EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

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EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

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Harassment Policy

September 26, 2003

Dear :

This is in response to your request that we review your anti-harassment policy and memo. Initially, we note that the Commission does not have a formal process for reviewing employer policies. However, we have informally reviewed the documents, and this letter summarizes our comments.

We are pleased to see that your agency recognizes the need for having a strong and effective policy prohibiting workplace harassment, and for having procedures for addressing such matters when they arise. While no policy is a "safe harbor" from agency liability, an effective policy can certainly go a long way towards preventing or limiting the degree of harm suffered by employees subjected to harassment. Likewise, there is no blueprint for an effective policy, and different approaches can be equally effective. As you are aware, the Commission's Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999) outlines the general requirements for an effective antiharassment policy. The following comments generally reflect views taken in that guidance.

Antiharassment Policy - [a Division] issued 6/4/03

• Explanation of Prohibited Conduct: The policy defines "harassment" as "verbal or physical conduct that denigrates or shows hostility or aversion toward an individual, and that has the purpose or effect . . . ." We note that unlawful harassment does not necessarily denigrate or show hostility toward the target. For instance, sexual harassment could consist of repeated, unwelcome requests for a date. Therefore, we recommend that harassment be defined more broadly as "verbal or physical conduct based on race, color, sex, national origin, religion, age, disability, or retaliation, and that has the purpose or effect . . . ."
• Complaint Procedure: The policy requires that complaints about harassment based on a protected characteristic be addressed through the agency's formal, internal EEO process. An agency's formal EEO process, however, does not fulfill the obligation to exercise reasonable care to prevent and correct harassment. The formal EEO process is designed to address violations of the EEO laws while an effective antiharassment complaint procedure is designed to encourage employees to report harassing conduct at an early stage, so that the agency can take appropriate steps to correct the offensive conduct before it becomes sufficiently severe or pervasive to violate the law. The Commission's 1999 Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors details the requirements of an effective antiharassment complaint procedure.

Hostile Work Environment Prevention Policy - Draft

Specific substantive comments about the draft directive are presented below. For your convenience, we also have enclosed a copy of the draft directive with our recommended changes indicated by strikeouts and underlined text. In addition to the substantive changes discussed in this letter, the enclosure recommends some minor nonsubstantive changes intended to provide clarity, eliminate redundancies, or correct typos.

• Overall: Initially, we note that the policy repeatedly refers exclusively to "hostile work environment" harassment and omits harassment that culminates in a tangible employment action. For instance, the policy is titled "Hostile Work Environment Harassment." We recommend that references to "hostile work environment" throughout the document be replaced by the broader term "harassment."
• Background:
  • We recommend that "or other designated official" be inserted, as indicated, consistent with the procedures provided by the Directive.
  • We recommend that text be inserted at the end of the subsection to clarify that the directive covers harassment by anyone in the workplace.
• Retaliation:
  • We recommend that the policy state clearly that individuals are protected against retaliation for assisting in the investigation of a complaint filed by another individual.
• Legal Reference and Definition:
  • We recommend that "protected activity" be replaced by "retaliation" throughout the Directive since the former term is not defined.
  • We recommend that "harassment of an individual that would not occur but for the victim's . . ." be revised to state "harassment of an individual based on . . . ." We note that the latter phrasing is consistent with that used in the first paragraph in subsection 4, so it is potentially confusing or misleading to use a different phrasing elsewhere. In addition, we believe that the latter phrasing is more consistent with the prohibitions under the antidiscrimination statutes.
  • We recommend that the definition of "harassment" in subsection 4 be revised to include harassment culminating in a tangible employment action, as provided by the Commission's guidelines and other policy documents.
  • We recommend that the criteria for evaluating hostile work environment claims be revised to track more closely EEOC policy statements, including the Commission's 1993 Enforcement Guidance on Harris v. Forklift Systems, Inc.. and the National Origin section of the Compliance Manual. These documents are available on the Internet at http://www.eeoc.gov/policy/guidance.html and http://www.eeoc.gov/docs/national-origin.html#IV, respectively.
• Policy:
  • We recommend that text be inserted in 5(a) to make clear that the policy covers harassment by anyone in the workplace.
  • Under 5(b)(2), we recommend that "explicit" be deleted since harassment could also take the form of implicit threats.
  • Under 5(b)(6), we recommend that "repeated" be deleted since a single severe incident involving physical contact could be sufficient to constitute unlawful harassment.
  • Under (c), we recommend that the text be revised to reflect that all allegations of harassment will be investigated. As drafted, the Directive provides that allegations will be examined and, where necessary, investigated. It is unclear, however, what the distinction is between examining and investigating an allegation. While the complexity of investigations will vary from allegation to allegation, we believe it is confusing and unnecessary to make this distinction between examining and investigating allegations.
  • Under (c)(1), we recommend inserting text providing assurance that confidentiality will be protected to the extent possible, so that employees will be encouraged to report harassment.
• Responsibilities
  • Under 6(b)(3), we recommend inserting "clearly unwelcome" where indicated since not all conduct based on sex or other protected characteristics, such as an employee asking a coworker out on a date on one occasion, is prohibited by the antidiscrimination statutes. We also recommend deleting the reference to harassment that managers "should be aware of," since managers obviously cannot report conduct that they are not actually aware of. Finally, we recommend adding the text at the end of the section to make clear that managers are responsible for addressing harassment even if no one has complained.
• Reporting and Investigation Procedures
  • Subsection 7(a), "Reporting an Incident," presents three avenues for reporting a violation under the Directive: Management Complaint Procedure, EEO Complaint System, and Negotiated Grievance. While the agency may learn about alleged harassment through either of the last two of these avenues (we note that subsection 6 provides for coordination between the EEO staff and the Employee Relations staff), they are principally mechanisms for seeking relief under the federal antidiscrimination laws and the collective bargaining agreement, respectively. To prevent confusion, we recommend that these two procedures be discussed in a separate subsection of the Directive that clearly explains that the procedure established by the Directive is distinct from the procedures that employees must follow to exercise their rights under federal law or the collective bargaining agreement.

