Creating An Effective AntiHarassment Policy

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Creating An Effective Anti-Harassment Policy

• Presented By
• Mark J. Maxin
• (mjm5_at_nrc.gov)
• Special Counsel for Federal Labor, Employment and
  Civil Rights
• Nuclear Regulatory Commission

2
What is Workplace Harassment?

• Harassment is any unwelcome verbal or physical
  conduct based on protected bases (Race, Color,
  Religion, Sex, National Origin, Age (40 and over)
  Disability, Retaliation, and sexual orientation
  when
• The conduct culminates in a tangible employment
  action, or
• The conduct was sufficiently severe or pervasive
  to create a hostile work environment.

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Who Can Commit Workplace Harassment?

• A Management Official
• A Co-Worker
• A Non-Employee

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Unwelcome Conduct

• Unwelcome conduct is where the employee did not
  solicit or invite the conduct and regarded it as
  undesirable. Examples
• Sexual advances/pressures for dates
• Slurs, comments, jokes, innuendos
• Beatings, threats, inappropriate touching
• Inappropriate gestures, pictures, graffiti, slang
  expressions
• Critical Inquiry Did the complainant explicitly
  or implicitly communicate that the conduct was
  unwelcome?
• Submission does not mean welcomeness
• Active participation may defeat the claim

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Basis

• Harassment based on sex, including same-sex,
  (sexual and non-sexual) violates Title VII
• Harassment based on Race, Color, National Origin,
  Religion, Age (40 and over) Disability or
  Retaliation violates Federal anti-discrimination
  laws

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Key Hostile Environment Harassment Issues

• Was harassing conduct unwelcome?
• Was it based on a protected basis?
• Was the conduct sufficiently severe and
  pervasive?
• Evaluate frequency and severity of misconduct
• Apply reasonable person standard
• Would a reasonable person find the behavior
  hostile, intimidating or abusive?
• Tangible effect on job not necessary
• Psychological harm not necessary

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Supreme Court Precedent Addressing Agency
Liability

• Faragher v. Boca Raton, 524 U.S.775 (1998)
• Burlington Industries, Inc. v. Ellerth, 524 U.S.
  742 (1998)

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Agency Liability Tangible Employment Action by
Manager

• A supervisors harassment results in a
  significant change in employment status or
  benefits
• Only individuals with supervisory or managerial
  responsibility can commit this type of harassment
• If a tangible employment action results from
  harassment by a supervisor, the agency is
  automatically liable. Examples of tangible
  employment actions include
• Hire and/or Fire
• Promote or Fail to Promote
• Demote
• Reassign
• Compensate
• Assign Work
• Change Benefits, Terms and Conditions

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Agency Liability Hostile Environment Created by
Manager

• Agency is liable unless both elements of an
  affirmative defense are met
• If the agency exercised reasonable care to
  prevent and promptly correct the harassment and
• (2) The employee unreasonably failed to take
  advantage of any preventative or corrective
  opportunities offered by the agency or to avoid
  harm otherwise.

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Agency Liability Hostile Environment by
Co-Worker or Non-Employee

• Agency is liable if it knew or should have known
  of the harassment and failed to take immediate
  and appropriate action
• Agency knowledge is assumed if
• The victim complains about harassment
• The conduct occurred in the presence of the
  supervisor or
• The conduct is widespread.

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Duty of Reasonable Care and Effective Reporting
Procedures

• In order to satisfy its duty of reasonable care,
  an employer must establish, disseminate, and
  enforce an anti-harassment policy and complaint
  procedure and take other reasonable steps to
  prevent and promptly correct harassment that
  occurs.
• See Quinones v. Dept of Homeland Security, EEOC
  Appeal No. 01A53109 (March 31, 2006).

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Other Evidence of the Duty to Exercise Reasonable
Care

• Duty to keep employees aware of reporting
  procedures
• Duty to effectively implement the procedures
• Duty to prevent reoccurrence of harassment by the
  same individual
• Duty to provide prompt effective inquiry into
  harassment allegations
• Duty to provide prompt effective corrective
  action against employee who engaged in harassing
  conduct

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Why Create An Effective Anti-Harassment Policy?

