Creating a Policy Prohibiting Discrimination and Harassment

Learn what you should include in your company's anti-harassment policy -- and what benefits it will provide.

One of the most effective steps your company can take to prevent harassment and discrimination is to develop a good policy explaining what constitutes inappropriate behavior, how employees can report problems, and how the company will respond. A policy prohibiting discrimination and harassment lets employees know exactly what you expect – and what to do if someone crosses the line. It can also give your company an early warning of trouble brewing, and a potent legal defense to certain types of legal claims.

Benefits of an Effective Policy

Even the smallest companies should have a policy prohibiting harassment and discrimination. An effective policy helps employees understand what type of behavior is appropriate at work, gives them an avenue for raising concerns and complaints, and shows that the company takes those complaints seriously.

A good policy ensures that employees are treated consistently and fairly, because it provides clear standards of conduct that everyone has to follow, as well as procedures for handling complaints and conducting investigations. Your policy should also tell manager how to handle complaints and incidents, so they don’t waste time trying to figure out next steps of deducing what others in the company have done in the same situation. And, once all of your managers and employees understand what harassment and discrimination are, they are more likely both to keep an eye on their own behavior and to notice and report problems, which will go a long way toward helping your company maintain a positive working environment for everyone.

Another benefit of an effective policy is that it may provide your company with a valuable defense to lawsuits. The company can defend itself in certain types of hostile work environment lawsuits if it can show that it took reasonable care to prevent and promptly correct harassment. And, one of the things a court will look at when determining whether your company took reasonable care is whether it had an effective policy in place when the harassment took place.

In a discrimination lawsuit, an effective policy can show that the company made a good-faith effort to prevent discriminatory behavior from occurring. Under federal law, that good-faith effort means the company won’t be held responsible for punitive damages – damages intended to punish the employer for bad behavior – even if it is found to be legally responsible for the discrimination.

Elements of an Effective Policy

The exact language of your policy will depend on your company’s culture and industry, but all good policies have a number of things in common. An effective policy should do all of the following:

  • Establish that the company is committed to preventing harassment and discrimination. A primary policy goal is to inform employees of the company’s sincere intent to keep inappropriate behavior from occurring in the first place. So, start your policy with a firm, clear statement that the company doesn’t discrimination and will not tolerate any harassment or discrimination. (This is sometimes referred to as a “zero-tolerance policy.)
  • Explain who the policy covers. Your policy should list all applicable protected characteristics (race, gender, and so on) under federal law. Be sure to add, “or any other category protected by federal, state, or local law” at the end.” This gives you maximum flexibility if your state or local government passes a law to protect a new category of people, or if your company does business in more than one state.
  • Inform employees of prohibited conduct. Your policy should give actual examples of prohibited behavior, such as slurs, insults, commentary, cartoons, pictorials, or symbols that denigrate any protected status or anyone in a protected category. Include conduct outside the traditional work environment, such as behavior at work-related social events and comments posted on social media sites. The policy should also make clear that there are just examples, however: You can’t reasonable have a list incorporating every potentially harassing or discriminatory behavior.
  • List the types of employment decisions that can’t be based on any protected status. For example, your policy should state that discrimination is not allowed in hiring, firing, discipline, promotions, leave, transfers, or any other aspect of employment.
  • Set the company standard for how employees are to be treated. A good policy clearly states that employees can expect a workplace free of harassment and discrimination, and that the employer will work to make sure this happens.
  • Advise employees of the repercussions of failing to meet the company’s standards. The policy should make clear that prohibited and inappropriate conduct will not be tolerated and can result in disciplinary action, up to and including termination.
  • Include the company’s complaint procedures. The policy should explain how employees may report violations, including the managerial employees to whom employees may report prohibited conduct. Make sure employees have more than one person to bring complaints to, in case one of the complaint-takers is the one accused of misconduct.
  • Describe the investigation process. Give a general outline of the steps that the company will follow in response to reports of violations.
  • Assure confidentiality to the extent possible. Inform employees that the company will disclose complaints only to those who have a need to know. Caution, however, that complete confidentiality cannot be guaranteed.
  • Make clear that retaliation is prohibited. In a direct, firm statement, inform managers and employees that those who report possible violations will not be subject to retaliation, and that retaliatory conduct of any kind will not be tolerated.

Next Steps

Do you need help writing a policy? Pick up a copy of The Essential Guide to Handling Workplace Harassment and Discrimination, by (Nolo). It includes a sample policy and acknowledgment form, along with detailed information about training, investigations, and much more.

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