Promising Practices for Preventing Harassment in the Federal OR Private Sector - Your HelpDesk for HR (2023)

The EEOC has issued a document called “Promising Practices for Preventing Harassment in the Federal Sector”. After reading through this document it occurs to me that these practices also apply to the private sector. So, I wanted to share this guide with everyone so you can determine if you are already working on these best practices in your organization OR if you may need to take a look at your anti-harassment practices. Download this document as a PDF file.

Each section of this document provides a list of relevant requirements and recommendations. Some practices may apply to multiple sections and may be listed more than once.

A. Leadership and Accountability

• Ensure the agency has an anti-harassment program that is separate and distinct from the EEO program. This anti-harassment program should have neutral staff outside of the entity involved in the allegation who are responsible for promptly, thoroughly, and impartially investigating allegations of harassment and taking immediate and appropriate corrective action.
• Ensure the agency has sufficient funding, personnel, and other resources to help prevent and respond to harassment and retaliation.
• Ensure that investigations of harassment allegations begin within 10 calendar days of receipt of harassment allegations.

The following are examples of promising practices that the EEOC recommends federal agency heads and senior agency leadership also undertake to demonstrate a commitment to preventing and addressing harassment:

• Issue and distribute to all employees, and prominently post, an annual anti-harassment policy statement signed by the agency head stating that harassment will not be tolerated, the type of conduct that is prohibited, how to report harassment, and the consequences of engaging in harassment and retaliation.The statement should be posted in an electronic, accessible form readily available to all employees (including those with disabilities) at all component and sub-component levels
• Ensure anti-harassment policy statements refer and link to the agency’s anti-harassment policy and procedures.
• Periodically meet with their relevant designated officials, such as Anti-Harassment Program Coordinators or Managers, to discuss the state of the agency’s anti-harassment program.
• Ensure the agency periodically assesses harassment risk factors and takes appropriate preemptive steps to address and eliminate those factors.
• Incorporate anti-harassment efforts into the agency’s strategic plan.
• Conduct climate and exit surveys as well as review EEO complaint data to gauge the prevalence of harassment, retaliation, and other unwelcome work-related conduct. This can help the agency identify appropriate responses.
• Consider whether/when to allow anonymous communications on organizational platforms.
• Ensure the security of virtual platforms, organizational websites, and online services. This may help prevent outside attacks and intrusion that could result not only in harassment, but also in the potential breach of confidential information.

To help prevent and address harassment, agency leaders should consider undertaking the following actions to increase accountability in their anti-harassment efforts among managers, supervisors, EEO officials, and employees in general:

• Implement agency-wide, consistent penalties or recommended penalty ranges to be used in disciplinary actions for harassing conduct, in accordance with applicable laws and regulations. Ensure that anti-harassment policies and training include the range of penalties that may be imposed on any employee who engages in harassing conduct or harassment.
• Ensure that anti-harassment policies clearly set forth who is responsible for taking corrective action when allegations have been substantiated and an individual has been found to have engaged in conduct that violates an agency’s anti-harassment policy.
• Ensure that the agency’s response to anti-harassment allegations is regularly evaluated and documented through an electronic tracking system.
• Acknowledge and reward employees, supervisors, and managers for creating and maintaining a culture in which harassment is not tolerated.
• Acknowledge and reward supervisors and managers for taking actions that prevent harassment.
• Consider the extent to which agency personnel should be ineligible for promotions or performance awards when they are found to have violated an agency’s anti-harassment policy.
• Consider the extent to which agency personnel should be ineligible to serve in a supervisory or managerial capacity when they are found to have violated an agency’s anti-harassment policy.
• Incorporate performance measures on harassment prevention and response into the performance evaluations of any agency staff with supervisory or managerial responsibilities.

B. Comprehensive and Effective Anti-Harassment Policy

A comprehensive, clear anti-harassment policy that is regularly disseminated to all employees is an essential element of an effective harassment prevention strategy, as well as a tool that may help limit federal agencies’ liability for harassment. Your policy should include:

• A clear, easy to understand explanation of prohibited conduct that includes the definition of prohibited harassment.
• A prohibition against harassment on all federal EEO protected bases, including race, color, sex (including sexual orientation, gender identity, and pregnancy), national origin, religion, disability, age (40 years or older), genetic information (including family medical history), and retaliation.
• A description of the agency’s anti-harassment program that includes multiple channels to report harassment, including to agency officials outside the supervisory chain of command.
• Assurance that employees who engage in protected activity, such as making complaints of harassment or providing information related to such complaints, will be protected against retaliation.
• Assurance that the agency will take corrective action to prevent or address harassing conduct before it becomes unlawful.
• Assurance that agency representatives will keep the identity of individuals who report harassment, alleged victims, witnesses, and alleged harassers (as well as information related to harassment investigations) confidential to the extent possible, consistent with legal obligations and the need to conduct a thorough and impartial investigation.
• Assurance that the agency will conduct a prompt, thorough, and impartial investigation of harassment allegations that begins within 10 calendar days of the agency becoming aware of such allegations.
• Assurance that the agency will take immediate and appropriate corrective action when harassment is found to have occurred.

