*The U.S. Equal Employment Opportunity Commission*

----

# Model EEO Programs Must Have An Effective Anti-Harassment  Program

## Table of Contents

Background

Objectives, Scope, and Methodology

Deficient Anti-Harassment Programs

-  Survey of Anti-Harassment Policies Reveal      Significant Deficiencies    - Agencies Lack Anti-Harassment        Policies 
  - Policies Do Not Address Non-Sexual        Harassment 
  - Policies Have Unclear or        Insufficient Investigation Procedures 
-  Educating Employees about Harassment May      Reduce High Numbers of Non-Sexual Harassment Complaints    - High Number of Non-Sexual Harassment        Complaints 
  - Possible Causes of High Number of        Non-Sexual Harassment Complaints 
  - Importance of Educating Employees        about Harassment 

Suggestions for Improving  Anti-Harassment Policies and Procedures

##### Appendix

- Complaints Alleging Non-Sexual    Harassment in the EEO Process 
- The Legal Requirement for an    Anti-Harassment Policy 
- The Purpose of an Anti-Harassment    Policy 
- Survey of Agencies about Non-Sexual    Harassment Complaints 
- Recommended Anti-Harassment Policies    and Procedures 

## Background

Federal agencies have issued policies that require immediate  response to claims of sexual harassment in the workplace;  however, claims of non-sexual harassment have not received  similar attention.1 In FY 2003, the  United States Equal Employment Opportunity Commission (EEOC)  issued EEO Management Directive (MD)-715, which establishes that  model EEO programs must issue policies and procedures for  addressing all forms of harassment. In this regard, federal  agencies must create a work environment that is free from sexual  and non-sexual harassment.

Since fiscal year 1994, allegations of non-sexual harassment  have ranked as the number one issue alleged in complaints that  were filed in the federal sector equal employment opportunity  (EEO) process. See Appendix (App.) 1 (Table 1).  While the total number of complaints filed has declined since FY  2000, the percentage of complaints alleging non-sexual harassment  has increased. Id.

## Objectives, Scope, and  Methodology

Consistent with its responsibility to evaluate federal  agencies' EEO programs, operations, and activities, the EEOC's  Office of Federal Operations conducted a limited review to  determine (1) the extent to which federal agencies'  anti-harassment policies and procedures comply with the case law  and EEOC guidance, particularly focusing on coverage of  non-sexual harassment,2 and (2) the  reason(s) for the high rate of non-sexual harassment  allegations.

Initially, we reviewed appellate decisions and evaluation  reports issued by EEOC's Office of Federal Operations that  addressed non-sexual harassment to identify systemic reasons for  the high number of non- sexual harassment claims.3 We also requested copies of  anti-harassment policies and procedures from 51 federal sector  agencies and sub-components. In response to our request, 43  agencies and sub-components provided their anti-harassment  documents, including one agency which submitted policies and  procedures for 64 out of its 98 sub-components.4 We subsequently met with EEO officials  and staff from six cabinet level agencies to identify reasons for  the consistently high rate of claims alleging non-sexual  harassment.5

## Deficient Anti-Harassment  Programs

Based on the program evaluations that EEOC has issued during  the last several years, we recognized that some agencies'  anti-harassment programs are deficient in their ability to  prevent and respond to non-sexual harassment in the federal  workplace. To ascertain the scope of the problem, the EEOC  surveyed the anti- harassment policies of federal agencies to  determine their compliance with the legal requirements.

To understand the deficiencies in the anti-harassment policies  and procedures, it is important to understand the broader  context. EEOC's EEO Management Directive 715 (MD  715) sets forth what is required in order for executive  branch agencies to establish Model EEO Programs under both Title  VII and the Rehabilitation Act. In this regard, MD  715 mandates that agencies must have in place an effective  anti-harassment program.

MD 715 reminds agencies of the requirement to  issue a written policy statement by the agency head which  expresses commitment to EEO and a workplace free of  discriminatory harassment, and the development of a comprehensive  anti-harassment policy to prevent harassment on all protected  bases, including race, color, religion, sex (sexual or  non-sexual), national origin, age, disability, and reprisal.

It is also critical to understand the legal requirements with  which the agencies must comply. The EEOC issued sections II (A)  and (C) of MD-715, requiring model EEO programs to  issue establish written polices and procedures for addressing  harassment in the workplace. The legal authority for this  requirement was established by the Supreme Court in two decisions  concerning harassment liability, Burlington Industries v.  Ellerth, 524 U.S. 742 (1998), and Faragher v. City  of Boca Raton, 524 U.S. 775 (1998).

In Faragher, the Court found a city government  liable for discrimination because such an employer, with many  departments in multiple locations, could not protect against  harassment without communicating "some formal [anti-harassment]  policy with a sensible complaint procedure."6 These policies are necessary to show that  agencies have taken "reasonable care to prevent and correct  promptly ... such harassment."7 In  both cases, the Court stressed that Title VII of the Civil Rights  Act of 1964 is designed to encourage the creation of  anti-harassment policies and effective grievance mechanisms.

Accordingly, the EEOC established minimum standards and  guidelines for agencies' use in developing anti- harassment  policies.8See App. 2.  Pursuant to EEOC Enforcement Guidance: Vicarious Employer  Liability for Unlawful Harassment by Supervisors, Notice 915.002,  June 18, 1999 (hereinafter referred to as  Enforcement Guidance), an anti-harassment policy and  complaint procedure should contain, at a minimum, 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    accessible avenues for complainants;
- Assurance that employer will protect the confidentiality of    the individuals bringing harassment claims to the extent    possible;
- A complaint process that provides a prompt, thorough, and    impartial investigation; and
- Assurance that the employer will take immediate and    appropriate corrective action when it determines that    harassment has occurred.

The Enforcement Guidance also provides that  agencies should ensure that their supervisors and managers  receive periodic training so that they understand their  responsibilities under the agencies' anti-harassment policy and  complaint procedure. Such training should explain: the types of  conduct that violate the agency's anti-harassment policy; the  seriousness of the policy; the responsibilities of supervisors  and managers when they learn of alleged harassment; and the  prohibition against retaliation.

Although EEO offices in many agencies are often responsible  for establishing anti-harassment policies, it is important to  understand that the EEO process and anti-harassment programs do  not exist for the same purposes.9See App. 3. The EEO process is designed to make  individuals whole for discrimination that already has occurred  through damage awards and equitable relief paid by the agency and  to prevent the recurrence of the unlawful discriminatory conduct.  See Albemarle Paper Co. v. Moody, 422 U.S. 405  (1975); Clarke v. Department of Justice, EEOC Appeal  No. 01922561 (1992). However, the EEO process cannot require an  agency to discipline its employees.10See Cagle v. U.S. Postal  Service, EEOC Appeal No. 01903198 (1990). The internal  anti-harassment program, on the other hand, is intended to take  immediate and appropriate corrective action, including the use of  disciplinary actions, to eliminate harassing conduct regardless  of whether the conduct violated the law. Ultimately, the goal of  the anti-harassment program is to prevent harassing conduct  before it can become "severe or pervasive."

