassment Prevention Policy Implementation Checklist