Employee Handbooks Part II - Are Your Handbook’s Anti-Discrimination and EEO Provisions Up-To-Date?

For employers with four or more employees, probably the most important part of your handbook is the Equal Employment Opportunity policies, including your anti-harassment and anti-discrimination policies.  Under established Supreme Court precedent, an employer who is sued for harassment or discrimination may avoid legal liability for a non-supervisor’s actions by “establishing an effective complaint or grievance process, providing anti-harassment training to their managers and employees, and taking immediate and appropriate action when an employee complains.”  Recently, the Supreme Court limited the supervisor to those with the ability to hire, fire and demote (as opposed to those who handle daily supervision).  This makes having effective anti-discrimination and anti-harassment policies all the more important.

For most employers, the handbook should include the following:

  • A statement that the employer is an Equal Employment Opportunity Employer and that the employer does not discriminate on the basis of any legally protected class
  • An anti-harassment policy that specifically addresses sexual harassment but is not solely limited to sexual harassment
  • An anti-discrimination policy
  • A reasonable accommodation policy and interactive process explanation
  • An anti-retaliation policy
  • Possibly, a diversity policy

Employers who have not updated their handbooks in a while may be missing one or more of these policies.

EEO Statement

When crafting the EEO Statement, it is important to be aware of all of the protected classes that apply.  For example, employers in New York may not discriminate on the basis of sexual orientation.

Anti-Harassment and Anti-Discrimination

Similarly, when drafting or updating your anti-harassment and anti-discrimination policies, it is important to ensure the policies address more than sexual harassment or sex discrimination.  If the polices are limited, they may not provide the employer protection if the employer is sued in a race discrimination claim.  Such policies should provide clear avenues for an employee to complain, and where possible, there should be many places for a complaint to be made (for example, to a supervisor or to Human Resources).  An employer that provides only one way to complain may find themselves unprotected in a lawsuit if the alleged harasser is the person who receives complaints.

Reasonable Accommodation of Disability

Many employers do not have separate disability accommodation policies, but they should.  One of the fastest growing categories of cases filed with the federal and state agencies enforcing discrimination laws are claims that an employer failed to reasonably accommodate a known disability.  These disability policies should include who the employee should turn to with a request and how the process for determining the accommodation will work.

Retaliation

Finally, all employers should have a strong anti-retaliation policy.  Many statutes outside of the EEO statutes require an employer to refrain from retaliation.  Consequently, it makes sense for employers to have a separate, stand-alone anti-retaliation policy.

The EEOC’s Guidance on harassment is here:  http://www.eeoc.gov/laws/practices/harassment.cfm

 

Article Written by Dawn J. Lanouette, Esq.  For more information contact Mrs. Lanouette at 607-231-6917 or via email at dlanouette@hhk.com.

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