### I. Survey of Anti-Harassment  Policies Reveal Significant Deficiencies

A review of the anti-harassment policies received from 43  federal agencies, including one agency's 64 sub- components,  revealed significant deficiencies in the anti-harassment program  guidance. The deficiencies in the anti-harassment policies and  procedures include failing to address non-sexual harassment,  failing to establish an independent investigatory process, and  failing to provide clear investigation procedures.11 However, the most troubling disclosure  was that a number of agencies had no anti-harassment policy at  all. The tables below provide an overview of the deficiencies  found in the anti-harassment programs of 42 agencies as well as  those deficiencies found in the 64 sub-components of one agency.  A discussion of the deficiencies follows the tables.

| Deficiencies In Anti-Harassment Policies          | Agencies 12 | All Agencies | Percentage |
|---------------------------------------------------|-------------|--------------|------------|
| No Anti-Harassment Policy                         | 3           | 42           | 7%         |
| Non-Sexual Bases of Harassment Not Specified      | 20          | 39           | 51%        |
| Investigation Procedures Unclear                  | 17          | 39           | 44%        |
| No Officials Designated to Accept Claims          | 4           | 39           | 10%        |
| Only Chain of Command Designated to Accept Claims | 5           | 39           | 13%        |
| Only EEO to Investigate                           | 6           | 39           | 15%        |

| Deficiencies In Anti-Harassment Policies          | Sub-      Components | All Sub-      Components 13 | Percentage |
|---------------------------------------------------|----------------------|-----------------------------|------------|
| No Anti-Harassment Policy                         | 5                    | 64                          | 8%         |
| Non-Sexual Bases of Harassment Not Specified      | 50                   | 59                          | 85%        |
| Investigation Procedures Unclear                  | 31                   | 59                          | 53%        |
| No Officials Designated to Accept Claims          | 22                   | 59                          | 37%        |
| Only Chain of Command Designated to Accept Claims | 18                   | 59                          | 31%        |
| Only EEO to Investigate                           | 6                    | 59                          | 10%        |

#### A. Agencies Lack  Anti-Harassment Policies

Although more than five years have passed since the U.S.  Supreme Court issued decisions in Faragher and Ellerth and the  EEOC issued the Enforcement Guidance, the survey  revealed that 7% of the agencies reviewed (3) still do not have  an anti-harassment policy or complaint procedures in place. To  date, two of those agencies have informed EEOC that they are  planning or have begun drafting such policies. With respect to  the one agency that provided information about anti-harassment  programs in 64 out of its 98 sub-components, 8% of the  sub-components (5) have not established an anti-harassment policy  or complaint procedures. This failure to establish an  anti-harassment policy ignores the requirements for a model EEO  program as described in MD-715, and exposes the agencies to  potential liability for claims of harassment by a supervisor.

As stated previously, EEOC has conducted program evaluations  and issued appellate decisions regarding the agencies'  anti-harassment programs. Information from two relevant appellate  decisions is summarized below.

**No Proof of an Anti-Harassment    Policy**

In Horkan v. U.S. Postal Service, EEOC Appeal    No. 01976837 (2000), the EEOC found that the agency had    discriminated against the complainant on the basis of her sex    and disability. In particular, the EEOC stated that there was    no evidence of a strong anti-harassment policy that was    uniformly enforced throughout the facility, and there appeared    to be no clearly defined and effective complaint process for    employees with allegations of harassment. As such, the agency    could not avoid liability or limit damages for harassment by    the supervisor.

#### B. Policies Do Not Address  Non-Sexual Harassment

Most agencies have a strongly-worded policy statement  denouncing sexual harassment and threatening swift and severe  action against employees who engage in such conduct; however, 51%  of the agencies (20),14 and 85% of  one agency's sub-components (50), have polices that cover  only sexual harassment. As noted above, harassment  may occur on any basis covered by EEO statutes, including race,  color, religion, sex (sexual or non-sexual), national origin,  age, disability, and reprisal.15  Even though non-sexual harassment is the issue most frequently  raised in EEO complaints, many agencies' policies fail to  mention, and therefore presumably fail to cover, non-sexual  harassment. See App. 1 (Table 1). Assuming that such  policies "informally" cover non-sexual harassment, employees may  not believe they have such recourse unless specific coverage is  mentioned in the policy.

EEOC has conducted program evaluations and issued appellate  decisions regarding the agencies' anti- harassment programs.  Information from several relevant program evaluations is  summarized below.

**Lack of a Comprehensive    Anti-Harassment Policy**

In four of the six program evaluations issued by the EEOC on    August 25, 2004, July 31, 2003, April 24, 2003, and February 8,    2002, the agencies' anti-harassment policy did not cover all of    the protected bases, including race, color, national origin,    sex, religion, age, disability, and reprisal. In one particular    agency, hangman's nooses were found in the workplace on four    occasions, and racial graffiti was written in the lavatory. As    a result of damaged car tires belonging to complainants in    another agency, there was a perception that participation in    the EEO process would result in retaliation. These agencies'    failure to establish a comprehensive anti-harassment policy    that addresses all of the protected bases and clearly explains    what constitutes prohibited conduct would most likely result in    liability during the EEO process.

#### C. Policies Have Unclear  or Insufficient Investigation Procedures

Agencies should "set up a mechanism for a prompt, thorough,  and impartial investigation into alleged harassment."  Enforcement Guidance, Part V.C.1.e. In particular,  the agencies' complaint procedures should identify the  investigation process, including where to file the complaint, who  will conduct the investigation, and who will make the decision  for corrective action. Most of the responding agencies provided  EEOC with broad "policy statements" denouncing harassment, and  warning employees of the repercussions for such behavior. While  EEOC's regulations endorse such statements as a tool to prevent  harassment, the agencies' efforts to prevent and eliminate  harassment should be explained in detail, either in the policy  statement or in complaint procedures. 16

Our survey shows that the policies did not contain any  complaint procedure in 44%of the agencies (17), and in 53% of one  agency's sub-components (31). In many of those policies, it is  unclear whether an obligation to investigate harassment claims  has been created, and who would be responsible for those  investigations. Other agency officials explained their procedures  for handling harassment, but did not appear to have these  procedures written down, or generally accessible to employees.  While a strongly worded policy statement may demonstrate the  agency leadership's commitment to preventing harassment,  effective procedures for handling harassment claims also are  necessary. The failure to conduct a prompt investigation of  harassment claims ignores the requirements set forth in the  Enforcement Guidance and may expose an agency to  potential liability for harassment by a supervisor.

With regard to the investigation process, the survey focused  on whether the policy designates an agency official to accept  harassment claims, whether the policy relied solely on the chain  of command to accept harassment claims, and whether the policy  relied solely on the EEO process to conduct the  investigation.

##### *Policies Fail to Designate Any Officials to Accept Claims  of Harassment*

Employees must be notified of who they may approach to raise  claims. Enforcement Guidance,, Part V.C.1.c. The  survey shows that the policies of 10% of the agencies (4) and 37%  of one agency's sub- components (22) failed to designate anyone  as responsible for accepting claims of harassment. EEOC has  conducted program evaluations and issued appellate decisions  regarding the agencies' anti-harassment programs. Information  from several evaluations and decisions is summarized below.

**No Officials Designated to Receive    Harassment Complaints**

In one program evaluation issued on July 31, 2003, EEOC    found that the agency's anti-harassment policies failed to    explain how employees should raise a claim. The agency's EEO    office did not know how to address a stalking incident, and as    a result, the manager did not investigate the incident for    nearly seven months. In two EEOC decisions, managers failed to    conduct investigations because either there was no harassment    policy, or if there was a policy, it was not effectively    conveyed to the agency's managers and supervisors. See    Van Wolken v. Department of Homeland Security, EEOC    Appeal No. 07A30134 (May 11, 2004); Apfel v. Social    Security Administration, EEO Appeal No. 01963810 (August    5, 1999). The failure to conduct a prompt investigation    resulted in the agencies' liability.

##### *Policies Designate Only Chain of Command to Accept  Harassment Claims*

Part V(C)(1)(c) of EEOC's Enforcement Guidance  suggests that employers designate at least one official outside  an employee's "chain-of-command" to accept claims of harassment.  As such, investigation procedures should provide multiple points  of contact for the employee, such that all claims need not go  through the "chain-of-command." The survey shows that 13% of the  agencies (5) and 31% of one agency's sub-components (18) required  employees to raise claims of harassment with their "chain-of-  command." None of these policies included provisions for dealing  with conflicts of interest. Without this provision, or some other  consideration for conflicts of interest, employees may be faced  with complaining to the very people responsible for the conduct  they are reporting. When faced with such a situation, employees  will be unlikely to report harassment, and the agency will lose  this opportunity to address workplace harassment through its  policy. Information from a program evaluation and appellate  decisions is summarized below.