• May limit agency liability (Prerequisite for
  establishing reasonable care affirmative
  defense)
• Remedy harassing conduct
• before it becomes pervasive
• Avoid poor public image of agency
• Avoid lower productivity and morale associated
  with harassing conduct
• Avoid good employees from leaving to work in a
  better environment

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Establishing An Effective Anti-Harassment Policy

• Policy should be written and
• well disseminated
• Protect against retaliation
• Define workplace harassment, and include all
  prohibited bases (e.g., race, color, gender,
  religion, national origin, age, disability and
  protected activity)
• Cover harassment by anyone in the workplace
  supervisors, co-workers, or non-employees
• Encourage employees to report harassment before
  it becomes severe or pervasive

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Establishing An Effective Anti-Harassment Policy
Cont.

• Clarify that the employer will stop harassment
  before it rises to the level of a violation of
  federal law
• Clearly define roles and responsibilities
• Create multiple impartial paths to complain about
  harassment, including a path outside the
  supervisory chain of command
• Provide for prompt and impartial inquiries
• Assure that report of inquiry is created and
  reviewed promptly by appropriate impartial
  management officials that need to know of the
  report

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Establishing An Effective Anti-Harassment Policy
Cont.

• Assure that immediate and appropriate corrective
  action, including discipline, will be taken if
  harassment is found by impartial management
  officials, or if the harassment policy was
  otherwise violated (e.g., second level supervisor
  failed to timely inform Harassment Coordinator of
  allegation of harassment)
• Ensure confidentiality to the extent possible
• Clarify that this internal harassment process is
  over and above the EEO complaint process,
  statutory appeals process and/or grievance
  process and that reporting harassment under this
  policy is not equivalent to filing an EEO
  complaint under 29 CFR 1614

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Commission Decisions Addressing Affirmative
Defense

• Briggs v. U.S. Postal Serv., EEOC Appeal No.
  01A32026 (June 23, 2004). The Final Agency
  Decision finding no liability was reversed by the
  Commission because the agencys harassment policy
  did not set forth the following 6 elements
• (1) a clear explanation of prohibited conduct
• (2) assurance that employees who make complaints
  of harassment or provide information related to
  such complaints will be protected against
  retaliation
• (3) a clearly described complaint process that
  provides possible avenues of complaint
• (4) assurance that the employer will protect the
  confidentiality of the harassment complaints to
  the extent possible
• cont.

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EEOC Case Law Cont.

• Briggs v. Potter, Cont.
• (5) a complaint process that provides a
  prompt, thorough, and impartial investigation
  and
• (6) assurance that the employer will take
  immediate and appropriate corrective action when
  it determines that harassment has occurred.
• See EEOC Enforcement Guidance Vicarious Employer
  Liability for Unlawful Harassment by Supervisors
• Rhodes-Coleman v. U.S. Postal Serv., EEOC Appeal
  No. 01A42059 (July 13, 2004) - Agency MSJ upheld
  and case dismissed despite evidence of HWE
  harassment where agency had an effective
  harassment policy and employee did not take
  advantage of it and report the misconduct before
  it became severe and pervasive.

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EEOC Report Evaluating Agency Harassment Policies

• Commission Report evaluated Agency efforts to
  develop and enforce anti-harassment policies
• http//www.eeoc.gov/federal/harass/index.html

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The Policy Statement Should Be Clear and Precise

• The Agency does not permit harassing conduct by
  anyone in the workplace. It is the policy of the
  Agency to maintain a work environment free from
  the harassing conduct described above.
• The Agency has determined that the most effective
  way to limit harassing conduct is to treat it as
  misconduct, even if it does not rise to the level
  of harassment actionable under Title VII of the
  Civil Rights Act of 1964, as amended. A hostile
  environment claim under Title VII usually
  requires showing a pattern of offensive conduct.
• The Agency will not wait for such a pattern to
  emerge. Rather, the Agency will act before the
  harassing conduct is so pervasive and offensive
  as to constitute a hostile environment.

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Policy Against Retaliation

• The Agency will not tolerate retaliation against
  any employee for making a good faith report of
  harassing conduct under this or any other policy
  or procedure, or for assisting in any inquiry
  about such a report
• Complaints of such retaliation shall be handled
  pursuant to the procedures in this Policy

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Policy Should Be Written And Well Disseminated

• Policy should be written and easily accessible on
  agency intranet, policy directives, written
  brochures, and posters
• May consider an annual notice to remind employees
  of the harassment policy and procedures for
  reporting harassing conduct

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Policy Should Define Roles and Responsibilities

• What is the role of Civil Rights Office?
• Establish Harassment Coordinator or someone with
  oversight over the program?
• What is role of Harassment Coordinator?
• Where should the Harassment Coordinator be
  located?
• What is role of supervisor?
• What is role of employee?
• What is role of HR?
• What is role of OGC?

