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DIRECTIVES TRANSMITTAL Number 560.005
EEOC

8/9/2006

SUBJECT: PREVENTION AND ELIMINATION OF HARASSING CONDUCT IN THE WORKPLACE (Change 1)

PURPOSE: This Order updates EEOC's long-standing anti-harassment policy. It establishes policies and procedures to help the EEOC maintain a workplace free from unlawful harassment. It defines harassing conduct that violates this Order, outlines the rights and responsibilities of employees, requires periodic training on harassment and this Order, and establishes a system of accountability for ensuring a workplace free from unlawful harassment. Unlike other forms of discrimination, harassment is typically cumulative in nature: one offensive remark will seldom be illegal, but can become illegal if similar incidents are allowed to recur. These procedures ensure that appropriate officials are notified of, and have the opportunity to promptly correct hostile or abusive conduct that is, or has the potential to become, so severe or pervasive as to constitute a legal claim of harassment. This Order is a part of EEOC's ongoing efforts to provide a model workplace for its employees.

EFFECTIVE DATE: August 9, 2006.

DISTRIBUTION:This Order will also be made available to employees on InSite.

OBSOLETE DATA AND FILING INSTRUCTIONS: This Order supersedes EEOC Order 560.005, Prevention and Elimination of Harassment in the Workplace, dated December 30, 1999. This Order must be made available to all EEOC employees.

_________________
Cari M. Dominguez
Chair

PERSONNEL MANAGEMENT
Equal Employment Opportunity

1. SUBJECT. PREVENTION AND ELIMINATION OF HARASSING CONDUCT IN THE WORKPLACE

2. PURPOSE. This Order updates EEOC’s long-standing anti-harassment policy. It establishes policies and procedures to help the EEOC maintain a workplace free from unlawful harassment. It defines harassing conduct that violates this Order, outlines the rights and responsibilities of employees, requires periodic training on harassment and this Order, and establishes a system of accountability for ensuring a workplace free from unlawful harassment. Unlike other forms of discrimination, harassment is typically cumulative in nature: one offensive remark will seldom be illegal, but can become illegal if similar incidents are allowed to recur. These procedures ensure that appropriate officials are notified of, and have the opportunity to promptly correct hostile or abusive conduct that is, or has the potential to become, so severe or pervasive as to constitute a legal claim of harassment. This Order is a part of EEOC’s ongoing efforts to provide a model workplace for its employees.

3. EFFECTIVE DATE. August 9, 2006.

4. ORIGINATOR. Office of Legal Counsel; RESOLVE Program; Office of Equal Opportunity; Office of Human Resources.

5. AUTHORITY. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16; the Age Discrimination in Employment Act, 29 U.S.C. § 633a; the Rehabilitation Act, 29 U.S.C. § 791(g); the Civil Service Reform Act, 5 U.S.C. § 2302(b)(10); Executive Order 11478, as amended May 28, 1998; EEOC Order No. 501.004, as amended February 24, 1992.

6. EEOC POLICY.

  1. Zero Tolerance for Harassment, Discrimination, and Retaliation.

    It is the policy of EEOC to maintain a model workplace free from harassment and other forms of discrimination based on race, color, religion, sex, national origin, age, disability, and sexual orientation. Accordingly, EEOC has zero tolerance for harassment or any other form of unlawful discrimination.

    In addition, EEOC will not tolerate retaliation against any employee for reporting matters under this policy or procedure, or for assisting in any inquiry about such a report.

  2. Definition of Unlawful Harassment.

    Unlawful harassment includes unwelcome intimidation, ridicule, insult, comments, or physical conduct based on race, color, religion, sex (whether or not of a sexual nature), national origin, age, disability, sexual orientation, or retaliation where:

    (1) an employee’s acceptance or rejection of such conduct explicitly or implicitly forms the basis for an employment decision affecting the employee; or

    (2) the conduct is sufficiently severe or pervasive as to alter the terms, conditions, or privileges of the employee’s employment, or otherwise create an abusive work environment. This type of harassment typically does not involve discrete personnel actions such as denial of promotion.

  3. Conduct Covered By this Order. The conduct covered by this Order is broader than the legal definition of unlawful harassment listed above. It includes hostile or abusive conduct based on race, color, religion, sex (whether or not of a sexual nature), national origin, age, disability, sexual orientation, or retaliation, even if the conduct has not risen to the level of illegality. This is because the goal of this order is to avoid – or, at least, limit – harm to any employee subjected to unwelcome hostile or abusive conduct based on a protected characteristic by ensuring that appropriate officials are notified of – and have the opportunity to promptly correct – such conduct before it becomes so severe or pervasive as to violate the law, or as soon as possible thereafter.

