Sexual Harassment Complaint Procedure - Office of Fair Practices
.01 PURPOSE
This directive provides standardized procedures for filing and processing complaints against an employee, program or activity of the Maryland Department of Labor alleging unlawful sexual harassment.
.02 REFERENCES
A. Civil Rights Act of 1964, Titles VI and VII, as amended, Pub. Law 88-352, 78 Stat. 252 (42 U.S.C., §2000)
B. Workforce Innovation Opportunity Act of 1998, Section 188, Pub Law 105-220, 12 Stat. 936 (29 U.S.C §2801 et seq.)
D. Title IX of the Education Amendments of 1972, as amended, Pub Law 92-318, 86 Stat. 374 (20 U.S.C. §1681, et seq.)
E. 29 C.F.R. §37 (Department of Labor regulations implementing Section 188 of the WIOA of 1998)
F. 29 C.F.R. §1604.11 - Equal Employment Opportunity Commission (EEOC) Sexual Harassment Guidelines (1604.11(c) rescinded by 915.002 - 6/18/99)
G. Maryland Code of Fair Employment Practices Act (Article 49B the Annotated Code of Maryland)
H. Governor's Code of Fair Employment Practices, Executive Order 01.01.2007.19
I. §§2-302 and 5-211 of the State Personnel and Pensions Article
J. EEOC Enforcement Guidance on Harris v. Forklift Sys., Inc. - Number N-915-002 (3/8/94)
K. EEOC Policy Guidance on Employer Liability Under Title VII for Sexual Favoritism - Number N-915-048 (1/12/90)
L. EEOC Policy Guidance on Current Issues of Sexual Harassment - Number N-915-050 (3/19/90) (Section D rescinded by 915.002 - 6/18/99 - Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors)
M. Maryland Department of Budget and Management (DBM) Sexual Harassment In The Workplace Policy
N. Maryland Department of Budget and Management (DBM) Procedure for Reporting Complaints of Sexual Harassment
O. State of Maryland Uniform Guidelines on Investigating Sexual Harassment Complaints
P. Maryland Department of Labor Sexual Harassment Policy Statement
.03 DEFINITION
A. Under federal and State regulations and guidelines that implement section 703 of Title VII of the Civil Rights Act of 1964, 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 which is perceived by the victim to be abusive or hostile.
B. This definition of sexual harassment also applies to the receipt and provision of services and benefits to participants in or beneficiaries of programs that the Department administers or operates. However, in most instances, the Department will process sexual harassment complaints filed by a beneficiary in accordance with the provisions of the general Discrimination Complaint Procedure as detailed in Section 3, Subject 1 of the Equal Opportunity section of the Maryland Department of Labor Administrative Manual.
.04 SCOPE OF RESPONSIBILITY
A. Depending on the nature of the harassment, applying general Title VII principles, the Department may be responsible for its acts and those of its agents and supervisors with respect to sexual harassment.
B. With regard to services, the term "agent" includes individuals performing a training or service function for the Department who have some authority over the beneficiary, that is, claimant, client or participant.
C. Where "quid pro quo" harassment is established, the Department will be held liable. Quid pro quo harassment occurs when a supervisor or another individual with the authority to affect an individual's working conditions or benefits requires sexual favors in exchange for a job benefit or other tangible or concrete benefit.
D. For "hostile environment" harassment by supervisors, co-workers or nonemployees, the Department may avoid liability by showing that (1) it took immediate and appropriate corrective action; (2) the policy against sexual harassment is widely disseminated and strictly enforced; and (3) the complaint procedure is effective. Hostile environment harassment is unwelcome sexual conduct that is sufficiently severe or pervasive to create an intimidating, hostile or offensive work environment or unreasonably interferes with an individual's work performance.
.05 POLICY
A. The Department will not tolerate sexual harassment in any form within the Maryland Department of Labor workplace.
B. Any Maryland Department of Labor employee who believes that he or she has been sexually harassed by a supervisor, co-worker or any other Maryland Department of Labor employee may file a complaint under this procedure.
C. Any Maryland Department of Labor employee who believes that he or she has been adversely affected by the sexual favoritism toward another Maryland Department of Labor employee may file a complaint under this procedure.
D. The Department shall take prompt and severe sanctions against any Maryland Department of Labor employee found to have sexually harassed any other Maryland Department of Labor employee or beneficiary.
E. The Department will not tolerate retaliation against employees or beneficiaries who raise complaints of sexual harassment.
F. To the extent possible, the Department shall make every effort to keep complaints of sexual harassment confidential and shall involve only those individuals with "a need to know" in the processing of these complaints.
G. The Department shall evaluate and handle complaints on a case by case basis and in the context of the work situation.
H. Supervisors shall inform all employees, including new employees, of the Department's policy and this procedure.
.06 PROCESSING COMPLAINTS OF ALLEGED SEXUAL HARASSMENT
A. In keeping with the Equal Employment Opportunity Commission's definitions and guidelines, the nondiscrimination provisions of the Workforce Innovation Opportunity Act, and the State of Maryland Procedure for Processing Complaints of Sexual Harassment, the Department establishes the following procedural guidelines.
