T. Sexual Harassment (Policy #2012-1)
DDS POLICY #: 2012 - 1
DATE ISSUED: MARCH 5, 2012
EFFECTIVE DATE: MARCH 5, 2012
Prohibition of Sexual Harassment in the WORKPLACE POLICY
It is the law of the Commonwealth and the policy of the Department of Developmental Services [DDS], to promote and maintain a work environment that is free from sexual harassment. As an employer, we take responsibility for implementing policy ensuring protection to our employees against sexual harassment in the workplace.
DDS will not tolerate or condone sexual harassment by or toward its employees. Further, any retaliation against an individual who has complained about sexual harassment or retaliation against individuals for cooperating with an investigation of a sexual harassment complaint is similarly unlawful and will not be tolerated. Employees are strongly encouraged to timely report behavior that they believe to be sexual harassment to the Diversity/Sexual Harassment Prevention Officer (s) below:
Lorraine Woodson, Acting Director of Diversity
617-624-7530 or TTY: 617-624-7590
Robert J. Smith, Assistant General Counsel
617-624-7710 or TTY: 617-624-7590
Because DDS takes allegations of sexual harassment seriously, we will respond promptly to complaints of sexual harassment and where it is determined that such inappropriate conduct has occurred, we will act promptly to eliminate the conduct and impose such corrective action as is necessary, including disciplinary action where appropriate.
Please note that while this policy sets forth our goals of promoting a workplace that is free of sexual harassment, the policy is not designed or intended to limit our authority to discipline or take remedial action for workplace conduct which we deem unacceptable, up to an including termination, regardless of whether that conduct satisfies the definition of sexual harassment.
Definition of Sexual Harassment
Sexual Harassment is unlawful. Under Massachusetts General Laws Chapter 151B Section 4, Paragraphs I and 16A, sexual harassment is a form of sex discrimination. In Massachusetts, "sexual harassment" means sexual advances, requests for sexual favors, verbal or physical and /or other behavior or conduct of a sexual nature when:
a) Submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; or,
b) Such behavior has the purpose or effect of unreasonably interfering with work performance; or,
c) Such behavior has the purpose or effect of creating an intimidating, hostile, humiliating or sexually offensive work environment.
Sexual harassment is not limited to prohibited behavior by a male employee toward a female or by a supervisory employee toward a non-supervisory employee. Sexual harassment encompasses but is not limited to the following considerations:
a) 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. Offensive conduct directed at a member of the same gender may also qualify as sexual harassment, regardless of the gender preference of the participants.
b) Sexual harassment does not refer to an occasional compliment or welcome social relationships. It refers to deliberate or repeated behavior consisting of verbal comments, gestures or physical contact of a sexual nature that is not welcome, that is severe, pervasive, personally offensive, and lowers morale and that, therefore, interferes with work productivity.
c) While it is not possible to list all those additional circumstances that may constitute sexual harassment, the following are some examples of conduct which if unwelcome, may constitute sexual harassment depending upon the totality of the circumstances including the severity of the conduct and its pervasiveness: This unwelcome sexual behavior is defined from the perspective of the victim, not the harasser. Some examples of such behavior may include but are not limited to the following:
· Direct sexual advances or sexual assault;
· Sexual inquiries, jokes and epithets;
· Derogatory comments about a person’s sex or sexual orientation, other forms of verbal abuse of a sexual nature, such as whistling or catcalling;
· Offensive or unnecessary touching, such as patting, pinching or constantly brushing against a person;
· Physical interference with a person’s movements;
· The display of sexually suggestive posters, photographs or objects on the job;
· The requirement that a person wear sexually revealing clothing;
· Language that disparage or demean individuals in a sexual manner, because they may create an intimidating, hostile, or offensive working environment;
· Discussion of one's sexual activities.
d) The harasser does not have to be the victim’s supervisor. The harasser may be a supervisor who does not supervise the victim, a non-supervisory employee (co-worker), or, in some circumstances, even a non-employee such as a recipient or public services or a vendor.
e) The victim does not have to be the target of the unwelcome sexual conduct. The victim may be someone who is a witness to and personally offended by such conduct when it is directed toward another person.
f) Sexual harassment does not depend on the target’s having experienced economic injury as a result of the harasser’s conduct; it can include the creation of a hostile environment within which the victim must work.
Under these definitions, direct or implied requests by a supervisor for sexual favors in exchange for actual or promised job benefits such as favorable reviews, salary increases, promotions, increased benefits, or continued employment constitutes sexual harassment.
All employees should take special note that, as stated above, retaliation against an individual who has complained about sexual harassment, and retaliation against individuals for cooperating with an investigation of a sexual harassment complaint is unlawful and will not be tolerated by this organization.