7. RESPONSIBILITIES.

  1. The Director of Human Resources, through his/her designee, is responsible for:

    (1) Disseminating this Order to all employees on an annual basis and periodically reminding employees of their responsibilities under this Order.

    (2) Developing and providing periodic training for all employees on this Order and its requirements.

    (3) Developing a performance measure in compliance with this Order; Ensuring that performance plans of all supervisors and managers include a performance measure addressing compliance with this Order; and Ensuring that supervisors and managers are appropriately rated on the measure.

    (4) Receiving reports alleging violations of this Order and, as described in section 8 of this Order, making or directing further inquiries into such reports, as appropriate and necessary.

    (5) Providing oversight, technical assistance, and support to EEOC staff to assure compliance with this Order.

    (6) Maintaining a written record of reports made and actions taken pursuant to this Order. These records will be maintained in a secure location.

    (7) Staffing a telephone line with non-supervisory staff to respond to inquiries from EEOC staff or their representatives about workplace harassment. Callers shall be provided with information about the requirements of this Order, as well as the existence of, and filing requirements for, other processes that may be available for employees to seek resolution of their disputes. All inquiries on this line will be treated confidentially.

    (8) Maintaining an e-mail address to respond to inquiries from EEOC employees by computer.

    (9) Reporting to the Director of the Office of Equal Opportunity on the actions taken pursuant to this Order so the Director can determine the EEOC's compliance with federal sector EEO requirements, and providing a copy of the reports, findings, and actions, as requested.

  2. All EEOC Staff are expected to:

    (1) Understand their rights and responsibilities under this Order;

    (2) Participate in the periodic training required under this Order;

    (3) Refrain from engaging in hostile or abusive conduct;

    (4) Report hostile or abusive conduct by employees or others in the workplace.

    (5) Inform the supervisor of the offending employee, a management official, or the Director of Human Resources' designee if subjected to unwelcome hostile or abusive conduct; and

    (6) Fully cooperate in any inquiry or investigation.

  3. Supervisors and other Management Officials also must:

    (1) Ensure a workplace free of illegal harassment;

    (2) Ensure that their subordinates are aware of this Order and its requirements;

    (3) Act promptly and effectively to stop hostile or abusive conduct of which they are aware;

    (4) Notify appropriate officials of reported or observed harassing conduct and of their efforts to correct the conduct;

    (5) Appropriately evaluate subordinate supervisors and managers of their performance under this Order.

    Mechanisms to assist in carrying out these responsibilities are described below.

8. PROCEDURES.

  1. Reporting Hostile or Abusive Conduct.

    (1) Any employee who has been subjected to unwelcome hostile or abusive conduct is encouraged to inform the person(s) responsible for the conduct that it is unwelcome and offensive, and request that it cease. If the conduct continues, or if the employee is uncomfortable confronting the responsible person(s) about the conduct, s/he should report the matter to:

    (a) the supervisor of the employee engaging in the hostile or abusive conduct;

    (b) another supervisor or other management official; or

    (c) the Director of Human Resources' designee.

    (2) Employees who know of hostile or abusive conduct directed at others are encouraged to report the matter to the supervisor of the offending employee, another supervisor or other management official, or to the Director of Human Resources' designee.

    (3) Initial contacts to the telephone line or e-mail address will be confidential. Employees may obtain information about this order, or report hostile or abusive conduct to the Director of Human Resources' designee.

    NOTE: Reports made pursuant to this Order do NOT replace, substitute, or otherwise satisfy the separate obligations of an EEO complaint, negotiated grievance, Merit Systems Protection Board appeal, or other statutory process. Unlike this Order, those procedures typically provide for remedial relief to the victims of a violation. For further information concerning how an employee may pursue rights under one of these separate processes, see Section 9 of this Order.

  2. Management Response to Harassment Reports.

    (1) Conducting Preliminary Inquiries. A supervisor or manager who receives a report of, or otherwise becomes aware of, hostile or abusive conduct involving subordinates within her/his chain-of-command must determine:

    (a) what conduct is at issue and whether it arguably could be considered hostile or abusive;

    (b) who may be involved;

    (c) whether any immediate corrective action is required to insulate the alleged victim from further hostile or abusive conduct; and

    (d) what action is necessary and appropriate to otherwise address the report.

    (2) Notifying Appropriate Officials of Report.

