Sexual Harassment Policy
The Laboratory is committed to creating and maintaining a community in which all persons who participate in Laboratory programs and activities can work together in an atmosphere free from all forms of harassment, exploitation, or intimidation, including sexual. Specifically, every member of the Laboratory community should be aware that the Laboratory is strongly opposed to sexual harassment and that such behavior is prohibited by law and by Laboratory policy. It is the intention of the Laboratory to take whatever action may be needed to prevent, correct, and, if necessary, discipline behavior that violates this policy.
Definition of Sexual Harassment
Sexual harassment is unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature; and when submission to or rejection of this conduct explicitly or implicitly affects a person’s employment or education, unreasonably interferes with a person’s work or educational performance, or creates an intimidating, hostile, or offensive working or learning environment. In the interest of preventing sexual harassment, the Laboratory will respond to reports of any such conduct.
Sexual harassment may include incidents between any members of the Laboratory community, including faculty or nonemployee participants in Laboratory programs, such as vendors, contractors, and visitors. Sexual harassment may occur in hierarchical relationships or between peers, or between persons of the same sex or opposite sex.
In determining whether the reported conduct constitutes sexual harassment, consideration will be given to the record of the conduct as a whole and to the totality of the circumstances, including the context in which the conduct occurred.
This policy covers unwelcome conduct of a sexual nature. While romantic relationships between members of the Laboratory community may begin as consensual, they may evolve into situations that lead to charges of sexual harassment, subject to this policy.
Harassment that is not sexual in nature but is based on gender, sex stereotyping, or sexual orientation also is prohibited by the University’s nondiscrimination policies[3|http://www.lbl.gov/Workplace/RPM/R2.01.html#three] if it is sufficiently severe to deny or limit a person’s ability to participate in or benefit from Laboratory programs, employment, or services. While discrimination based on these factors may be distinguished from sexual harassment, these types of discrimination may contribute to the creation of a hostile work environment. Thus, in determining whether a hostile environment due to sexual harassment exists, the Laboratory may take into account acts of discrimination based on gender, sex stereotyping, or sexual orientation.
This policy also prohibits retaliation against a person who reports sexual harassment, assists someone with a report of sexual harassment, or participates in any manner in an investigation or resolution of a sexual harassment report. Retaliation includes threats, intimidation, reprisals, and/or adverse actions related to employment or education.
Dissemination of the Nondiscrimination and Harassment Policy, Educational Programs, and Employee Training
As part of the Laboratory’s commitment to providing a harassment-free working and learning environment, the Nondiscrimination and Harassment Policy will be disseminated widely to the Laboratory community through publications, Web sites, new employee orientations, and other appropriate channels of communication. Educational materials will be available to all members of the Laboratory community, to promote compliance with this policy and familiarity with Laboratory reporting procedures. In addition, the Laboratory has designated employees responsible for reporting sexual harassment and will provide training to those designated employees. Generally, such persons include supervisors, managers, and HR staff. The Laboratory has posted a copy of this policy in a prominent place on its Web site.
Reporting Sexual Harassment
Reports of Sexual Harassment
Any member of the Laboratory community may report conduct that may constitute sexual harassment under this policy. In addition, supervisors, managers, and other designated employees are responsible for taking whatever action is necessary to prevent sexual harassment, to correct it when it occurs, and to report it promptly to the Title IX Compliance Coordinator (Sexual Harassment Officer) or other appropriate official designated to review and investigate sexual harassment complaints. An individual may also file a complaint or grievance alleging sexual harassment under the applicable Laboratory complaint resolution or grievance procedure (University of California Procedures for Responding to Reports of Sexual Harassment, Appendix I: University Complaint Resolution and Grievance Procedures).
Response to Sexual Harassment
The Laboratory will provide a prompt and effective response to reports of sexual harassment in accordance with the University of California Procedures for Responding to Reports of Sexual Harassment (Procedures). A prompt and effective response may include early resolution, formal investigation, and/or targeted training or educational programs. Upon findings of sexual harassment, the Laboratory may offer remedies to the individual or individuals harmed by the harassment consistent with applicable complaint resolution and grievance procedures (Procedures, Appendix I: University Complaint Resolution and Grievance Procedures). Such remedies may include counseling, an opportunity to repeat course work without penalty, or other appropriate interventions. Any member of the Laboratory community who is found to have engaged in sexual harassment is subject to disciplinary action up to and including dismissal in accordance with the applicable Laboratory disciplinary procedure (Procedures, Appendix II: University Disciplinary Procedures) or other Laboratory policy. Generally, disciplinary action will be recommended when the harassing conduct is so sufficiently severe, persistent, or pervasive that it alters the conditions of employment or limits the opportunity to participate in or benefit from Laboratory programs. Any manager, supervisor, or designated employee responsible for reporting or responding to sexual harassment who knew about the harassment and took no action to stop it or failed to report the prohibited harassment may also be subject to disciplinary action. Conduct by an employee that is sexual harassment or retaliation in violation of this policy is considered to be outside the normal course and scope of employment.