**No Alternative to Management    Official**

In Horkan v. U.S. Postal Service, EEOC Appeal    No. 01976837 (April 6, 2000), the EEOC found that the    complainant was harassed based on sex and disability. Over a    significant period of time, she was continuously subjected to    demeaning comments by co-workers who either resented the    accommodations for her disability or were negative towards    women in general. Despite repeated complaints, the supervisor    failed to address the co-workers' comments. Due to the    manager's inability to enforce the anti-harassment policy, an    investigation took months to complete. The agency incurred    liability because there was no evidence of a strong    anti-harassment policy that was uniformly enforced throughout    the facility, and there appeared to be no clearly defined and    effective complaint process for employees with allegations of    harassment. The EEOC ordered the agency to provide training and    issue a new anti-harassment policy, and then remanded the    compensatory damages and attorney's fees to the hearings    unit.

##### *Policies Rely on EEO Process, Lacking an Independent  Investigation*

Pursuant to Faragher and the Enforcement  Guidance, federal agencies are required to establish an  anti-harassment policy which assures that their complaint process  will provide a prompt, thorough, and impartial investigation. The  case law and guidance, however, do not address which office  within the agencies is responsible for the anti-harassment  complaint process. As such, agencies have the discretion to  assign oversight of the anti-harassment program to their EEO  office, personnel office, legal counsel, or another function.

When the responsibility for the anti-harassment program is  assigned to the EEO office, a conflict can occur when the EEO  office merges the anti-harassment program into the EEO process.  The EEOC found that 15% of the agencies (6) and 10% of one  agency's sub-components (6) have polices that rely solely on the  EEO process to address claims of harassment.17 Rather than conducting a prompt  investigation, these agencies may wait until after an  investigation has been completed in the formal complaint stage of  the EEO process before any corrective action is taken.  Accordingly, it is clear that agencies should not rely on their  EEO process as a mechanism for ensuring a prompt, thorough, and  impartial investigation. 18

Even if the EEO office does not use the EEO process to conduct  the anti-harassment program, there is a potential conflict  because the EEO Director would act as the decision-maker for the  EEO process and the anti-harassment program. The decision-maker  in the EEO process must decide whether the law was violated, but  the anti-harassment policy should address issues that may not yet  be severe enough to violate the law. In other words, the EEO  decision-maker could be in the awkward position of finding, with  respect to the EEO process, that no actionable harm occurred and  no relief is available, but, with respect to the anti-harassment  policy, that corrective action is necessary. If agencies want the  EEO office to oversee the anti-harassment program, they should  consider either establishing a firewall between the  anti-harassment coordinator and the EEO Director, or assigning  only the investigation function to the EEO office and allowing  another office to decide whether to take corrective action.

The EEOC has conducted program evaluations and issued  appellate decisions regarding the agencies' anti- harassment  programs. Information from a program evaluation is summarized  below.

**EEO Process Does Not Preempt Internal    Investigation**

In one recent program evaluation issued on August 25, 2004,    EEOC found that there was confusion among the managers as to    the procedures of the anti-harassment program. When managers    conduct investigations, they typically lasted between six    months and one year. If the employee files an EEO complaint,    the managers were not permitted to initiate an inquiry. The    EEOC advised the agency that it has a duty to exercise due care    by launching an internal investigation regardless of whether an    EEO complaint is filed.

### II. Educating Employees  about Harassment May Reduce High Numbers of Non- Sexual  Harassment Claims

This section of the report will address the high number of  non-sexual harassment complaints that occur in the EEO process as  well as the possible reasons for such high numbers. In addition,  this report will provide information which can be used to educate  employees about the legal definition of harassment.

#### A. High Number of Non-Sexual  Harassment Complaints

As part of this evaluation, the EEOC sought to understand the  cause(s) for the high number of non-sexual harassment claims in  the EEO process. The EEOC's Annual Reports on Federal Workforce  show that since FY 2000, non-sexual harassment has exceeded all  other issues in complaints filed, appellate closures, and  findings of discrimination on appeal. In this regard, more  complaints contained allegations of non- sexual harassment than  any other issue since FY 1995. See App. 1 (Table 1).  Although the number of complaints filed has declined by 22% since  FY 2000 (from 24,524 in FY 2000 to 19,024 in FY 2004), the number  of complaints alleging non-sexual harassment has declined by only  5% (from 5,430 to 5,175). See App. 1 (Table 2).  During this same time period, the number of complaints that  included the issue of non-sexual harassment increased from 22% to  27% of all complaints filed by federal employees. See App.  1 (Table 2). Similarly, the number of appeals raising the  issue of non-sexual harassment has been greater than all other  issues raised on appeal, averaging nearly 25% of all appellate  closures from FY 2000 to FY 2004. See App. 1 (Table  3).

#### B. Possible Causes of High  Number of Non-Sexual Harassment Complaints

When taken at face value, the most obvious cause of the high  number of non-sexual harassment complaints is that harassing  conduct is prevalent in the federal workplace. However, the  Annual Report on the Federal Sector Workforce shows that of the  23,153 complaint closures (by final agency decision or  administrative judge) in FY 2004, less than 3% resulted in a  finding of discrimination.19 As  such, we can deduce that very few of the complaints alleging  harassment result in a finding of discrimination. At the  appellate stage of the EEO process, the data establishes that of  the appellate decisions where the EEOC has found discrimination,  a relatively high percentage of those appeals consistently  involve non-sexual harassment. From FY 2000 to FY 2004, an  average of 26% of the appellate decisions where EEOC found  discrimination involved non-sexual harassment. See App. 1  (Table 3). Of the 8,028 appellate closures in FY 2004, 20%  raised an allegation of non-sexual harassment; yet, 39% of the  appellate decisions finding discrimination involved non-sexual  harassment. Id. As such, it appears that at the appellate stage,  the issue of non-sexual harassment was disproportionately  represented among the findings of discrimination.

The focus of this report is on the vast majority of complaints  (approximately 97%) where there was either a finding of no  discrimination or a dismissal for failure to state a claim. As  such, the EEOC contacted six agencies to determine the possible  causes for the presumably high number of unsuccessful complaints  alleging non-sexual harassment.

Officials from these agencies reported that the high number of  non-sexual harassment complaints may result from (1) employees  misunderstanding the definition of harassment, and (2) employees  over-reporting non- sexual harassment claims.20See App. 4. Some of the  agencies reported that employees do not understand the legal  definition of harassment. For example, employees may believe that  they are being harassed when their manager raises a job  performance question without any indication that the inquiry was  based on a protected class. Agencies also reported that  non-sexual harassment has been used as a "catch all" category for  complaints that should be identified as a different issue or  issues. For example, when individuals raise multiple discrete  issues involving non-selection, denial of leave, and low  performance appraisal, they may only select non-sexual harassment  to address all of those issues.

#### C. Importance of  Educating Employees about Harassment

While issuing anti-harassment policies and procedures will  help to address the high number of complaints, it is also  critical for agencies to ensure that its managers and employees  understand the types of conduct that constitute harassment under  Title VII, the Rehabilitation Act, and the Age Discrimination in  Employment Act. To educate managers and employees about  harassment, this report will provide the legal definition of  harassment and utilize cases to illustrate what types of conduct  constitute a viable claim of non-sexual harassment.

##### Legal Definition of Harassment

To establish a viable claim of harassment, a complainant must  show that: (1) she belongs to a statutorily protected class; (2)  she was subjected to unwelcome verbal or physical conduct  involving the protected class; (3) the harassment complained of  was based on the statutorily protected class; (4) the harassment  had the purpose or effect of unreasonably interfering with her  work performance and/or creating an intimidating, hostile, or  offensive work environment; and (5) there is a basis for imputing  liability to the employer. Ornelas v. Department of  Justice, EEOC Appeal No. 01995301 (2002). An aggrieved  employee is one who has actually suffered a personal loss or harm  with regard to a term, privilege, or condition of employment for  which there is a remedy under Title VII. Brooks v.  Department of the Navy, EEOC. Request No. 05950484 (1996).  Where a complaint does not challenge an agency action or inaction  regarding a specific term, condition, or privilege of employment,  a claim of harassment is actionable only if, the harassment was  sufficiently severe or pervasive so as to alter the conditions of  the complainant's employment. Longoria v. Department of  Veterans Affairs, EEOC Appeal No. 01A52731 (2005).

