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Section
22.000
Policies and Procedures Manual
Human Resources Department
22.000
SEXUAL HARASSMENT IN THE WORKPLACE
I. PURPOSE
This
document establishes the policy of the Massachusetts Trial Court
regarding sexual harassment in the workplace by judges, managers,
supervisors, employees, members of the public who use court facilities,
vendors and contractors. This document also describes examples
of conduct that may constitute unlawful sexual harassment and sets
forth a Trial Court complaint procedure which may be followed by
persons who believe that they are victims of unlawful sexual harassment.
II. POLICY
The
Trial Court fully supports the right of all persons to hold employment
in or enjoy access to the Judicial Branch in an atmosphere which
promotes equal opportunities and prohibits discriminatory practices,
including sexual harassment. It is the policy of the Trial Court
to maintain a court environment that is free of sexual harassment.
Sexual harassment by judges, managers, supervisors, employees,
members of the public who use court facilities, vendors and contractors
is unacceptable and will not be tolerated.
III. DEFINITION OF SEXUAL HARASSMENT
A. The
Legal Definition of Sexual Harassment
Sexual
harassment is a form of sex discrimination that is illegal under
both Title VII of the Civil Rights Act of 1964 and G. L. c. 151B.
These laws provide that unwelcome sexual advances, requests for
sexual favors and other physical or verbal conduct of a sexual
nature constitute sexual harassment when:
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submission to or rejection of such advances,
requests or conduct is made either explicitly
or implicitly a term or condition of an individual's
employment or a basis for employment decisions affecting
the individual; or
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such conduct has the purpose or effect of unreasonably
interfering with an individual's work performance
by creating an intimidating, hostile, humiliating
or sexually offensive work environment. |
B. Key
Factors in Identifying Sexual Harassment
The
main components of sexual harassment are that the behavior is:
| Sexual... |
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as opposed, for instance, to occasional compliments of a
socially acceptable nature; |
| Repeated and pervasive... |
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since minor, isolated conduct will not necessarily constitute
sexual harassment; |
| or A single, severe incident... |
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such as a physical assault; |
| Unwelcome... |
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by even just one person, whether that person is the target
of the behavior or a bystander; |
| Intimidating, hostile, or offensive... |
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whether it was the actor's intention or not; |
| Interfering... |
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with the worker's ability to do his or her job. |
Sexual
harassment occurs in a variety of situations which share a common
element: the inappropriate introduction of sexual activities or
comments into the court environment.
C. Examples
of Conduct That Can Constitute Unlawful Sexual Harassment
Examples
of sexual harassment include, but are not limited to repeated and
pervasive, or a single severe incident of, the following:
- unwanted sexual flirtations,
advances or propositions,
- verbal abuse or innuendo
of a sexual nature,
- uninvited intimate physical
contact such as touching, hugging, patting, brushing or pinching,
- verbal comments of a sexual
nature about an individual's body or sexual terms used to describe
an individual,
- display of sexually suggestive
objects, pictures, posters or cartoons,
- jokes, language, epithets
or remarks of a sexual nature in front of people who find them
offensive,
- electronic transfer or display
of sexual jokes, pictures, or other material, whether by computer,
fax, or other technology,
- prolonged staring or leering
at a person,
- making obscene gestures
or suggestive or insulting sounds,
- the demand for sexual favors
accompanied by an implied or overt threat concerning an individual's
employment status or promises of preferential treatment,
- indecent exposure.
This
behavior is unacceptable in the workplace itself and in other work-related
settings such as work-related social events and travel.
D. Dispelling
Common Myths about Harassers and Victims
Sexual
harassment often involves relationships of unequal power. Such
situations may contain elements of coercion, such as when compliance
with requests for sexual favors becomes a criterion for granting
privileges or favorable treatment on the job. Nonetheless, contrary
to popular belief, sexual harassment can be found in any of the
following less "traditional" situations:
- A man as well as a woman
may be the victim of sexual harassment, and a woman as well
as a man may be the harasser.
- The victim does not have
to be the opposite sex from the harasser.
- The harasser does not have
to be the victim's supervisor. He or she may also be a supervisory
employee who does not supervise the victim, a co-worker, or
in some circumstances, a non-employee such as a member of the
bar or the public who uses court facilities.
- The victim does not have to be the person to whom
the unwelcome sexual conduct is directed. The victim may be someone
who is affected by such conduct even though it is directed at
another person. For example, the sexual harassment of one employee
may create an intimidating, hostile, humiliating or offensive
work environment for a co-worker, or may interfere with the co-worker's
work performance. In addition, consensual sexual behavior in
the office between two employees may be offensive to a third
employee.
