Establishing an Effective Federal Agency Anti-Harassment Program “Inspiration, Innovation, Action!” Establishing an Effective Federal Agency Anti-Harassment Program Marcus Artis, Branch Chief Gul Chaudhry, Branch Chief U.S. EEOC, Office of Federal Operations Agency Oversight Division This template can be used as a starter file for presenting training materials in a group setting. Sections Right-click on a slide to add sections. Sections can help to organize your slides or facilitate collaboration between multiple authors. Notes Use the Notes section for delivery notes or to provide additional details for the audience. View these notes in Presentation View during your presentation. Keep in mind the font size (important for accessibility, visibility, videotaping, and online production) Coordinated colors Pay particular attention to the graphs, charts, and text boxes. Consider that attendees will print in black and white or grayscale. Run a test print to make sure your colors work when printed in pure black and white and grayscale. Graphics, tables, and graphs Keep it simple: If possible, use consistent, non-distracting styles and colors. Label all graphs and tables.

Definition: Unlawful Workplace Harassment Harassment is any unwelcome verbal or physical conduct based on protected bases such as race, color, religion, sex (including sexual orientation, pregnancy, and gender identity), national origin, age (40 and over), disability, genetic information, & retaliation, when: The conduct culminates in a tangible employment action, or The conduct was sufficiently severe or pervasive to create a hostile work environment. Give a brief overview of the presentation. Describe the major focus of the presentation and why it is important. Introduce each of the major topics. To provide a road map for the audience, you can repeat this Overview slide throughout the presentation, highlighting the particular topic you will discuss next.

Tangible Employment Action A supervisor’s harassment results in a significant change in employment status or benefits (e.g., Demotion, termination, failure to promote). Only individuals with supervisory or managerial responsibility can commit this type of harassment. The agency is automatically liable. Give a brief overview of the presentation. Describe the major focus of the presentation and why it is important. Introduce each of the major topics. To provide a road map for the audience, you can repeat this Overview slide throughout the presentation, highlighting the particular topic you will discuss next.

Hostile Environment Harassment Unwelcome comments or conduct involving a protected basis that unreasonably interferes with an employee’s work performance or creates an intimidating, hostile or offensive work environment. Anyone can commit this type of harassment: a management official, a co-worker, even a non-employee. Give a brief overview of the presentation. Describe the major focus of the presentation and why it is important. Introduce each of the major topics. To provide a road map for the audience, you can repeat this Overview slide throughout the presentation, highlighting the particular topic you will discuss next.

Agency Liability: Hostile Environment Created By Manager Agency is liable even if second level managers and above did not know, unless both elements of an affirmative defense are met: If the agency exercised reasonable care to prevent and promptly correct harassing behavior; and The employee unreasonably failed to take advantage of any preventive or corrective opportunities offered by the agency or to avoid harm otherwise. Give a brief overview of the presentation. Describe the major focus of the presentation and why it is important. Introduce each of the major topics. To provide a road map for the audience, you can repeat this Overview slide throughout the presentation, highlighting the particular topic you will discuss next.

Affirmative Defense In Faragher v Boca Raton, 524 U.S.775 (1998), the Supreme Court explained that “reasonable care” requires employers to establish anti-harassment procedures with the following elements: A clear explanation of prohibited conduct; Assurance that employees who make claims of harassment or provide information related to such claims will be protected against retaliation; A clearly described complaint process that provides multiple, accessible avenues for complainants; Assurance that to the extent possible, the agency will protect the confidentiality of the individuals bringing harassment claims; A complaint process that provides a prompt, thorough, and impartial investigation; and Assurance that the agency will take immediate and appropriate corrective action when it determines that harassment has occurred.

Effective Anti-Harassment Program Establishing Policy and Procedures

EEO Process vs AH Program EEO Complaint Process Agencies AH Program Designed to make individuals whole for discrimination that already has occurred. Prevent the recurrence of the unlawful discriminatory conduct. Cannot require an agency to discipline its employees. Agency must complete its investigation within 180 days. Intended to take immediate and appropriate corrective action, including the use of disciplinary actions. Prevent harassing conduct before it can become “severe or pervasive.” Investigations should commence immediately, and be completed within a reasonable period of time.

Anti-Harassment EEO Process

Establishing An Effective Anti-Harassment Policy Policy should be written and well-disseminated. Define the conduct that is prohibited and provide examples. Prohibit harassment based on sex (with or without sexual conduct), race, color, religion, national origin, age, disability, genetic information, and protected activity. Clearly define the roles of the AH Program staff, supervisors, and employees. Encourage employees to report harassment before it becomes severe or pervasive.

