Discriminatory Harassment Policy

Discriminatory harassment is verbal or physical conduct that demeans or shows hostility, or aversion, toward an individual because of his/her race, color, religion, gender, national origin, age, disability, or because of retaliation for engaging in protected activity and that:

• Has the purpose or effect of creating an intimidating, hostile, or offensive working environment; or
• Has the purpose or effect of unreasonably interfering with an individual’s work performance; or
• Otherwise adversely affects an individual’s employment opportunities.

Harassing conduct includes, but is not limited to the following:

• Epithets, slurs, jokes, negative stereotyping or threatening, intimidating or hostile acts that relate to a person’s race, color, religion, gender, national origin, age or disability.
• Written or graphic material which demeans or shows hostility or aversion toward an individual or group because of race, color, religion, gender, national origin, age or disability and is posted on walls, bulletin boards, e-mail or elsewhere on the FLETC facility.
• Submission to or rejection of such conduct by an individual is used as the basis for decisions affecting an individual’s employment.

The terms intimidating, hostile and offensive are interpreted according to legal standards as determined by the law, and are viewed from the perspective of a reasonable person in similar circumstances as the complainant.

Discrimination based on race is prohibited by Title VII of the Civil Rights Act of 1964. Racial discrimination occurs when persons are treated differently than others who are similarly situated because they are members of a specific race (e.g., White, Black, Asian, etc.).Examples of employees who are similarly situated may be those working in the same position and grade, the same component, or under the same line of supervision.

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on color. This type of discrimination occurs when persons are treated differently than others who are similarly situated because of the color of their skin. Color discrimination can occur together with race discrimination, but may also occur between members of the same race.

Discrimination based on religion is prohibited by Title VII of the Civil Rights Act of 1964. In defining religious discrimination, the United States Supreme Court held that religion is not limited to Orthodox or well recognized denominations; e.g., Catholic, Baptist orJudaism. All that is required is a sincere and meaningful belief equivalent to the belief in God held by the more well recognized religions. Atheists are also protected.

Discrimination based on sex is prohibited by Title VII of the Civil Rights Act of 1964. Sex discrimination may occur in two ways. The first is a policy or practice which treats similarly situated men or women differently from the opposite gender. The second occurs when a gender-neutral policy or practice has a disproportionate adverse effect on one of the genders.

Discrimination based on national origin is prohibited by Title VII of the Civil Rights Act of 1964. National origin discrimination includes that based on an individual’s or his or her ancestors’ place of origin, or physical, cultural or linguistic characteristics.

Discrimination based on age is prohibited by the Age Discriminationin Employment Act of 1967. For Federal employees, the protected age group is age 40 and above, with no upper age limit. Age discrimination also occurs among age groups who are over age 40.

For example, the selection of a 45-year old candidate may appear to be discriminatory to 55-year old candidates if it can be shown that management has never selected a candidate at or above age 55.

Discrimination based on disability is prohibited by the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990. Disability discrimination can occur in two ways. The first occurs when employees or applicants are treated differently on the basis of their physical or mental disabilities. The second occurs when management fails to make reasonable accommodation for the disabling condition(s).

A person with a disability is defined as one who has a physical or mental impairment which substantially limits one or more major life functions (e.g., walking, speaking, breathing, learning, etc.); one who has a record of such, or one who is regarded as having a disability.

Discrimination based on reprisal is prohibited by Title VII of the Civil Rights Act of 1964. Reprisal occurs when employees are treated differently because they are, or were, involved in a protected EEO activity (e.g., seeking or participating in EEO counseling, providing testimony in an EEO investigation or at an EEO hearing, filing a discrimination complaint, or speaking out against discriminatory activities).

EEOC regulation 29 CFR, Part 1614, Section 102 (a) (3) requires agencies to help make the Federal Government a model employer by eliminating discrimination from personnel policies, practices and working conditions. A hostile work environment allows ridicule, abuse, insults or derogatory comments that are directly or indirectly based on race, color, national origin, sex, sexual harassment, religion, age, handicap, sexual orientation, reprisal, marital status, political affiliation or parental status. It is further defined as an offensive or intimidating environment that unreasonably interferes with work performance or that otherwise adversely affects employment opportunities. Personal conversations that can be overheard by other employees who consider the conversation offensive can also create a hostile environment.

FLETC will follow guidance regarding harassment established by the Equal Employment Opportunity Commission (EEOC) and standards regarding harassment set by the Supreme Court in two landmark decisions: Burlington Industries, Inc. v. Ellerth 118 S. Ct. 2257 (1998) and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998). In these decisions, the Supreme Court made clear that employers are subject to vicarious liability for unlawful harassment by supervisors. Liability is premised on two principles: 1) an employer is responsible for the acts of its supervisors; and 2) employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment.

Employees are responsible to come forward and report any behavior they view as harassment before it becomes severe or pervasive. While isolated incidents of harassment generally do not violate federal law, a pattern of incidents may be unlawful. Employees are also responsible to take advantage of any preventive or corrective opportunities provided by FLETC or to otherwise avoid harm.

Such allegations should be confirmed with the employees directly involved in the incident along with any witnesses who might have firsthand information. It is very important to demonstrate to concerned employees that the allegations are taken seriously and that management will not condone offensive behavior. Disciplinary or other remedial action should reflect management’s findings during the course of the inquiry.

There is a significant distinction between a tangible employment action and a hostile work environment. A “tangible employment action" means a significant change in employment status. Examples include hiring, firing, promotion, demotion, undesirable reassignment, a decision causing a significant change in benefits, compensation decisions, and work assignment. With regard to hostile environment, even if it is proven, the agency can still avoid liability if it can show: (1) that the agency took prompt corrective action once it became aware of the discriminatory harassment; and (2) the complainant failed to avail him/herself of the redress that the agency offers.

All supervisors and managers have a responsibility to:

• Provide a copy of and obtain employees’ signatures on the Anti-Harassment policy to employees during new employee orientation and annually during the performance evaluation meeting.

• Act promptly and appropriately to prevent harassment in the workplace, and retaliation against those who complain of harassment;

• Report any incident of harassing conduct that they witness or is otherwise brought to their attention;

• Receive and handle allegations of harassing conduct promptly and appropriately;

• Consult with the EEO Officer to provide interim relief to the alleged victim of harassment pending the outcome of the investigation to ensure further misconduct does not occur; and

• Take prompt and appropriate corrective and disciplinary action against personnel who have engaged in harassing conduct or who have not carried out their responsibilities under this Policy.

A supervisor or manager who receives an allegation or witnesses harassing conduct shall immediately:

• Inform the EEO Officer and seek guidance as to further actions;
• Consult with the EEO Officer to take action to stop any harassing conduct and prevent further harassment while the allegations are being investigated, including granting of appropriate interim relief to the alleged victim of harassing conduct; and
• In conjunction with the EEO Officer, document the allegation received and the manager’s efforts to address it.
• When an investigation is necessary, the individual conducting the inquiry for the FLETC will prepare a written summary after interviewing the person(s) accused of misconduct. The summary shall be submitted promptly to the appropriate office after completion of the investigation.
• The summary of the investigation or other documentation shall be kept confidential, to the extent possible.

Upon completion of the inquiry, the appropriate FLETC management officials shall promptly evaluate the evidence and determine the appropriate action to take. The EEO Officer shall be informed of this decision, including the decision not to act.