Part 1 - General
Chapter 16 - Prevention of Workplace Harassment
- Purpose. The purpose of this chapter is to establish the Indian Health Service (IHS) policy to prevent workplace harassment. The IHS is taking all steps necessary to prevent harassment in the workplace and to correct any inappropriate conduct that occurs before it becomes severe or pervasive.
- Scope. This chapter applies to incidents of harassment, offensive or inappropriate activities described herein committed by any IHS employee, either a civilian or United States Public Health Service (USPHS) Commissioned Corps Officer, contractor, or visitor, at any IHS facility. Reference to "Employees" or "Staff" within this chapter includes "USPHS Commissioned Corps Officers" and "private contractors" within the meaning and scope of those terms.
- Harassee. The person who alleges harassment, however, does not have to be the person harassed but can be anyone impacted by the offensive conduct.
- Harasser. The harasser can be a supervisor, co-worker, or non-employee (e.g., trainee, contractor, patient or visitor).
- Harassment. Harassment is legally defined as a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973, the Americans with Disabilities Act (ADA) of 1990, as amended by the ADA Amendments Act of 2008, the Genetic Information Non-Discrimination Act of 2008, or the Executive Order 11478, "Equal Employment Opportunity in the Federal Government," as amended by Executive Order 13087 of May 1998.
- Harassing Conduct. The term "harassing conduct" covered by this chapter is broader than the legal definition of harassment listed above. Any conduct that may be considered harassment includes any comments or conduct that disparages, denigrates, or demonstrates hostility or aversion towards any person (including applicants for employment) that could reasonably be interpreted as harassing and offensive or inappropriate in the workplace. Harassing conduct includes (but is not limited to): slurs, epithets, ridicule, negative stereotyping, insults, bullying, offensive jokes, offensive objects or pictures, intimidation, threats, or assaults. Harassing conduct also includes sexual harassment such as unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. (See IHS Circular 95-11.)
- Unwelcome Conduct. Any conduct that is severe or pervasive and has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, abusive, or hostile work environment. Harassment is unwelcome conduct which occurs when:
- The conduct is a term or condition of employment.
- Employment decisions are based on whether an individual accepts or rejects such conduct.
- Policy. Any IHS supervisor or manager, employee, contractor, or volunteer, who conducts themselves in an inappropriate manner or commits acts of harassment or creates a hostile work environment, shall be subject to appropriate corrective or disciplinary action, up to and including removal from Federal service, or, if a visitor or contractor, may be excluded from the premises. It is the policy of the IHS to promote and maintain a work environment free from harassment.
1-16.2 HOSTILE WORK ENVIRONMENT
- Zero Tolerance. The IHS has "Zero Tolerance" for any form of:
- Harassment because of race, color, national origin, sex (including pregnancy, sexual orientation, and gender identity), religion, retaliation, age (40 and over), disability, or genetic information (family medical history).
- Harassment based on reprisal or retaliation against anyone who engages in the equal employment opportunity (EEO) process.
- Adverse treatment of employees because they report harassment or provide information related to such complaints.
- Conduct that does not rise to the level of unlawful harassment actionable under Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973, the ADA of 1990, as amended by the ADA Amendments Act of 2008, the Genetic Information Non-Discrimination Act of 2008, or Executive Order 11478, "Equal Employment Opportunity in the Federal Government," as amended by Executive Order 13087 of May 1998, may be treated as misconduct and addressed according to governing rules and regulations.
- Hostile Work Environment Claim. A hostile work environment claim requires the demonstration of a pattern of offensive conduct. To be unlawful, the offensive conduct must create a work environment that would be hostile, intimidating, or offensive to a reasonable person. For the purpose of this chapter, the "reasonable person" standard considers the aggrieved person's perspective and assesses whether a reasonable person exposed to the same or similar circumstances would find the environment hostile, intimidating, or offensive. However, the IHS will not wait for patterns of inappropriate conduct to become severe or pervasive before taking action deemed appropriate.
- All Employees. Each IHS employee is responsible for:
- Acting professionally and refraining from harassing conduct.
- Becoming familiar with the provisions of this chapter and complying with all requirements of the chapter.
