Avoid Common Pitfalls When Drafting Policies – Part One

One common mistake I encounter is an employer adopting an anti-harassment policy prohibiting “all harassment” rather than just “unlawful harassment” without an understanding of the distinction or potential consequences of the language choice.

Under federal law and the laws in the state of Washington, as in many states, an employer is not required to maintain a workplace free from all harassment.  Harassment is made unlawful only when it is because of race, age, sex, disability, or other status protected by applicable law and only when the conduct is sufficiently severe or pervasive.   (A general anti-bullying law, which has not passed in Washington, would be an exception to this rule.)  A policy prohibiting “unlawful harassment” simply agrees to comply with existing law.

A policy prohibiting “all harassment,” on the other hand, arguably goes beyond what the law requires.  Employees often claim that employers, by using such language, have undertaken a duty to maintain a workplace free from any and all harassment regardless of the reason for the conduct, its severity, or its pervasiveness.  Thus, the language creates legal risks for employers that otherwise would not exist.  And I have seen many claims that fail under the “unlawful harassment” language but survive under the “all harassment” language.

A good case can be made for adopting either type of language in the policy, but the decision should be made only after understanding and weighing the pros and cons of the different language to avoid creating unintended risks.

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