Amazon is in the news again. (And, no, I am not talking about Jeff Bezos’ flight to the edge of space.) This time, I am talking about new allegations of discrimination and harassment at the company. Just last week, it was reported that Amazon Web Services, a subsidiary of Amazon, received a petition signed by more than 550 employees alleging “systemic discrimination, harassment, bullying and bias against women and under-represented groups.” In response, Amazon hired outside investigators to investigate the allegations. It will likely be many months before the investigation is complete. In the interim, it is a good time for employers to review their legal obligations when it comes to harassment in the workplace.
Have appropriate policies
Massachusetts law requires employers of six or more employees to have a written sexual harassment policy that is distributed at time of hire and annually to all employees. The policy has to include a notice that sexual harassment is unlawful and that it is unlawful to retaliate against someone who reports sexual harassment or participates in an investigation into harassment. Additionally, among other things, the policy has to define sexual harassment and inform an employee of the location of the state and federal agencies at which s/he can file a Charge of Discrimination alleging sexual harassment. The policy should also outline the employer’s internal complaint and investigation procedure. We strongly recommend that each time the policy is distributed, the employer obtain a signed acknowledgment form from the employee indicating that they have received, read, understand, and agree to abide by the policy.
Additionally, even though employers are not required to do so, it is advisable that an employer address other unlawful harassment in its harassment policies. Unlawful harassment can be based on any protected characteristic under the law, including, but not limited to, gender identity, sexual orientation, age, disability and more. Employers can and should make it clear that such harassment is prohibited in the workplace, provide examples, direct employees where to bring complaints and outline their investigation procedure.
Similarly, employers should have an Equal Employment Opportunity policy. The policy should outline that the company does not make any decisions with regard to someone’s employment based on any protected characteristics and specifically list those characteristics. It can also include where an employee should bring allegations of discrimination in the workplace so that they can be investigated.
Consider training
In Massachusetts, if a supervisor harasses a subordinate or knows about harassment but fails to take prompt steps to report, investigate and stop the conduct, the supervisor has created significant legal risk for the employer and for themselves. Massachusetts law allows supervisors to be sued individually in cases of harassment. As a result, it is important that supervisors receive periodic training on what constitutes sexual harassment and what to do if they receive a sexual harassment complaint or observe potential harassment in the workplace. A few hours of training per year could save an employer from a costly lawsuit.
Further, annual training for all employees can be beneficial as it highlights what is not acceptable and outlines the serious repercussions, including termination, for harassing behavior.
Refine your complaint and investigation process
As discussed above, an employer’s harassment policy ought to outline where and how employees can bring internal complaints of harassment and what the investigation procedure is. If either of these processes is unclear at your workplace, now is the time to revisit them and develop a complaint process and investigation procedure.
Although complaints can be brought to an employer’s attention in a number of different ways (i.e. third party, observation, etc.), and an employee is not legally required to follow the complaint procedure outlined by an employer’s policy so long as the employer becomes aware of the complaint through some means, it is still advisable to have such a procedure in place and make employees aware of it. Employers should not demand that complaints be made in a certain format, but rather should accept complaints verbally and in writing. Additionally, employers should provide the names of two employees, preferably one male and one female, to which employees can bring their complaints of harassment. And lastly, the employer should inform all employees that they will not be retaliated against for reporting harassment in good faith.
With regard to the investigation process, it must be a prompt and thorough process that involves a private interview with the person filing the complaint, the accused and any witnesses. Additionally, employers ought to review any other evidence, including, but not limited to, policies and emails. Employers also might want to specify who will be responsible for investigating allegations of sexual harassment in the procedure outlined in the policy.
Clear communication of these procedures to employees is an important part of the harassment policy.
What to do with a discrimination or harassment complaint
Employers must conduct a prompt and thorough investigation into the allegations as outlined above, document the investigation including, but not limited to, taking notes during interviews, write up an investigation report, and determine what, if any, discipline is appropriate. Once the investigation is complete, follow up with the complaining party regarding outcome without sharing specifically what, if any, discipline the accused will face, follow through on any disciplinary measures or other recommendations, and in the weeks and months following, continue to follow up with the complaining party to be sure that all of the conduct s/he reported has stopped.
Employers should also remember that their workplaces are not courts of law, and so employers are not bound by any “proof beyond a reasonable doubt” standard before imposing discipline. Even when an investigation doesn’t reveal any hard “proof” of harassment, employers can impose discipline if they believe improper conduct occurred.
Sometimes, depending on the circumstances, employers should consider hiring an outside, third-party investigator to investigate the allegations like Amazon did. For example, if there is a potential for an accusation of bias if another employee of the business conducts the investigation, it would be prudent to hire an outside, third-party investigator.
Bottom line
The best position for an employer to be in is one in which none of its employees are engaging in harassment. Distribution of the policy and annual training help to eliminate harassment in the workplace, but when someone does report it, an employer must also be prepared to promptly investigate and stop the conduct to limit its legal liability. One of the most effective ways to curb harassment in the workplace is to take strong action in response to misconduct and make clear to employees that inappropriate conduct will not be tolerated.