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The Policy Should Define Harassing Conduct

• Definition should identify the protected bases
  covered-not just sexual harassment
• An agency should consider adding language which
  clarifies that it will go beyond that which is
  required by Title VII, and to inquire into
  allegations of hostile environment harassment
  based on a protected basis, even where it is
  apparent that the conduct complained of is not
  sufficiently severe and pervasive as to rise to a
  level of a Title VII hostile environment
  harassment claim

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Create multiple impartial paths to complain about
harassment

• Goal is to encourage employees to report
  harassing conduct
• Up the supervisory chain does not include
  supervisor involved in allegation
• Including a path outside the supervisory chain of
  command will encourage employees to report
  harassing conduct where the employee does not
  trust the supervisory chain

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Explain What Should Be Done Once Harassment
Reported

• If supervisor receives allegation who does s/he
  contact within the agency?
• If Coordinator receives allegation who does s/he
  contact within the agency?
• Who does the inquiry?
• How promptly must the inquiry be done? Any
  timeframes?

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Action Upon Supervisors Receipt of Allegation

• A supervisor or manager who receives an
  allegation or witnesses harassing conduct shall
  immediately
• Inform the Agencys Harassment Coordinator or
  other appropriate official and seek guidance as
  to further actions
• In consultation with the Harassment Coordinator
  or other appropriate official, take action to
  stop any harassing conduct and prevent further
  harassment while the allegations are being
  investigated, including granting appropriate
  interim relief to the alleged victim of the
  harassing conduct and
• In consultation with the Harassment Coordinator
  or other appropriate official, document the
  allegation received and his or her efforts to
  address it.

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Action Upon Coordinators Receipt of Allegation

• When the Harassment Coordinator or other
  appropriate official receives an allegation of
  harassing conduct, either directly by the
  complainant or through a supervisor, manager or
  other sources, he or she shall
• Ensure that a prompt, thorough, impartial and
  appropriate inquiry is conducted and
• Recommend appropriate action to stop any
  harassing conduct and prevent further harassment,
  including granting appropriate interim relief to
  the alleged victim of harassing conduct while the
  allegations are being investigated.

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What are the Options for Who Conducts the Inquiry?

• The Harassment Coordinator or other appropriate
  official should determine whether an inquiry is
  conducted, the scope of the inquiry and who
  conducts it
• Circumstances may impact who conducts the
  internal investigation. Such individuals may
  include
• A Supervisor
• The Harassment Coordinator him or herself
• A contract Investigator
• The Inspector Generals Office
• The Human Resources office, or
• A cadre or trained Agency Investigators

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What Should The Report Look Like?

• Depends on the nature of the allegation
• Could contain sworn declarations
• May contain a summary of findings and actions
• The outcome of any investigation should be
  reduced to writing in order to document the
  results and any actions taken

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What Happens After Report Is Completed?

• Report is forwarded to appropriate management
  officials (usually the immediate supervisor of
  the employee alleged to have engaged in
  harassment unless there is a conflict with some
  oversight by the Harassment Coordinator) to
  determine if the harassing conduct occurred and
  whether corrective action, including discipline,
  should follow.

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Corrective Action

• Examples include
• Oral or written warning or reprimand
• Transfer or reassignment
• Demotion
• Suspension or discharge
• Training or counseling
• Monitoring behavior

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Corrective Action Cont.

• The policy expressly provides that it will
  consider taking disciplinary action, not only
  against those who committed the harassing
  conduct, but against those managers that did not
  properly carry out their responsibilities under
  the policy.
• Where the inquiry establishes that an employee
  did engage in harassing conduct under this
  Policy, he or she shall be subject to appropriate
  corrective action, disciplinary or otherwise, in
  accordance with Chapter 75 of the Civil Service
  Reform Act, up to and including removal.
• Where the inquiry establishes that a manager or
  supervisor did not properly carry out the
  responsibilities provided for under this Policy,
  he or she shall be subject to appropriate
  corrective action, disciplinary or otherwise, in
  accordance with Chapter 75 of the Civil Service
  Reform Act, up to and including removal.

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Corrective Action Cont.

• Measures to correct the effects of harassment
  include
• Restoration of leave (annual, sick, AWOL, etc.)
• Expungement of negative evaluations
• Reinstatement
• Apology from harasser
• Compensation for losses

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Clarify That This Process Does Not Replace An
Employees Right To File An EEO Complaint