To make anti-harassment policies as comprehensive and effective as possible, the EEOC recommends implementing additional promising practices, including the following:

• Explicit assurance that the policy applies to employees at every level of the agency, as well as to applicants.
• Assurance that the agency’s policy also prohibits unwelcome conduct on non-EEO bases (e.g., political affiliation, parental status, marital status) and an explanation about how to report such conduct, in addition to conduct related to EEO protected bases.
• Assurance that bullying, intimidation, and stalking will not be tolerated by the agency.
• An easy-to-understand description of prohibited conduct that includes practical examples of harassment that are tailored to the agency’s specific workplace and workforce.
• Discussion of how the agency’s anti-harassment policy may be violated through work-related conduct that occurs on virtual platforms, including social media.
• An explanation that the use of agency-issued devices, such as laptops and cell phones, to engage in online harassment and abuse, including sexual harassment or racial harassment, among other types of harassment, communicated through email, work-based chat/messaging platforms, and text messaging and phone calls will not be tolerated.
• Specific discussion of technology-facilitated gender based-violence and online harassment and abuse.
• A clear explanation of the distinction between the EEO process and the agency’s anti-harassment program, and an explanation that, pursuant to 29 CFR § 1614.105, the job applicant or employee must generally initiate contact with an EEO Counselor within 45 calendar days of the most recent harassing actions to begin the EEO complaint process, regardless of the processing of the matter through the anti-harassment program.
• Identification of the personnel or office responsible for conducting investigations.
• Identification of the personnel or office responsible for taking corrective action when harassment is found to have occurred.
• An explanation of the agency’s duty to investigate and correct harassment, even if alleged victims indicate they do not want the matter investigated or corrected.
• A general time limit for concluding investigations and taking immediate and appropriate corrective action.
• Standards and procedures for eliminating conflicts of interest in investigating harassment allegations and taking corrective actions.
• Guidance on the processes and procedures for addressing harassment allegations involving non-employees, such as contractors, guests, volunteers, or customers.
• A statement that managers and supervisors must report harassment to agency anti-harassment programs and officials, and employees are encouraged to promptly report harassment they witness or of which they otherwise become aware.

To help enhance their effectiveness as part of efforts to prevent and correct harassment, agencies’ anti-harassment policies should be widely disseminated to employees.This may be accomplished if the policies are:

• Written and disseminated in a clear, easy-to-understand style that uses plain English.
• Made available onsite and online in accessible formats (as needed), such as digital formats that are compatible with screen reading software, large font, braille, and languages commonly used by employees.
• Posted prominently on the agency’s intranet website as well as central locations in the workplace.
• Incorporated into employee handbooks.
• Provided to all employees upon hire or detail into the agency.
• Disseminated regularly to all staff, including through attachment to the agency’s annual anti-harassment policy statement.
• Periodically reviewed and updated as needed to incorporate legal developments, trends in harassment, and changes in procedures.
• Integrated into a variety of agency trainings, including anti-harassment training, supervisory training, new employee orientation, and intern training.

C. Effective and Accessible Anti-Harassment Program

To be effective, agency anti-harassment policies should not exist in a vacuum. Instead, they must be accompanied by reporting and complaint procedures to ensure the agency properly responds to harassment allegations. Toward that goal, federal agencies should have comprehensive anti-harassment programs that are dedicated to preventing harassment; promptly, thoroughly, and impartially investigating harassment allegations; and immediately and appropriately correcting harassment when it occurs. First, and foremost, this means agencies must focus on ensuring that all of their employees, particularly supervisors, managers, and those responsible for investigating harassment complaints, understand the agency’s anti-harassment procedures and know how to promptly and effectively identify, report, and address harassment.