- Sexual harassment does not depend on the victim's
suffering an economic injury, such as losing a promotion, as
a result of the harasser's conduct. As the examples of improper
conduct listed above show, sexual harassment can occur whenever
unwelcome conduct of a sexual nature creates an intimidating,
hostile, humiliating or offensive work environment.
IV. EMPLOYEE ROLES AND RESPONSIBILITIES
Employees
play a central role in keeping sexual harassment out of the workplace.
| A. |
Employee
Conduct
Each
employee of the Trial Court is personally responsible for
ensuring that his or her conduct does not sexually harass
any other employee or non-employee in the workplace. It
is safest not to engage in behavior of a sexual nature,
since you may never know when it will offend others. Also,
under the provisions of Chapter 151B, Sect. 4(4A) employees
may be held personally liable for engaging in sexually
harassing behavior.
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| B. |
Reporting
Behavior
Managers
rely on employees to inform them when they observe inappropriate
conduct of a sexual nature, especially if it is offensive
to them or any other employee or user of the court. Only
with such knowledge can the manager take steps to stop
the behavior. Since such inappropriate conduct tends to
escalate in severity when left unchecked, the Trial Court
encourages employees to report as soon as possible when
behavior of a sexual nature is offensive to them or others.
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| C. |
Cooperating
in Investigations
Each
employee is responsible for cooperating in any investigation
of alleged sexual harassment if requested to do so by the
person conducting the investigation. Employees are also
responsible for respecting the confidentiality of the proceedings.
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| D. |
Managers
as Harassers
It
is the responsibility of each supervisor, manager, and
department head (manager) to strictly enforce the terms
of this policy. Managers are in a leadership position in
the courts, and their own behavior models what is acceptable
in the courts. In addition, the law is especially intolerant
of sexual behavior on the part of managers. For these reasons,
managers are under a particular onus to conduct themselves
at all times in an appropriate, professional manner which
could not be construed to create a sexually hostile environment. Managers
may be held personally liable for their inappropriate behavior.
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| E. |
Managers
Responding to Sexual Harassment
Managers
who become aware of incidents of sexual harassment, whether
or not there is a formal complaint, must take appropriate
actions to eliminate the conduct. If a party lodges a formal
complaint with the manager, see Section C.1.a. for guidance.
In the situation where the manager is aware of such incidents,
but there is no formal complaint, the manager has a range
of options. The manager may, on personal initiative, conduct
an investigation and take remedial action. Alternatively,
if the manager has observed the conduct, he or she may
take aside the person who has behaved inappropriately and
explain that such behavior is not acceptable and must stop,
documenting such a discussion for future reference. The
manager may also have a staff meeting to redistribute this
policy and to remind staff that sexual harassment will
not be tolerated in the court. Some managers have redistributed
the policy with a memorandum to that effect. In summary,
it is critical that managers take whatever action is necessary
to stop the inappropriate behavior.
Managers
are well advised to be on guard against conduct of a sexual
nature, even if there is no indication that it is perceived
to be offensive at the time the conduct occurs. Other individuals
may subsequently be exposed to the behavior and find it offensive,
or the actor may get bolder and step over the line. Any efforts
to avoid these risks are prudent.
Managers
should also notify the Trial Court Human Resources Department
of any such situations. First, this will give experienced
staff the opportunity to advise the managers. Further,
by centrally tracking such behavior, the Trial Court will
both be able to plan systemic efforts to eliminate it and
also will be able to ensure that individuals with business
in more than one location are being held accountable for
their behavior in all settings.
Supervisors
and managers are encouraged to seek information and guidance
from the Trial Court Human Resources Department.
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V. WAYS OF DEALING WITH SEXUAL HARASSMENT
A. Self-Help
If
you believe that you are being sexually harassed, the most immediate
goal is to stop the offensive conduct. In many situations, you
can do this yourself by informing the other person that the behavior
is offensive or not welcome. This works well when the person is
not aware that the behavior is offensive and had no intention of
offending you. You may:
- Promptly and firmly confront
the harasser.
- State that his/her conduct
offends, intimidates, and/or embarrasses you.
- Describe how the harassment
negatively affects your work.
- Request that he or she stop
the conduct immediately. For instance
"Please don't touch me.
I don't like it. It makes me uncomfortable."
"I don't think jokes like that are funny. Please don't tell them."
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Documenting
incidents and efforts to resolve them is always useful.
