HomeMy WebLinkAboutAnti-Discrimination and Harassment ProceduresCounty of Hawai‘i
Department of Human Resources
Procedures
Division: Equal Opportunity Effective Date: March 1, 2015
Amended: February 8, 2012;
February 9, 2010;
October 17, 2007;
April 13, 2007;
Initial Policy Issued: October 1, 2005
Subject: Anti-Discrimination and Harassment
References:
Purpose: To provide a procedure for receipt, investigation, resolution and appeal of complaints filed under the
Anti-Discrimination and Harassment Policy.
POLICY
The “Anti-Discrimination and Harassment Policy” (“Policy”) effective
October 1, 2005, and amended April 13, 2007, October 17, 2007,
February 9, 2010, February 8, 2012, and March 1, 2015 is
incorporated herein by reference.
BACKGROUND
Discrimination and harassment based on:
sex
pregnancy
lactation (breastfeeding)
race
ancestry
color
national origin
religion
disability
genetic information
age
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marital status
familial status
military service
veteran's status
sexual orientation
gender identity
gender expression
domestic or sexual violence victim status (including those who
have a minor child who is a victim of domestic or sexual
violence)
arrest and court record1
any other classification protected by state or federal law
violate the Policy, (effective March 1, 2015, as amended,) and
federal and state civil rights laws.
APPLICABILITY
The Policy applies to all employees. The Policy also applies to
County vendors and suppliers or their agents, as well as to non-
employees who interact with County employees in the
performance of their job duties. The Policy also applies when
conduct that does not occur in the workplace or during work hours
impacts the workplace.
1 As a general rule, the County may inquire about and consider an individual’s conviction record only after making a conditional offer of employment, and only
under certain circumstances may a prior conviction be the basis of an
employment decision. However, for certain positions, state law expressly allows
employers to inquire into an individual’s criminal history (including non-conviction data) prior to making a conditional offer of employment for the purpose of
determining the individual’s suitability for a particular position. See Hawaii
Revised Statues §§ 378-2.5, 831-3.1, 846-2.7.
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RESPONSIBILITIES
I. Departments/Agencies shall:
A. Promote a safe and healthy workplace in which all
employees can work to their full potential, free from all
forms of discrimination and harassment which violate the
Policy;
B. Ensure that programs and services are offered in
environments that are free from discrimination and
harassment;
C. Follow this Procedure to ensure that complaints which
allege violation of the Policy will be received, investigated
and resolved in an expedient, thorough and confidential
manner;
D. Ensure that all employees attend mandatory Anti-
Discrimination and Harassment, refresher, and other
relevant trainings offered by the Department of Human
Resources;
E. Fully investigate any complaint alleging discrimination or
harassment which violates the Policy.
i. Informal Complaints
Employees may file informal complaints with their
supervisors. Supervisors shall meet with the employee
to ascertain the details of the complaint within two
calendar days of receipt of an informal complaint.
Within seven calendar days of receipt of an informal
complaint, supervisors shall document the meeting and
whatever other interviews may be necessary to
investigate the complaint allegations. Within ten
calendar days of receipt of an informal complaint,
supervisors must meet with the complainant to discuss
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whatever steps were taken to correct the situation and
document the meeting.
If the subject matter of the complaint alleges offensive
conduct that is severe and pervasive, the supervisor
shall treat the complaint as formal and submit it to the
department head for investigation and follow up. The
EOO must be notified.
ii. Formal Complaints
Departments shall complete investigations of
complaints within 30 calendar days, except for
extraordinary circumstances, which must be
documented. If the investigation is not concluded
within 30 calendar days the complainant must be
advised in writing and given a date for the
conclusion of the investigation, not to exceed 30
calendar days. If the investigation is not completed
within the 30 calendar day extension, the
complainant must be notified in writing with an
anticipated date for completion.
Upon the completion of an investigation, the
Department shall inform the complainant of the
findings in writing and notify the complainant that
the decision may be appealed to the Mayor.
If the investigation is not concluded within the
completion date noted, the complainant may appeal
to the EOO who will notify the Director of Human
Resources.
I. Supervisors/Managers shall:
A. Set an example by not engaging in conduct which
violates the Policy;
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B. Review the Policy and Procedure with their employees
on a regular basis to ensure that employees understand
they must not engage in conduct that violates the
Policy and document same, as appropriate;
C. Ensure that all employees act in accordance with the
Policy;
D. Take immediate and appropriate action to stop
employees from engaging in any conduct prohibited
by the Policy;
E. Immediately report formal complaints to their
department head.