To help prevent unlawful harassment, an effective anti-harassment program should, among other things:

• Allow for anonymous reporting of harassment through platforms, such as hotlines and websites. In providing multiple avenues and methods to report harassment beyond the supervisory chain-of-command, the program should also consider using portals, ombudspersons, human resources officials, and anti-harassment program personnel.
• Dispel the assumption that nothing can be done about anonymous harassment that occurs on the employer’s virtual network. Employers may be able to track down the identity of individuals who engage in harassment anonymously (for example, anonymously posting sexually or racially offensive comments or images during a virtual work meeting) on the employer’s network.
• Regularly inform senior leadership of the state of the agency’s anti-harassment program, including funding or other resources needed, to ensure that the program can respond promptly, thoroughly, and effectively to complaints.
• Ensure that reports of harassment or harassing conduct are well-documented through a complaint tracking system. This tracking system may be designed, for example, to record when the agency was notified of harassment allegations, the identity of the alleged harasser, details about the alleged harassment, the EEO bases involved, the dates of the alleged harassment or harassing conduct, when the investigation of allegations began and concluded, the identity of the investigator, whether harassment or harassing conduct was found to have occurred, any preventative or corrective action taken, and the identity of the person responsible for taking corrective action.
• Engage in trend analysis of harassment complaints data and conduct and analyze regular surveys, such as workplace climate assessments.
• Provide education to employees and managers, including information about the distinction between the Anti-Harassment Program and the EEO Program.

When an agency becomes aware of potential harassment or harassing conduct, the EEOC requires the agency to undertake the following actions:

• Conduct a prompt, thorough, and impartial investigation that begins within 10 calendar days of agency awareness of the allegations and take corrective action immediately when it is determined harassment or harassing conduct occurred.
• Conduct investigative interviews with the alleged victim, the alleged harasser, and third parties who could reasonably be expected to have relevant information.
• Ensure investigations are not conducted by individuals who have a conflict of interest or bias in the matter.
• Protect the confidentiality of alleged victims, individuals who report harassment, witnesses, alleged harassers, and other relevant individuals to the extent possible, consistent with a thorough investigation and with relevant legal requirements.
• Ensure that corrective actions do not retaliate against or penalize the alleged victim.
• Take corrective action (including discipline) that is proportionate to the severity of the conduct, the impact on the overall workplace, the disciplinary history of the harasser, and other relevant factors.
• Ensure the anti-harassment program is made aware of harassment claims involving EEO-protected bases that are raised during the EEO counseling process.

Additional promising practices that agencies that become aware of potential harassment or harassing conduct allegations should undertake include, for example:

• Issuing a written report documenting the investigation, findings, and recommendations, whether or not the employee chooses to file a formal complaint.
• When appropriate, including interim actions to prevent the recurrence of any harassing conduct during the investigation of allegations and prior to any effectuation of corrective actions.
• Conveying the outcome of the investigation (i.e.whether the allegations were substantiated and/or the policy found to have been violated) to the alleged victim and the alleged harasser, as well as the preventative and corrective action taken, where appropriate and consistent with relevant legal requirements.
• Using tailored training, letters of warning, and counseling to address unwelcome conduct before it becomes unlawful or serious enough to warrant more significant disciplinary action.
• Providing additional training to workplaces with widespread harassment that involves more than one harasser or victim.

D. Effective Anti-Harassment Training

To help prevent and properly address harassment, employees and management must be aware of what conduct is prohibited and how to prevent and correct it. In addition to anti-harassment policies, training conveys this information to agency employees.

EEOC requires that federal agency anti-harassment training:

• Must be provided periodically to non-supervisory employees as well as supervisors and managers at all levels of the agency.
• Must be sufficiently funded and resourced.
• Must be accessible to all employees, including through the provision of reasonable accommodations to individuals with disabilities.
• Must include a clear, plain language definition of unlawful harassment and prohibited unwelcome conduct.
• Must include an explanation, including examples, that harassment is prohibited on the bases of race, color, sex (including sexual orientation, pregnancy, and gender identity), national origin, religion, disability, age (40 years or older), genetic information, and in retaliation for protected EEO activity.
• Must encourage employees to report unwelcome conduct before it rises to the level of unlawful harassment or becomes severe or pervasive.
• Must include details on how to report alleged harassment in accordance with agency policies and procedures.
• Must include examples of disability-based harassment.

