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DEPARTMENT OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION NUMBER: DJJDP16/HR 1.2 PAGES: 7 SECTION: Equal Employment Opportunity SUBJECT: Unlawful Workplace Harassment Policy AMENDS: DJJDP 16/HR 1.2 AMENDS POLICY ISSUED: 6/07/04 APPROVED BY: DATE SIGNED: 5/15/09 DATE IMPLEMENTED: 8/11/09 RELATED ACA STANDARDS: N/A RELATED NCAC CITATION: 1. 25 NCAC 01L .0100, Equal Employment Opportunity Plan and Programs 2. 25 NCAC 01C .0214, Unlawful Workplace Harassment RELATED LEGISLATION: 1. Title VI & VII of the Civil Rights Act of 1964 (as amended by the Equal Employment Opportunity Act of 1972) 2. Civil Rights Acts of 1966 & 1971 3. Equal Pay Act of 1963 4. Age Discrimination and Employment Act of 1967 5. Rehabilitation Act of 1973 6. Vietnam-era Veterans Readjustment Act of 1974 7. Americans With Disabilities Act (ADA) of 1990 8. Judicial Reform Act of 1991 9. Civil Rights Restoration Act of 1988 10. N.C. Gen. Stat. §§ 168A, Persons With Disabilities Protection Act 11. N.C. Gen. Stat. §§ 126-16, Equal opportunity for employment and compensation by State departments and agencies and local political subdivisions. 12. N.C. Gen. Stat. §§ 126-16.1, Equal employment opportunity training. 13. N.C. Gen. Stat. §§ 126-17, Retaliation by State departments and agencies and local political subdivisions. 14. N.C. Gen. Stat. §§ 126-18, Compensation for assisting person in obtaining State employment barred; exception. 15. N.C. Gen. Stat. §§ 126-19, Equal employment opportunity plans; reports; maintenance of services by State Personnel Director. 16. State Personnel Manual, Section 1, Equal Employment Opportunity INDEX AS: Human Resources/Equal Employment Opportunity/Unlawful Workplace Harassment Policy DJJDP16/HR 1.2 Page 2 of 7 PURPOSE: This policy is intended to provide employees of the Department with an explanation of the State’s mechanism for addressing any complaint of conduct that falls under the definition of unlawful workplace harassment. POLICY STATEMENT: The policy of the Department is that all employees shall conduct themselves in a professional manner in all their interactions with colleagues, students and the public in general. It is further required by law that no employee may engage in conduct that falls under the definition of unlawful workplace harassment indicated below. All state employees are guaranteed the right to work in an environment free from unlawful workplace harassment and retaliation. The Department will conduct a prompt and impartial inquiry into the complaint of any allegations of unlawful conduct and review the totality of the circumstances to determine whether the alleged conduct constitutes unlawful workplace harassment. Any interference, coercion, restraint or reprisal against a person complaining of unlawful workplace harassment is strictly prohibited by this policy. Staff shall cooperate with Human Resources to ensure that an impartial and thorough inquiry into the complaint is conducted. Staff shall be truthful, complete and accurate in written and oral responses, reports, and statements. Refusal of any staff member to cooperate in an inquiry of a complaint or to provide information requested as part of the inquiry may be grounds for disciplinary action up to and including dismissal. Staff shall not discuss any aspect of the inquiry with other employees of the Department of Juvenile Justice and Delinquency Prevention (DJJDP) or other individuals involved in the inquiry. I. DEFINITIONS A. Covered Employees: Former employees, full-time or part-time employees with permanent, probationary, trainee, time-limited; or temporary appointments are covered under this policy. Applicants, while not covered under the State statute, are covered under other State and Federal Civil Rights Acts. NOTE: Sexual Harassment does not include personal compliments welcomed by the recipient, or social interaction or relationships freely entered into by staff or prospective employees. NOTE: The U.S. Supreme Court recently held “that nothing in Title VII necessarily bars a claim of discrimination “because of ….sex” merely because the grievant and the alleged harasser “are of the same sex.” NOTE: Hostile includes offensive, aggressive, antagonistic belligerent, and/or contentious behavior involving unlawful workplace harassment based on age, sex, race, color, national origin, religion, creed, or handicapping condition as defined by G.S. 168A-3. A hostile work environment is determined by looking at the following: 1) whether the environment is objectively offensive in the eyes of a reasonable person, 2) whether the environment is subjectively DJJDP16/HR 1.2 Page 3 of 7 offensive in the eyes of the person who is the object of the alleged harassment, and 3) the nature of the alleged hostility. NOTE: Employees conduct toward an outside vendor or contractor that would constitute unlawful workplace harassment could