Every few years we’re treated to articles in the press saying that the number of discrimination and harassment lawsuits is up, and outside of a shrinking workforce, that trend it likely to continue. Along with a population more cognizant to the laws and sensitive to the issues, the classes protected against discrimination continue to grow.

Sometimes this is by legislation, other times by court decisions. For example, when the U.S. Supreme Court struck down parts of the Defense of Marriage Act in 2013, it opened the door to discrimination claims based on gender stereotyping, according to Matt Dunning in an article he wrote for the July 15, 2013, issue of Business Insurance.

In any case, more protected classes and increased litigation make it a good time to review the measures an organization can take to guard against the occurrence of workplace discrimination and harassment, as well as handle incidents properly. The general areas that need attention are:

• Policies
• Procedures
• Personnel/personal

Policies

Protection against harassment and discrimination incidents and the consequences they carry begins with a “zero-tolerance” policy that is delineated in properly distributed policy manuals that are followed up by training. However, sometimes policies can be written to successfully meet legal requirements and at the same time fail to meet the requirement that they are easily understood when read.

When crafting your policy, be certain that not only is it sufficient to meet the current requirements of the law, but that it is also a document that can be read, understood ,and used as a basis for training. Define your terms sufficiently so there is no doubt that their use and context are understood. Do not include only what is illegal by the “letter of the law,” but also what is inappropriate for the workplace. Also, be certain to outline penalties when disciplinary measures are warranted.

Equal Employment Opportunity policies should include a pledge that the employer will not engage in any illegal discrimination against either employees or applicants. There can be some variance between state and federal requirements. Further, organizations that operate in more than one state should see if there are any state-to-state differences and craft their policies accordingly.

Policies must also outline how confidentiality is safeguarded — a delicate issue in claims where an accused person has rights as well — and how retaliation will not be tolerated. Finally, your policy should include how your organization handles discrimination or harassment by business associates, such as vendors.

Procedures

Procedures bring an organization’s policies to life in its day-to-day operations. There must be procedures for

• Training and retraining (including distribution of policies)
• Reporting and documenting
• Investigating and taking corrective actions
• Accountability

Both manager and line-level employees in an organization need to be trained on its policies and procedures. This requires consistency and continuity, which can be difficult to maintain in a workplace experiencing turnover. Creating learning modules to handle all or significant elements of your discrimination and harassment prevention program helps maintain a high quality training program. At Lighthouse, for example, we offer e-learning courses for both managers and employees on the topics of preventing and understanding discrimination and sexual harassment.

Reporting discrimination and harassment poses a problem because often the supervisor who would receive the initial complaint is also the supervisor who is being accused. Even when a system is in place to allow a complaint to be lodged to another member of management, there can be barriers, such as gender or culture. However, it’s in the organization’s best interest to make sure that incidents are reported “in-house” rather than immediately taken to a government authority. Implementing a 24-hour reporting hotline is an ideal way of preventing this problem. Be certain to have a clearly defined and efficient reporting procedure.

Documenting potential problems as well as what is done after the reporting of an alleged occurrence is critical. While reported incidents of discrimination or harassment must be investigated and corrected in a timely fashion, there are other times when supervisors and managers need to go slowly.

Writing for the Sept. 19, 2011, issue of Business Insurance, Judy Greenwald points out that one way to help avoid any charges of retaliation after a discrimination complaint has been filed is to proceed with caution. She says that managers should leave “at least several months between the time a discrimination claim is made and taking any negative employment action.”

Good record keeping is important when managers begin to sense a problem with an employee and both human resources and legal departments should be kept in the loop as situations are being documented.

“It’s always suspicious when you go from reporting a positive performance to suddenly suspending or firing an employee,” Greenwald relates.

On the proactive side of the issue, managers and supervisors should be held accountable for their commitment to a non-threatening, non-discriminatory workplace. These elements of job performance should be included in the standard review process.

Personnel/personal

As implied by the last point above, in the final analysis, it takes personnel who are personally committed to preventing discrimination and harassment to make it a reality within the workplace. As with any organizational culture, this starts at the top. Top management must be proactive in promoting the proper behaviors and attitudes. This must work its way through all levels of management and supervision, and to the newest entry-level hires.

There is no doubt that the U.S. workforce is becoming more diverse every day. Without a proactive approach to accepting new workers into the organization, there is a real danger for an even greater increase in discrimination and harassment complaints.

In an article for the Westchester County Business Journal, attorneys Robert G. Brody and Roy R. Galewski write, “Harassment is an area filled with land mines. Employers must be careful.” This is, of course, true with discrimination complaints as well. Be sure to get adequate legal counsel as you draft policies and procedures and work your way through any issues.