The effectiveness of anti-harassment training will be enhanced if it is, among other things:

• Championed by senior leaders.
• Regularly revised and updated as needed.
• Tailored to the specific workforce and workplace and includes examples relevant to the specific workplace setting.
• Followed by solicitation of feedback and input from participants to improve its effectiveness.
• Provided by trainers who are experts in the topic of harassment.
• Developed using relevant social science research on harassment and retaliation.
• Routinely analyzed to measure its impact on reducing harassment and retaliation in the agency.
• Conducted (virtually or in-person) in smaller groups that foster more employee engagement and participation.

Agencies have wide latitude to tailor anti-harassment training and information to their specific workforces. However, effective anti-harassment training should contain certain content that is specifically directed at non-supervisory or non-managerial employees, including:

• Live, interactive discussions that allow attendees to participate and present questions and concerns to trainers.
• The use of language and concepts common to the agency.
• Multiple real-world examples and scenarios of harassment tailored to the agency’s specific workplace and workforce, rather than excessive focus on legal definitions or case law.
• Information about harassment or harassing conduct in remote environments. For example, such information may include:
  • Examples of prohibited harassment in a remote or virtual work environment.
  • Any changes to the reporting or investigation process as a result of remote or virtual work (for example, if reports were submitted in-person pre-pandemic, explain how remote workers can report harassment).
• The range of consequences for engaging in harassing conduct or unwelcome conduct that violates anti-harassment policies.
• An emphasis on the agency’s prohibition on retaliation for engaging in protected activity, such as reporting harassment or participating in investigations.
• Contact information for the individual(s) and/or office(s) responsible for addressing harassment questions, concerns, and complaints.
• Periodic informal sharing of information about the harassment policy and complaint procedures with staff (for example, during team meetings; in advance of events in which issues may arise, such as virtual or in-person social gatherings; or in response to high-profile current events or social movements).Training does not need to be limited to formal sessions.
• The posting of anti-harassment training materials on internal agency websites so that employees can readily access training content at any time.
• The use of workplace training focused on creating a culture of respect in the workplace and bystander intervention training as tools to help prevent unwelcome conduct from escalating to the level of unlawful harassment.
• A clear explanation of the distinction between the EEO process and the agency’s anti-harassment program. This would include an explanation that, pursuant to 29 CFR §1614.105, the job applicant or employee generally must initiate contact with an EEO Counselor within 45 calendar days of the most recent harassing actions to begin the EEO complaint process, regardless of the processing of the matter through the anti-harassment program.

In order to help avoid chilling discussions among employees (and because supervisors and managers have specific responsibilities to prevent and correct harassment), agencies may consider having supervisors, managers, and other senior officials receive separate and distinct anti-harassment training that is tailored to address those responsibilities. Effective harassment training for supervisors and managers may include, for example:

• Information regarding agencies’ responsibility to prevent and correct harassment.
• Specific information about what supervisors and managers should do in accordance with the agency’s anti-harassment policy and procedures when they become aware of harassment allegations or harassing conduct.
• Reminders that supervisors and managers have a responsibility to report harassing conduct they become aware of, even if the employee who experiences the harassment does not want to report it.
• Reminders that supervisors and managers are expected to report, at an appropriate level, whenever conduct is inappropriate, even if it has not yet become severe or pervasive.
• Reminders that agency officials who receive information about harassment allegations should keep that information confidential to the extent possible consistent with legal obligations and a thorough and impartial investigation.
• Potential risk factors for harassment and any actions that may be undertaken to minimize or eliminate those risks.
• Reminders that retaliation against employees who engage in protected activity, such as reporting alleged harassment or participating in harassment investigations, is strictly prohibited.
• Information about how to monitor for online harassment, including in a virtual work environment. For example, suggest that supervisors and managers:
  • In individual meetings with staff, ask how employees are doing, if they have any concerns, and remind them where to find workplace policies and reporting procedures.
  • Include questions about online harassment and abuse and technology-facilitated violence based on gender and/or other protected bases (e.g.cyberstalking, online sexual harassment, the non-consensual distribution of intimate images or threat to distribute an image) in anonymous climate surveys.
  • Be aware of online discussions in virtual meetings or events and respond appropriately to harassing comments or conduct.
• Specific consequences for managers and supervisors who engage in harassment, retaliation, and discrimination.
• Specific consequences for managers and supervisors who do not properly report harassment allegations or harassing conduct of which they become aware.
• An invitation for managers and supervisors to provide feedback and input that will assist the agency in providing effective anti-harassment training.
• Trauma-informed training for all personnel who may receive or respond to allegations of harassment or harassing conduct.

If you follow this guidance – no matter what sort of employer you are or industry you are part of – your anti-harassment program will be strengthened to a point that is highly defensible if ever called into question.

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