In the past, many car dealers have focused mainly on sexual harassment since it receives the most legal and media attention. However, any form of harassment undermines dealership operations and is prohibited by discrimination laws.
The trend in recent court decisions reinforces the fact that federal civil rights laws prohibit harassment and work environments that are abusive to employees because of their race, color, gender, religion, national origin, age, and disability. While the most common harassment claims do involve allegations of sexual harassment, dealership managers should be aware that the same legal analysis applies for other offensive behavior against any protected class.
Six topics to include in your anti-harassment policy
At a minimum, the policy should include the following elements:
1. A statement prohibiting all forms of harassment in the workplace. Specifically, dealer/principals should prohibit sexual harassment and also harassment based on race, color, gender, national origin, religion, disability, pregnancy, age, and military status. In addition, the policy should include any other categories protected by a state's equal opportunity laws, such as sexual orientation in California.
2. A definition of harassment and, in particular, sexual harassment. This section should include the EEOC's legal definition of both "quid pro quo" and "hostile environment" sexual harassment.
Quid pro quo harassment is unwelcome conduct that is a condition of an individual's employment, academic advancement, or receipt of a legitimately requested service. Hostile work environment refers to harassment, speech or conduct that is "severe or pervasive" enough to create a "hostile or abusive work environment" based on race, religion, sex, national origin, age, disability, veteran status, or, in some jurisdictions, sexual orientation, political affiliation, citizenship status, marital status, or personal appearance.
3. An explanation of what conduct is prohibited. The policy should prohibit at least the following conduct:
*Quid pro quo threats or promises by a supervisor (loss of job or promise of job, promotion, or other employment benefit);
*Verbal harassment (lewd comments, sexual jokes or references, offensive or inappropriate personal questions, or negative comments based on the person's protected class status);
*Offensive pictures displayed in the workplace; and
*Offensive or inappropriate written materials (letters, e-mail messages, or graffiti).
Note that some of the prohibited conduct included above may not technically be considered illegal harassment by a court or agency, but it still warrants disciplinary action since it can have a negative effect on the workplace environment. For example, dealership managers can discipline an employee who uses obscene language or tells off-color jokes, even though that conduct generally would not be considered illegal harassment unless the employee engaged in it on an ongoing basis.
4. A complaint and resolution procedure. This procedure should include a bypass mechanism so that an employee does not have to complain to a supervisor or other person who may be involved in the harassment. It also should provide for an investigative process and a specific time frame for resolving complaints. If the dealership already has a complaint procedure in place, use that as long as it includes these safeguards.
5. Specific disciplinary procedures. The policy should make clear the consequences for any violations. For example, it should specify that discipline, up to and including termination, may be imposed depending on the nature and severity of the situation and the number of occurrences.
6. A "no retaliation" statement. This reassurance helps employees trust the policy and believe that they will be protected if they make a complaint or cooperate in an investigation.
Training, implementation, and enforcement
The courts are regularly churning out decisions that find fault with employer harassment policies and set new compliance standards. As a group, these cases clearly demonstrate that having a well-written policy is not enough. Car dealers must go further to train their employees on its application and procedures for filing a complaint.
DealersEdge has an excellent anti-harassment training video produced specifically for car dealers. Call Mike Bowers at (800) 321-5312 or send an e-mail to firstname.lastname@example.org for more information.
And, as always, dealers need to implement the policy consistently, making sure that all complaints are taken seriously and resolved quickly and fairly. Also, as a final safeguard, legal counsel should review the policy on a regular basis to ensure that it continues to meet evolving legal standards.