Supervisors who do not fulfill their responsibilities as described
above may be subject to discipline up to and including
discharge. If applicable, any disciplinary action taken shall
be taken pursuant to the collective bargaining agreement of
the offending employee. If the offending employee is not
covered by a collective bargaining agreement, discipline
shall be taken for just and proper cause.
Departments’ Human Resources Representatives shall make
the Policy, Procedure, and Complaint Form available to
anyone who requests it.
II. Employees shall:
A. Not engage in conduct that is prohibited by the Policy;
B. Cooperate with all efforts to enforce, maintain, and
uphold the Policy;
C. Report any acts which violate the Policy to their
supervisor. If the complaint alleges that the
employee’s supervisor is violating the Policy, the
employee shall report this to another appropriate
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authority, such as the supervisor’s supervisor, the
department head, or the Equal Opportunity Officer;
D. Immediately report any acts of retaliation resulting from
their participation in the complaint process to an
appropriate authority.
III. Equal Opportunity Officer (EOO) shall:
A. Provide information and guidance to departments’
Human Resources Representatives, supervisors,
employees, and others regarding various aspects of the
Policy and Procedure;
B. Upon receipt of a discrimination and/or harassment
complaint, analyze the complaint allegations to
determine if they violate the Policy. If the subject
matter of the complaint does not violate the Policy, the
EOO shall advise the complainant of this in writing. The
EOO may, in this type of situation, suggest an alternate
venue such as Dispute Resolution, the Internal
Complaint Procedure, etc. if applicable;
C. After following the step outlined in III. B., and
depending upon the circumstances and nature of the
complaint allegations, refer the complaint to the
appropriate department head for investigation, or
conduct an investigation, if appropriate;
D. Report the findings of investigations conducted by the
EOO to the Director of Human Resources who will
initiate appropriate action;
E. Encourage departments to conduct complaint
investigations in a timely manner as noted in I. E. If the
EOO is conducting the investigation, the investigation
shall be conducted in a timely manner as noted in I. E.,
Responsibilities Section (page 3).
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F. Maintain central confidential files of all documented
discrimination and harassment complaints;
G. Keep complaint statistics and report annually.
IV. Department of Human Resources shall:
A. Implement the Anti-Discrimination and Harassment
Policy;
B. Establish a procedure to assist departments;
C. Coordinate the development and ensure availability of
mandatory supervisory and non-supervisory Anti-
Discrimination and Harassment and other relevant civil
rights training to County employees on a regular basis.
PROCEDURES
I. NOTIFICATION
A. Departments/agencies shall distribute copies of the
Anti-Discrimination and Harassment Policy and
Procedure, and DHR Form EO 002, "Acknowledgment
of Receipt of the Anti-Discrimination and Harassment
Policy and Procedure," to all their employees.
Employees shall sign DHR Form EO 002 and return it to
their departmental designate. This measure shall be
followed with respect to all new employees and
whenever the Department of Human Resources
amends and distributes the Policy and Procedure.
B. Departments/agencies shall file the DHR Form EO 002 in
the employee's personnel file for future reference.
C. Departments/agencies shall post copies of the Policy,
Procedure, and DHR Form EO 001 (the complaint form)
on all bulletin boards.
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D. Departments/agencies shall provide a copy of the
Policy to agents and/or independent contractors and
inform agents/independent contractors of their intent
to enforce the policy.
E. The Policy and Procedure shall be posted on the
County’s website and the intranet.
II. FILING COMPLAINTS
Employees who believe that they have been subjected to
conduct which violates the Policy by a non-employee shall
file a complaint under this procedure.
A. Employees and non-employees who believe they have
been subjected to discrimination and/or harassment
which violates the Policy by a County employee shall
file a complaint with the offending employee’s
department head in writing.
B. Employees who believe they have been subjected to
discrimination and/or harassment which violates the
Policy by a department head, deputy department
head, the Mayor, or Managing Director shall file
complaints with the EOO.
C. Complaints shall be filed on DHR Form EO 001. A copy
of DHR Form EO 001 is available on the County’s
website, the Intranet, from departments’ Human
Resources Representatives, or from the Department of
Human Resources.
