Most, if not all, employers have a written policy regarding harassment in the workplace and the procedure one must follow for reporting harassment. However, the mere existence of a harassment policy may not be enough to protect an employer if an employee brings a harassment claim. The Seventh Circuit Court of Appeals has ruled that an employer's harassment policy must provide an adequate channel for harassment complaints. In other words, the employer needs to have effective grievance mechanisms and provide for a meaningful process of reporting complaints.
A harassment policy that has complainants reporting to a specific individual position within the company may require additional specificity in order to be considered an adequate channel. For example, the employer's policy in Gentry v. Export Packaging, 238 F.3d 842 (7th Cir. 2001) had employees reporting to the person in the "human resources representative" position. The Seventh Circuit ruled that this policy was not an adequate channel because there had been significant turnover in the human resources representative position and it was not clear, even among the management, who the human resources representative was. The court concluded that in order for this employer's policy to be sufficient, the policy needed to specify a contact person by name. The lesson of Gentry is that if the harassment policy specifies that complainants must report to a specific individual or position, the policy must be clear on who currently occupies that position if there has been turnover in that position or the identity of the person in that position is unclear. However, the specification of an individual by name is only one of the circumstances the court analyzed to determine whether there was an adequate reporting mechanism.
Where the employer specifies a specific person or position for reporting harassment to, that person or position becomes the channel for the making and forwarding of complaints, and complainants can be expected to utilize it in the normal case. If a specific person or position has not been identified, or is not easily accessible, an employer can receive notice of harassment from a department head or someone that the complainant reasonably believed was authorized to receive and forward a complaint of harassment. Hall v. Bodine Electric Co., 276 F.3d 345, 356 (7th Cir. 2002). The employer's harassment policy in Hall provided that the complainant could file a complaint with one's supervisor or the human resources department. In evaluating this policy, the Seventh Circuit Court of Appeals found it more than adequate when the court stated, "we fail to see how a formal sexual harassment policy would have been any more effective than the mechanism the company already had in place." Id at 357.
Courts also consider whether the harassment policy sufficiently puts the employer on notice of the harassment when determining if the policy provides an adequate channel. Since a complainant must show that he/she provided the employer with enough information so that a reasonable employer would think there was some probability that the complainant was being harassed, a valid harassment policy must allow the complainant to provide that information to the employer. The employer's policy in Durkin v. City of Chicago, 341 F.3d 606, 612 (7th Cir. 2003) required that the complainant notify his/her immediate supervisor, or a supervisor one rank above that of the alleged harasser, with complaints of harassment. The Durkin court found the City's harassment policy to be a reasonable mechanism for detecting and correcting harassment because it effectively provided an adequate channel for the employee to provide enough information to put the employer on notice of any harassment.
Another factor that courts examine in determining whether a policy provides an adequate channel is whether the policy ensures that the employer takes reasonable care to prevent, correct, and respond to the harassment. The policy in Hardy v. Univ. of Illinois at Chicago, 328 F.3d 361, 365 (7th Cir. 2003) required that a claimant report harassment to a department that investigated complaints, but also allowed the employee to contact the University's counseling service or other counseling type services available if the employee wanted to discuss an issue before taking action. After evaluating the policy, the court concluded that "no reasonable jury could find that the University did not take reasonable care to prevent sexual harassment and did not adequately respond to [the claimant's] complaint."
If you have questions regarding the drafting of a harassment policy or questions regarding the adequacy of your existing policy, contact attorney in our Milwaukee office at 414-291-0600.