constitute unacceptable personal conduct. B. Hostile Work Environment: Is one that both a reasonable person would find hostile or abusive and one that the particular person who is the object of the harassment perceives to be hostile or abusive. Hostile work environment is determined by looking at all of the circumstances, including the frequency of the alleged harassing conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee’s work performance. C. Quid Pro Quo Harassment: Consists of unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individuals. NOTE: Retaliation is defined as adverse treatment, which occurs because of opposition to unlawful workplace harassment. D. Unlawful Workplace Harassment: The state defines unlawful workplace harassment as unwelcome or unsolicited speech or conduct based upon race, sex, creed, religion, national origin, age, color or handicapping condition as defined by N.C.G.S. 168A-3 that creates a hostile work environment or circumstances involving quid pro quo. II. GRIEVANCE PROCEDURES AND APPEAL A. Any employee or former employee who is covered by this policy who feels that s/he has been unlawfully harassed in the workplace and wishes to file a grievance must follow the Department’s Unlawful Workplace Harassment Grievance Procedures outlined below: 1. Step 1: Grievant must submit a written complaint simultaneously to his/her supervisor and the Department Human Resources Director within 30 calendar days of the alleged harassing action. The grievant should specifically state the alleged harassing act, and the date(s) of the harassment. The grievant has the right to bypass any step in the reporting procedure involving review of or decisions by the alleged harasser. 2. Step 2: The Department shall take appropriate remedial action within 60 calendar days from receipt of the written complaint unless the Department has waived the 60 calendar day period, and the grievant has acknowledged such waiver. The waiver and acknowledgement shall be in writing. During this period, if necessary, a Department Human Resources designee shall conduct a thorough DJJDP16/HR 1.2 Page 4 of 7 inquiry into the complaint. The Department Human Resources Director will be given the results of the 'inquiry into the complaint and shall submit the findings and make recommendations to the Secretary. The Equal Employment Opportunity (EEO) Officer or Coordinator will coordinate the signing of all waiver forms. All acknowledgment of waiver forms will be returned to the EEO Officer or Coordinator. 3. Step 3: The Secretary or his/her designee shall provide a written response to the grievant when the agency has determined what action, if any, will result from the grievant’s written complaint. 4. Step 4: If the grievant is not satisfied with the Secretary’s response, the grievant may appeal directly to the Office of Administrative Hearings (OAH), Civil Rights Division, P.O. Drawer 27447, Raleigh, NC 27611-7447 and the State Personnel Commission within 30 calendar days from receipt of the Secretary’s response. If the Department fails to respond to the grievant within 60 calendar days (for less, if waived), the grievant may appeal directly to the OAH at the address indicated above. 5. Step 5: If appealed, the grievant’s case will be heard in a contested case hearing before an Administrative Law Judge (ALJ) assigned by the OAH. 6. Step 6: The ALJ makes a recommended decision to the State Personnel Commission. 7. Step 7: The State Personnel Commission will render the final decision. This step exhausts the administrative appeals of a State employee’s grievance. NOTE: The grievant has the right to file a simultaneous complaint under Title VII with the Equal Employment Opportunity Commission (EEOC), 1309 Annapolis Drive, Raleigh N.C. 27608. The complaint must be filed with EEOC within one hundred and eighty (180) calendar days of the alleged incident. NOTE: An individual with a grievance concerning a denial of employment, promotion, training, or transfer, or concerning a demotion, layoff, transfer or termination due to discrimination based on age, sex, race, color, national origin, religion, creed, political affiliation or handicapping condition as defined by G.S. 168-A-3 or grievance based on retaliation for opposition to alleged discrimination may still appeal directly to the Office of Administrative Hearings and the State Personnel Commission. III. DISCIPLINE A. Any speech or conduct determined to constitute unlawful workplace harassment will be considered a violation of this policy. Interference, coercion, restraint or reprisal against any person complaining of unlawful workplace harassment is prohibited and is in violation of this policy. DJJDP16/HR 1.2 Page 5 of 7 B. Employees determined to be in violation of this policy will be subject to disciplinary action. Actions may range from a written warning to dismissal, depending upon the nature and severity of the offending