##### Frequency and Severity of the Conduct

In assessing whether the harassment is sufficiently severe or  pervasive to trigger a violation of the law, the conduct must be  viewed in the context of the totality of the circumstances,  including the frequency of the discriminatory conduct, its  severity, whether it is physically threatening or humiliating, or  a mere offensive utterance, and whether it unreasonably  interferes with an employee's work performance. Harvey v.  Department of Veterans Affairs, EEOC Appeal No. 01A40718  (2005). The Supreme Court has recognized that the conduct "must  be both objectively and subjectively offensive, [such] that a  reasonable person would find [the work environment to be] hostile  or abusive, and . . . that the victim in fact did perceive to be  so." Id. Faragher v. City of Boca Raton, 524 U.S.  775, 788 (1998).

The Supreme Court also noted that "simple teasing, offhand  comments, and isolated incidents (unless extremely serious) will  not amount to discriminatory changes in the 'terms and conditions  of employment." In this regard, it is important to realize that  Title VII is not "a general civility code." Rotarius v.  Department of the Treasury, EEOC Appeal No. 01A42708  (2004) (citing Oncale v. Sundower Offshore Servs.,  Inc., 423 U.S. 75, 80-81 (1998)). Evidence of the general  work environment, involving employees other than the complainant,  is also relevant to the issue of whether a hostile environment  existed in violation of the anti-discrimination laws.  Jackson v. U.S. Postal Service, EEOC Appeal No.  01972555 (1999).

##### Conduct that Constitutes a Viable Claim of Harassment

In assessing whether to dismiss a complaint for failure to  state a claim, the trier of fact must consider all of the alleged  harassing incidents and remarks in the light most favorable to  the complainant. Cobb v. Department of the Treasury,  EEOC Request No. 05970077 (1997). A complaint should not be  dismissed for failure to state a claim unless it appears beyond  doubt that the complainant cannot prove a set of facts in support  of the claim. 21Id.  To show the types of conduct that will and will not state a claim  of harassment, we have described selected EEOC cases below,  focusing on the severity and the frequency of the conduct.

##### Fails to State a Claim of Harassment

The following cases demonstrate instances when the  complainants failed to show that the alleged harassment was  severe or pervasive. In particular, the complaints failed to  state a claim because the conduct was an isolated incident, or  was not severe enough to harm the complainants' term, condition,  or privilege of employment (i.e., the conduct involved the  complainant's job performance).

An employee alleged in a complaint that he was harassed based  on reprisal for prior EEO activity by a supervisor who told him  to turn off his personal radio. Corral v. U.S. Postal  Service, EEOC Appeal No. 01966494 (1998). The EEOC upheld  the agency's dismissal of the complaint because this isolated  incident was not sufficiently severe to harm the employee's  terms, conditions, or privileges of employment.  Id.

The EEOC upheld the agency's dismissal of a complaint in which  the employee alleged harassment based on sex (female) and  reprisal for prior EEO activity by her supervisor who told her  that (1) matters pertaining to sexual harassment were over and  done with, and it was time to go on; and (2) he needed to check  on her to be sure that she was doing her job because if she was  not, he would be required to write her up. Longoria v.  Department of Veterans Affairs, EEOC Appeal No. 01A52731  (2005). The EEOC concluded that these two incidents were not  sufficiently severe or pervasive to constitute harassment;  rather, they were consistent with a supervisor providing an  employee with feedback regarding the performance of her duties.  Id.

Similar to Longoria, the EEOC upheld the agency's  dismissal of a complaint in Garcia v. U.S. Postal  Service, EEOC Appeal No. 01A45095 (2005), because the  supervisor's isolated remark about the complainant's job  performance was not sufficiently severe or pervasive to state a  claim of harassment based on sex (male) and reprisal for prior  EEO activity. In particular, the supervisor expressed that he was  tired of the complainant stating that he does not have time to  finish all of his work. Id.

In Ponce v. Department of Veterans Affairs, EEOC  Appeal No. 01A45195 (2004), the complaint contained numerous  allegations of harassment based on national origin (Hispanic) and  age (over 40): (1) during a staff meeting, the complainant was  told that coworkers complained about the volume of the radio at  his workstation; (2) the supervisor twice asked him to make sure  that he loaded file folders on a cart; (3) two supervisors placed  him in a difficult situation regarding prioritizing work; (4) his  supervisor verbally counseled him about time spent on assignments  and informed him of accusations by coworkers; (5) his supervisor  gave him a report of contact regarding time spent on assignments;  (6) a coworker with supervisory authority questioned complainant  about retirement and future plans; and (7) his supervisor denied  his request to change from full-time to part-time status. The  EEOC affirmed the agency's decision to dismiss the complaint  because the claims were not so severe or pervasive as to alter  the conditions of complainant's work environment.

In Vu v. Social Security Administration, EEOC  Appeal No. 01A52675 (2005), the complainant alleged that she was  subjected to harassment based on her national origin (Vietnamese)  when (1) she was accused of not attending a party and faking an  illness because someone else was promoted; (2) a supervisor  demeaned her in front of her subordinates; (3) a supervisor spoke  to her in a loud and demeaning manner; (4) a supervisor spoke to  her rudely; (5) a supervisor reprimanded her for failing to  submit a leave slip; and (6) a supervisor reprimanded her  regarding leave in a rude manner. In affirming the agency's  dismissal of the complaint, the EEOC found that these incidents  were not sufficiently severe or pervasive to constitute an  actionable claim of harassment.

Unlike previous cases which focus on job performance issues,  the complainant in Harvey v. Department of Veterans  Affairs, EEOC Appeal No. 01A40718 (2005), pointed to a  racial epithet used by his coworker. In particular, the  complainant alleged that he was subjected to harassment based on  his race (African-American), sex (male), disability (back), and  reprisal for prior EEO activity when a coworker referred to him  as a "nigger." The EEOC found that the complainant failed to show  that this remark was sufficiently severe or pervasive to state an  actionable claim of harassment.

##### Sufficiently States a Claim of Harassment

The following cases provide instances when the complainants  established that the alleged harassment was severe or  pervasive.

In Brooks v. Department of the Navy, EEOC Request  No. 05950484 (1996), the complainant alleged harassment based on  race (African-American) when his supervisor: (1) told him "that  damn Skip, he reminds me of people of your color;" (2) called him  a "nigger;" and (3) stated "that's one of your relatives," while  pointing at a black rat in a trash can. In light of the base's  history of racial abuse, hostility, and discrimination toward  Black civilian employees, the EEOC found that the allegations  were sufficient to state a claim. Id. In particular, the EEOC  concluded that the supervisor's two racially derogatory  statements and use of the highly-charged epithet, "nigger" during  a two-month period was sufficiently severe and pervasive when  viewed in the context of the totality of the evidence. Id.

In Sitake v. Department of Homeland Security,  EEOC Appeal No. 01A44304 (2005), the complainant alleged  harassment based on his race (Pacific Islander), national origin  (Tongan), religion (Mormon), and reprisal for prior EEO activity  when he claimed: (1) non-Mormon employees were given preferences  in the workplace; (2) the workplace was poisoned by  discriminatory insult and ridicule; and (3) defamatory comments  were made about Mormons. In particular, the complainant alleged  that Tongans and other Polynesians were referred to as "coconut  heads," Hispanic detainees were called "tonks" or "wets," and  Asians were referred to as "gooks," slopes," and "slants,"  depending on their national origin. Id. The complainant also  claimed that he was not permitted to speak in Tongan in the  office. Id. The EEOC found that the complaint raised an  actionable claim of harassment because the conduct was  sufficiently severe or pervasive to alter the conditions of his  employment. Id.

