It is imperative that employers establish and maintain a strong policy prohibiting sexual harassment. Under the recent United States Supreme Court decisions in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton an employer may successfully defend against a supervisor’s sexual harassment if it can demonstrate that:

(i) it exercised reasonable care to prevent and promptly correct the harassing conduct; and

(ii) the employee unreasonably failed to take advantage of preventative or corrective opportunities.

Obviously, to establish the second prong of the defense, the employer must prove that the complaining employee knew of preventative or corrective opportunities, such as a complaint procedure contained in anti-harassment policy. Generally, the employee manual is the main vehicle by which the employer disseminates its anti-harassment policy, and, therefore, an employee manual that does not contain a sexual harassment policies does an employer a disservice.

The actual content of a sexual harassment policy will, in part, vary from employer to employer. The Supreme Court has made plain that the policy must suit the employment circumstances. Thus, a anti-harassment policy for home health care workers, or outside salespeople (who do not have a static worksite) may differ from a policy for bank tellers. Regardless, at minimum, the policy should contain the following elements:

• Statement Prohibiting Sexual Harassment: The handbook should contain a short, but strong statement that sexual harassment is forbidden and that disciplinary action, up to and including immediate discharge, will be taken for those employees who violate the sexual harassment policy.

• A Definition of Sexual Harassment: The handbook should provide a definition and examples of harassing behavior. This should not be an entirely legal definition of sexual harassment. Rather, it should encompass a broader range of conduct than that which is (or may be) legally actionable. Employers must guard against all sexual harassment if they want to prevent lawsuits. Thus, examples of sexual harassment include, but are not limited to: unwanted sexual advances, demands for sexual favors in exchange for favorable treatment or continued employment, repeated sexual jokes, advances or propositions; verbal abuse of a sexual nature; obscene comments or gestures; or the display in the workplace of sexually suggestive objects or pictures.

• Coverage Statement: A coverage statement saying that "all employees" are covered by the policy is recommended. This should avoid any confusion regarding coverage on the part of part-time, casual or temporary workers.

• Complaint Procedure: Any anti-harassment policy is incomplete if it does not contain a clear complaint procedure. The procedure should be simple and straightforward. It cannot create undue risk or expense for the employee. The procedure should also allow for alternate avenues to complain, so that the complaining employee can avoid the alleged harasser (who is oftentimes the employee’s immediate supervisor). The procedure should also call for confidentiality so as to protect the privacy of persons involved. Confidentiality should be maintained through the investigatory process to the extent possible and appropriate under the circumstances.

• Investigation Procedure: At minimum, the policy should contain a statement that complaints will be promptly and thoroughly investigated (in as confidential a manner as possible). The policy should also state that the complaining employee will be kept informed as to the status of the investigation and its outcome.

• Sanction Provision: The manual should state that individuals found to have engaged in misconduct constituting sexual harassment will be appropriately disciplined, up to and including discharge.

• Appeals Process: The procedure should also allow for an appeals process. That is, if the complaining employee is dissatisfied with the outcome or resolution of his or her complaint, that individual has the right to appeal the decision to someone at a relatively high management level.

• Protection Against Retaliation: The policy should include a statement that the employer, or any of its employees, will not in any way retaliate against any individual who makes a report of sexual harassment. It should also state that any person found to have retaliated against another individual for reporting sexual harassment will be subject to appropriate disciplinary action, up to and including termination.

These are basics of a sexual harassment policy. Other provisions may be necessary depending on the individual employer.

Finally, some anti-harassment policies include provisions regarding false accusations. These provisions state that "if an investigation results in a finding that the complainant knowingly made a false sexual harassment complaint, the complainant will be appropriately disciplined, up to and including discharge." While not unlawful, these provisions are unnecessary and potentially problematic. If the investigation does reveal that the complaining employee knowingly made a false accusation, the employer can take appropriate steps at that time. Foreboding disciplinary action towards complaining employees may chill their willingness to complain and, therefore, may leave some sexual harassment undetected. Even complaints that appear frivolous should be investigated.