Intentionally False Reports
Because sexual harassment frequently involves interactions between persons that are not witnessed by others, reports of sexual harassment cannot always be substantiated by additional evidence. Lack of corroborating evidence or “proof” should not discourage individuals from reporting sexual harassment under this policy. However, individuals who make reports that are later found to have been intentionally false or made maliciously without regard for truth may be subject to disciplinary action under the applicable Laboratory disciplinary procedure (Procedures, Appendix II: University Disciplinary Procedures). This provision does not apply to reports made in good faith, even if the facts alleged in the report cannot be substantiated by an investigation.
Free Speech and Academic Freedom
As participants in a public university, the faculty and other academic appointees, staff, and students of the University of California enjoy significant free-speech protections guaranteed by the First Amendment of the United States Constitution, and Article I, Section I, of the California Constitution. This policy is intended to protect members of the University community from discrimination, not to regulate protected speech. This policy shall be implemented in a manner that recognizes the importance of rights to freedom of speech and expression. The University also has a compelling interest in free inquiry and the collective search for knowledge and thus recognizes principles of academic freedom as a special area of protected speech. Consistent with these principles, no provision of this policy shall be interpreted to prohibit conduct that is legitimately related to the course content, teaching methods, scholarship, or public commentary of an individual faculty member or the educational, political, artistic, or literary expression of students in classrooms and public forums. However, freedom of speech and academic freedom are not limitless and do not protect speech or expressive conduct that violates federal or state antidiscrimination laws.
Additional Enforcement Information
The federal Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH) also investigate complaints of unlawful harassment in employment. These agencies may serve as neutral fact finders and attempt to facilitate the voluntary resolution of disputes with the parties. For more information, contact the nearest office of the EEOC or DFEH listed in the telephone directory. Additional information on harassment and complaint procedures may be found at §2.05(E) (University of California Procedures for Responding to Reports of Sexual Harassment) .
UC Policy on Sexual Harassment and Complaint Procedures
The University of California Complaint Procedures for Responding to Reports of Sexual Harassment apply to all members of the Berkeley Laboratory community and have been incorporated into RPM §§2.01(A)(1)(b) and 2.01(B)(4).
I. POLICY REFERENCES
II. Responding to Reports of Sexual Harassment
The Manager of Equal Employment Opportunity / Affirmative Action (EEO/AA) is the designated Compliance Coordinator (Sexual Harassment Officer) for the Laboratory whose responsibilities include the duties listed below.
Laboratory specific information, including contact information for the Title VII/Title IX Sexual Harassment Compliance Officer (Manager, Equal Employment Opportunity/Affirmative Action) and designated sexual harassment advisors are posted here.
III. SEXUAL HARASSMENT
Sexual harassment is unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when submission to or rejection of this conduct explicitly or implicitly effects a person's employment or education, unreasonably interferes with a person's work or educational performances, or creates an intimidating, hostile or offensive working or learning environment. In the interest of preventing sexual harassment, the University will respond to reports of any such conduct.
Sexual harassment may include incidents between any members of the Laboratory community including (but not limited to): employees including faculty, academic appointees, outside vendors, contractors, students, and visitors. Sexual harassment may occur in hierarchical relationships or between peers, or between persons of the same sex or opposite sex.
In determining whether conduct constitutes sexual harassment, consideration will be given to the record as a whole and to the totality of circumstances, including the nature of the sexual advances and the context in which the incidents occurred. A central element in the definition of sexual harassment is that the behavior is unwelcome and this procedure covers such unwelcome conduct of a sexual nature. While romantic relationships between members of the Laboratory community may begin as consensual, they may evolve into situations that lead to charges of sexual harassment subject to this procedure.
Harassment that is not sexual in nature but is based on gender, sex-stereotyping, or sexual orientation is also prohibited by the Laboratory's policies if it is sufficiently severe to deny or limit a person's ability to participate or benefit from Laboratory employment, educational programs, or services. While discrimination based on these factors may be distinguished from sexual harassment, these types of discrimination may contribute to the creation of a hostile work environment. Thus, in determining whether a hostile environment due to sexual harassment exists, the Laboratory may take into account acts of discrimination based on gender, sex-stereotyping, or sexual orientation.
