Discriminatory Harassment Policy

3 FAM 1526 DISCRIMINATORY HARASSMENT POLICY

(CT:PER-567; 09-22-2005)
(State)
(Foreign Service and Civil Service Employees)

a. The Department of State is committed to providing a workplace that is free from discriminatory harassment. Employees must not harass anyone because of race, color, gender, national origin, religion, physical or mental disability, sexual orientation, or because the person is 40 years old or older. Employees also must not harass someone for opposing discrimination or for participating in the discrimination complaint process.

b. Sexual harassment is addressed separately in the Department’s Policy on Sexual Harassment (3 FAM 1525).

c. All Department employees, including but not limited to staff, supervisors, and senior officials, must comply with this policy. All employees are also expected to take appropriate measures to prevent discriminatory harassment. Employees who believe they are being harassed for one of the reasons listed above or who witness potential harassment are encouraged to report the offending conduct so that it can be stopped before it becomes severe or pervasive and rises to a possible violation of law.

3 FAM 1526.1 What Is Discriminatory Harassment?

(CT:PER-567; 09-22-2005)
(State)
(Foreign Service and Civil Service Employees)

a. Discriminatory harassment is verbal or physical conduct that denigrates or shows hostility toward an individual because of his or her race, color, gender, national origin, religion, age (40 or over), physical or mental disability, sexual orientation, or because of his or her opposition to discrimination or his or her participation in the discrimination complaint process. In general, harassment is against the law when it creates an intimidating, hostile, or offensive working environment, or when it interferes with an individual’s work performance.

b. Some examples of conduct that might constitute harassment include:

• Racial epithets, "jokes," offensive or derogatory comments, or other verbal or physical conduct based on an individual's race/color

• Ethnic slurs, workplace graffiti, or other offensive conduct directed towards an individual's birthplace, ethnicity, culture, or foreign accent

• Verbal or physical abuse, “jokes” or offensive comments based on an individual’s age, gender, disability, or sexual orientation

• Making, posting, e-mailing, or circulating demeaning or offensive pictures, cartoons or other materials in the workplace that relate to race, ethnic origin, gender or one of the other protected categories listed above, or using U.S. Gvernment equipment to circulate such materials

c. The harasser can be a supervisor, co-worker, other Department employee, or a non-employee who has a business relationship with the Department

3 FAM 1526.2 The Department’s Responsibilities Under This Policy

(CT:PER-567; 09-22-2005)
(State)
(Foreign Service and Civil Service Employees)

a. If the Department receives an allegation of discriminatory harassment, or has reason to believe such harassment is occurring, it will take the steps necessary to ensure that the matter is promptly investigated and addressed. If the allegation is determined to be credible, the Department will take immediate and effective measures to end the unwelcome behavior. The Department is committed to taking action if it learns of possible discriminatory harassment, even if the individual does not wish to file a formal complaint.

b. The Office of Civil Rights (S/OCR) is the main contact point for questions or concerns about discriminatory harassment. S/OCR is responsible for investigating or overseeing investigations of alleged discriminatory harassment. S/OCR is committed to ensuring that all investigations are conducted in a prompt, thorough, and impartial manner.

c. Supervisors and other responsible Department officials who observe, are informed of, or reasonably suspect incidents of possible discriminatory harassment must immediately report such incidents to S/OCR, which will either initiate or oversee a prompt investigation. Failure to report such incidents to S/OCR will be considered a violation of this policy and may result in disciplinary action.

d. S/OCR will provide guidance as needed on investigating and handling the potential harassment. Supervisors should take effective measures to ensure no further apparent or alleged harassment occur pending completion of an investigation.

e. The Department will seek to protect the identities of the alleged victim and harasser, except as reasonably necessary (for example, to complete an investigation successfully). The Department will also take the necessary steps to protect from retaliation those employees who in good faith report incidents of potential discriminatory harassment. It is a violation of both federal law and this policy to retaliate against someone who has reported unlawful harassment. Violators may be subject to discipline.

f. Employees who have been found by the Department to have discriminatorily harassed others may be subject to discipline or other appropriate management action. Discipline will be appropriate to the circumstances, ranging from a letter of reprimand to suspensions without pay to separation for cause. A verbal or written admonishment, while not considered formal discipline, may also be considered.