B. Seeking
Guidance
In
some instances, confronting the harasser directly may be too intimidating
or uncomfort-able, particularly when the harasser is an immediate
supervisor. In such cases, you may discuss your situation with
a local manager or with a member of the Trial Court Human Resources
Department. These individuals can provide more information about
sexual harassment, discuss informal approaches to addressing your
concerns, and explain the formal complaint procedure in order to
help you determine how to resolve the situation.
C. Formal
Complaint
| 1. |
Investigation:
The
goal of a formal complaint procedure is to conduct a thorough
inquiry into allegations of sexual harassment, so that
managers may take remedial action to eliminate the behavior
if the allegations are substantiated. Formal complaints
are handled either by managers or by the Human Resources
Coordinator for Gender Issues:
| a. |
Local and regional managers
are able to conduct both the investigation and any
disciplinary hearings, so many employees choose this
consolidated approach to handling a formal complaint.
If you choose this approach, be prepared to provide
a written document explaining your complaint. Specifics,
such as times, dates, and witnesses, will allow the
manager to conduct a thorough inquiry. Managers are
encouraged to contact the Human Resources Coordinator
for Gender Issues for information and guidance.
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| b. |
You may also file a formal
complaint by contacting the Human Resources Coordinator
for Gender Issues at the Human Resources Department
of the Administrative Office of the Trial Court [Phone:
617-742-8575, 800-572-5027; Fax: 617-742-0968; Address:
Two Center Plaza, Boston, MA 02108]. This person
will provide a simple complaint form which will initiate
an investigation, and will assist in filling out
this form, if requested.
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When
a complaint is received, it will be investigated in
a fair and expeditious manner. The investigation may
include private interviews with the person filing the
complaint, with the person alleged to have committed
sexual harassment, and with witnesses. The investigator
may also review records and other documentation. To
the extent appropriate, the person filing the complaint
and the person alleged to have committed the conduct
will be informed of the progress of the investigation.
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| 2. |
Discipline:
If an investigation
of a complaint of sexual harassment reveals that an employee, supervisor, manager
or department head has engaged in actions or conduct constituting sexual harassment,
disciplinary action will be taken up to and including discharge. The disciplinary
action taken will depend upon the seriousness of the violation. Disciplinary
action will be taken by the appropriate supervisor, manager, department head,
or disciplinary body, in accordance with the Trial Court Personnel Policy and
Procedures Manual or other appropriate disciplinary procedure.
The
exact nature of any discipline will remain confidential,
to protect the privacy rights of the person receiving the
discipline. Nonetheless, complainants will be informed
that remedial action was taken to stop the harassing behavior.
To monitor the success of the remedial action in stopping
the behavior, complainants will be asked to report any
further incidents, so that more severe and compelling disciplinary
action can be taken. The Trial Court relies upon the continued
cooperation of complainants to stop offensive behavior
and keep the courts free of sexual harassment.
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3.
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Non-Employees:
Any
non-employee found to have committed an act of sexual harassment
may be removed from court premises, or other appropriate
action may be taken.
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4.
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Supervisory Cooperation:
Any
supervisor, manager or department head who prevents or attempts
to prevent an indivi-dual from making a complaint of sexual
harassment, or who fails to cooperate with or interferes
in any way with the investigation of such a complaint, will
be subject to disciplinary action.
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| 5. |
No Retaliation:
No
employee, supervisor or manager shall be retaliated or discriminated
against in any way for making a complaint of sexual harassment
or for assisting in the investigation of such a complaint.
Such retaliation will not be tolerated and itself will subject
the retaliator(s) to disciplinary actions.
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| 6. |
Confidentiality:
All
actions taken to investigate and resolve complaints through
this procedure shall be conducted with as much confidentiality
as possible without compromising the thoroughness of the
investigation.
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D. Other
Remedies
In
addition to the above, employees who believe they have been subjected
to sexual harassment may choose to pursue a course of action other
than the above. Using the Trial Court complaint process does not
prohibit employees from the following:
- Filing a formal complaint
within 300 days with the:
United States Equal
Employment Opportunity Commission
One Congress Street, 10th Floor
Boston, MA 02115
617-565-3200
Massachusetts Commission Against Discrimination
One Ashburton Place, Room 601
Boston, MA 02108
617-727-3990
Massachusetts Commission Against Discrimination
424 Dwight Street, Room 220
Springfield, MA 01103
413-739-2145
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- For
employees who are members of O.P.E.I.U., Local 6, filing
a grievance under their collective bargaining agreement;
- Pursuing their right to
engage an attorney to represent their interests.
In
addition, the Employee Assistance Program assists employees dealing
with the stress of harassment or seeking guidance for addressing
the behavior.
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