The Laboratory's Sexual Harassment Procedure for early resolution accommodates the sensitive nature of these kinds of reports. This procedure is available to exclusively represented and non-exclusively represented employee, with the goal of attempting resolution of the report of sexual harassment at the earliest stage possible.
B. Assignment of Responsibility
1. The Manager of Equal Employment Opportunity/Affirmative Action (EEO/AA) is the designated Compliance Coordinator (Sexual Harassment Officer) for the Laboratory whose responsibilities include the duties listed below.
a. Plan and manage the local sexual harassment education and training programs. The programs should include wide dissemination of this policy to the Laboratory community; providing educational materials to promote compliance with the policy and familiarity with local reporting procedures; and training Laboratory employees responsible for reporting or responding to reports of sexual harassment.
b. Develop and implement local procedures to provide for prompt and effective response to reports of sexual harassment in accordance with this policy, and submit the local procedures to the Associate Vice President, Human Resources and Benefits for review and approval.
c. Maintain records of reports of sexual harassment at the location and actions taken in response to reports, including records of investigations, voluntary resolutions, and disciplinary action, as appropriate.
d. Prepare and submit and annual report to the Office of the President, for submission to The Regents, on sexual harassment complaint activity during the preceding calendar year in a format specified by the Associate Vice President, Human Resources and Benefits.
The names and contact information for the Sexual Harassment Officer and any designated sexual harassment advisors are posted here.
2. It is the responsibility of department heads, managers, and supervisors to take reasonable steps to prevent sexual harassment and correct it when it occurs. This responsibility involves being aware and sensitive and includes taking corrective or disciplinary action when appropriate. It should be made clear through oral and/or written communication to all parties that inappropriate behavior shall stop immediately and that administrative intervention and/or action will be taken as warranted. When information or acts of sexual harassment come to the attention of these officials, they should immediately determine the facts and ensure that the people involved are informed about applicable Laboratory policies and procedures.
3. Department heads, managers, and supervisors are
responsible for providing pertinent information to their employees regarding procedures for Early Resolution, Formal Investigation, filing formal complaints and grievances, resources, and policies applying to confidentiality. Because of the serious and sensitive nature of sexual harassment and the frequently changing case law in this area, it is strongly recommended that persons with inquiries, reports of sexual harassment, formal complaints or grievances be referred to the Equal Employment Opportunity/Affirmative Action Office (EEO/AA).
4. Department heads, managers, and supervisors must notify the Manager of EEO/AA when reports of sexual harassment are received so that the report can be reviewed and investigated by the EEO/AA Office.
C. Sexual Harassment Report
A report shall be defined as any written or oral statement to a Laboratory official (e.g., EEO/AA Manager or designee, department head, manager, supervisor, director), the purpose of which is to inform the Laboratory that sexual harassment may be occurring and to provide the appropriate Laboratory officials with information sufficient to investigate the report of sexual harassment. Once such a written or oral statement is made, the Laboratory is obligated to respond to the report, even if the individual making the report requests that no action be taken. Individuals should report allegations of sexual harassment to the Equal Employment Opportunity/Affirmative Action Office (EEO/AA), their HR Center, their supervisor, manager, department head or director.
For purposes of this procedure, a report will be distinguished from an inquiry or a formal Regulations and Procedures Manual (RPM) complaint or grievance under a collective bargaining unit agreement. However, instead of, or in addition to using this report resolution procedure, Laboratory employees with reports of sexual harassment may avail themselves of the RPM Policy §§2.05 (D), 2.27 (effective 1-1-06), or grievance procedure in the applicable collective bargaining agreement. In such cases, employees should file a formal complaint or grievance within the prescribed time limits defined in the respective RPM or applicable collective bargaining agreement, usually within 30 calendar days of the last incident. The RPM or bargaining unit grievance shall be held in abeyance pending the outcome of this procedure (See section G for details). For more information, or to file a formal complaint or grievance, contact the EEO/AA Office.
Reports of sexual harassment shall be brought as soon as possible after the alleged conduct occurs, optimally within one year. Prompt reporting will enable the Laboratory to investigate the facts, determine the issues, and provide an appropriate remedy or disciplinary action. For reports of sexual harassment brought after one year, the Laboratory shall respond to reports of sexual harassment to the greatest extent possible, taking into account the amount of time that has passed since the alleged conduct occurred.
