MARCH 2018 HR MAGAZINE 65
ceptable so that employees can work
in a harassment-free environment.
Even with this disclaimer, please
be thoughtful about how you
describe prohibited conduct. For
example, every policy should include
the phrase “hate words,” but I don’t
recommend sharing any actual slurs
in your language.
FOCUS ON WHAT IS PROHIBITED
In order for harassment to violate
federal law, it must be, among other
things, severe or pervasive. The
more severe it is, the less pervasive it
need be—and vice versa.
However, you do not want to wait
until conduct is unlawful before
banning (or responding to) it. The
goal is to prevent and remedy harassing behavior before it rises to the
level of illegality.
That’s why I recommend starting
your policy with examples of conduct that is forbidden, such as “The
following behaviors are unacceptable
and therefore prohibited, even if not
unlawful in and of themselves.”
STEER CLEAR OF PROBLEMATIC
On a related note, don’t start by saying
“Sexual harassment includes but is not
limited to ...” This language is problematic for multiple reasons.
First, the conduct at issue may not
constitute harassment as a matter
of law. Mocking the way a disabled
employee walks is harassing behav-
ior based on disability. But, at least
under federal law, if there is nothing
more, that act in and of itself may not
be enough to create a hostile work
Second, if your prohibitions are
framed in terms of legal wrongs, your
corrective actions may need to be, too.
And here you risk defamation claims.
That is, the conduct may not be severe
or pervasive enough to violate federal
law, but it may be bad enough to meet
your judgment as to what is unacceptable and thus prohibited. So why
apply a standard to conduct you may
not be able to prove?
DRILL DOWN ON SEXUAL
Of course, you will want to include
quid pro quo harassment
and give an example of
what that means—for example, requiring an employee to submit to sexual
advances as a condition of
But also be sure to in-
clude examples of conduct
that may give rise to a hostile work
environment, such as inappropri-
ate touching and sexual banter or
“jokes.” And don’t forget to share
instances that involve pregnancy as
well as gender-biased statements,
such as stereotypes about women
or men. In other words, it’s not just
comments about someone’s sexu-
al desirability that may give rise
to a hostile work environment. So
too can remarks about a person’s
perceived lack of attractiveness.
Any form of sexual objectifcation—
whether favorable or negative—is
Of course, a strong anti-harassment policy is only half the
equation. The other half is a robust
complaint procedure, which I will
address in next month’s Legal
Jonathan A. Segal is a
partner at Duane Morris in
Philadelphia and New York
City, and a SHRM columnist.
Follow him on Twitter
CONSIDER THE SCOPE OF THE PROHIBITIONS
It is helpful to make clear how prohibitions on
harassment apply. Here are a few suggestions:
�;Specify that the rules apply to employees and nonemployees
alike. Workers may not subject nonemployees with whom
they interact to prohibited conduct, and they should use
the complaint procedure if a nonemployee engages in such
�;Ensure that the policy extends beyond the physical
workplace. At a minimum, make clear that the same rules apply
at company-sponsored social events.
�;State explicitly that the prohibitions cover not only the
spoken or written word but also e-mail, text messages and
social media posts. If co-workers see a worker’s posts, they are
fair game for corrective action.
In order for
law, it must be,