How Employers Can Protect Themselves Against Workplace Discrimination Claims

In the wake of the #MeToo movement, now more than ever, it is necessary for businesses to review and strengthen their anti-harassment policies. In addition to costly litigation, workplace harassment and sexual harassment can lead to poor employee morale, lower productivity, and customer backlash.

Although New Jersey’s Law Against Discrimination provides employees with perhaps the strongest work place protections of any state in the country, the good news is that if employers take the necessary steps they may be able to successfully defend against harassment claims.

The New Jersey Supreme Court has held that an employer may escape legal liability if it has exercised reasonable care to prevent and correct harassing behavior. What constitutes reasonable care is described more fully below.

The Equal Employment Opportunity Commission (“EEOC”) has identified five core principals that have generally proven effective in preventing and addressing harassment.

• Committed and engaged leadership
• Consistent and demonstrated accountability
• Strong and comprehensive harassment policies
• Trusted and accessible complaint procedures
• Regulative, interactive training tailored to the audience and the origination.

In large part, protecting your business from discrimination claims is about proving that you have taken “all reasonable steps” to eliminate these issues from your workplace. To that end, it is imperative that your business have thorough written anti-harassment, anti-discrimination , and anti-retaliation policies. The policies should clearly spell out what types of behavior are inappropriate in the workplace including harassment based on race, national origin, religion, sex, age, or disability.. The policies must also have a comprehensive complaint procedure that provides an employee with an opportunity to report workplace problems, and how those problems will be investigated and, if found to be true, remedied..

Employees must have knowledge of the policies. As such, at the time of hire, your business should provide new employees with a handbook containing the company’s policies. These policies should be reviewed at length with your new employees, and the employee should acknowledge that they have reviewed and understand the policies.

Note that, like your policies, your handbooks will need ongoing auditing to ensure that they contain all relevant legal information. Failure to do this could actually work against you, as it will look as though you’re attempting to dissuade employees from filing complaints. Don’t let that happen. Instead, return to your handbooks regularly. Again, a workplace lawyer can help here, ensuring that your handbooks are always 100% accurate to current employment laws.

Educating employees about the law and workplace policies that prohibit workplace harassment, discrimination and retaliation is vital. Employees should be provided with periodic training so that they can recognize actions which may constitute harassment or retaliation and be provided with training as to the steps that should be taken if they experience or witness prohibited behaviors at work. The training should discuss different strategies for preventing harassment, with an emphasis on reporting and bystander intervention. Lastly, it is critical that employees understand the procedure for reporting harassing behavior.

As well as implementation, you need to make sure your business has a formalized complaint procedure. The complaint procedure should not be limited to just those employees who have experienced harassment, but also employees who witness inappropriate conduct. We encourage employers to have multiple points of contact, as an employees’ direct manager may be the person engaging in the conduct.

Once a report of harassment has been made, an employer should conduct a prompt, thorough and objection investigation. In addition to being neutral and objective, whoever is tasked with investigating the complaint should gather all relevant evidence from witnesses, interview witnesses, and make credibility assessments.

Hiring an experienced employment lawyer is vital to your company’s interests. At Levine Staller, we assist organizations in developing safeguards to reduce the likelihood of harassment in the workplace and provide training to managers and employees. Doing so can serve as an effective shield in defending against an employee’s hostile work environment claims. We also have the knowledge and experience to aggressively defend your interests when faced with litigation. We work with a variety of different businesses in diverse industries in handling employment matters that require discretion and skill.

For more information about our legal team, call Levine, Staller, Sklar, Chan & Brown, P.A. at (609) 348-1300, or contact us online. Our office is conveniently located in Atlantic City, and we serve clients throughout New Jersey, including those in Atlantic County, Cape May County, and Ocean County.