In Gamboa v. U.S. Postal Service, EEOC Request  No. 05890633 (1989), the complainant alleged that she was  harassed based on her disability (hearing impaired) during a  group safety meeting with her supervisor and other employees.  When the complainant asked the supervisor to turn and face her so  she could read his lips, he harshly ordered her to move to  another area. Once the complainant moved, the supervisor told her  to move again. The EEOC found that a single incident involving  conduct and two derogatory remarks during a public forum was  sufficient to state a claim of harassment under the  Rehabilitation Act. Id.

By educating employees and managers about harassment, agencies  may help reduce the over-reported and inflated number of EEO  complaints alleging non-sexual harassment. Moreover, the  establishment of a comprehensive anti-harassment policy could  then address the conduct that may not be appropriate for the EEO  process before the conduct becomes severe and pervasive.

## Suggestions for  Improving Anti-Harassment Policies and Procedures

- In order to establish a model EEO program and avoid    potential liability for harassment clams, federal agencies    should establish an anti-harassment policy and complaint    procedure which is in compliance with EEOC's  Enforcement    Guidance: Vicarious Employer Liability for Unlawful Harassment    by Supervisors, Notice 915.002, June 18, 1999 . For    agencies with numerous sub- components, we recommend that the    agency head ensure that each sub-component has an anti-    harassment policy which complies with the  Enforcement    Guidance  and is consistently enforced. For examples of    model anti-harassment policies, we recommend that agencies    review the policies developed by the Social Security    Administration and the Department of Labor.  See App.    5 .       At a minimum, an agency's anti-harassment policy should      contain the following elements:    - Clearly explain the prohibited conduct. In particular,        the policy should cover all forms of harassment, including        race, color, gender (both sexual and non-sexual), age,        national origin, disability, and religion;
  - Write the policy in a way that will be understood by        all employees and implement it in a manner which ensures        its effective dissemination to all employees. The policy        needs to be posted in conspicuous locations throughout the        facility, including the agency's website, and incorporated        into employee orientation materials/handbooks;
  - State that complainants, witnesses, and others who        provide information concerning such claims will be        protected from retaliation;
  - Assure the confidentiality of individuals bringing        claims of harassment to the extent possible;
  - Describe the complaint process, particularly the agency        officials who can receive harassment claims. It is        advisable to designate at least one official outside the        employee's chain of command to receive claims of harassment        because a conflict of interest could occur if the alleged        harasser is within the employee's chain of command;
  - Ensure that the investigation process is prompt,        thorough, and impartial. In this regard, agencies should        develop complaint procedures that are separate from the EEO        process and address all claims of harassment irrespective        of whether the alleged victim files an EEO complaint in the        same matter;
  - Assure immediate and appropriate corrective action,        including discipline or removal of employees and managers.        Agencies, however, should not take action involving the        alleged victim without their consent (i.e., transferring        the victim to another office); rather, it is preferable to        implement measures designed to achieve the same result        without burdening the alleged victim; and
  - Provide periodic training to all managers and        supervisors regarding the terms of the anti- harassment        policy and procedures, and their role in the complaint        process. Additional training for employees would also be        useful. 22 
- It is essential for the agency head to emphasize to    managers and supervisors that harassment will not be tolerated    in the agency. If the agency head makes management leadership    an issue by holding management officials accountable for    harassing conduct that occurs in their departments, the    officials will have more incentive to discover and eliminate    such conduct.
- Agencies should take reasonable steps to prevent and    correct harassment. For those agencies that currently limit the    scope of their policy to only matters that are severe or    pervasive, they should develop a more comprehensive    anti-harassment policy which could prevent harassment before    employees have been subject to actionable harm.
- To aggressively resolve harassment claims as early as    possible, we suggest that the agency head strongly encourage    the use of alternative dispute resolution (ADR), when    appropriate.
- Agencies should train employees about the anti-harassment    policy and complaint procedures. Since this training should    also educate employees about the types of conduct that    constitute harassment under the anti-discrimination laws, the    training may also address the issue of over- reporting    harassment claims. The training may also allow agencies to show    that an employee's failure to utilize the harassment process    was not the result of the agency failing to tell the employee    about the process.
- Agencies should ensure that non-sexual harassment is not    used as a "catch all" category for complaints that should    appropriately be categorized as "other" issues in the     EEOC Form 462 .
- To assist with oversight of the anti-harassment program,    agencies should utilize a centralized system for tracking and    monitoring inquiries or allegations of harassment. In this    regard, we advise instituting specific guidelines for    monitoring allegations and inquiries, which will allow for the    early identification and effective resolution of conflict    situations that could otherwise escalate if left unchecked.    Agencies have suggested conducting trend analysis, root cause    analysis, and climate assessment to locate "hot spots" of    harassment and to obtain feedback on the climate in the    workplace.

----

### Footnotes

1 It is important to  note that "non-sexual" harassment may include "sex-based"  harassment that is not of a sexual nature as well as race, color,  religion, national origin, age, disability, or retaliation.  Federal agencies are also bound by Executive Orders to prohibit discrimination on  bases not covered by federal statute, including sexual  orientation and status as a parent. See Executive Order 11478, 34  Fed. Reg. 12985 (Aug. 8, 1969), as amended by,  Executive Order 13087, 63 Fed. Reg. 30097 (May 28, 1998),  as further defined by, Executive Order 12152, 65  Fed. Reg. 26115 (May 2, 2000).

2 EEOC's decision to  survey federal agencies' anti-harassment policies was limited to  gathering information about compliance with the law, and was not  intended to ascertain whether particular policies were compliant.  In particular, the survey did not evaluate the agencies'  implementation of their policies.

3 EEOC's Office of  Federal Operations previously issued reports to the Department of  Agriculture, Animal and Plant Health Inspection Service; the  Department of the Army, Aviation and Missile Command; the  Department of Energy, Savannah River Site; the Department of the  Treasury, Bureau of Engraving and Printing; and the U.S. Postal  Service, Springfield, Missouri facility.

4 We requested  anti-harassment policies/procedures from the African Development  Foundation, Agency for International Development, Central  Intelligence Agency, Consumer Product Safety Commission, Defense  Commissary Agency, Department of Agriculture, Department of the  Air Force, Department of the Army, Department of Commerce,  Department of Defense, Department of Education, Department of  Energy, Department of Health and Human Services, Department of  Homeland Security, Department of Housing and Urban Development,  Department of the Interior, Department of Justice, Department of  Labor, Department of the Navy, Department of State, Department of  Transportation, Department of the Treasury, Department of  Veterans Affairs, Environmental Protection Agency, Equal  Employment Opportunity Commission, Federal Communications  Commission, Federal Deposit Insurance Corporation, Federal  Emergency Management Agency, Federal Energy Regulatory  Commission, Federal Labor Relations Authority, Federal Maritime  Commission, General Services Administration, International  Broadcasting Bureau, Merit Systems Protection Board, National  Aeronautics and Space Administration, National Archives and  Records Administration, National Endowment for the Arts, National  Endowment for the Humanities, National Labor Relations Board,  National Science Foundation, National Transportation Safety  Board, Nuclear Regulatory Commission, Office of Government  Ethics, Office of Special Counsel, Peace Corps, U.S. Postal  Service, Railroad Retirement Board, Securities Exchange  Commission, Small Business Administration, Social Security  Administration, and the U.S. Trade Representative.

5 EEOC staff contacted  the Departments of the Air Force, Army, Health and Human  Services, Interior, Justice, Veterans Affairs, and State;  however, we were unable to meet with the Department of  Interior.

6Faragher v. City  of Boca Raton, 524 U.S. at 809.

7Id., at  807.