action. C. The Department will make every effort to ensure that all actions are applied in a consistent and fair manner. Allegations of unlawful workplace harassment will be reviewed on a case-by-case basis on presented facts. All parties will be entitled to a fair and impartial hearing. IV. DISSEMINATION A. The Secretary has issued a signed policy statement, which assures his/her commitment on the prevention and correction of unlawful workplace harassment or retaliation. B. This policy will be disseminated to all new and existing employees and posted on bulletin boards throughout the Department. An overview of this policy will be provided to new employees in orientation. V. DEPARTMENTAL RESPONSIBILITIES A. The Department policy shall: 1. Address ways to maintain an environment free of any conduct which constitutes unlawful workplace harassment; 2. Identify steps to prevent and correct unlawful workplace harassment and retaliation; 3. Provide a process whereby employees feel comfortable in reporting incidents of workplace harassment without fear of retaliation; 4. Sensitize employees to the subject through disseminating the Unlawful Workplace Harassment Policy to all existing and new employees, as well as through orientation, training, and; 5. Ensure a prompt response to all allegations of workplace harassment. B. The EEO Office and/or Coordinator shall: 1. Disseminate and communicate the policy to all Department staff; 2. Conduct training for supervisors and employees to sensitize them to the subject; 3. Educate new employees regarding the policy and procedures during orientation; 4. Post the policy on bulletin boards in all sections of the Department; 5. Report unlawful workplace harassment grievances through the established grievance reporting mechanism in the Building Enterprise Access for North Carolina’s Core Operation Needs (BEACON) system; DJJDP16/HR 1.2 Page 6 of 7 6. Inquire and obtain information needed to conduct a thorough inquiry into the complaint of allegations of workplace harassment; 7. Provide assistance, as needed, to any employee involved in the grievance process to include a supervisor, the grievant and alleged harasser, and; 8. Monitor complaints and actions taken in response to all allegations of harassment. C. The supervisor shall: 1. Inform employees of the Unlawful Workplace Harassment Policy in an effort to create and maintain a work environment free of workplace harassment; 2. Address behavior that may lead to complaints of workplace harassment and counsel an offending employee as necessary and; 3. Report complaints of workplace harassment to the EEO Officer and communicate steps taken to address and correct any concerns raised. D. All Department employees shall: 1. Adhere to the Department’s policy and refrain from actions that may constitute workplace harassment; 2. Inform the Department’s Human Resources Director or EEO Officer of any discrimination or conduct which may be viewed as workplace harassment: and 3. Be informed of the policy in an effort to maintain a work environment free of workplace harassment and retaliation. VI. PROCEDURES FOR SUPERVISOR TO FOLLOW IN REPORTING UNLAWFUL HARASSMENT A. If a supervisor witnesses or has knowledge of possible workplace harassment, it is the supervisor’s obligation to address the issue(s) raised by such behavior. The supervisor must also consult with the EEO Officer. B. Upon notice of any complaint, the supervisor/manager shall take whatever steps necessary to eliminate any future complaints, including those based on misunderstandings or communication problems, and facilitate the creation of a workplace free from harassing speech or conduct. VII. TRAINING A. Training will be provided for supervisors and employees to sensitize them to the subject of workplace harassment. B. Training will be made available for supervisors on: a. The State’s policy on Unlawful Workplace Harassment; b. The Department’s Unlawful Workplace Harassment Policy; DJJDP16/HR 1.2 Page 7 of 7 c. The Unlawful Workplace Harassment Grievance Procedures; d. State and Federal laws concerning illegal discrimination and workplace harassment; and e. Corrective steps and appropriate disciplinary actions. C. Training will be made available for employees on: a. The State’s policy on Unlawful Workplace Harassment; b. The Department’s Unlawful Workplace Harassment Policy; c. State and Federal laws concerning illegal discrimination and workplace harassment; d. Employees’ rights; and e. The grievance procedures. VIII. EVALUATION A. Progress under this policy is reviewed quarterly by the Department Human Resources Director and the EEO Officer. B. Documentation is maintained and any alleged complaint of unlawful workplace harassment is reported through the established grievance reporting mechanism in the BEACON system. IX. ATTACHMENT Unlawful Workplace Harassment Policy Statement
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