The Equal Opportunity Commission has recently published an Enforcement Guidance Memorandum on the subject of vicarious employer liability for unlawful harassment by supervisors (meaning, when is the camp liable for the acts of supervisory employees?) This means that all camps should be taking a close look at their workplace harassment policies. It is likely that most should be modified immediately. You have probably heard that there has been an increase in harassment charge filings, but consider this statistic:
This needs your attention now!
In the EEOC’s Memorandum (a copy of which is available on the agency’s Web site: www.eeoc.gov/docs/harassment.html ), the EEOC details what an employer must do in order to avoid liability or limit damages in those instances where it is entitled to establish an affirmative defense to a supervisor’s act of harassment. That affirmative defense, created by the Supreme Court in June 1998, consists of two necessary elements, and one of them is that the employer must prove that it exercised "reasonable care" to prevent and promptly correct any harassment.
The EEOC states that reasonable care generally requires an employer to:
enforce an anti-harassment policy and complaint procedure.
Stated otherwise, an employer’s failure to establish anti-harassment policies and effective grievance mechanisms thereunder will make it difficult for an employer to prove that it exercised reasonable care to prevent and correct harassment. The EEOC notes that whether an employer can prove that it exercised reasonable care depends on the particular factual circumstances. There are no "safe harbors" for employers based on simply having a written set of policies and procedures. Action must be taken in your camp setting to both disseminate and enforce policies.
Content of Anti-Harassment Plans
According to the EEOC, an anti-harassment and complaint procedure should contain, at a minimum, the following elements:
A clear explanation of prohibited conduct.
Include prohibitions of sexual harassment, AND harassment based on race, color, religion, national origin, age, disability, and any other harassment specified by your state statutes. For instance, in some jurisdictions, sexual orientation is a protected class.
Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation.
A clearly described complaint process that provides accessible avenues of complaint.
There should be multiple points of filing a complaint and should not require an employee to first report the harassment to his/her supervisor. Further, the policy should encourage reports of harassment before they become severe or pervasive.
Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible.
A complaint process that provides a prompt, thorough, and impartial investigation.
The procedure should contain information regarding the time limitation for filing complaints. The procedures should describe a mechanism for a prompt, thorough, and impartial investigation by a "neutral" investigator who has been well trained in the skills required for interviewing witnesses and evaluating credibility.
Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.
In addition, it is the EEOC’s position that an employer should provide every employee with a copy of the policy and complaint procedures, redistribute it periodically, post it in central locations, and incorporate it into the employee handbook. The EEOC states that employers should train all employees to ensure that they understand their rights and responsibilities. At the very least, you should be training your supervisory employees to receive and give appropriate attention to complaints according to your written procedures.
As a practical matter, camps should be sure that seasonal employees receive a copy of the policy during or prior to staff training, and the policy and process should be reviewed during staff training. The policy should be posted in a staff lounge or the camp office — somewhere where staff will see it, and know where it is if they wish to file a complaint. Year-round employees should be reminded of the policy and provided additional copies as necessary on a regular basis — perhaps quarterly or twice a year. This regular reminder of anti-harassment policies will underscore your organization's commitment to anti-harassment behavior.
The guidelines are even more important in light of the U.S. Supreme Court’s recent ruling on punitive damages, which provides that an employer is not vicariously liable for punitive damages so long as it made "good faith efforts" to comply with federal law. Given the Supreme Court’s previously published opinions expressing the view that Title VII was designed to encourage the creation of anti-harassment policies and effective grievance mechanisms, it will be difficult for a camp to successfully argue "good faith efforts" if it has not established, publicized, and enforced an anti-harassment policy and complaint procedure that incorporates the standards that are identified by the EEOC.
ACA recommends immediate attention to your policy. We advise you to consult your legal counsel for assistance. Due to the increase in complaints received by EEOC, the complaints in camps of which ACA is notified, it would be prudent to address this concern prior to your next season.
Originally published in the 1999 Fall issue of The CampLine.