Effective Date: July 1, 1999
Subject: DISCRIMINATION COMPLAINTS

Applicable To: All classified employees, as well as exempt, appointed, and temporary, with the Executive Branch of the State of Vermont.

Issued By: Department of Human Resources

Approved By: Kathleen C. Hoyt, Secretary of Administration

PURPOSE AND POLICY STATEMENT

The State of Vermont is opposed to and contractually bound to respond to discrimination against employees on the basis of race, color, religion, creed, ancestry, sex, marital status, age, national origin, disability, sexual orientation, membership or non-membership in the V.S.E.A., and any other factor that is prohibited by law. The purpose of this policy is to establish protocols for reporting and investigating allegations of discrimination. Sexual harassment is covered separately in Policy 3.1. Reasonable accommodation for disability and the Americans With Disability Act are covered by Policy 3.2.

Many of the above-listed forms of discrimination are made unlawful by state and federal law. All are prohibited by the collective bargaining agreements between the State of Vermont and the Vermont State Employees' Association, Inc. In addition to the prohibitions on discrimination, it is unlawful to retaliate against an employee for filing a complaint of discrimination. Allegations of such retaliation will be investigated in the same manner as reports of discrimination. Discipline for making a complaint of discrimination that the complainant knows to be false is not retaliation.

All employees, including but not limited to non-supervisory staff, supervisors, managers, and appointing authorities, are expected to comply with this policy and take appropriate measures to ensure that discrimination does not occur. Disciplinary action, up to and including dismissal, may be taken against any employee who engages in discrimination or who otherwise violates this policy, applicable state and federal laws, or the collective bargaining agreements.

In addition, every manager and supervisor within the State of Vermont is responsible for providing a work place free from discrimination. This duty includes disseminating this policy so that all employees are aware that:

they are not required to endure discrimination,

discrimination will not be allowed;

this policy, the collective bargaining agreement prohibitions, and state and federal discrimination laws will be enforced; and

charges of discrimination will be impartially and immediately investigated.

Managers are responsible for ensuring that all new employees receive a copy of this policy; for posting this policy in prominent and accessible locations in the work place; and striving to provide employees with diversity training. Any manager or supervisor who does not deal with discrimination complaints consistent with the terms of this policy may be subject to disciplinary action.

EXPLANATION OF TERMS USED

Agency - Throughout this policy, the term agency is intended to refer to all categories of State of Vermont Executive Branch government units. The term agency head refers to the appointed or elected head of each unit. This includes agencies, departments, offices of elected officials such as the Attorney General and Treasurer, and independent boards and commissions.

Appointing Authority - As used in this policy, the term appointing authority refers to the government official who is charged with making significant decisions regarding employees, to include hiring and discipline. The appointing authority may be the appointed or elected head of the government unit, or the official delegated by the appointed or elected official to make such decisions.

Discrimination - As used in this policy, the term discrimination is intended to include all forms of mistreatment or denial of privileges in the workplace based upon impermissible factors as established by state or federal law, applicable regulations, or the collective bargaining agreements between the State of Vermont and the Vermont State Employees' Association, Inc.

Victim - Throughout this policy, the term victim means the actual or alleged target of the discriminatory behavior that is being investigated. It is not meant to exclude the victim identified in a claim of discrimination that is not substantiated by investigation. The term victim is not interchangeable with the term complainant because not all victims complain, nor are all complainants victims.

Complainant - An individual who brings allegations of discrimination to the attention of state officials.

REPORTING & RESOLUTION OF COMPLAINTS

The State, through this policy, commits itself to take necessary action to deter discrimination in the workplace. However, the fulfillment of this commitment will, in large part, depend on the willingness of employees to report prohibited behavior. A timely response to discrimination is essential to protect victims from further unwelcome behavior. It also ensures that the person responsible for objectionable behavior understands its impact on others. A timely report provides the best opportunity for the employer to expeditiously and effectively address the matter with the least possible adverse impact on all parties concerned.