B. The Fair Practices Officer and the Director of the Office of Fair Practices (OFP) have the responsibility for the implementation of this complaint procedure and for conducting or coordinating the investigation of complaints alleging unlawful sexual harassment.
C. References to the Fair Practices Officer, the OFP Director, the Maryland Department of Labor Principal Counsel and the Director of the Maryland Department of Labor Office of Human Resources apply to those individuals and to designees authorized to act for these individuals.
D. Through departmental training sessions and printed technical assistance materials, employees are encouraged to inform the offending person that the conduct is unwelcome and should stop immediately. If the harassment does not cease, an employee should promptly report a complaint of sexual harassment.
E. Complaints may be reported to the immediate supervisor, the Fair Practices Officer or to the OFP Director. If the complaint involves the immediate supervisor, or if the complaining does not want the supervisor to be the investigator, the complaint should be reported to the person in the next level of management, the OPS Director, the Fair Practices Officer or the OFP Director.
(1) The complaining party should report the incident immediately but no later two (2) years from the alleged sexual harassment.
(2) If filed with the supervisor, the supervisor shall immediately notify the Fair Practices Officer and the Director of the Maryland Department of Labor Office of Fair Practices of the complaint by way of a confidential memorandum.
(3) The employee filing the complaint will also be informed of the right to file a complaint with the Maryland Commission on Human Relations (MCHR), the Equal Employment Opportunity Commission (EEOC) and in the case of employees in WIOA funded activities, with the U.S. Department of Labor's Civil Rights Center (CRC).
F. If deemed appropriate by the Fair Practices Officer or the OFP Director, the supervisor shall initiate and promptly complete an investigation of the complaint, speak with and, if necessary, counsel the individuals involved.
(1) At any time during the period of investigation and resolution, the supervisor may seek technical assistance from the Principal Counsel, the Fair Practices Officer or the OFP Director; or
(2) The Fair Practices Officer or the OFP Director may elect to conduct or oversee the investigation.
(3) The investigation of sexual harassment complaints shall be consistent with the State of Maryland Uniform Guidelines on Investigating Sexual Harassment Complaints and guidelines of the U.S. Department of Labor, Civil Rights Center, as appropriate.
(4) If during the initial investigation, the supervisor and parties to the complaint determine that resolution can be achieved satisfactorily, the supervisor shall notify the Fair Practices Officer and the OFP Director in writing of the facts.
(5) The notification shall include an appropriate statement or agreement that is to be signed by the employee filing the complaint that the employee is satisfied with the resolution of the complaint.
(6) Where the supervisor determines the complaint to be of a serious nature; that is:
Submission to unwelcome behavior is either an explicit or implicit term or condition of employment, or submission or rejection of unwelcome sexual behavior is used as the basis for employment decisions, or there is evidence of a hostile, intimidating or offensive environment; or
Either party is unwilling to accept the recommended resolution;
(i) The supervisor shall inform the Fair Practices Officer and the OFP Director immediately of the facts of the investigation.
(ii) The Fair Practices Officer or the OFP Director may continue the investigation; may based on the supervisor's investigation, render a final decision; or determine recommendations for attempted resolution.
(iii) The Fair Practices Officer or the OFP Director may coordinate the investigation or resolutions with the Principal Counsel, the Director of the Office of Human Resources or the appropriate program administrator.
G. When the final findings of the Fair Practices Officer or the OFP Director support the allegations by a preponderance of the evidence, the following actions shall be taken:
(1) The Department shall take appropriate disciplinary and corrective action(s).
(2) Disciplinary actions taken shall reflect the severity of the conduct and may include, but are not limited to:
(i) A letter of reprimand;
(ii) Suspension without pay; or
(iii) Termination.
(3) As deemed necessary, the Fair Practices Officer, the appropriate program administrator, the OFP Director, the Principal Counsel and the Director of the Office of Human Resources shall meet with and inform the accused of the method determined for resolving the complaint.
(4) A written report that shall include the results of the investigation that support the allegation(s) and resolution(s) shall be made a part of the accused's personnel file.
(5) As appropriate, the accused shall be advised of any appeal or grievance rights if the accused believes the resolution to be unfair.
H. When the findings do not support the employee's allegations, the following actions are taken:
(1) The employee filing the complaint shall be advised in writing that the incident could not be substantiated.
(2) This notification shall include a statement that retaliation against the employee for filing a complaint is prohibited.
(3) The employee filing the complaint shall also be advised again of the right to file a formal complaint with EEOC, MCHR or the U.S. Department of Labor, as appropriate.
(4) The employee against whom the allegations were made shall be notified in writing that the complaint was received and investigated but was not substantiated.