Define Harassing Conduct Verbal or physical conduct, based on race, color, religion, national origin, age, disability, sex (with or without sexual conduct), genetic information, or protected activities, that either results in a tangible employment action and/or is so severe and pervasive as to constitute an intimidating, hostile or offensive work environment, including, but not limited to: (1) verbal conduct that could include racial or sexual epithets, foul language, unwanted sexual flirtations, ethnic jokes, derogatory statements or slurs; (2) physical conduct that could include improper touching or assault; or (3) visual harassment that could include racially or sexually explicit or derogatory posters, cartoons or drawings, or obscene gestures.

Create Multiple Impartial Paths to Complain About Harassment Goal is to encourage employees to report harassing conduct. The AH policy should clearly explain the process and ensure that there are no obstacles to filing complaints. Employee complaints need not be in writing or conform to a particular format. When an employee complains to management about alleged harassment, management is obligated to investigate the allegation. The procedure should provide multiple points of contact for the employee to complain, such that all claims need not to go through the “chain of command.”

Effective Investigation Process As soon as management learns about the alleged harassment, it should determine whether a detailed fact-finding investigation is necessary. Investigations should begin immediately (within 10 days), and be completed within a reasonable period of time. In some instances, it may be necessary to undertake immediate measures before completing the investigation to ensure that further harassment does not occur. Agencies cannot involuntarily transfer or otherwise burden the complainant because such measures could constitute unlawful retaliation. Failure to conduct an effective investigation may result in the agency’s liability.

Effective Investigative Process Agencies must ensure that the individual who conducts the investigation will objectively gather and consider all relevant facts. The alleged harasser should not have supervisory authority over the individual who conducts the investigation. The alleged harasser cannot have any direct or indirect control over the investigation. Investigators should be well-trained in the skills that are required for interviewing witnesses and evaluating credibility.

Who can conduct the Investigation? Supervisor (outside the chain of command) AH Coordinator Contract Investigator Inspector General Human Resources Staff Cadre of Trained Investigators

What is the Investigative Plan? Identification of Protected Basis Listing of Allegations Identification of Alleged Harasser Road Map for Investigation: Interview complainant and request evidence Interview witnesses Interview alleged harasser(s) Interview management Determine whether to take the testimony under oath Request Supporting Documents

Is a Report necessary? The agency needs to document the results of the investigation. The nature of the allegation could determine whether the agency prepares a memorandum or a formal report. The document should contain a brief summary of findings and actions.

Conclusion of the Investigation Investigator should forward the report to the deciding official. Deciding official will determine if harassing conduct occurred and whether corrective action, including discipline, should follow. Agency must notify the complainant about the results of the investigation.

Part G: Program Deficiencies in the Harassment Program EEOC MD-715 Part G: Program Deficiencies in the Harassment Program

New Part G: Questions in MD-715 Has the agency issued an anti-harassment policy? (A2a1) Does the agency inform employees about the AH program? (A2c3) Has the agency allocated sufficient funding to: Train supervisors and employees on …harassment? (B4a4) Distribute EEO materials on … harassment? (B4a6) To effectively manage its anti-harassment program? (B4a9) Have all managers received training on …the AH policy? (B5a3)

More Part G Questions Does the AH policy comply with EEOC guidance? (C2a) Does the AH policy require corrective action to prevent or eliminate conduct before it becomes unlawful? (C2a1) Has the agency established a firewall between the AH Coordinator and the EEO Director? (C2a2) Does the agency have a separate procedure (outside the EEO complaint process) to address harassment allegations? (C2a3)

Even More Part G Questions Does the agency ensure that EEO informs the AH program of all EEO counseling activity alleging harassment? (C2a4) Does the agency conduct a prompt inquiry (beginning within 10 days of notification) of all harassment allegations, including those initially raised in the EEO complaint process? (C2a5) Does the agency evaluate the performance of managers concerning their support of the AH program in investigating and correcting harassing conduct? (C3b8) Does the agency have a system in place to accurately collect, monitor, and analyze…the processing of complaints in the AH program? (E4a6)