NOTE: Individuals may wish to consult a confidential resource, which at the Laboratory, is the Employee Assistance Program, to request advice and information pertaining to sexual harassment. Unlike a formal complaint or grievance, the inquirer/complainant is not asked to reveal the identity of the alleged harasser or department when requesting information about sexual harassment. This preserves the anonymity of the case, and allows the inquirer the full range of options available. Those who consult with confidential resources shall be advised that their discussions in these settings are not considered reports of sexual harassment and that without additional action by the individual, the discussions will not result in any action by the Laboratory to resolve his/her concerns.
D. Sexual Harassment Resolution Information
The EEO/AA Office, at the request of an employee, will provide information on this procedure, including information on informal and formal options for resolving a report of sexual harassment. The Manager, EEO/AA may designate individuals as Complaint Resolution Officers (CROs) to investigate, mediate, report, and/or recommend resolutions to informal or formal reports, as appropriate.
E. Sexual Harassment Resolution Procedure
1. Early Resolution: Employees may request informal resolution or mediation before filing an oral or written formal report of sexual harassment under these procedures. While early informal resolution is not mandatory prior to initiating a formal report, the Laboratory's goal is to resolve such concerns at the earliest stage possible, with the cooperation of all involved parties. Early informal resolution may include mediation, separation of the parties, conducting educational/sensitivity training, etc. Steps taken and agreements reached during the early resolution procedure are to be documented.
The Manager of EEO/AA or designee may determine that some reports of sexual harassment may not be appropriate for early resolution and may require a formal investigation.
2. Formal Investigation: An employee may initiate a formal investigation of a report of sexual harassment by filing an oral or written request for such action with the Manager of EEO/AA or designee, who will proceed with such an investigation if the report of sexual harassment is deemed as not appropriate for Early Resolution. All reports will remain confidential except the fact that a report has been filed and the identity of the complainant may be disclosed to the person accused. In cases where there is no written request, the Manager of EEO/AA or designee may initiate a formal investigation after making a preliminary inquiry into the facts.
3. The Manager of EEO/AA or designee may designate a CRO to conduct an investigation of the sexual harassment report. The CRO will also advise the complainant of other available, applicable formal complaint resolution and grievance procedures and related time limits.
4. The CRO will provide to the individual(s) accused of violating the policy on Sexual Harassment a copy of the report of sexual harassment, a copy of the policy and procedures pertaining to sexual harassment, and an opportunity to respond to the allegation. The CRO may interview witnesses and other appropriate parties, individually and in conformance with privacy requirements, request and review relevant documents and prepare a report of findings.
5. At any time during the investigation, the CRO may recommend that interim protections or remedies for the complainant, accused, or witnesses be provided by appropriate Laboratory officials. These protections or remedies may include separating the parties, placing limitations on contact/communications, or making alternative working arrangements. Failure to comply with the terms of interim protections may be considered a separate violation of the sexual harassment policy and procedure.
6. The complainant and/or accused may, upon request, have a representative present during his/her interviews. Other witnesses may have a representative present at the discretion of the CRO or as required by applicable Laboratory policy or collective bargaining agreement. The representative is not permitted to impede the investigation in any way. If the complainant or accused is represented by legal counsel, the CRO will advise the Manager, EEO/AA or designee of this fact prior to the interview. The Manager of EEO/AA or designee may consult with the Office of Laboratory Counsel or the Office of General Counsel, UCOP.
7. The report of findings will contain a statement of allegations and issues, the positions of the parties, a summary of the evidence, the CRO's findings of fact based on the investigation, and a determination as to whether a violation of Laboratory policy has occurred. This report of findings may also contain a recommendation for actions to resolve the report of sexual harassment. The report may be used as evidence in other related procedures, such as subsequent complaints, grievances and/or corrective actions.
8. The report of findings will be submitted to the Manager of EEO/AA or designee, who will recommend appropriate management action to Laboratory officials.
9. The complainant and the accused shall be informed promptly in writing when the investigation is completed. The complainant will be notified in writing of the findings, including whether or not the policy was violated and actions taken to resolve the report of sexual harassment, if any, that are directly related to the complainant, such as an order that the accused not contact the complainant. In accordance with Laboratory policies protecting individuals' privacy, the complainant may generally be notified that the matter has been referred for corrective or disciplinary action, but not informed of the specific corrective action without consent of the accused.
