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4. Workplace Harassment
4.1. It is the intent of the Department to provide a professional
work environment which is free from intimidation, hostility or other
offensive conduct that might interfere with work performance. As
a result, the Department strongly disapproves of and does not tolerate
workplace harassment of any sort - verbal, non-verbal physical,
or visual. Moreover, federal and state laws prohibit harassment
against employees in protected classes.
4.2. Protected classes include, but are not necessarily limited
to, race, color, religion, sex, age, national origin or ancestry,
disability (including blindness), medical condition, marital status,
veteran status, political affiliation, or any other protected status
defined by law.
4.3. The Department regards harassment as a very serious
matter and prohibits it in the workplace by any person and in any
form. The Department also regards false accusations as a very serious
matter. Violations of this policy by Department employees may result
in disciplinary action, up to and including discharge.
4.4. The purpose of this policy is to ensure that the employees
of the Department of Agriculture and its affiliated political subdivisions
work in an environment which is free from harassment. This policy
also establishes the procedures for reporting, investigating, and
resolving complaints of alleged workplace harassment.
4.5. Workplace harassment can take many forms and is not
necessarily sexual in nature. It may be, but is not limited to,
words, signs, offensive jokes, cartoons, pictures, posters, e-mail
jokes or statements, pranks, intimidation, physical assaults or
contact, or violence. It may also take the form of other vocal activity
including derogatory statements not directed to the targeted individual
but taking place within their hearing. Other prohibited conduct
includes written material such as notes, photographs, articles of
a harassing or offensive nature, taking retaliatory action against
an employee for discussing or making a harassment complaint, and
using work schedules as a means of discriminating and retaliating
against employees.
........4.5.a. Like other forms
of harassment, the Department will not tolerate sexual harassment
of any kind. Sexual harassment may include unwelcome sexual advances,
requests for sexual favors, other verbal or physical contact of
a sexual nature or based on an individual's sex (such as uninvited
touching or sexually-related comments), when such unwelcome conduct
creates an offensive, hostile and intimidating work environment
and prevents an individual from effectively performing the duties
of the individual's position. It also encompasses such conduct when
it is made a term or condition of employment or compensation, either
implicitly or explicitly, or when an employment decision is based
on an individual's acceptance or rejection of such conduct.
................4.5.a.A.
Sexual harassment crosses age and gender boundaries and cannot be
stereotyped.
................4.5.a.B.
Sexual harassment does not refer to occasional compliments of a
socially acceptable nature. It does refer to behavior which is unwelcome,
personally offensive, and interferes with a person's ability to
work.
4.6. The "Reasonable Person" standard will be used
to determine whether behavior constitutes discrimination or harassment.
This objective standard considers what a reasonable person's reaction
would have been under similar circumstances and in a similar environment.
This standard considers the recipient's perspective and not the
stereotyped notions of acceptable behavior.
4.7. Off-Site Behavior
........4.7.a. It is important
to remember that harassment is not tolerated outside the workplace
as well. Department clients, customers, or guests have the same
rights as its employees. Violations of this policy by Department
employees toward clients, customers, or guests may also result in
disciplinary action, up to and including discharge.
........4.7.b. Harassing behavior
at an employer-sponsored event is not tolerated, even if conducted
out of the workplace. Such behavior will be investigated in accordance
with these procedures and employees have the same positive duty
to report such behavior as they would if other actions had taken
place at the workplace.
4.8. Procedure
........4.8.a. It is the offended
employee's responsibility to first bring the offending action to
the attention of the offending party. If the situation is not corrected,
the employee shall notify the Personnel Director directly or through
their management team of incidents of harassment within ten (10)
working days of the incident. The Department recognizes that employees
may be reluctant to come forward with allegations of harassment.
Thus, the Personnel Director may elect to waive the deadline expressed
in the previous sentence, if;
................4.8.a.A.
the allegations appear to be well-grounded; and
................4.8.a.B.
such a waiver is necessary to promote the best interests of both
the Department and those employees involved.
........4.8.b. If the Personnel
Director is the subject of an employee's grievance, that employee
shall notify the Deputy Commissioner. In such a case, the Deputy
Commissioner shall act in the Personnel Director's capacity in pursuing
the employee's complaint.
........4.8.c. The aggrieved
employee, the accused party or parties, or both, may be temporarily
reassigned or placed on administrative leave while the investigation
is underway, if it is determined that such action is necessary to:
................4.8.c.A.
facilitate employee productivity;
................4.8.c.B.
facilitate the mental and emotional well-being of employees;
or
................4.8.c.C.
to protect the physical well-being of the aggrieved employee, the
accused party or parties, or both.
........4.8.d. No conclusion of
wrongdoing or guilt shall be implied by such a reassignment or administrative
leave.
........4.8.e. Upon receiving
an employee's complaint, the Personnel Director shall convene a
committee to investigate the alleged incident(s) of harassment,
as soon as reasonably possible, but not later than fifteen (15)
days after receiving the complaint.
................4.8.e.A.