8 On October 1, 2003,  EEOC issued Management Directive 715 (EEO MD-715),  which provides policy guidance and standards to agencies for  establishing and maintaining model EEO programs. EEO MD 715  reminds agencies of the requirement to issue a written policy  statement by the agency head which expresses commitment to EEO  and a workplace free of discriminatory harassment, and the  development of a comprehensive anti-harassment policy to prevent  harassment on all protected bases, including race, color,  religion, sex (sexual or non-sexual), national origin, age,  disability, and reprisal.

9 At footnote 57, the  Enforcement Guidance provides that "a federal  agency's formal, internal EEO complaint process does not, by  itself, fulfill its obligation to exercise reasonable care. That  process only addresses complaints of violations of the federal  EEO laws, while the Court, in Ellerth, made clear  that an employer should encourage employees 'to report harassing  conduct before it becomes severe or pervasive.'  Ellerth, 118 S. Ct. at 2270. Furthermore, the EEO  process is designed to assess whether the agency is liable for  unlawful discrimination and does not necessarily fulfill the  agency's obligation to undertake immediate and appropriate  corrective action."

10 In West v.  Gibson, 527 U.S. 212, 222 (1999), the Supreme Court  concluded that EEOC may award compensatory damages to  complainants in the administrative EEO process. It found that  although waivers of sovereign immunity must be interpreted  narrowly, the federal government waived its immunity from suits  for compensatory damages in discrimination claims in 1991  amendments to Title VII. Title VII makes no reference to allowing  courts or the EEOC to order discipline for its employees, or  similar corrective action. The EEO process may not be capable of  providing the same corrective action that an agency could impose  upon its own employees through an internal anti-harassment  policy.

11 This list does not  include all of the deficiencies found in the reviewed  anti-harassment policies. Rather, it provides a few of the most  common, glaring, and troubling errors EEOC found in these  policies. Some agencies' policies may include more than one type  of deficiency.

12 With the exception  of the "No Anti-Harassment Policy" category, The three agencies  without a policy were excluded from the total number of agencies  in each subsequent category for a more accurate percentage.

13 With the exception  of the "No Anti-Harassment Policy" category, the five  sub-components without a policy were excluded from the total  number of sub-components in each subsequent category for a more  accurate percentage.

14 Although four of  the 20 agencies have anti-harassment policies that refer to  harassment in general, each of those policies describes the  violation of the policy with respect to sexual harassment.

15See 29  C.F.R. § 1604.11(a) at n. 1 (2003) (noting that although  regulation pertains to sexual harassment, the same principles  apply to other bases of discrimination). EEOC has found agencies  liable for a variety of types of harassment, not just sexual  harassment. See Gilbert v. Department of Veterans  Affairs, EEOC Appeal No. 01A22636 (June 26,2003), req. for  recons. den., EEOC Request No. 05A31099 (Sep. 25, 2003)  (harassment on the bases of age and gender); Avila v.  Department of the Navy, EEOC Appeal No. 01996939 (Sep. 26,  2002) (harassment on the basis of national origin); Sabir  v. Department of Health and Human Services, EEOC Appeal  No. 01993859 (Sep. 11, 2002), req. for recons. den. EEOC Request  No. 05A30101 (May 20, 2004) (harassment on the bases of religion  and reprisal, but administrative process terminated in request  for reconsideration due to complainant's filing of civil action);  Gibson v. United States Postal Serv., EEOC Appeal No.  01985002 (Aug. 7, 2001) (sex-based harassment claim); Lovett v.  Department of the Army, EEOC Appeal No. 01984029 (May 3,  1999), req. for recons. den., EEOC Request No.  05990841 (June 28, 2001) (harassment on the bases of race and  reprisal); Fisher v. Department. of Justice, EEOC  Appeal No. 01973650 (Dec. 11, 1998) (harassment based on  disability).

16 29 C.F.R.§  1604.11(f) (agencies should take all steps necessary to prevent  harassment form occurring); Faragher, 524 U.S. at 809 (noting  that anti-harassment policies should include a "sensible  complaint procedure").

17 It is important to  note that the anti-harassment policies of 15 agencies and 22  sub-components are unclear as to which officials are responsible  for investigating harassment claims.

18Tom v.  Department of Health and Human Services, EEOC Appeal No.  01966875 (Oct. 1, 1998) (finding the agency's reliance on its EEO  process did not provide it with a defense to the complainant's  harassment complaint).

19 The Annual Report  on the Federal Workforce does not collect data that shows a  breakdown of the findings of discrimination by the particular  issues raised in the complaint (i.e., non-sexual harassment).

20 Agencies also  reported that the number of non-sexual harassment claims may be  impacted by the lack of a centralized system for tracking the  claims that were handled outside of the EEO process. See  Appendix 4.

21 In addition, the  trier of fact should not fragment the issues of a complaint in a  piecemeal manner because they will ignore the pattern aspect of  the claims. Weiser v. U.S. Postal Service, EEOC  Appeal No. 01A45370 (2004). An agency may be held liable for all  non-discrete acts constituting a hostile work environment as long  as one act contributing to that environment occurred with the  applicable filing period (i.e., 45 days to contact EEO office).  Id. Discrete acts that are untimely filed may be  used as background evidence in support of a timely claim of  harassment. Ornelas v. Department of Justice, EEOC  Appeal No. 01995301 (2002). Examples of discrete acts include  non-selections, failure to promote, and denial of leave.  Id.

22 The EEOC can offer  assistance in compiling effective and comprehensive training  modules. Moreover, the EEOC has developed a comprehensive two-day  training course for managers and supervisors. The course provides  an overview of the laws enforced by the EEOC , explains the  various theories of discrimination, and highlights what rights  and responsibilities individual managers and supervisors have  under the employment discrimination laws. Particular attention is  paid to harassment, the Rehabilitation Act (especially issues of  reasonable accommodation), and retaliation.

23 EEOC did not  collect data from agencies showing the number of complaints filed  for each of the various issues until FY 2000. All agencies have  not yet posted EEO data to their web-sites pursuant to the  No Fear Act, Pub. L. 107-174 (2002). Accordingly, we  were unable to complete our analysis of complaints filed alleging  harassment for FY 1999.

24 EEOC did not  collect data from agencies showing the number of complaints filed  for each of the various issues until FY 2000.

25 Although the  Supreme Court found that an employer with a small work force  might expect that sufficient care could be exercised informally  without a formal policy, it proceeded to find liability for a  city government because such an employer, with many departments  in far-flung locations, could not protect against harassment  without communicating some formal policy against harassment, with  a sensible complaint procedure. With very limited exceptions,  federal agencies much more closely resemble a city government  with multiple locations and departments than a small employer,  and should not expect to avoid liability without a formal  anti-harassment policy.

26 The  Enforcement Guidance can be found at http://www.eeoc.gov/policy/docs/harassment.html.

27 In West v.  Gibson, 527 U.S. 212, 222 (1999), the Supreme Court  concluded that EEOC may award compensatory damages to  complainants in the administrative EEO process. It found that  although waivers of sovereign immunity must be interpreted  narrowly, the federal government waived its immunity from suits  for compensatory damages in discrimination claims in 1991  amendments to Title VII. Title VII  makes no reference to allowing courts or the EEOC to order  discipline for its employees, or similar corrective action.  Accordingly, the EEO process may not be capable of providing the  same corrective action that an agency could impose upon its own  employees through an internal anti-harassment policy.

28 The EEOC did not  seek to determine the degree to which employees filed a  harassment claim because they misunderstood the definition of  harassment.

29 In addition, the  Enforcement Guidance states that agencies should  provide periodic training to managers to ensure that they  understand their duties under the agency's anti-harassment  program.

30 One agency did not  provide any information about the anti-harassment training that  is provided to its employees.

31 EEOC staff did not  seek to determine the degree to which these claims were  mis-categorized at the agencies visited.

32 The Federal  Managers' Financial Integrity Act of 1982 (FMFIA) requires  all agencies to reasonably ensure reliable and timely information  is obtained, maintained, and reported.