D. Complaints alleging a violation of the Policy shall
include the following information:
1. The name, job title, and department of the
person filing the complaint; for non-employees,
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the name and contact information of the person
filing the complaint;
2. The name, job title, and department or other
identifying information of the person(s) alleged to
have engaged in discrimination and/or
harassment;
3. The date(s), time(s), and location(s) of the
allegedly discriminatory/harassing incident(s);
4. The protected class upon which the complainant
believes the discrimination or harassment is
based. If “other” is noted as a protected class
on the complaint form, it must be named.2
5. If a complaint of retaliation is filed, the
complainant must have previously filed a
complaint alleging a violation of the Policy or
engaged in a protected activity noted in the
Policy or considered protected by an applicable
civil rights law.3
6. What happened – details of the discriminating
incident, offensive comments, or conduct;
7. Names, job titles, departments, and contact
information of any witnesses;
8. Information regarding any related complaints of
discrimination or harassment which the
complainant filed previously;
2 Complaints which allege harassment or discrimination not based on a
protected class named in the Policy do not violate the Policy. The complainant
shall be so informed and directed to another venue for filing the complaint, if
known.
3 Complaints alleging retaliation under the Family and Medical Leave Act (FMLA),
the Fair Labor Standards Act (FLSA), the Whistleblower Protection Act, etc. are not
actionable under this Policy.
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9. The resolution the complainant is seeking. What
would the complainant like the County to
consider to resolve the complaint?
E. If the employee believes that the alleged discrimination
or harassment violates the collective bargaining
agreement, the employee shall file a grievance in
accordance with the applicable bargaining unit's
grievance procedure. This grievance shall be in lieu of
the complaint procedure contained herein if the
grievance procedure addresses all issues arising from
the complaint. If not, the complainant may file a
complaint under the Policy to address issues that are
not within the scope of the grievance procedure.
III. RECEIVING COMPLAINTS - DEPARTMENTS
A. Departments receiving complaints of discrimination
and/or harassment which violate the Policy shall notify
the EOO of the complaint.
B. The respondent(s), or person(s) alleged to have
engaged in the harassing or discriminatory conduct,
shall be notified of the complaint allegations and of
the investigation in writing, following the appropriate
provisions of the collective bargaining agreement, if
applicable.
C. The investigation and findings shall be documented.
D. The department shall conclude its investigation and
respond to the complaint within the time periods
noted in I.E., Responsibilities Section (page 3).
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E. The department shall advise the complainant of the
outcome of the complaint investigation in writing and
notice of the appeal process to the Mayor as outlined
in V. Further Appeal. The EOO shall receive a copy of
this correspondence.
F. When complaints alleging violation of the Policy are
filed with the EOO, the EOO shall notify the
department head of the complaint and refer the
complaint to the department head for investigation,
except in extenuating circumstances. The EOO may
exercise discretion to not refer the complaint to the
department for investigation and to conduct the
investigation. In such an event, the department head
shall be informed of the complaint and the
investigation. The department head shall cooperate
fully.
IV. COMPLAINT INVESTIGATION
Complaints which allege violations of the Anti-Discrimination
and Harassment Policy shall be thoroughly and expeditiously
investigated as noted in I.E., Responsibilities Section (page 3).
A. To the extent possible, the investigation shall be
documented thoroughly and conducted in a
confidential and discreet manner. The investigative
findings shall be one of the following: there is
insufficient evidence to support the allegations; the
evidence supports the allegations; the evidence does
not support the allegations.4
B. If the complaint is substantiated, the department shall
undertake to resolve the complaint in a manner that is
satisfactory to the complainant and the department.
4 Findings must be based on a preponderance of evidence.
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C. If applicable, disciplinary action shall be taken pursuant
to the collective bargaining agreement of the
offending employee. If the offending employee is not
covered by a collective bargaining agreement,
discipline shall be taken for just and proper cause.
D. Regardless of the investigation's outcome,
management shall monitor the workplace closely to
ensure that there are no resulting acts of retaliation. If
retaliation does occur, an investigation must be
conducted in accordance with this procedure and
appropriate action taken.
V. FURTHER APPEAL
A. In the event that the complainant is dissatisfied with a
department head’s or the EOO’s decision regarding
the outcome of a complaint, the complainant may file
an appeal to the Mayor within 7 calendar days
following notification of the complaint disposition.
B. In the event the complainant is dissatisfied with the
outcome of the appeal to the Mayor, the complainant
may contact a federal or state agency having
jurisdiction over the subject matter of the complaint.
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