Anti-Harassment Programs Analysis of Federal Agencies’ Programs

Analysis of Anti-Harassment (AH) Programs In FY 2014, EEOC evaluated 95 federal agencies’ AH programs that cover 99.63% of the federal workforce. We found that only 27% of those agencies had an AH policy that fully complied with EEOC guidance. The most common deficiencies in the AH policies were as follows: Lack a statement of confidentiality (41%) Lack a prompt, thorough, and impartial investigation (32%) Do not cover all EEO bases and/or explain conduct (31%) Lack assurance of immediate and appropriate corrective action (24%) Lack a clearly described complaint process (15%) Lack protection against retaliation (13%)

Utilization of AH Programs From FY 2011 to FY 2013, federal agencies reported that they conducted 12,599 inquiries through their AH programs. During that same time period, 19,160 formal complaints alleged harassment. Since complaints represent 50% of EEO counselings, we will assume harassment was raised in 38,320 EEO counselings. AH investigations occurred in less than a 1/3 of EEO counselings. Why? 43% of agencies relied solely on EEO process.

Full Utilization of AH Program Only 19 of the 95 agencies (20%) conducted an AH investigation for every formal complaint that was filed in the EEO process. Another 11 agencies (12%) were limited by the lack of a tracking system in their AH program. The remaining agencies (68%) either did not fully utilize their AH program or relied on the EEO process.

Impact of a Fully-Utilized AH Program We found that agencies with a fully-utilized AH program had the lowest rate of EEO complaints alleging harassment per 1,000 employees. Status of AH Program Average Rate of Harassment Complaints per 1,000 Employees Fully-Utilized AH Program 1.52 No Tracking System 2.17 No AH Program (EEO Process Only) 3.23 Not Fully-Utilized AH Programs 3.32

EEOC Select Task Force on the Study of Harassment in the Workplace

Harassment in the Federal Workplace During FY 2015, federal employees filed 6,741 complaints alleging harassment as all of, or part of, alleged discrimination. These complaints made up 43% of all complaints filed by federal employees in FY 2015. 36% alleged harassment on the basis of race, 34% alleged harassment on the basis of disability, 26% alleged harassment on the basis of age, 12% alleged harassment on the basis of national origin, 44% alleged harassment on the basis of sex, and 5% alleged harassment on the basis of religion.

Recommendations: Workplace Leadership and Accountability Employers should foster an organizational culture in which harassment is not tolerated, and in which respect and civility are promoted. Employers should communicate and model a consistent commitment to that goal. Employers should assess their workplaces for the risk factors associated with harassment and explore ideas for minimizing those risks. Employers should conduct climate surveys to assess the extent to which harassment is a problem in their organization.

Recommendations: Workplace Leadership and Accountability Employers should ensure that where harassment is found to have occurred, discipline is prompt and proportionate to the severity of the infraction. In addition, employers should ensure that where harassment is found to have occurred, discipline is consistent, and does not give (or create the appearance of) undue favor to any particular employee. Employers should hold mid-level managers and front-line supervisors accountable for preventing and/or responding to workplace harassment, including through the use of metrics and performance reviews. If employers have a diversity and inclusion strategy and budget, harassment prevention should be an integral part of that strategy.

Recommendations: Harassment Prevention Policies and Procedures Employers should adopt and maintain a comprehensive anti-harassment policy, and should establish procedures consistent with the principles previously discussed. Employers should ensure that the anti-harassment policy, and in particular details about how to complain of harassment and how to report observed harassment, are communicated frequently to employees, in a variety of forms and methods. Employers should offer reporting procedures that are multi-faceted, offering a range of methods, multiple points-of-contact, and geographic and organizational diversity where possible, for an employee to report harassment. Employers should be alert for any possibility of retaliation against an employee who reports harassment and should take steps to ensure that such retaliation does not occur.

Recommendations: Harassment Prevention Policies and Procedures Employers should periodically “test” their reporting system to determine how well the system is working. Employers should devote sufficient resources so that workplace investigations are prompt, objective, and thorough. Investigations should be kept as confidential as possible, recognizing that complete confidentiality or anonymity will not always be attainable.

Recommendations: Anti-Harassment Training Employers should dedicate sufficient resources to train middle-management and first-line supervisors on how to respond effectively to harassment. EEOC should review and update its anti-harassment compliance training modules used for Technical Assistance Seminars, Customer Specific Trainings, trainings for Federal agencies, and other outreach and education programs. Employers should consider including workplace civility training and bystander intervention training as part of a holistic harassment prevention program.

Evaluating Anti-Harassment Policy and Procedures Activity In a small group evaluate the Anti-harassment Policy and Procedures using the form provide.