Therefore, all employees should report any incidents of discrimination, based upon any of the prohibited factors, that they experience, witness, or of which they are aware. In some instances, such as where discriminatory or offensive behavior may be unintentional, informal and direct objection can be the best way to remedy a problem. In such instances, employees are encouraged, but not required, to identify objectionable actions to those who commit them, and to try to resolve issues informally.

The following process allows employees to freely report incidents of discrimination, free from threats of reprisal, and protects the rights of all parties involved.

These Reporting and Resolution of Complaints procedures may be expanded upon by individual departments and agencies. Any specific departmental policies and procedures must first be reviewed and approved by the Department of Human Resources, Employee Relations Division.

TO FILE A COMPLAINT:

1. Any employee who believes (s)he has been the subject of discrimination shall report the alleged act(s) as soon as possible to any one of the following:

an immediate supervisor;

any agency management staff;

any agency personnel officer (agency personnel officers act as agency Equal Employment Opportunity (EEO) Officers); or

any member of the Department of Human Resources Employee Relations staff, 110 State Street, Montpelier, VT 05620, 802-828-3454.

NOTE: Any employee may consult with the VSEA to request its assistance. (S)he may also file a complaint of discrimination in accordance with the grievance procedures prescribed by the contract. The employer shall ensure that complainants and respondents are advised of their right to VSEA representation under the circumstances required by the contract.

2. Employees who witness discriminatory acts are encouraged to report their observations to any of the appropriate state officials identified in this policy.

COMPLAINT PROCESSING PROCEDURE:

1. Complaints Will Be Promptly Referred To The Appropriate Authority

All complaints received by a supervisor, manager, EEO or personnel officer, Department of Human Resources staff person, or any other state official will be immediately referred to the departmental personnel officer of the employee who is the alleged victim of the discriminatory conduct.

2. Agencies Will Promptly Respond

Once a complaint is referred to an agency, the agency personnel officer will notify the appointing authority and the Department of Human Resources to ensure timely and complete review of the complaint. The Department of Human Resources and appointing authorities shall ensure that an investigation is conducted when any instance of discrimination comes to their attention, even in the absence of a complaint. The steps to be taken upon receipt of a complaint are:

a. Appointment of an Investigator.

The responsibility for determining who will investigate and the scope of the investigation is with the agency head. The appropriate agency head is the official in charge of the agency that employs the victim. If in a single incident there are multiple victims employed by more than one agency, the agencies will coordinate with the Department of Human Resources to identify a single responsible appointing authority to conduct the investigation. If the individual accused of discrimination is a state employee not under the supervision of the same agency head as the victim, immediate notice of the allegation will also be made to the agency head of the accused employee. If the complaint is made against the head of an agency, the complaint will be forwarded to the Commissioner of Personnel. The Commissioner of Personnel will inform the Secretary of Administration and the responsible Agency Secretary, in the event that the target of the complaint reports to an Agency Secretary. The Commissioner of Personnel will coordinate a response on behalf of the Secretary of Administration.

The investigator assigned may be an employee from the same agency, another agency, or may be someone hired on a personal services contract to conduct the investigation. The investigator should be appointed in writing and given specific instruction on the scope of the investigation. Where the allegations include claims of serious misconduct that may constitute criminal conduct, the agency head may elect to defer investigation until completion of a criminal investigation, but only after consultation with the Commissioner of Personnel.

b. Notification to Complainant, Victim, and Accused

Within five workdays, the appointing authority shall issue written notices to complainants, victims, and those accused of discriminatory acts.

For a complainant who is not a victim, the notice should acknowledge the complaint and state that the agency is taking action and that any retaliation should be reported to the agency or Department of Human Resources.

For a complainant who is a victim, the notice should also state that the State will endeavor to prevent any additional prohibited activity, that an investigation will be done promptly, and that a written response will be provided when the investigation is completed.

