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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

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

Suggestions for Improving Anti-Harassment Policies and Procedures

Appendix

  1. Complaints Alleging Non-Sexual Harassment in the EEO Process
  2. The Legal Requirement for an Anti-Harassment Policy
  3. The Purpose of an Anti-Harassment Policy
  4. Survey of Agencies about Non-Sexual Harassment Complaints
  5. 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.8 See 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.9 See 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.10 See 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.

Table 1 - Deficiencies in the Agencies' Anti-Harassment Policies FY 2004
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%
Table 2 - Deficiencies in the Sub-Components' Anti-Harassment Policies FY 2004
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 Horton v. Department of Housing and Urban Development, EEOC Appeal No. 07A40014 (2004), the EEOC found that the agency had discriminated against the complainant on the bases of her race and sex. Complainant asserted that her first line supervisor treated her in a condescending manner by closely scrutinizing her work and assigning her work to others. The agency was unable to avoid liability because it could not establish the first element of the affirmative defense - that it exercised reasonable care to prevent and correct promptly any harassing behavior. The EEOC found that the record did not contain any evidence to show that the agency had an anti- harassment policy, or an established procedure, for reporting harassment. As a result, the agency was ordered to pay $7,500 in non-pecuniary damages and attorney's fees, provide EEO training, and expunge complainant's employment file.

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.20 See 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. 21 Id. 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

  1. 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:

    1. 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;
    2. 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;
    3. State that complainants, witnesses, and others who provide information concerning such claims will be protected from retaliation;
    4. Assure the confidentiality of individuals bringing claims of harassment to the extent possible;
    5. 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;
    6. 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;
    7. 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
    8. 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
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.

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

7 Id., 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.

15 See 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.

18 Tom 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

Table 1 - Total Federal Sector Complaints Filed Alleging Non-Sexual Harassment FY 2000 - FY 2003
Issue Complaints Filed By Fiscal Year 23
    2000 2001 2002 2003 2004
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
Table 2 - Percentage of Non-Sexual Harassment Complaints in Total Complaints Filed FY 2000 - FY 2003
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%
Table 3 - Number and Percentage of Appeals Involving Non-Sexual Harassment FY 1999 - FY 2003
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:

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." . . . 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.

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

  1. Department of Labor HTML | PDF
  2. Social Security Administration HTML | PDF