    (a) A supervisor or manager who becomes aware of allegedly hostile or abusive conduct involving employees outside of his/her chain-of-command must, within one business day, notify the following appropriate officials:

    1. The harassing employee’s supervisor and Office Director or, if the conduct implicates the supervisor or the Office Director, the Director of Human Resources' designee; and

    2. The victim's supervisor and Office Director or, if the conduct implicates the supervisor or the Office Director, the Director of Human Resources' designee.

    (b) Supervisors and managers who become aware of hostile or abusive conduct within their chain-of-command must, no later than one business day following receipt of the report, notify the Director of Human Resources' designee. This notification must include a description of any initial steps taken in response to the conduct and a plan of necessary and appropriate action to address the report.

    (c) When a report is made directly to the Director of Human Resources' designee, s/he shall:

    1. Immediately acknowledge receipt of the report;

    2. Notify the Office(s) implicated in the report, including the District Office if the report concerns a field office; and

    3. Require the Offices implicated in the report to immediately conduct a preliminary inquiry and take any other necessary and appropriate action.

  3. Performing Further Investigation.

    (1) Deciding whether further investigation is necessary. The Director of Human Resources' designee shall have sole discretion to decide whether further investigation is required, or if the preliminary inquiry is sufficient to determine whether corrective action is necessary. These decisions are fact specific, and must be made on a case-by-case basis.

    (2) Deciding how investigations will be carried-out. When the Director of Human Resources' designee determines that further investigation is necessary:

    (a) The Director of Human Resources' designee and the affected Office or District Director shall, by agreement, determine who will direct further investigations. The Director of Human Resources' designee may engage management officials from outside the involved office, or an outside investigative service if s/he deems it necessary and appropriate.

    (b) The investigation must be conducted swiftly, impartially, and in a manner appropriate to the allegation.

  4. Resolving Conflicts of Interest in Inquiries or Investigations.

    (1) If an Office Director, District Director, or similar high ranking official is implicated in the potentially harassing conduct, the Director of Human Resources' designee shall be responsible for conducting the preliminary inquiry and directing any further investigation that is warranted.

    (2) Any dispute between the affected Office and the Director of Human Resources' designee regarding further investigation will be resolved by the Chief Operating Officer.

  5. Taking Corrective Action. If it is determined that unwelcome hostile or abusive conduct occurred, corrective action will be necessary.

    (1) To determine the appropriate corrective action, the Office(s) implicated in the report will consult with the Director of Human Resources' designee. The action necessary will depend on the severity and/or pervasiveness of the offense, the response required in order to end such conduct, the offender’s disciplinary/conduct history, and other surrounding circumstances. A non-exclusive list of possible corrective actions follows:

    (a) If the conduct consisted of only occasional remarks that are arguably offensive but not severe, corrective action may consist of no more than discussing the matter with the responsible individual(s), explaining why it was inappropriate, and instructing them that it should not continue.

    (b) If more than one person has engaged in inappropriate but not severe conduct, if there is other evidence that employees are not sure about what conduct is appropriate and permissible, or if employees appear unaware of how to properly respond to such conduct, appropriate training should be provided.

    (c) If the conduct is more severe or pervasive, including frequent offensive remarks, touching, or other egregious harassing behavior, the employee responsible for the hostile or abusive conduct should be separated from the victim, at least until the matter otherwise can be resolved. This should not be accomplished by transferring the employee who reported or otherwise was the victim of hostile or abusive conduct. If the victim, without having been asked or prompted, specifically requests such a transfer, management should inform the employee that s/he need not leave, and that instead the employee responsible for the hostile or abusive conduct may be transferred. Nonetheless, to the extent possible, the victim's request should be honored.

    (d) For the most serious incidents, corrective action may include any disciplinary action otherwise available for violations of conduct standards, such as suspension, demotion, or termination. The Director of OEO must concur on determinations that an employee's conduct has violated any of the EEO statutes.

    (2) Appropriate corrective action, disciplinary or otherwise, up to and including removal will be taken against any supervisor or other management official who fails to perform her/his obligations as set forth in this Order, including any unreasonable failure to report known violations of this policy.

  6. Maintaining Confidentiality, Keeping Records, and Monitoring Compliance.

    (1) Maintaining Confidentiality. All reports of hostile or abusive conduct and related information will be maintained on a confidential basis to the greatest extent possible. The identity of the employee alleging violations of this Order will be kept confidential, except as necessary to conduct an appropriate investigation into the alleged violations or when otherwise required by law.