We hope that this information is helpful. Please note that this letter is merely an informal discussion of the issues you have raised and does not constitute an official opinion of the Commission. If you have any questions, please call me at 663-4657 or Ernest Haffner at 663-4644.

Sincerely,

Dianna B. Johnston
Assistant Legal Counsel

Enclosures

HOSTILE WORK ENVIRONMENT HARASSMENT PREVENTION POLICY

1. PURPOSE

This Directive establishes the policy for the prevention of illegal harassment that may contribute to a hostile work environment within the [offices].

2. BACKGROUND

The goal of this Directive is to prevent illegal harassment and to convey that such harassment will not be tolerated. Employees are encouraged to report such conduct to asupervisor or other designated official before it becomes severe or pervasive and before it elevates to the level of a hostile work environment. This Directive is written to curtail and/or avoid behaviors which may contribute to a hostile work environment. This policy applies to all employees in their working relationships and to unlawful harassment by anyone in the workplace.

3. RETALIATION

[The offices] do not tolerate or condone any form of harassment or retaliation toward employees who report incidents of harassing behavior or assist in any inquiry about such a report. This policy applies to all employees in their working relationships.

4. LEGAL REFERENCE AND DEFINITION

Hostile work environment Harassment is a form of discrimination based on any protected basis (race, color, sex, religion, national origin, age of 40 or older, disability, or protected activity retaliation under the anti-discrimination statutes).

Harassment of an individual that would not occur but for the victim's based on race, color, sex, national origin, age, disability or, religion, or retaliation is unlawful if is sufficiently patterned or pervasive submission to or rejection of such conduct by an individual is made the basis for an employment decision affecting the individual; or such conduct is sufficiently severe or pervasive to create a hostile work environment.

A single incident or a group of incidents will not be regarded as discriminatory treatment unless the conduct is severe. Whether the harassment is sufficiently severe to trigger a violation must be determined by looking at all the circumstances, including: Whether harassment creates a hostile work environment must be determined by looking at all the circumstances, including:

(1) whether the harassment is based on the statutorily protected basis; and

(2) the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and

(3) the harassment has the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment or culminates in a tangible employment action.

(1) Whether the conduct was physically threatening or intimidating;

(2) How frequently the conduct was repeated;

(3) Whether the conduct was hostile and/or patently offensive;

(4) The context in which the harassment occurred; and

(5) Whether management responded appropriately when it learned of the harassment.