Employees are Responsible for the Following:
a) Ensuring that they do not sexually harass any other employee, applicant for employment, recipient of public services, or any other individual in the workplace;
b) Cooperating in an investigation of alleged sexual harassment by providing any information they possess concerning the matter being investigated;
c) Actively participating in the Commonwealth’s efforts to prevent and eliminate sexual harassment and to maintain a working environment free from such discrimination;
d) Refraining from retaliating against any individual who has complained about sexual harassment or who has cooperated with an investigation of sexual harassment; and,
e) Reporting such allegations to the Diversity/Sexual Harassment Prevention Officer.
Pursuant to M.G.L., c 151B, any employee who files a sexual harassment claim or cooperates in an investigation is assured that (s)he may do so confidentially without fear of retaliation or reprisal.
If it is determined that inappropriate conduct has been committed by one of our employees, we will take action as in appropriate under the circumstances. Such action may range from counseling to termination from employment, and may include other forms disciplinary action as we deem appropriate under the circumstances.
Responsibilities of the Agency
As the employer, the Agency is responsible for:
a) Ensuring that all employees know that they have the right to complain about sexual harassment to the Diversity/Sexual Harassment Prevention Officer(s);
b) Conducting a thorough investigation of each complaint in the most expeditious and confidential manner possible;
c) Taking immediate and appropriate corrective actions, including disciplinary actions with respect to employees who engage in sexual harassment;
d) Posting and making available to employee information regarding sexual harassment policy and procedures and conducting training on this matter for new employees.
The Commonwealth and the Agency may not be held responsible if each can show that prompt and appropriate corrective action was taken in response to a complaint.
Responsibilities Diversity Sexual Harassment Prevention Officer Includes:
a) Investigating reports of alleged sexual harassment in a confidential and expeditious manner including conducting intake interviews within three working day from the date the complainant contacts the Diversity/Sexual Harassment Prevention Officer(s);
b) Within three weeks of intake Interviews, meet with the Agency Head and/or designee, to discuss either the proposed resolution of the matter or the status of the complaint in the event that more than 21 days is needed for closure of the matter;
c) Preparing reports of investigation for review by the Commissioner, General Counsel, Director of Human Resources and/or Director of HR with findings as to whether there was a violation of Agency Policy and recommendations;
d) Ensuring that complainants are informed about their other avenues of recourse;
e) Providing oversight training and technical assistance to all Area Directors, and Program Directors.
f) Maintaining confidential, accurate and current records of reports of sexual harassment investigations and their disposition; and,
g) Distributing to all employees:
i. an explanation of the Commonwealth’s policy and complaint procedure, as soon as possible after hire and annually thereafter;
ii. the name and contact information for the agency’s Diversity/Sexual Harassment Prevention Officer(s); and,
iii. notice about of any changes to the above, as soon as administratively possible.
Procedures for Maintaining Records of Complaints
The Diversity/Sexual Harassment Prevention Officer(s) will keep a complete record of all formal written complaints, their supporting documentation and their resolution in confidential files separate from official personnel files.
If the determination is that a violation of the Agency Policy against sexual harassment occurred, the Officer’s summary report will be placed in the personnel file of the harasser. If it is determined that a false accusation likely occurred, a separate investigation into the conduct of the person who made the false accusation will be triggered. If it is determined that a violation of the Agency Policy did not occur, the summary will be maintained only in the Sexual Harassment Prevention Officer’s confidential files. If the determination is that there is “insufficient evidence,” records will be maintained by the Human Resources Division, separate from either party’s personnel file.
Protection of All Parties
Pursuant to Chapter 151B, Section 3B, paragraph 4, any employee who files a sexual harassment claim or cooperates in an investigation shall not be subjected to retaliation or reprisal. An employee who thinks that he/she may have been retaliated against may amend his/her complaint or file a separate complaint, which shall be investigated pursuant to this policy.
a) All complaints of sexual harassment shall be addressed.
b) The alleged harasser shall be notified when a formal complaint is filed. Formal Complaints are different than general complaints as they usually involve a more serious nature of allegations of misconduct or policy violation by Agency employees.
c) The sexual harassment investigation shall be conducted in a manner to protect the confidentiality of the complainant, the alleged harasser and all witnesses. All parties involved in the proceedings shall be directed to maintain strict confidentiality, from the initial meeting to the final Agency decision.
d) False accusations of sexual harassment (i.e., the alleging of incidents or behavior that are proven, through investigation, not to have occurred at all) may result in severe disciplinary action up to and including termination.
e) A finding that either sexual harassment did not occur or that there was insufficient evidence does not necessarily establish that an accusation was false.
f) Employees who violate the confidentiality of information may be subject to disciplinary action up to and including termination from the Department.
g) Employees covered by collective bargaining agreements who are subject to disciplinary action are entitled to representation by their respective unions.
h) Upon completion of investigations, hearing may be held in accordance with collective bargaining agreements.