    (2) Writing Reports and Maintaining Records. A brief written report must be made to the Director of Human Resources' designee regarding the final resolution of each allegation of hostile or abusive conduct under this Order.

    (a) These reports must identify the individuals implicated, the conduct involved, and the corrective action taken, if any. These records must be sufficient to aid the Director of Human Resources' designee in determining how to address any future incidents.

    (b) If requested by the Director of Human Resources' designee, written reports also may include a detailed description of the inquiry or investigation, an explanation of any conclusions, the reasoning for any corrective action issued, and/or any documents or other tangible evidence obtained during or created as a result of the inquiry or investigation.

    (c) The Director of Human Resources' designee shall maintain the written reports in a secure location. These written reports are protected by the Privacy Act, and will be maintained in accordance with its requirements and exemptions.

    (3) Monitoring the Procedures. The Director of Human Resources' designee must ensure that these procedures are properly executed by:

    (a) Monitoring inquiries and investigations under this Order of reported or otherwise discovered hostile or abusive conduct;

    (b) Providing guidance concerning the information to be gathered and methods to be used during inquiries and investigations; and

    (c) Otherwise assuring that the investigations are swift, thorough, impartial, and appropriate to the allegation.

    (4) Monitoring the Work Environment. Office and/or District Directors will be responsible for ensuring that their offices are in full compliance with requirements of this Order. In addition, these officials are responsible for monitoring the work environment following a report alleging a violation of this Order to ensure that there are no further violations or incidents of retaliation against any individual who has reported harassment or participated in the inquiry or investigation.

9. PROCEDURES UNDER THIS ORDER ARE SEPARATE FROM STATUTORY AND COLLECTIVE BARGAINING CLAIMS.

a. Filing Statutory or Administrative Complaints or Negotiated Grievances. The purpose of this Order is to stop harassment that has occurred and deter its occurrence in the future. Once management is satisfied that its corrective action has stopped harassment and deterred its recurrence, no further action is necessary. Therefore, corrective action under this Order does not provide the remedies available in the EEO, collective bargaining, or other processes, such as compensatory damages. Filing a report under this Order does not satisfy the requirements for filing an EEO complaint, union grievance, or other procedure and obtaining remedies pursuant to them, nor does it delay the time limits for initiating those procedures. Thus, an employee who chooses to pursue statutory, administrative, or collective bargaining remedies for unlawful harassment must select one of the available forums as follows:

(1) For an EEO complaint pursuant to 29 C.F.R. § 1614 (available for all claims of harassment other than those based on sexual orientation), contact an EEO counselor in the Office of Equal Opportunity within 45 days from the most recent incident of alleged harassment (or personnel action if one is involved), as required in 29 C.F.R. § 1614.105(a)(1); or

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

(3) For an appeal to the Merit Systems Protection Board pursuant to 5 C.F.R. § 1201.22, file a written appeal with the Board within 30 days of the effective date of an appealable adverse action as defined in 5 C.F.R. § 1201.3, or within 30 days of the date of receipt of the agency's decision, whichever is later.

b. Reporting Hostile or Abusive Conduct Raised in the Statutory, Administrative, or Collective Bargaining Process. This Order is designed to address hostile or abusive conduct before it rises to the level of illegal discrimination for which an employee can exercise the statutory right to file an EEO complaint, grievance, or MSPB appeal. Its purpose is to ensure that management is notified of and has the opportunity to correct any hostile or abusive conduct, and applies whether or not the employee has filed an EEO complaint, union grievance, or MSPB appeal. EEOC’s liability for an EEO complaint, grievance, or other action may depend upon whether it was aware of and promptly corrected the hostile or abusive conduct.

(1) If an employee pursues a claim of harassment through the EEO process, an MSPB appeal, or a union grievance, the EEOC official who receives notice of such claim shall promptly notify the appropriate responsible management official. The management official must treat the notice as a report under Section 8 of these procedures, unless inconsistent with applicable regulatory or statutory requirements.

(2) The Director of Human Resources' designee shall provide the record of actions taken under this Order to the Office handling a parallel statutory or collective bargaining claim.

10. FURTHER INFORMATION. Any EEOC employee or employee representative seeking further information concerning this Order may contact the Director of Human Resources' designee.

11. DISTRIBUTION. This Order shall be distributed to all employees upon issuance, and annually thereafter. It shall also be distributed to all new employees as part of their orientation during their first week of work. This Order also will be made available to employees on InSite.

12. OBSOLETE DATA. This Order supersedes EEOC Order 560.005, Prevention and Elimination of Harassment in the Workplace, dated December 30, 1999.