The Equal Employment Opportunity Commission’s Complaint Guidance incorporates the Supreme Court’s Ellerth/Faragher test, and calls on each employer to promulgate a formal anti-harassment policy and complaint procedure, as follows:
An anti-harassment policy and complaint procedure should contain, at a minimum, the following elements:
- A clear explanation of prohibited conduct;
- Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;
- A clearly described complaint process that provides accessible avenues of complaint;
- Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
- A complaint process that provides a prompt, thorough, and impartial investigation; and
- Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.
EEOC’s Complaint Guidance cautions employers that the mere creation of written policies and procedures cannot provide a “safe harbor” against subsequent enforcement, since documents do not guarantee effective workplace implementation. Conversely, the lack of such written documentation implies a lack of attention to the issue of workplace harassment.