Jill Albrecht | May. 21, 2019

Anti-Harassment Policy Requirements By State

As states and cities respond to #MeToo by requiring employers to provide mandatory employee training on anti-harassment, many of these new laws also require employers to enact and distribute detailed policies on anti-harassment.  Like the training requirements, each state imposes its own essential terms and topical content, such that employers may need to disseminate several versions of an anti-harassment policy to employees in different states in order to be compliant with state law.  

Here is a snapshot of the states with a policy requirement or recommendation.  Where specific content is required or recommended to be included in the policy, the table reflects those mandates.

JurisdictionPolicy RequiredSpecific Content Required
Federal LawNo, recommendedNo
CaliforniaYesYes
IowaNo, recommendedNo, recommended
MaineYesYes
MassachusettsYes, for 6+ EEsYes
New JerseyNo, recommendedNo
New York StateYesYes
New York CityNoNo
OregonNoNo, recommended
Rhode IslandYes, for 50+ EEsYes
South DakotaNo, recommendedNo
TennesseeNo, recommendedNo, recommended
TexasNo, recommendedNo, recommended
VermontYesYes
WisconsinNo, recommendedNo

Not all states and cities with anti-harassment training requirements have policy mandates and conversely, there are some states that do not require training, but do require that employers have a policy with specific language regarding anti-harassment.  Many states specifically require the policy to include reporting mechanisms, both internally and externally, for the EEOC or state agency.

Managing these multiple moving parts can be extremely challenging for employers.  The policy requirements are in addition to varying requirements regarding training (methods and content) and other posting and recordkeeping requirements.

Provided below is a summary of each state with a policy requirement or recommendation.  If a state recommends an anti-harassment policy, it is a best practice to include such a policy in your handbook or other employee manual applicable to employees in those states.  An example in support of this practice is Tennessee’s approach. Although a policy is not required by state law in Tennessee, if an employer adopts an anti-harassment policy, it may be proffered as a defense against employee claims of harassment and therefore, it is strongly recommended that companies or organizations with employees in Tennessee adopt an anti-harassment policy in some form.

FEDERAL

The EEOC Task Force Report recommends that employers adopt a robust anti-harassment policy, regularly train each employee on its contents, and vigorously follow and enforce the policy. EEOC recommends that a policy generally include:

  • A clear explanation of prohibited conduct, including examples;
  • Clear assurance that employees who make complaints or provide information related to complaints, witnesses, and others who participate in the investigation will be protected against retaliation;
  • A clearly described complaint process that provides multiple, accessible avenues of complaint;
  • 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; and
  • Assurance that the employer will take immediate and proportionate corrective action when it determines that harassment has occurred, and respond appropriately to behavior which may not be legally-actionable “harassment” but which, left unchecked, may lead to same.

An employer’s policy should be written in clear, simple words, in all the languages used in the workplace. The points above describe the content of an effective policy, but the words of the policy itself should be simple and easy to understand. Similarly, an effective policy should make clear that harassment on the basis of any protected characteristic will not be tolerated.

CALIFORNIA

The FEHA requires all employers to take reasonable steps to prevent discrimination and harassment from occurring. Cal. Gov’t Code § 12940(k). Employers must ensure a workplace free of sexual harassment by:

  1. Posting the DFEH’s workplace discrimination and harassment poster in a prominent and accessible location in the workplace;
  2. Posting a poster developed by the DFEH regarding transgender rights in a prominent and accessible location in the workplace;
  3. Distributing a copy of DFEH’s DFEH-185 brochure on sexual harassment to all employees; and
  4. Developing a written harassment, discrimination, and retaliation prevention policy.

The written harassment, discrimination, and retaliation prevention policy must:

  • be in writing;
  • list all current protected categories covered under the FEHA;
  • indicate that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the FEHA;
  • create a complaint process to ensure that complaints receive:
    • an employer’s designation of confidentiality, to the extent possible;
    • a timely response;
    • impartial and timely investigations by qualified personnel;
    • documentation and tracking for reasonable progress;
    • appropriate options for remedial actions and resolutions; and
    • timely closures.
  • provide a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following:
    • direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or
    • a complaint hotline; and/or
    • access to an ombudsperson; and/or
    • identification of the Department of Fair Employment and Housing and the U.S. Equal Employment Opportunity Commission as additional avenues for employees to lodge complaints.
  • instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally;
  • indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected;
  • states that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential;
  • indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken; and
  • makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

Cal. Code Regs. tit. 2, § 11023.

Employers must disseminate the harassment, discrimination, and retaliation prevention policy using one or more of the following methods:

  • printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return;
  • sending the policy via e-mail with an acknowledgment return form;
  • posting current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies;
  • discussing policies upon hire and/or during a new hire orientation session; and/or
  • any other way that ensures employees receive and understand the policies.