This committee shall be composed of the Deputy Commissioner
(or designee), Personnel Director (or designee), and one (1) employee-at-large.
The Personnel Director shall chair the investigation committee.
The employee-at-large shall be designated by the Personnel Director.
The employee-at-large shall not be a party with a stake in the outcome
of the grievance and shall have as little prior knowledge of the
alleged incident as possible.
................4.8.e.B.
All possible efforts will be made to ensure that the Investigation
Committee shall contain at least one (1) member of the same protected
class as the aggrieved employee.
........4.8.f. If the Investigation
Committee feels the employee's allegations are well-grounded, it
shall confidentially inform the accused party or parties that a
complaint has been filed and that a confidential investigation into
the alleged incident(s) is underway.
........4.8.g. If the Committee
feels the employee's allegations are ill-founded or made maliciously
or in bad faith, the investigation will be dropped against the accused
party, and a new investigation and disciplinary action may be pursued
against the employee who made the fraudulent complaint.
........4.8.h. The Investigation
Committee is not intended to imitate a court of law; however, fairness
and due process will be the guiding principles. The Committee shall
have the power to take statements and hear testimony from:
................4.8.h.A.
the aggrieved employee;
................4.8.h.B. the
accused party or parties;
................4.8.h.C.
witnesses to the alleged incident(s); and
................4.8.h.D.
any other persons offering testimony which would tend to corroborate
or refute the allegations. This type of testimony includes, but
is not limited to, allegations that the accused party or parties
acted in a similar manner on other occasions.
........4.8.i. The Investigation
Committee shall make its own determinations on the admissibility
and/or relevance of offered evidence and testimony; and on the respective
credibility of conflicting testimony.
........4.8.j. After examining
the evidence before it, the Investigation Committee shall specifically
determine whether the alleged incident(s) occurred.
........4.8.k. If it is determined
that the incident occurred, the Committee will be prepared to make
recommendation to the Commissioner for appropriate action to be
taken. If the incident was not proven out and the Committee felt
the employee made a malicious or fraudulent claim, a recommendation
will also be made to the Commissioner for action to be taken against
the employee.
........4.8.l. The Commissioner
may take the recommendations of the Investigation Committee into
account when deciding what disciplinary action should be taken,
but such recommendations shall neither be binding or determinative.
The Commissioner alone shall determine what disciplinary action
is appropriate in each case.
........4.8.m. When disciplining
employees for violations of the Department's workplace harassment
policy, the Commissioner may elect to invoke any of the disciplinary
options available under the provisions of Section 15 of this policy.
........4.8.n. Employees may
appeal any disciplinary action taken against them for workplace
harassment by sending a written request for appeal to the Commissioner
within three (3) working days of receiving such decision for disciplinary
action. The request must include an explanation of the reasons that
the employee feels that the disciplinary action is incorrect.
................4.8.n.A.
The Commissioner may respond to this request for an appeal by scheduling
an appeal hearing or by refusing to hear the appeal.
........4.8.o. Both aggrieved
and accused employee(s) may have another employee assist him/her
in the investigation process. The assisting employee must not be
an attorney.
................4.8.o.A. The
Department seeks to resolve these matters in a confidential, participative
manner among employees. Therefore, the Department seeks to discourage
the participation of lawyers in the Department's internal investigation
of workplace harassment allegations at this level in the process.
4.9. No reprisals or retaliation of any kind shall be taken
by the Department or any supervisor against any party, any representative,
any participant, or any assisting party in the internal investigation
procedures because of such participation. This includes anyone who
may participate in the internal investigation procedures as a witness
or as a member of the Investigation Committee.
........4.9.a. The Department will
not tolerate any employee engaging in retaliatory actions against
any individual who makes a claim of harassment or who participates
or assists in any way in the investigatory process. If an employee
engages in such retaliatory activity, he/she is subject to appropriate
disciplinary action.
........4.9.b. Similarly, the
internal investigation process represents a serious attempt to address
harassment issues that may arise in the workplace in an appropriate
and swift manner. Persons who use the process flippantly or make
false statements or present false evidence in connection with any
harassment investigation are subject to appropriate disciplinary
action.
4.10. Confidentiality
........4.10.a. Because of the
sensitive and potentially damaging results of unproven accusations
against individuals, the Department regards confidentiality as the
key element in keeping the process fair to all involved.
........4.10.b. It is the policy
of the Department that the utilization of these procedures to remedy
instances of harassment shall not be made a matter of record unless
the aggrieved party requests it be added to their own personnel
file, nor shall it jeopardize the aggrieved employee in any way.
................4.10.b.A.
If harassment is determined to have occurred, the records of actions
taken will be made part of the personnel files of employees who
are disciplined.
........4.10.c. Any employee
who is accused of violating the Department's harassment policy,
but is later cleared of the allegations, shall not have those allegations
or the subsequent investigation made a matter of record, unless
the accused party requests it be added to their own personnel file.
........4.10.d. Any employee
of the Department who violates the confidence associated with participation
in the internal investigation process may be subject to disciplinary
action under the provisions of Section 15 of this policy.
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