## Appendix 1  Complaints Alleging Non-Sexual Harassment in the EEO Process

| Issue | Complaints Filed By Fiscal Year 23 |
|-------|------------------------------------|
||
| 1     | Non-Sexual Harassment              | 5,430 | 6,082 | 5,431 | 5,689 | 5,175 |
| 2     | Promotion/Non-Selection            | 4,511 | 4,685 | 3,664 | 4,435 | 3,892 |
| 3     | Terms of Employment                | 3,700 | 3,431 | 3,172 | 2,541 | 2,474 |

| Fiscal Year | Complaints Filed | Complaints Alleging Non-      Sexual Harassment 24 | Percentage of Complaints      Alleging Non-Sexual Harassment |
|-------------|------------------|----------------------------------------------------|--------------------------------------------------------------|
| 2000        | 24,524           | 5,430                                              | 22.14%                                                       |
| 2001        | 23,301           | 6,082                                              | 26.10%                                                       |
| 2002        | 21,945           | 5,431                                              | 24.75%                                                       |
| 2003        | 20,226           | 5,689                                              | 28.13%                                                       |
| 2004        | 19,024           | 5,175                                              | 27.20%                                                       |

| Fiscal Year | Appellate Closures | Appeals Raising* Non-Sexual Harassment | Percent | Appellate Decisions Finding Discrimination on All      Issues | Appellate Decisions Finding Discrimination on Non-Sexual      Harassment | Percent |
|-------------|--------------------|----------------------------------------|---------|---------------------------------------------------------------|--------------------------------------------------------------------------|---------|
| 2000        | 9,148              | 2,096                                  | 22.91%  | 150                                                           | 33                                                                       | 22.00%  |
| 2001        | 9,333              | 2,154                                  | 23.08%  | 199                                                           | 51                                                                       | 25.63%  |
| 2002        | 9,452              | 2,275                                  | 24.07%  | 228                                                           | 48                                                                       | 21.05%  |
| 2003        | 8,013              | 2,628                                  | 32.80%  | 218                                                           | 53                                                                       | 24.31%  |
| 2004        | 8,028              | 1,642                                  | 20.45%  | 226                                                           | 88                                                                       | 38.94%  |

* The number of appeals raising non-sexual harassment has been  greater than all other issues raised on appeal.

## Appendix 2  The Legal Requirement for an Anti-Harassment Policy

To understand the deficiencies in agencies' anti-harassment  programs, it is important to know the legal requirements with  which the agencies must comply. The EEOC first addressed the use  of anti-harassment policies in 1980, when it issued regulations  concerning sexual harassment policies. See 45 Fed. Reg.  74,676, November 10, 1980, codified in 29  C.F.R.§1604.11. Although these early regulations only  referred to sexual harassment policies, they noted that  harassment could occur on any discriminatory basis under Title  VII of the Civil Rights Act of 1964 (Title VII).  EEOC informed the public that prevention is the best tool for the  elimination of harassment and generally suggested a number of  ways to prevent harassment, including the issuance of  anti-harassment policies. Later guidance provided more details  for employers with respect to anti-harassment policies.

With regard to harassment by a supervisor, the Supreme Court  specifically endorsed the adoption and use of anti-harassment  policies in two 1998 decisions: Burlington Industries v.  Ellerth, 524 U.S. 742 (1998) and Faragher v. City of  Boca Raton, 524 U.S. 775 (1998). 25 The Court in Faragher established that  when harassment by a supervisor creates a hostile work  environment but does not result in a tangible employment action,  the employer can raise the following affirmative defense to  liability or damages: (1) the employer exercised reasonable care  to prevent and correct promptly any harassment; and (2) the  employee unreasonably failed to take advantage of any preventive  or corrective opportunities provided by the employer or to avoid  harm otherwise. Faragher v. City of Boca Raton, 524  U.S. at 807. In Faragher, the Court found a city government  liable for harassment by a supervisor because such an employer,  with many departments in multiple locations, could not protect  against harassment without communicating "some formal  [anti-harassment] policy with a sensible complaint procedure."  Id., at 809. Anti-harassment policies are necessary  to show that agencies have taken "reasonable care to prevent and  correct promptly . . . such harassment." Id., at  807. As such, the Court stressed that Title VII is  designed to encourage the creation of anti-harassment policies  and effective grievance mechanisms.

Although the affirmative defense does not apply in cases of  harassment by co-workers or non-employees, an agency cannot claim  lack of knowledge as a defense to such harassment if it did not  make clear to employees that they can bring such misconduct to  the attention of management and that such complaints will be  addressed. See EEOC Enforcement Guidance: Vicarious  Employer Liability for Unlawful Harassment by Supervisors, Notice  915.002, V.C.1.a, n. 58 (June 18, 1999) (hereinafter  referred to as Enforcement Guidance),26 citing Perry v. Ethan Allen, 115  F.3d 143, 149 (2d Cir. 1997) ("When harassment is perpetrated by  the plaintiff's co-workers, an employer will be liable if the  plaintiff demonstrates that 'the employer either provided no  reasonable avenue for complaint or knew of the harassment but did  nothing about it'"), cited in Faragher, 118 S. Ct. at 2289.  Furthermore, an agency is liable for harassment by a co-worker or  non-employees if management knew or should have known of the  misconduct, unless the agency can show that it took immediate and  appropriate corrective action. 29 C.F.R. § 1604.11(d); see  Archie v. U.S. Postal Service, EEOC Appeal No.  01A11588 (August 4, 2003). Therefore, agencies should have a  mechanism, such as an anti-harassment policy, for investigating  allegations of harassment by co-workers and undertaking  corrective action, where appropriate.

Accordingly, EEOC established minimum standards and guidelines  for agencies' use in developing anti- harassment policies.  Pursuant to Part V(C)(1) of the Enforcement  Guidance, an anti-harassment policy and complaint  procedure should contain, at a minimum, the following  elements:

- A clear explanation of prohibited conduct;
- Assurance that employees who make complaints of harassment    or provide information related to such complaints will be    protected against retaliation;
- A clearly described complaint process that provides    accessible avenues for complainants;
- Assurance that employer will protect the confidentiality of    the individuals bringing harassment complaints to the extent    possible;
- A complaint process that provides a prompt, thorough, and    impartial investigation; and
- Assurance that the employer will take immediate and    appropriate corrective action when it determines that    harassment has occurred.

The Enforcement Guidance provides that agencies  should ensure that their supervisors and managers receive  periodic training so that they understand their responsibilities  under the agencies' anti-harassment policy and complaint  procedures. Enforcement Guidance, Part V.C.2. Such  training should explain the types of conduct that violate the  agency's anti-harassment policy, the liability the agency faces  when the policy is violated, the responsibilities of supervisors  and managers when they learn of alleged harassment, and the  prohibition against retaliation.

Both the Supreme Court in Faragher and the EEOC  in its Enforcement Guidance also noted that an  effective policy must be known and available to the employees.  Part V(C)(1) of the Enforcement Guidance states that  agencies must post policies and complaint processing procedures  in central locations and incorporate them into employee  handbooks. In addition, agencies should provide every employee a  copy of the policy and complaint procedure, and redistribute it  periodically. The policy and complaint procedure should also be  written in a way that will be understood by all employees in the  employer's workforce.

On October 1, 2003, EEOC issued Management Directive 715  (EEO MD-715), which provides policy guidance and standards  to agencies for establishing and maintaining model EEO programs.  Consistent with EEOC's Enforcement Guidance, a model  EEO program should have a written policy statement issued by the  agency head which expresses commitment to EEO and a workplace  free of discriminatory harassment. Hence, agencies should  establish comprehensive anti-harassment procedures that prevent  harassment on all protected bases, including race, color,  religion, sex (sexual or non-sexual), national origin, age,  disability, and reprisal.