Either the employer’s policy or a sample policy must also be provided to supervisors. Regardless of whether the employer’s policy is used as part of any required training, the employer must give each supervisor a copy of its anti-harassment policy and require each supervisor to read and to acknowledge receipt of that policy.

Any employer whose workforce at any facility or establishment contains 10% or more of persons who speak a language other than English as their spoken language shall translate the policy into every language that is spoken by at least 10% of the workforce.

Employers must provide a complaint mechanism that does not require an employee to complain directly to his/her immediate supervisor, including but not limited to the following: (1) direct communication with a designated company representative, such as a HR manager, EEO officer, or other supervisor, and/or (2) a complaint hotline, and/or (3) access to an ombudsperson, and/or (4) identification of the DFEH and EEOC as additional avenues for employees to lodge complaints.

Employers’ policies are required to instruct supervisors to report any complaints of misconduct to a designated company representative.  Employers are also required to document and track complaints to assess for reasonable progress.

A claim that the information sheet or information required to be distributed pursuant to the statute did not reach a particular individual or individuals shall not in and of itself result in the liability of any employer to any present or former employee or applicant in any action alleging sexual harassment. Conversely, an employer’s compliance with this provision does not insulate the employer from liability for sexual harassment of any current or former employee or applicant.

Section 12940(k) does not afford a stand-alone private right of action. In order for a private claimant to establish an actionable claim under section 12940(k), the claimant must also plead and prevail on the underlying claim of discrimination, harassment, or retaliation.

Cal. Gov’t Code §§ 12940(k), 12950; Cal. Code Regs. tit. 2, § 11023.

IOWA

The Civil Rights Commission also recommends that employers “have a written policy prohibiting harassment in [the] workplace. The policy should define prohibited behavior, inform employees of whom to contact with a sexual harassment complaint, and spell out disciplinary actions for those who violate the policy. Communicate this policy to all employees individually and post throughout the workplace. Enforce the policy[.]” Iowa Civil Rights Commission Harassment in the Workplace Fact Sheet.

MAINE

All employers must provide written notice to employees on an annual basis that includes at a minimum the following information:

  • the illegality of sexual harassment;
  • the definition of sexual harassment under state law;
  • a description of sexual harassment, utilizing examples;
  • the internal complaint process available to the employee;
  • the legal recourse and complaint process available through the Maine Human Rights Commission;
  • directions on how to contact the Commission; and
  • the protection against retaliation.

Me. Stat. tit. 26, § 807(2).

MASSACHUSETTS

Employers of 6 or more employees are required to prepare and provide all employees with an individual, written copy of the employer’s policy against sexual harassment on an annual basis, with new employees being provided copies of the policy when they start employment.

The policy against sexual harassment must include the following:

  • a statement that sexual harassment in the workplace is unlawful;
  • a statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment or for cooperating in an investigation of a complaint for sexual harassment;
  • a description and examples of sexual harassment;
  • a statement of the range of consequences for employees who are found to have committed sexual harassment;
  • a description of the process for filing internal complaints about sexual harassment and the work addresses and telephone numbers of the person or persons to whom complaints should be made; and
  • the identity of the appropriate state and federal employment discrimination enforcement agencies, and directions as to how to contact such agencies.

Mass. Gen. Laws ch. 151B, § 3A(b).

The Massachusetts Commission Against Discrimination has published a model sexual harassment policy that employers may use to satisfy the requirements of this statute. Mass. Gen. Laws ch. 151B, § 3A(c).

An employer’s failure to provide the required policy information does not, in and of itself, result in the employer’s liability to any current or former employee or applicant in any action alleging sexual harassment. An employer’s compliance with the notice requirements does not, in and of itself, protect the employer from liability for sexual harassment of any current or former employee or applicant. Mass. Gen. Laws ch. 151B, § 3A(d).

NEW JERSEY

No statutory provision, but case law emphasizes the importance of a written sexual harassment policy.

NEW YORK STATE

The New York State Department of Labor and the Division of Human Rights has published a sexual harassment prevention toolkit and model sexual harassment prevention policy, which will:

  • prohibit sexual harassment and provide examples of prohibited conduct that would constitute unlawful sexual harassment;
  • include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment and a statement that there may be applicable local laws;
  • include a standard complaint form;
  • include a procedure for the timely and confidential investigation of complaints and ensure due process for all parties;
  • inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
  • clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
  • clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.

Every employer must adopt the Department’s model sexual harassment prevention policy or establish a sexual harassment prevention policy that equals or exceeds the minimum standards provided in the model sexual harassment prevention policy. The employer must provide the sexual harassment prevention policy to all employees in writing or electronically. If a copy is made available on a work computer, workers must be able to print a copy for their own records. Employers do not have to provide the written policy to independent contractors, vendors or consultants, as such individuals are not employees of the employer.

