First Missing Element:
Many of these policies distributed to employees address only the topic of sexual harassment and sex discrimination. What’s missing is a broader statement that prohibits all forms for illegal harassment and illegal discrimination.
Federal and state civil rights and anti-discrimination laws protect employees from many kinds of harassment and discrimination, not just sex-related. A solid policy, one whch helps give the employer a basis for defending against charges of illegal harassment and illegal discrimination, needs to clearly tell employees that: “The Employer prohibits harassing and discriminatory behavior in the workplace or while employees are performing duties for the Employer, directed at any individual or individuals because of their race, color, religion, creed, sex, gender, national origin, age, veteran status, handicap or disability, genetics, or any other legally protected characteristic or status.”
Second Missing Element:
Many harassment and discrimination policies distributed to employees do not have examples of harassing and discriminatory behavior. Or they have only examples of sexually harassing behavior. What are missing are examples of a variety of types of illegally harassing and discriminatory behavior. When an employer’s policy fails to clearly tell employees what illegal harassment and illegal discrimination are, and fails to give employees specific examples of prohibited behavior, employees who are charged with violating the policies can argue this defense: “I didn’t know what I was doing was prohibited. I didn’t know what I was doing was illegal. I didn’t know what I was doing was objectionable.”
Law Adds to Protected Classes
The Genetics Information Nondiscrimination Act of 2008 (GINA) protects employees from discrimination based on their genetic information. GINA also prohibits health insurance carriers and group health plans from using genetic information to deny coverage to individuals. Typical employee handbooks outline the nondiscrimination requirements of the Equal Employment Opportunity Commission to not base employment decisions on such factors as gender, age, pregnancy, race, color, religion, country of origin, citizenship, mental or physical disability, military service or veteran status. Employers who have not already done so need to add genetic information to that growing list. In addition, employers should ensure they list any factors required by state and local law, which might include political affiliation, sexual orientation, gender identity, familial status, and marital status. Here is some sample language illustrating examples an employer can include in a policy prohibiting harassment and discrimination. (Before finalizing your own policy on this topic, it is important to obtain the guidance of a human resources professional and attorney familiar with your type of business and workplace and with employment law.)