A recent case decided by the U.S. Court of Appeals for the Eighth Circuit, Gordon v. Shafer Contracting Co., shows why every employer should have a written harassment policy.  In the case, the plaintiff accused his employer of age and race-based discrimination, including claims that a supervisor created a racially hostile environment.

A hostile environment exists when “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

Wright Labor and Employment Newsletter

Volume II, Issue 3, Winter 2007

Old Arkansas Statute Gives Employers Seven Days to Pay Wages to a Departing Employee

Age-Related Workers’ Compensation Provision Ruled Unconstitutional

Why Employers Need Written Harassment Policies

If a harasser is a supervisor, an employer can avoid liability if the harassment did not result in a tangible employment action (such as a termination or demotion) and the employer can show that (1) “it exercised reasonable care to prevent and promptly correct any harassing behavior,” and (2) the employee “unreasonably failed to take advantage of any preventative corrective opportunities” (such as a harassment complaint procedure) or “to avoid harm otherwise.”

The Court, which assumed that the environment at the plaintiff’s work was sufficiently hostile, still found for the employer.  Why?  Because the employer had a written policy against harassment that was distributed to all employees.  The policy identified three separate officials to whom a person could report harassment, providing both work and home phone numbers for those officials.  The plaintiff never took advantage of the harassment policy, claiming he did not believe it would be effective.  The Court was not impressed with the plaintiff’s excuse and held him accountable for not reporting the harassment by finding in favor of the employer.

All employers, especially those covered by state and federal laws on discrimination, need a written harassment policy.  The harassment policy should cover the various types of discrimination, such as race, gender, national origin, color, religion, age, disability, and veteran status.