1.20.3 Handling Harassment Allegations

Manual Transmittal

July 15, 2016

Purpose

(1) This transmits new IRM 1.20.3, Equal Employment Opportunity and Diversity, Handling Harassment Allegations.

Background

On November 24, 2015, IR Commissioner John A. Koskinen signed a memorandum that commits the IRS to fostering a model workplace free of conduct that negatively impacts employee engagement and productivity. Policy Statement P 6-45, expresses the IRS policy on non-discrimination at the IRS.

Material Changes

(1) New IRM 1.20.3 provides information about harassment allegations and how they are handled at the IRS.

Effect on Other Documents

None

Audience

All IRS employees

Effective Date

(07-15-2016)


Cathy Wise
Director, Equal Employment Operations Division, Office of Equity, Diversity and Inclusion

Program Overview

  1. Purpose. This IRM provides guidance for management officials and employees on the process for handling harassment complaints in the workplace. IRS goal is to prevent harassment before it becomes severe or pervasive.

  2. Every effort must be made to prevent harassment based on race, religion, sex, which includes sexual orientation, color, national origin, gender, age, disability and harassment in general. This policy is applicable whether or not the employee has filed an Equal Employment Opportunity (EEO) complaint, Merit Systems Protection Board (MSPB) appeal, or union grievance. Should any unwelcome, hostile and/or abusive conduct occur, this policy sets forth procedures for immediate and appropriate corrective and/or disciplinary action.

  3. Audience. This information is for all IRS employees.

  4. Policy Owner. The Office of Equity, Diversity and Inclusion (EDI).

Policy

  1. The policy is designed to address unwelcome, hostile and/or abusive conduct before it rises to a level of harassment that creates a hostile work environment. The IRS is committed to fostering a model workplace free of conduct that negatively impacts employee engagement and productivity. To provide management with the opportunity to address any potentially harassing conduct, this policy requires that management be notified and have the opportunity to stop any harassing conduct before it becomes severe or pervasive.

Authorities

  1. Title VII of the Civil Rights Act of 1964, as amended, 42 USC 2000e-16.

  2. The Civil Service Reform Act, 5 USC 2302(b)(10).

  3. Executive Order 11478, as amended May 28, 1998.

  4. Equal Employment Opportunity Commission Management Directive 715, "Federal Responsibilities Under Section 717 of Title VII and Section 501 of the Rehabilitation Act" (October 1, 2003).

  5. Equal Employment Opportunity Commission, "Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors," No. 915.002 (June 18, 1999).

  6. Policy Statement 1-38, Equal Employment Opportunity (March 8, 2012). See IRM 1.2.10.1.8.

  7. Policy statement 6-45, IRS Non-Discrimination (August 18, 2002). See IRM 1.2.15.1.5.

Definitions

  1. Administrative complaint - An administrative complaint is a broad term meant to include any other forum in which an employee can raise issues, such as the Agency Grievance System, described in IRM 6.771, Agency Grievance System.

  2. EEO Complaint - An EEO complaint may be either informal or formal filed pursuant to the laws and regulations under the jurisdiction of the Equal Employment Opportunity Commission (EEOC).

  3. Negotiated grievance - A negotiated grievance is filed by a bargaining unit employee pursuant to the agreement entered into with the National Treasury Employees Union (NTEU).

Program Objectives

  1. The objective of this program is to prevent or mitigate harm to any employee subjected to harassment.

  2. The policy underlying this program prohibits harassment by or of any employee, supervisor, manager, contractor, vendor, and applicant or other individual with whom IRS employees interact during their work. Harassment can be direct or indirect, and the offender can be a supervisor, coworker or subordinate. When appropriate, hostile or abusive conduct will be subject to corrective and/or disciplinary action even when it does not meet the threshold for illegal harassment.

Legal Definition of Unlawful Harassment

  1. To establish a viable claim of harassment, a complainant must show:

    1. Membership in a statutorily protected class;

    2. Subjection to unwelcome verbal or physical conduct involving the protected class;

    3. The harassment was based on the statutorily protected class;

    4. The harassment had the effect of unreasonably interfering with complainant’s work performance and or created an intimidating, hostile, or offensive work environment; and

    5. There is a basis for imputing liability to the employer. See Omelas v. Department of Justice, EEOC Appeal No. 01995301 (2002).