5. POLICY

a. It is the policy of [the offices] to maintain an environment free of illegal harassment of any individual in the workplace. This policy applies to all employees in their working relationships and to harassment by anyone in the workplace, including harassment by coworkers, supervisors, or nonemployees.

b. While it is not possible to list all circumstances that may constitute hostile work environment/harassment unlawful harassment, the following are some examples of conduct which, if unwelcomed, may constitute hostile work environment/ harassment unlawful harassment, depending upon the totality of the circumstances, including the severity of the conduct and its pervasiveness:

(1) Use of electronic media to violate this policyharass employees based on a protected status.

(2) Explicit verbal Oral or written abuse and/or threats that may include teasing, jokes, insults, gestures, epithets, or remarks as they relate to a person's based on sex, race, age of 40 or over, disability, religion, national origin, color, or protected activity under the anti-discrimination statutesretaliation.

(3) Epithets as they relate to a person's sex, race, age of 40 or over, disability, religion, national origin, color, or protected activity under the anti-discrimination statutes.

(4) Written or oral references as they relate to a person's sex, race, age of 40 or over, disability, religion, national origin, color, or protected activity under the anti-discrimination statutes.

(53) Gossip regarding one's an individual's sex life, comments on an individual's body, comments about an individual's sexual activity, deficiencies, or prowess, or other lewd or obscene comments.

(64) Visual displays, including electronic media (e.g., screen savers) or other printed media material (e.g., posters, cartoons), in the workplace of a that is sexually explicit or derogatory,or demeaning, or unlawful nature of a particular color, national origin, race, religion, sex, age, or disability, or protected activity under the anti-discrimination statutes, designed to embarrass or intimidate other employees.

(75) Comments or pressure to demand favors as they relate to a person's sex Demands to provide sexual favors.

(86) Unwelcome, repeated, or unsolicited physical contact, including touching, patting, pinching, hugging, grabbing, cornering, or brushing against another person's body.

c. [The offices] require that allegations of hostile work environment/harassment be promptly examined, and when necessary, aggressively, promptly, and objectively investigated.

(1) The confidentiality of harassment complaints will be protected to the extent possible. Although cConfidentiality cannot be guaranteed since the agency cannot conduct an appropriate inquiry without revealing certain information,. The agency will limit information to those who have a need to know. All employees are obligated to give information they possess to investigators or supervisors if the inquiry relates to official matters. This shall include promptly providing a signed, sworn, statement or providing other evidence related to the complaint.

(2) The agency will Aappoint investigators who have received appropriate training to investigate allegations of hostile work environment/harassment.

d. Where investigations prove the allegations to be trueinvestigators determine that harassment has occurred, the responsible official shall take action as deemed appropriate to stop the harassment, to include possible appropriate disciplinary action.

6. RESPONSIBILITIES

a. Employee Responsibilities

1. Support the Agency's policy against hostile work environmentharassment.

2. CheckMonitor your own behavior to determine if it could be interpreted as harmful, harassing or contributing to or creating a hostile work environment.

3. Know your personal rights and the complaint procedure.

4. Identify and take individual action to stop inappropriate behavior.

5. Bring the matter to the attention of management, Employee Relations Staff, Civil Rights staff or a[n agency] EEO Counselor/Mediator.

b. Managerial/Supervisory Responsibilities

1) Inform all employees of this policy.

2) Immediately begin action when informed of any alleged violations of the Hostile Work Environment Harassment Prevention Policy by informing the Employee Relations Staff and seeking consultation regarding any investigative or remedial action.

3) Recognize that mManagers and supervisors should report to Employee Relations any instances of clearly unwelcome hostile work environment/harassment of which they are become aware, and instances of hostile work environment/harassment of which they should be aware in the normal course and scope of their management responsibility, even in the absence of a complaint under this Directive.

4) Management officials must responsibly manage all allegations, whether formal or informal of hostile work environment harassment in a prompt and objective manner. Management should encourage any person to come forward and report violations to of this policy.

5) Where investigations prove the allegations to be trueestablish that harassment has occurred, the responsible official shall take swift and appropriate management actions, to include possible disciplinary action.

c. Employee Relations Staff Responsibilities

1) When allegations of conduct and/or harassment in violation of this Directive are reported from by supervisory/managerial staff or directly by complainants to the Employee Relations Staff, the Employee Relations staff member will follow the complaint and investigative procedures as outlined in this Directive.