3 FAM 1526.3 Employee’s Rights and Responsibilities Under This Policy

(CT:PER-567; 09-22-2005)
(State)
(Foreign Service and Civil Service Employees)

a. Any employee who believes he or she has been the target of discriminatory harassment is encouraged to inform the offending person orally or in writing that such conduct is unwelcome and offensive and must stop.

b. If the employee does not wish to communicate directly with the offending person, or if such communication has been ineffective, the employee has multiple avenues for reporting allegations of discriminatory harassment and/or pursuing resolution.

c. Employees are encouraged to report the unwelcome conduct as soon as possible to a responsible Department official. It is usually most effective–although it is not required–that the official be within the employee’s supervisory chain. Responsible Department officials include first- or second-line supervisors, the offending person’s supervisor, the post’s management officers, the bureau’s Executive Director, and the Office of Civil Rights (S/OCR).

d. In addition to reporting harassment concerns to a responsible Department official, employees who believe they have been subjected to discriminatory harassment may choose to pursue resolution in several other ways, including:

(1) Mediation: Mediation is an informal way to resolve office problems using a trained mediator who facilitates communication between the parties to the dispute. If an employee chooses to attempt resolution through mediation, management is obligated by Department policy to send a representative to the table. If a resolution is not reached, the parties may continue to pursue their rights in any other appropriate forum. Employees may ask for the assistance of a mediator by contacting S/OCR;

(2) Grievances: Civil Service employees who are covered by a negotiated grievance procedure may have the option to file a grievance alleging discriminatory harassment if permitted by the governing collective bargaining agreement. Civil Servants who are not covered by a negotiated grievance procedure generally may not bring grievances alleging discriminatory harassment. Members of the Foreign Service may file grievances on EEO matters; however, pursuant to 3 FAM 4428, they must elect to file either a grievance or a formal EEO complaint. If a Foreign Service employee elects to file a grievance, the Grievance Staff (HR/G) will investigate the allegations and recommend a resolution to the Deputy Assistant Secretary responsible for rendering the agency decision on grievances. The employee may appeal to the Foreign Service Grievance Board;

(3) EEO processes: All U.S. citizen employees or U.S. citizen applicants for employment may file an Equal Employment Opportunity (EEO) complaint with the Department. Individuals who wish to file an EEO complaint must consult a Department of State EEO counselor within 45 days of the most recent harassing incident. A list of EEO counselors is available on S/OCR’s website at socr.state.gov. It is recommended, but it is not necessary, for an employee to complain to his/her supervisor or other responsible official before approaching an EEO counselor. (Note: Personal services contractors and third-party contractors may not, depending on the circumstances, be able to pursue an EEO claim against the Department; they may contact S/OCR for guidance.);

(4) Processes for Foreign Service Nationals (FSNs): Issues raised by FSNs are handled according to complaint processing procedures established at post and guidance available on the S/OCR website. FSNs with questions about post procedures should contact the post’s senior management officer and/or designated EEO counselor. FSNs may also contact S/OCR for guidance; and

(5) Complaints of Discrimination or Harassment Based on Sexual Orientation: The Department has prohibited sexual orientation discrimination as a matter of policy and has established a comprehensive complaints process for such situations, even though such discrimination is not prohibited in the federal workplace as a matter of law. The process is explained in the Foreign Affairs Handbook at 3 FAH-1 H-1520. Alternatively, Foreign Service employees may also raise claims of sexual orientation discrimination in the Foreign Service grievance process. That process is explained in 3 FAM 4400. Civil Service employees may also be able to use a negotiated grievance procedure, or appeal to the Merit Systems Protection Board or the Office of Special Counsel.

January 7, 2008