- Promptly reporting any incident of harassing conduct. The IHS can correct harassing conduct only if it is aware of the behavior within their chain of command. Employees must report harassing conduct to their supervisor, other management official, the Office of Human Resources (OHR)/Servicing Human Resources Office, or the Diversity Management and Equal Employment Opportunity (DMEEO) Staff/Area EEO Staff, as appropriate even if the employee is not the harassee. Employees are not required to report allegations of harassment to their supervisor when the supervisor is the alleged harasser.
- Initiating contact with an EEO counselor in the DMEEO staff or appropriate Area EEO Office within 45 days of the date of alleged harassment. Any employee who believes that she or he has been subjected to harassment because of membership in legally protected groups including race, color, national origin, sex (including pregnancy, sexual orientation, and gender identity), religion, retaliation, age (40 and over), disability, or genetic information must initiate contact with an EEO counselor within 45 days of the alleged discriminatory action or, in the case of personnel actions, within 45 days of the effective date of the action, as outlined in Title 29 Code of Federal Regulations § 1614.105(a)(1).
- Supervisors and Managers. All supervisors and managers are responsible for:
- Taking appropriate actions to prevent harassment in the workplace, and when appropriate, to assist in providing a prompt, thorough and impartial management inquiry of harassment allegations.
- Taking immediate steps to address complaints of harassment reported by employees.
- Taking steps to prevent retaliation against employees who complain of harassment, or who assist in conducting inquiries.
- Protecting the confidentiality of employees who allege or report harassment, to the extent possible.
- Providing interim relief to alleged victims of harassment to the extent possible, on a case by case basis, pending the outcome of a management inquiry, union grievance, or EEO complaint to ensure that further misconduct does not occur.
- Consulting with the OHR/Servicing Human Resources Office and DMEEO/Area EEO Staff when warranted regarding the Agency's legal responsibility and liability.
- Attending anti-harassment training as mandated by the IHS.
- When/If an investigation determines that an employee has violated this policy, the appropriate management official in consultation with their servicing Human Resources Office will determine the type and severity of the discipline/corrective action to be imposed.
- Taking appropriate corrective action, disciplinary or otherwise, up to and including removal from Federal service, against any supervisor or other management official who fails to perform his or her obligations as set forth in this policy, including any unreasonable failure to report known violations of this policy.
- Diversity Management and Equal Employment Opportunity Staff and Area EEO Staff. The DMEEO Staff and Area EEO staff are responsible for:
- Ensuring that this chapter is available and accessible to all IHS employees.
- Advising supervisors and managers on how to provide interim relief to the extent possible, on a case by case basis, pending outcome of a management inquiry, union grievance, or EEO complaint to ensure that further misconduct does not occur to individuals alleging subjection to harassing conduct.
- Advising the Director, IHS and other IHS leaders on a need-to-know basis of the allegations of harassment in an aggregate form and the resolution of those allegations.
- Providing technical assistance and support to ensure compliance with this chapter.
- Providing anti-harassment training to managers and supervisors as mandated by the IHS.
- Processing EEO complaints filed by employees who allege they have been the victim of harassment based on their protected group status.
- Providing the management official with the report from the management inquiry and suggesting recommendations.
- Office of Human Resources and Servicing Regional Human Resources Offices. The Office of Human Resources and Servicing Regional Human Resources Offices are responsible for:
- Making recommendations for appropriate corrective action to management officials upon completion of a management inquiry of an alleged incident of harassment.
- Assisting management officials in the development of appropriate official notices and decision letters regarding the official corrective action taken.
- Receiving and investigating reports alleging non-EEO related violations of this policy, and as described in section 1-16.4, making or directing further inquiries into such reports, as appropriate and necessary.
- Upon request, providing notifications about the actions taken pursuant to this policy to the Director, DMEEO so that the Director, DMEEO can determine IHS's compliance with Federal sector EEO requirements, and providing copies of any reports, findings, and actions.
- Director, Indian Health Service. The Director, Indian Health Service is responsible for reaffirming this policy as required.
- Report Harassing Behavior.