  2. Harassment is a form of employment discrimination. In this context, harassment refers to unwelcome conduct that is based on race, color, national origin, sex including sexual orientation and pregnancy, religion, age (40+), disability, protected genetic information or parental status, when either enduring the offensive conduct becomes a condition of employment, or the conduct is severe or pervasive enough to create a working environment which a reasonable person would consider intimidating, hostile, or abusive. Harassment as a form of reprisal for engaging in protected activity is also prohibited by law. For example, the law prohibits harassment in order to retaliate against someone for filing a complaint of discrimination, participating in a hearing or investigation concerning a discrimination claim, or openly opposing unlawful discrimination. An Anti-Harassment Policy may limit damages if the employer acts quickly to address the unlawful conduct.

Examples of Harassing Conduct

  1. General harassment may include, but is not limited to, making derogatory comments or displaying offensive behavior about a person’s religious beliefs, using racist slang or phrases, making comments about skin color, ethnic traits, or age. Bullying, displaying racist drawings or posters, making offensive gestures or comments about a mental or physical disability, sharing inappropriate images, videos, letters or notes can also constitute harassment.

  2. While it is questionable whether the single use of an epithet that offends another employee may rise to the level of harassment, there are some terms that are sufficiently offensive such that even ONE use of the term is enough to constitute harassment. All employees should refrain from the use of any epithets that, even in jest, might be considered offensive by some.

  3. Cyber-harassment involves using cellular phones, personal digital assistants (PDA), computers or handheld devices to transmit harassing text messages, emails and images to social media sites or blogs and is similarly prohibited.

  4. Sexual Harassment is unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

    1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;

    2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or

    3. such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. 29 CFR 1604.11.

  5. Sexual harassment may include: sexist or stereotypical remarks about a person’s clothing, body, appearance or activities; sexually oriented jokes, stories, or descriptions of sexual acts; displaying sexually graphic pictures; or an employer or supervisor conditioning promotion, job assignments, or other tangible benefits based on acquiescence to unwelcome sexual conduct, or penalizing an individual for refusing to participate in such conduct. The harasser may be the same sex or a different sex than the targeted person.

  6. Bullying is repeated unreasonable actions of a manager, employee, contractor and/or vendor towards another, intended to intimidate, degrade, offend, humiliate or marginalize the target person or group. Although bullying is currently not recognized as a legal cause of action, any form of bullying is covered by this policy.

  7. Examples of conduct that would not constitute harassment include:

    1. Petty slights and trivial annoyances, a lack of good manners or personality conflicts.

    2. Reasonable management actions in support of the work or directions to employees to perform work.

Examples of Unwelcome Conduct

  1. What is harassment that may or may not meet the legal definition but is unwelcome workplace conduct? Harassment includes unwelcome behavior that, while not rising to the level of illegal harassment, may still be disruptive or inappropriate to the person subjected to the behavior. Such conduct may include off-hand comments, or isolated incidents of harassment that are not part of a pattern or are not extremely serious.

    Example:

    A supervisor who makes insignificant changes to an employee’s employment status by changing a job title may be viewed as harassment, but would not rise to unlawful harassing conduct.

Preventing Harassment

  1. If an employee believes they are being harassed, they can attempt to resolve the matter by speaking calmly with the person(s) engaging in the inappropriate conduct. They should make it clear that the conduct is unwelcome and/or offensive. If this does not stop the behavior, or the employee is not comfortable discussing the behavior with the harasser, they need to inform a supervisor of the conduct.

  2. Supervisors are responsible for responding quickly to address all complaints of harassment and make it clear that harassment and any unwelcome, hostile and/or abusive conduct will not be tolerated in the workplace.

  3. If individuals believe that their own behavior (jokes, comments, etc.) have been misunderstood, they should quickly explain and apologize. It is better to be overly cautious and refrain from certain jokes and comments in the workplace than to take the chance of offending colleagues.

Reporting Harassment

  1. Any employee who has been subjected to harassment that meets the legal definition or behavior which the employee considers unwelcome, disruptive, or inappropriate should report the matter to:

    1. The supervisor of the employee or manager engaging in the harassing or inappropriate conduct;

    2. Another supervisor or other management official; or

    3. The Equity Diversity and Inclusion (EDI) Anti-Harassment Designee at *EDI AHP Mailbox.

  2. Employees who know of harassing or inappropriate conduct directed at others are encouraged to report the matter as described above. Reporting harassing or inappropriate conduct to a management official or the EDI Anti-Harassment Designee will not preclude an employee from filing an EEO complaint, Administrative Complaint or Negotiated Grievance.

Confidentiality and Reprisal

  1. Reports of harassment or inappropriate conduct will be kept confidential to the extent that is reasonably possible. Retaliation against persons who make claims of harassment or provide information regarding such claims will not be tolerated and should be promptly addressed pursuant to these procedures.