2) Necessary coordination with Civil Rights staff and/or other investigativeunits will be accomplished as a part of the appropriate processing of thealleged violation of this Directive.

d. Civil Rights Staff Responsibilities

When allegations of conduct and/or harassment in violation of this Directive are reported to the EEO Counselor, the EEO counselor will also have the employee fill out forms for handling pursuant to the complaint procedures outlined in this Directive.

7. REPORTING AND INVESTIGATION PROCEDURES

a. Reporting An Incident

Assistance for dealing with hostile work environment/harassment is available by contacting any of the following:

Immediate Supervisor (if not the alleged harasser)
Any Management Official in your chain of command
Branch Chief, Employee Relations
Special Emphasis Program Officer
[An agency] EEO Counselor/Mediator
Civil Rights Officer

The following avenues may be used to file a complaint of hostile work environment/harassment:

1) Management Complaint Procedure. An employee who believes that he/she has been subjected to conduct which is in violation of this Directive, is to immediately report the conduct, all details of the alleged harassment and its connection to a protected class to any of the following:

Immediate Supervisor (if not the alleged harasser)
Any Management Official in your chain of command
Branch Chief, Employee Relations
Special Emphasis Program Officer
[An agency], EEO Counselor/Mediator
Civil Rights Officer

Although a verbalan oral report may be accepted, the employee may be required to follow-up the verbal oral complaint in writing, with all known details.

2) Equal Employment Opportunity (EEO) Complaint System. An employee may also report the activity to an Equal Employment Opportunity (EEO) Counselor. To file a timely EEO complaint, an employee must contact an EEO counselor within 45 days of the date of the matter alleged to be discriminatory. The EEO Complaint system is the only method by which an individual employee may obtain certain remedies available under federal law for the alleged hostile work environment/harassment.

3) Negotiated Grievance Procedure. An employee who is a member of collective bargaining unit may also report the activity through the Negotiated grievance procedure . To obtain this information, please contact your Labor Relations Specialist or your Union representative. It remains the employee's responsibility to also report the matter promptly to management.

Reports from the employee to coworkers, Human Resources Division employees (except Employee Relations Specialists), mediators, and those not in the employee's managerial/supervisory chain are not sufficient to put the Agency on notice of a hostile work environment complaint.

b. Investigation Procedures

1) When allegations of conduct and/or harassment in violation of this Directive are reported by the employee to either their his or her Manager/Supervisor or an EEO counselor, the Agency's Investigative staff or other investigative resources (to include Hearing and Appeals, Employee Relations staff or contractors), may be requested to perform an investigation into the matter.

2) The request will come from either a coordinating Employee Relations staff member and/or from the Civil Rights staff depending on where the employee reported the allegations.

3) Completed investigations are to be coordinated through the originating requestor (Civil Rights and/or Employee Relations staff) for further assessment and action, as necessary.

4) Where investigations prove the allegations to be true, the responsible official shall take swift and appropriate corrective action, to include possible disciplinary action.

8. STATUTORY AND COLLECTIVE BARGAINING CLAIMS

This policy is in addition to statutory and collective bargaining prohibitions against harassment and the procedures and remedies they provide for addressing unlawful harassment. Filing a report under this Directive does not satisfy the requirements to initiate those procedures and obtain remedies pursuant to them, nor does it delay the time limits for initiating those procedures. An employee who chooses to pursue statutory or collective bargaining remedies for unlawful harassment must:

(1) For an EEO complaint pursuant to 29 C.F.R. § 1614, contact an EEO counselor within 45 days from the date of the alleged harassment (or effective date of the personnel action if one is involved); or

(2) For a collective bargaining claim, file a grievance in accordance with the provisions of the Collective Bargaining Agreement; or

(3) Initiate an appeal to the Merit Systems Protection Board within 30 days of an appealable adverse action as defined in 5 C.F.R. § 1201.3.

89. SPECIAL NEEDS

Persons with disabilities who require alternative means for communication of this policy (Braille, large print, audiotape, etc.), should contact the at (202)(. . .) (voice and TDD) for assistance.

910. RESOURCES

This Directive is available on the [agency] homepage at www.. . ., and the [agency] Issuances home page at www.. . . .

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This page was last modified on April 27, 2007.