- Any employee who has been subjected to unwelcome, hostile or abusive conduct is responsible to report the matter to his or her manager, OHR/Servicing Human Resources Office or DMEEO/Area EEO Staff.
- Any employee who has been subjected to unwelcome, hostile or abusive conduct by his or her manager is responsible to report the matter to the next highest level of management, other management official, or OHR/Servicing Human Resources Office or DMEEO/Area EEO Staff.
- Employees who know of hostile or abusive conduct directed at others are responsible to report the matter to their supervisor or other management official.
- Any employee who believes that he or she has been subjected to harassment because of membership in legally protected groups including race, color, national origin, sex (including pregnancy, sexual orientation, and gender identity), religion, retaliation, age (40 and over), disability, or genetic information, must initiate contact with an EEO counselor within 45 days of the alleged discriminatory action or, in the case of personnel actions, within 45 days of the effective date of the action of harassment, as outlined in Title 29 CFR § 1614.105(a)(1). For additional information on the EEO complaint process, see: IHS/EEO.
- Management Response to Allegations of Harassment.
- Notifying Appropriate Officials of Allegations of Harassment. A supervisor or manager who becomes aware of allegations of harassment must immediately notify OHR/Servicing Human Resources Office or DMEEO/Area EEO Staff, as appropriate.
- Conducting Management Inquiries. Upon notification of an allegation of harassment, Management will initiate a management inquiry (themselves or through a contracted service) within 5 working days. The management inquiry shall be completed within 15 working days. The management inquiry will address:
- What conduct is at issue and whether it was harassment.
- Who was involved.
- Whether any immediate corrective action is required to protect the alleged victim from further harassment.
- Within five working days of receipt of the completed inquiry, determine whether any action is necessary and appropriate to otherwise address the management inquiry.
- OHR/Servicing Human Resources Office and/or DMEEO/Area EEO Staff Response.
- When an allegation is transmitted to OHR/Servicing Human Resources Office and/or DMEEO/Area EEO Staff, as appropriate, they shall refer the allegation to the employee's manager or another manager, where a management inquiry shall be conducted.
- If the management inquiry determined that the harasser has violated this policy, the appropriate management official, in consultation with the OHR/Servicing Human Resources Office and/or DMEEO/Area EEO Staff, will determine the type and severity of any discipline to be imposed subject to personnel rules, regulations, and policies and relevant appeal rights.
- Resolving Conflicts of Interest in Management Inquiries.
If the IHS Director or similar high ranking official is implicated in the alleged harassing conduct, OHR/DMEEO shall select an alternate method of inquiry, including, but not limited to, transferring the management inquiry to the U.S. Department of Health and Human Services for disposition.
- Counseling. The employee may request EEO counseling and at the same time, may inform management of the alleged harassment.
- Confidentiality. All reports of allegations of harassment and related information will be maintained on a confidential basis to the greatest extent possible. The identity of the employee alleging violations of this policy will be kept confidential, except as necessary to conduct an appropriate investigation into the alleged violations or when otherwise required by law.
- Purview. Allegations of harassment not based on one of the protected bases mentioned above are not within the purview of DMEEO.
- Labor Union Grievance Process. Harassment because of participation in the union grievance process is covered under the applicable negotiated bargaining agreement. Employees should contact their respective Union Representative.
NOTE: Reports and actions pursuant to this chapter do not replace, substitute, include, or otherwise satisfy the different forums that an employee may utilize, including but not limited to the following processes: the negotiated grievance procedure, Agency grievance procedure, Merit Systems Protection Board, EEO, or any other statutory processes.
1-16.5 REPRISALS PROHIBITED
- Any attempt by an employee, supervisor, or manager, to restrain, interfere, coerce, or otherwise take reprisal action against an employee who has initiated an EEO complaint or grievance based on an alleged incident of EEO related workplace harassment (1-16.1 C (3)) is against the law. Such actions may result in the same range of corrective action taken on those individuals found to have harassed employees.
- Any attempt by an employee, supervisor, or manager, to restrain, interfere, coerce, or otherwise take reprisal action against an employee who has alleged a non-EEO incident of workplace harassment is against the law. Such employees should contact the Office of Special Counsel at OSC.