Management and Management Official Responsibilities

  1. Management must quickly address harassment allegations including reports by employees having knowledge of someone else being harassed.

  2. Report harassment involving another manager’s employee should be reported promptly to the appropriate manager in the employee’s chain of command.

  3. Ignoring a report of alleged harassment may subject the agency to liability for damages and possibly subject the manager to disciplinary action.

Management Inquiry, Reporting, and Corrective Action

  1. Managers must conduct a preliminary inquiry to determine the frequency and severity of the alleged harassing conduct, and take appropriate corrective or disciplinary action. Managers should reduce all actions and findings of the preliminary inquiry to writing. Further, decision-makers should always consult with labor relations (LR) staff prior to taking any disciplinary or adverse actions towards alleged harassers.

  2. A supervisor or manager who receives a report of, or otherwise becomes aware of, harassment or inappropriate conduct involving subordinates within their chain-of-command must:

    1. Determine what conduct is at issue and whether it could be considered harassment or behavior that would reasonably be considered unwelcome, disruptive or inappropriate;

    2. Determine who may be involved;

    3. Determine whether any immediate corrective action is required to insulate the alleged victim from further harassment or inappropriate conduct;

    4. Determine what action is necessary and appropriate to otherwise address the report; and

    5. Record the activities and findings of the preliminary inquiry.

  3. Within one business day a supervisor or manager who becomes aware of alleged harassment must notify the following appropriate officials:

    1. The harassing employee’s supervisor and office director, unless the conduct implicates the supervisor or the office director, then notify the EDI Anti-Harassment Designee;

    2. The victim's supervisor and office director, unless the conduct implicates the supervisor or the office director, then notify the EDI Anti-Harassment Designee.

  4. Supervisors and directors who receive the report will notify the EDI Anti-Harassment Designee and provide a description of any initial steps taken to address the report.

  5. If contacted regarding a complaint of harassment, managers should never refer the employee to another manager or tell the individual that he or she cannot assist or direct the employee to another source, so the individual is deterred from further reporting.

  6. When a report is made directly to the EDI Anti-Harassment Designee, they will:

    1. Immediately acknowledge receipt of the report;

    2. Notify the office(s) implicated in the report; and

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

  7. If it is determined that harassment or inappropriate conduct occurred, corrective action will be necessary. Supervisors and management officials:

    1. Shall determine the appropriate corrective action in consultation with the EDI Anti-Harassment Designee and labor relations as appropriate.

    2. Should follow procedures of this policy to avoid being subjected to possible disciplinary action for failure to perform based on this guidance.

Monitoring the Work Environment

  1. Business Units are responsible for ensuring that their offices are in full compliance with requirements of this policy.

  2. Additionally, designated officials are responsible for monitoring the work environment after a report of harassment and the subsequent management inquiry to ensure no further violations or incidents of retaliation have occurred.

Filing EEO Complaints, Administrative Complaints or Negotiated Grievances

  1. Although this program is intended to prevent, deter and stop harassment in the workplace, corrective action under this program may not provide the remedies available through the EEO, collective bargaining, or other processes (i.e., compensatory damages).

  2. Filing a report under this program will not satisfy the requirements for filing an EEO complaint, union grievance, or other procedure, nor satisfy the requirements for obtaining remedies available through those processes. Additionally, filing a report under this program will not delay the time limits for initiating the aforementioned procedures.

  3. An employee who chooses to pursue statutory, administrative, or collective bargaining remedies for unlawful harassment must elect one of the available forums as follows:

    1. For an EEO complaint pursuant to 29 CFR 1614, contact an EEO counselor in the Office of Equity, Diversity and Inclusion within 45 days from the most recent incident of alleged harassment (or personnel action if one is involved), as required in 29 CFR 1614.105(a)(1). Contact information is provided in the "Where Do I Go For EEO?" document located on the Employee Resource Center (ERC) website under the EEO, Rights and Obligations tab at: http://erc.web.irs.gov.

    2. For a collective bargaining claim, file a written grievance in accordance with the provisions of the Collective Bargaining Agreement.

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

  4. IRS liability for a finding of harassment in an EEO complaint, MSPB appeal, or grievance, may depend upon whether the agency was aware of and promptly corrected the hostile or abusive conduct. Therefore:

    1. If an employee pursues a claim of harassment through the EEO process, an MSPB appeal, or a union grievance, the EDI Specialist or official who receives notice of such claim will promptly notify the appropriate responsible management official.

    2. The EDI Anti-Harassment Designee will provide the record of actions taken under this policy to the office handling the EEO complaint, MSPB appeal or grievance.