Harassment Policies and Best Practices

In Maine, there are particular issues that must be addressed in a sexual harassment policy. The requirements are spelled out in the law (26 MRS § 807):

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 commission; directions on how to contact the commission; and the protection against retaliation

For the required warning on retaliation, include something like this:

Retaliation is a serious violation of this policy and should be reported immediately to any of the management persons of the Company identified in this policy. Retaliation against any individual for reporting harassment, whether by the harasser or from another source, will not be tolerated and will be treated with the same strict discipline as harassment itself. Each offense will be investigated and sanctioned separately.

Individuals who are not themselves complainants, but who assist in a harassment investigation, will also be protected from retaliation under the policy.

Pursuant to 5 M.R.S.A. § 4553(10)(D), it is illegal to punish or penalize, or attempt to punish or penalize, any person for seeking to exercise any of the civil rights set out in the Maine Human Rights Act or for complaining of a violation of that Act or for testifying in a proceeding brought under that Act.

Don’t put in the policy this requirement for management but DO make sure your managers remind anyone accused of harassment there must be no post-complaint negative treatment of the person complaining of harassment and DO check in with the person making the complaint, even if not substantiated, to see how they are doing later. This is all about reducing risk and making your employees feel heard, which is important for reducing turnover.

A Maine policy should include instructions on how an employee can contact the Maine Human Rights Commission. It can be simple:

Employees who have been harassed have a right to file a claim with the Maine Human Rights Commission. Although employees may also file a complaint with a court, by-passing the Commission may limit the remedies available. The Commission will conduct an investigation to determine if harassment occurred. An employee may initiate the complaint process with the Commission by calling (207) 624-6290 or by writing to:

The Maine Human Rights Commission
State House Station 51
Augusta, ME 04333-0051

Do not include legal advice, including any notice about deadlines the employee may have.

Do make sure to reference other types of harassment beyond sexual (gender based, that is). You don’t want someone to argue later that they didn’t know where to turn to because the policy only covered one limited type of issue. Sure you may get more complainers coming to your door but……it helps catch problems before they become big, it gives you an ear to what is working or not out on the floor, and it allows you to address morale issues even if not illegal harassment.

Maine companies with 15 or more employees must also comply with federal law. The federal version of the Maine Human Rights Commission is the Equal Employment Opportunity Commission. The EEOC has tremendous resources on line, including guidance on what a policy should include. Below is what the EEOC has recommended:

A comprehensive, clear harassment policy that is regularly communicated to all employees is an essential element of an effective harassment prevention strategy. A comprehensive harassment policy includes, for example:

  • A statement that the policy applies to employees at every level of the organization, as well as to applicants, clients, customers, and other relevant individuals;
  • An unequivocal statement that harassment based on, at a minimum, any legally protected characteristic is prohibited;
  • An easy to understand description of prohibited conduct, including examples;
  • A description of any processes for employees to informally share or obtain information about harassment without filing a complaint;
  • A description of the organization’s harassment complaint system, including multiple (if possible), easily accessible reporting avenues;
  • A statement that employees are encouraged to report conduct that they believe may be prohibited harassment (or that, if left unchecked, may rise to the level of prohibited harassment), even if they are not sure that the conduct violates the policy;
  • A statement that the employer will provide a prompt, impartial, and thorough investigation;
  • A statement that the identity of individuals who report harassment, alleged victims, witnesses, and alleged harassers will be kept confidential to the extent possible and permitted by law, consistent with a thorough and impartial investigation;
  • A statement that employees are encouraged to respond to questions or to otherwise participate in investigations regarding alleged harassment;
  • A statement that information obtained during an investigation will be kept confidential to the extent consistent with a thorough and impartial investigation and permitted by law;
  • An assurance that the organization will take immediate and proportionate corrective action if it determines that harassment has occurred; and
  • An unequivocal statement that retaliation is prohibited, and that individuals who report harassing conduct, participate in investigations, or take any other actions protected under federal employment discrimination laws will not be subjected to retaliation.

In addition, effective written harassment policies are, for example:

  • Written and communicated in a clear, easy to understand style and format;
  • Translated into all languages commonly used by employees;
  • Provided to employees upon hire and during harassment trainings, and posted centrally, such as on the company’s internal website, in the company handbook, near employee time clocks, in employee break rooms, and in other commonly used areas or locations; and
  • Periodically reviewed and updated as needed, and re-translated, disseminated to staff, and posted in central locations.

For more guidance and the source of the above list, go here:https://www.eeoc.gov/eeoc/publications/promising-practices.cfm The EEOC has tremendous resources on line.

Beyond the policy? Yes, make sure each employee gets a copy of the policy each year and in a way that you can document it and ensure they receive it. As for training, make it live, real, down to earth, and direct. And make it clear that the message comes from the top. If top managers are not respecting the policy, it creates risk and bad morale just for starters. But it also sends a message that the company is not serious about stopping harassment, not the kind of message you want to send.

This article is not legal advice but should be considered as general guidance in the area of employment and corporate law.  Bryan Dench, Amy Dieterich, Jordan Payne Hay, and Rebecca Webber are employment and labor law attorneys; others at the firm handle business and other matters.  You can contact us at 207.784.3200.  Skelton Taintor & Abbott is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine.  It has been in operation since its founding in 1853.