Legal Liability

Minimizing Employer Risks in the Post #MeToo Era

In 2017, the viral sensation of social media introduced the world to the ‘me too.’ movement which focused on sexual harassment and sexual assault, especially in the workplace. The movement sparked a renewed focus on workplace policies to prevent claims of sexual harassment.

Whether your association has one or more than one employee, it is essential that your association have policies in place to protect your employees and minimize risks for your employees, especially in the post Me Too era.  This article will focus on not only the essential policies to address claims of harassment and discrimination, but also standard policies that should be included in employee handbooks.  These essential policies include the following:

  • Anti-Harassment and Anti-Discrimination Policy – This policy statement should contain a clear statement by the association that it prohibits harassment and discrimination. A definition of harassment and discrimination should be included in the policy, as well as examples of prohibited conduct.  It is important that the policy is not limited to sexual harassment, but all types of harassment based on any protected factor.  Your policy should describe the process for making complaints and the steps that will be taken by the association to address complaints.  You want to make sure your association encourages employees to report any complaints of harassment and discrimination; therefore, the policy should designate who is responsible for receiving those complaints, including who should receive the complaint if the individual designated to receive the complaint is the subject of the complaint.
  • Anti-Retaliation Policy – A policy prohibiting harassment and discrimination in the workplace is ineffective if it does not contain or there is not a separate anti-retaliation policy. The law prohibits retaliation against individuals who make claims and/or participate in investigations of complaints of harassment and/or discrimination.  Thus, the absence of an anti-retaliation policy discourages individuals from reporting harassment and discrimination.  As such, this policy is essential to make it clear that employees should have no fear of reprisal for making good faith complaints of harassment and/or discrimination.
  • Equal Employment Opportunity Policy – This is the first policy an administrative agency will look for when investigating a complaint of discrimination and/or harassment which is why it is imperative that it be included in your handbook. The policy can be as simple as a short statement that the association does not make decisions with regard to any protected factor in hiring, termination, promotion, benefits, or any other term or condition of employment.  The policy should cover protected factors under federal law, as well as protected factors covered under state or local law which may differ.
  • Reasonable Accommodation Policy – The Americans with Disabilities Act requires associations to provide a reasonable accommodation to an otherwise qualified individual with a disability unless it would impose an undue hardship. Your policy should set forth the process to be followed by an employee requesting an accommodation.  It should describe the employer’s ability to ask for medical documentation if the disability is not obvious, as well as the employer and the employee’s duty to engage in an interactive process to discuss alternative accommodations if the accommodation requested cannot be accomplished.   Please note, this policy is not limited to physical or mental disabilities but can also include language to address accommodations for religious purposes and accommodations related to pregnancy, childbirth or related medical conditions.
  • Standards of Conduct/Discipline Policy – It is important to provide employees with a clear statement as to what is expected behavior in the workplace, including describing prohibited conduct and providing examples of such conduct. If examples of prohibited conduct are provided in this policy, the list should include a “catch-all” provision to make it clear that the list is not exhaustive.  Whether discipline is progressive should be included in your policy.  If discipline is progressive, there should be a disclaimer that allows the association to skip steps in the process and proceed directly to termination without notice to the employee based on the violation.  Employees should also be advised that disciplinary action will be documented and put in their personnel files.
  • Acknowledgement Form – While not an official policy, this form must be included in your employee handbook to document that the employee received a copy of the handbook. The form should be signed by the employee and placed in his/her personnel file.  If policies in the employee handbook are updated or revised in the future, your employees must sign a new acknowledgment form.

If you have not already done so, now is the time to review your employee handbook or adopt an employee handbook that includes the above policies, not only to protect your employees, but also to minimize risks to your association.

By Tiffany M. Releford, ESQ.

Tiffany is a partner at Whiteford, Taylor & Preston and co-chair of the Community Associations group. She focuses her practice on community associations in the District of Columbia, Maryland and Virginia. In addition, Releford routinely counsels community associations in covenant enforcement, revising and amending governing documents, transition from developer to owner control, warranty claims, and collection of delinquent assessments.

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