Creating An Effective Anti-Harassment Policy

1. Creating An Effective Anti-Harassment Policy Presented By: Mark J. Maxin (mjm5@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.

3. Who Can Commit Workplace Harassment? • A Management Official • A Co-Worker • A Non-Employee

4. 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

5. 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

6. 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

7. 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)

8. Agency Liability: Tangible Employment Action by Manager • A supervisor’s 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 isautomatically 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

9. 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.

10. 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.

11. 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. • SeeQuinones v. Dep’t of Homeland Security, EEOC Appeal No. 01A53109 (March 31, 2006).

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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 agency’s 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.

18. 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. • SeeEEOC 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.

19. 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

20. 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.

21. 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

22. 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

23. 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?

24. 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

25. 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

26. 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?

27. Action Upon Supervisor’s Receipt of Allegation • A supervisor or manager who receives an allegation or witnesses harassing conduct shall immediately: • Inform the Agency’s 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.

28. Action Upon Coordinator’s 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.

29. 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 General’s Office • The Human Resources office, or • A cadre or trained Agency Investigators

30. 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

31. 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.

32. Corrective Action • Examples include: • Oral or written warning or reprimand • Transfer or reassignment • Demotion • Suspension or discharge • Training or counseling • Monitoring behavior

33. 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.

34. 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

35. Clarify That This Process Does Not Replace An Employee’s Right To File An EEO Complaint