If the complainant identifies specific state employees accused of wrong doing, written notices should be provided to such accused employees. For an employee accused of discriminatory conduct, the notice should state: that the employee has been accused of discriminatory behavior; that while no conclusions about allegations will be drawn until completion of the investigation, such behavior is prohibited by law and the collective bargaining agreements; and that employees are subject to discipline, up to and including dismissal, for engaging in such behavior. The notice should also state that retaliation of any type is not tolerated and will be subject to discipline. Where the complaint alleges serious misconduct, the appointing authority should consider relieving the accused employee from duty with pay.

Personnel officers should seek assistance from the Department of Human Resources, Employee Relations Division before sending these notices.

2. Investigation Procedures

The actions taken by the investigator will vary depending on the nature of the allegations and the resources made available, however, the investigation should be broad enough to comply with the minimum reporting requirements listed in the following paragraph.

Witness Interviews

Investigators must comply with the collective bargaining agreements between the State of Vermont and the Vermont State Employees' Association, Inc. when interviewing employees, especially those employees who are accused of or suspected of wrongdoing. Persons interviewed in the course of the investigation should be informed that statements made to the investigator are not confidential and that while the State's policy is to strictly control distribution of investigative reports, such reports may be released as the result of a public records request or in the course of litigation.

Preserving Evidence

An investigator may find tangible evidence when investigating a complaint of discrimination. Examples include documents used in committing discriminatory acts or that memorialize such acts, and non-documentary evidence such as graffiti on a wall or damaged personal property. Reasonable and prudent measures should be taken to preserve evidence. Where appropriate, photographs should be taken and prints labeled with time and place taken. Fingerprints may be taken from a wide variety of substances, thus, where suggested by the circumstances, evidence should be handled carefully to avoid the loss of existing prints or the addition of others. Investigators should seek the assistance of counsel or other experts whenever necessary.

3. Contents of Investigation Report

At a minimum, the report of an investigation into allegations of discrimination will include:

a summary of the allegations and how they were brought to the attention of state officials;

summaries of interviews with any alleged victims;

summaries of interviews of any employees accused of or suspected of wrongdoing;

summaries of interviews of any other witnesses who may possess information relevant to a fair resolution of the complaint; and

any documents or other tangible evidence, or photographs or descriptions of such evidence, as appropriate, along with notation of where such evidence is being held for safekeeping.

In any investigation where there is a disagreement as to any material facts, the investigator will state factual findings that reflect his or her resolution of that disagreement.

4. Distribution of the Final Report and Notification to Interested Parties

The final report will be provided to only the appointing authority and the Commissioner of Personnel. The Commissioner of Personnel may elect to provide copies to other state officials. Neither the final report nor the supporting materials will be provided to the victim(s) or employee(s) accused of wrongdoing. The victim will be provided a notice that the investigation is completed and be informed if any allegations are substantiated. The appointing authority will identify and take steps to promptly remedy any discrimination and prevent its recurrence.

The use of this procedure does not preclude any victim of discrimination harassment from pursuing any other legal remedy. To explore other remedies, employees may also contact the following:

Equal Employment Opportunity Commission
1 Congress Street
Boston, MA 02114
617-565-3200 (Voice/TDD)
Complaints must be filed within 300 days of the adverse action.

Vermont Attorney General's Office
109 State Street
Montpelier, VT 05609-1001
802-828-3171 (Voice/TDD)
Complaints should be filed within 300 days of the adverse action.

Vermont Human Rights Commission
135 State Street, Drawer 33
Montpelier, VT 05633-6301
802-828-2480 (Voice/TDD)
Complaints must be filed within 360 days of the adverse action.

Vermont State Employees' Association, Inc.
155 State Street
Montpelier, VT 05601
802-223-5247

Signed by Kathleen C. Hoyt, August 6, 1999
_______________________________________
Approved, Secretary of Administration