The Department has also published a model complaint form for employees to report alleged incidents of sexual harassment. An employer is not required to include the complaint form in its model policy, but the employer should, however, be clear about where the form may be found, for example, on a company’s internal website.

N.Y. Lab. Law § 201-g; New York Department of Labor, Combating Sexual Harassment: Frequently Asked Questions.

NEW YORK CITY

No policy requirement.

OREGON

The Bureau of Labor and Industry also recommends that employers adopt a written sexual harassment policy. “The policy should define sexual harassment and emphatically state that it is not tolerated. Employers should allow verbal or written complaints, and should provide a grievance procedure that bypasses the immediate supervisor if he or she is the alleged harasser. The policy should also describe the disciplinary actions that may be taken, up to and including termination.” Oregon Bureau of Labor and Industry, Sexual Harassment: Questions and Answers.

RHODE ISLAND

Employers must promote a workplace free of sexual harassment. Employers of 50 or more employees are required to adopt a sexual harassment policy that includes the following provisions:

  • a statement that sexual harassment in the workplace is unlawful;
  • a statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment or for cooperating in an investigation of a complaint for sexual harassment;
  • a description and examples of sexual harassment;
  • a statement of the range of consequences for employees who are found to have committed sexual harassment;
  • a description of the process for filing internal complaints about sexual harassment and the work addresses and telephone numbers of the person or persons to whom complaints should be made; and
  • the identity of the appropriate state and federal employment discrimination enforcement agencies, and directions as to how to contact these agencies.

R.I. Gen. Laws § 28-51-2.

SOUTH DAKOTA

The South Dakota Division of Human Rights recommends that employers “have an explicit policy against sexual harassment that is clearly and regularly communicated to employees and effectively implemented.” South Dakota Department of Labor and Regulation, Division of Human Rights, Sexual Harassment/Discrimination Fact Sheet.

TENNESSEE

The Healthy Workplace Act provides immunity from liability to a private employer, in connection with a suit against the employer for any employee’s abusive conduct that results in negligent or intentional infliction of mental anguish, if the employer has adopted an abusive conduct prevention policy. The policy must:

  • assist employers in recognizing and responding to abusive conduct in the workplace; and
  • prevent retaliation against any employee who has reported abusive conduct in the workplace.

An employer may adopt the Tennessee Advisory Commission on Intergovernmental Relations model policy, or may create its own policy that meets the statutory requirements for an abusive conduct prevention policy.

Tenn. Code Ann. §§ 50-1-501 – 50-1-504.

TEXAS

The Texas Workforce Commission also recommends that employers “adopt a clear written policy on harassment and make sure that every employee reads, understands, and agrees to the policy.” The policy should:

  • define harassment in its various forms;
  • make it clear that no form of harassment will be tolerated;
  • notify employees of how to report harassment;
  • stress that it is not only a right, but a duty, to report harassment to responsible management;
  • warn employees of the disciplinary actions that could result from violations of the policy; and
  • provide a framework for investigation and remedial actions in harassment situations.

Texas Workforce Commission, Especially for Texas Employers: Harassment – Minimizing Liability.

VERMONT

The Vermont Fair Employment Practices Act requires all employers to adopt a specific policy prohibiting harassment, provide a written copy of the policy to employees upon hire, and post the policy in a prominent place in the workplace. Vt. Stat. Ann. tit. 21, § 495h(b), (c).

At minimum, the policy must include:

  • a statement that sexual harassment in the workplace is unlawful;
  • a statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment or for cooperating in an investigation of sexual harassment;
  • a description and examples of sexual harassment;
  • a statement of the range of consequences for employees who commit sexual harassment;
  • if the employer has more than five employees, a description of the process for filing internal complaints about sexual harassment and the names, addresses, and telephone numbers of the person or persons to whom complaints should be made; and
  • the complaint process of the appropriate state and federal employment discrimination enforcement agencies, and directions as to how to contact such agencies.

Vt. Stat. Ann. tit. 21, § 495h(b).

If an employer makes changes to its policy against sexual harassment, the employer must provide a written copy of the updated policy to all employees. Vt. Stat. Ann. tit. 21, § 495h(c)(2).

The Vermont Department of Labor has published a model policy, which employers may use to comply with the notice and posting requirements. Vt. Stat. Ann. tit. 21, § 495h(d).

A claim that an individual did not receive the required information does not, in and of itself, result in the automatic liability of any employer to any current or former employee or applicant in any action alleging sexual harassment. An employer’s compliance with the notice requirements does not insulate the employer from liability for sexual harassment of any current or former employee or applicant. Vt. Stat. Ann. tit. 21, § 495h(e).

WISCONSIN

The Wisconsin Department of Workforce Development Equal Rights Division publishes a sample sexual harassment policy on its website; however, there is no statute or regulation requiring employers to adopt such a policy.


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