10. The complainant and the accused may request a copy of the investigative report pursuant to Laboratory policy governing privacy and access to personal information. However, the report shall be redacted to protect the privacy of personal and confidential information regarding all individuals other than the individual requesting the report in accordance with Laboratory Policy.1
11. The investigation process and response to the complainant should be completed within sixty (60) calendar days from the date the complaint is filed. However, the Manager of EEO/AA or designee may extend the time limits.
F. Confidentiality and Non Reprisal
1. Every reasonable effort will be made to protect the privacy of all parties. A report of sexual harassment may result in the gathering of extremely sensitive information. While such information is considered confidential, Laboratory policy regarding access to public records may require disclosure of certain information concerning a report of sexual harassment. In such cases, every effort shall be made to redact the records in order to protect the privacy to the involved individuals.
2. An individual who has made a report of sexual harassment may be advised of sanctions imposed against the accused when the individual needs to be aware of the sanction in order for it to be fully effective (such as restrictions on communication or contact). However, information regarding corrective action taken against the accused shall not be disclosed without the accused consent, unless it is necessary to ensure compliance with the action or the safety of the complainant.
3. No individual shall be subject to retaliation for using or participating in any manner in this procedure and/or other complaint/grievance resolution processes. Retaliation includes threats, intimidation, reprisals and/or adverse actions related to employment. An individual who is subjected to retaliation for having made a report of sexual harassment or who has assisted someone with a report of sexual harassment may make a report of retaliation under these procedures. The report of retaliation shall be adjudicated in the same manner as a report of sexual harassment.
4. Because sexual harassment frequently involves interactions between persons that are not witnessed by others, reports of sexual harassment cannot always be substantiated by additional evidence. Lack of corroborating evidence or "proof" should not discourage individuals from reporting sexual harassment under this procedure. However, individuals who make reports that are later found to have been intentionally false and made maliciously without regard for truth may be subject to corrective or disciplinary action under the applicable Laboratory policy and procedure or collective bargaining agreement. This provision does not apply to reports made in good faith, even if the facts alleged in the report cannot be substantiated by an investigation.
G. RPM Complaints, Grievances or Bargaining Unit Grievances Involving Allegations of Sexual Harassment
An individual who believes s/he has been subjected to sexual harassment may file a formal complaint or grievance pursuant to the applicable complaint or grievance procedure. Such formal complaint or grievance may be filed either instead of or in addition to making a report of sexual harassment to the Manager, EEO/AA or designee under this procedure. A formal complaint or grievance alleging sexual harassment, separate from this procedure, must meet all the requirements under the applicable complaint or grievance procedure, including time limits for filing.
If a formal complaint or grievance alleging sexual harassment is filed in addition to a report of sexual harassment under this procedure, the formal complaint or grievance shall be held in abeyance subject to the requirements of any applicable complaint resolution or grievance procedure, pending the outcome of the Early Resolution or Formal Investigation procedures in this Procedure. If the individual chooses to proceed with the formal complaint or grievance, Early Resolution or Formal Investigation shall constitute the first step or steps of the applicable complaint or bargaining agreement grievance procedure.
An individual who has made a report of sexual harassment also may file a formal complaint or grievance alleging that the actions taken in response to the report of sexual harassment did not follow Laboratory policy. Such a formal complaint or grievance may not be filed to address a disciplinary sanction and/or corrective action imposed upon the accused. Any formal complaint or grievance regarding the resolution of a report of sexual harassment under this procedure must be filed within the applicable RPM complaint, grievance or bargaining unit grievance procedure. The time period for filing begins on the date the individual was notified of the outcome of the sexual harassment investigation or other resolution process pursuant to this procedure, and/or of the actions taken by management in response to the report of sexual harassment, whichever is later.
H. External Sexual Harassment Charges Procedures
The Manager, Equal Employment Opportunity/Affirmative Action, has the responsibility for processing all staff sexual harassment charges received from government agencies such as the Equal Employment Opportunity Commission (EEOC), Department of Fair Employment and Housing (DFEH), Department of Labor (DOL), Department of Energy (DOE) and the Office of Civil Rights (list not inclusive). The EEO/AA office will coordinate with the Office of Laboratory Counsel as appropriate with respect to investigatory efforts into such charges.
I. Records Retention
Records pertaining to reports of sexual harassment, the report of findings including investigation documentation, and resolutions shall be maintained generally for five (5) years after resolution. Records may be maintained longer at the discretion of the Manager, EEO/AA where there is a continuing affiliation with the Laboratory and/or University. All records pertaining to pending litigation or a request for records shall be maintained in accordance with instructions from legal counsel.