## Appendix 3  The Purpose of an Anti-Harassment Policy

Although EEO offices in many agencies are often responsible  for establishing anti-harassment policies, it is important to  understand that the EEO process and anti-harassment programs do  not exist for the same purposes. The EEO process is designed to  make individuals whole for discrimination that already has  occurred through damage awards and equitable relief paid by the  agency and to prevent the recurrence of the unlawful  discriminatory conduct. See Albemarle Paper Co. v.  Moody, 422 U.S. 405 (1975); Clarke v. Department of  Justice, EEOC Appeal No. 01922561 (1992). However, the EEO  process cannot require an agency to discipline its employees.  Cagle v. U.S. Postal Service, EEOC Appeal No.  01903198 (1990). Moreover, EEOC's Enforcement  Guidance explains:

Enforcement Guidance, Part V.C.1, n. 57. In this  regard, the internal anti-harassment program is intended to take  immediate and appropriate corrective action to eliminate  harassing conduct regardless of whether the conduct violated the  law, and to prevent harassing conduct before it can become  "severe or pervasive."

##### Take Immediate and Appropriate Corrective Action

An agency's internal anti-harassment process should take  immediate and appropriate corrective action to eliminate  harassing conduct regardless of whether the conduct violated the  law. 27 The anti-harassment policy  should focus solely on taking whatever action is necessary to  promptly bring the harassment to an end, or to prevent it from  occurring. See Enforcement Guidance, Part V.B.  Depending on the severity of the conduct and surrounding  circumstances, the required action may be as simple as speaking  with the harasser about his or her behavior, or as harsh as  terminating that employee.

EEO Officials are bound to avoid conflicts of interest, and  the appearance of such conflicts. Management Directive 110, Ch.1  - P.2 (November 9, 1999) (hereinafter "MD-110"). If the  harassment issue is left to the EEO process, a potential, or at  least perceived conflict arises. The officials responsible for  counseling and investigating EEO complaints have an obligation to  remain neutral. See generally, id., Chs. 2, 6. To require these  employees to decide whether the anti-harassment policy was  violated would compromise that neutrality.

##### Prevent Harassment Before It Becomes Severe or Pervasive

In addition to responding promptly, the goal of the  anti-harassment policy is to prevent harassment before it becomes  severe or pervasive. Harassment is the one type of discrimination  that can be stopped in progress. While an anti-harassment policy  may limit damages when the employer acts quickly to address  unlawful conduct, it can be used to avoid liability at the outset  by correcting harassing conduct before it is cumulatively "severe  or pervasive" enough to constitute a legal claim of harassment.  In Ellerth, the Court explained that "encouraging employees to  report harassing conduct before it becomes severe or pervasive .  . . would also serve Title VII's deterrent purpose."  Ellerth, 524 U.S. at 764. EEOC's regulations have  stressed the prevention of harassment since 1980. EEOC's  1998 Enforcement Guidance again endorsed the  practice of using anti-harassment policies to address conduct  before it becomes illegal as part of an effective anti-harassment  program.

With an effective anti-harassment policy that deters conduct  before it becomes unlawful, the agency will gain some insulation  from claims regardless of whether an employee brings harassment  to the agency's attention. If an employee uses such a procedure,  then the agency will have an opportunity to stop the conduct  before the employee is legally harmed. Enforcement  Guidance, Part V.B. If, on the other hand, an employee  fails to use such a procedure, the agency may have a defense to  liability through the mere existence of its policy.

## Appendix 4  Survey of Agencies about Non-Sexual Harassment Complaints

In addition to reviewing agencies' anti-harassment program  policies and procedures, we contacted six agencies to learn about  the causes of the high rates of non-sexual harassment claims.  These agencies reported that the high rate of non-sexual  harassment claims may result from (1) employees misunderstanding  the definition of harassment; (2) over-reporting the non-sexual  harassment claims by EEO; and (3) agencies' lack of a centralized  system for tracking the dates that claims are raised and  resolved.

### A. Employees Misunderstanding the Definition of  Harassment

Several agencies reported that the high rate of harassment  claims may be caused, in part, by employees not understanding  what harassment really means.28 An  EEO official from one agency stated that "regardless of what the  issue may really be, most individuals think that they are being  harassed." EEO officials from two agencies said that employees  file a claim of non-sexual harassment because they are unhappy  with something or disagree with a manager's decision. As such,  these agencies suggest that some employees may be selecting  non-sexual harassment as a claim because they do not understand  the legal definition of harassment.

The Enforcement Guidance advises agencies that  they should provide anti-harassment training to all employees so  they can understand their rights and responsibilities.29 As a result of this training, employees  should have a better understanding of the definition of  harassment. Of the six agencies that EEOC contacted, only one  agency's EEO officials could report that employees receive  separate training for non-sexual harassment. Officials from two  agencies stated employees receive training only for sexual  harassment, while the other three agencies advise employees about  harassment in a general EEO training.30

### B. Claims of Non-Sexual Harassment Often Mis-Categorized By  EEO

We were informed by officials at four of the six agencies  visited that non-sexual harassment serves as a "catch all"  category for employees and that claims often raised by  individuals with the EEO office should in fact be raised under  issues other than non-sexual harassment. Claims may be  categorized improperly due to mis-communication or  misinterpretation of managerial actions. For example, when  individuals have multiple claims (i.e. they were not selected or  promoted, and they did not receive an award or training), they  may raise all of those claims by alleging a non-sexual harassment  complaint against the agency.31

Pursuant to EEOC Management Directive 110 (  MD-110), Chapter 2 (Nov. 9, 1999), it is the role and  responsibility of the EEO Counselor to determine the claim(s) and  basis(es) raised by the potential complainant. During the initial  interview with the potential complainant, the counselor is  required to obtain enough information concerning the claim(s) or  basis(es) to enable the agency to properly identify the legal  issue raised if the individual files a complaint at the  conclusion of the EEO counseling process. However, where an  agency fails to establish a comprehensive anti-harassment policy  and procedures, all of its employees will be unaware of the  program requirements as well as their role and responsibilities  under the program.

In May 2000, EEOC issued a government-wide report which found  significant over-reporting of the bases and issues alleged in  complaints filed. The report also found that although some  agencies had implemented systems of management controls, the  systems did not always detect the erroneous reporting of certain  bases and issues data. Each agency is responsible for ensuring  that data collected and reported are consistent, accurate, and  complete.32 Federal sector EEO  complaint data is not useful to decision makers and program  managers in targeting problem areas and implementing corrective  actions if it is unreliable.

### C. Agencies Fail to Track Data

Employees who believe that they have been subjected to  prohibited conduct may pursue the matter through programs such as  the collective bargaining process, the EEO process, ADR,  ombudsman, and the Merit Systems Protection Board. We found that  during the aforementioned processes, the agencies have a system  for tracking claims of non-sexual harassment. However, when  non-sexual harassment claims are raised outside of those formal  processes, none of the agencies track or have a centralized  system for tracking the dates that allegations are raised or  resolved. For example, when allegations of non-sexual harassment  are often brought to supervisors and managers, the data would not  be tracked if claims are handled by a supervisor or other  management official outside those formal venues.

When an incident of harassment is reported to management, it  should be investigated and prompt remedial action should be taken  to stop the harassing behavior. As noted above, employers can  limit or avoid liability when such actions are taken by  establishing an affirmative defense. However, where an agency  fails to track non-sexual harassment claims raised with  supervisors or managers, it would be difficult for the agency to  establish the defense that it "promptly" responded to such  claims.

In addition, the Standards for Internal Controls in the  Federal Government, November 1999, covers all aspects of  an agency's operations (programmatic, financial, and compliance).  These standards require accurate and timely recording of  transactions and events. These transactions and events need to be  clearly documented, and the documentation should be readily  available for examination. Because these agencies failed to  record the dates non-sexual harassment claims were raised and  resolved, we were unable to determine whether the claims were  investigated and whether prompt remedial actions were taken.

## Appendix 5  Recommended Anti-Harassment Policies

- Department of Labor  HTML  |  PDF 
- Social Security Administration  HTML  |  PDF 

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*This page was last modified on October 18, 2005.*

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