You asked us to compare the Connecticut Department of Correction's (DOC) investigative procedures for sexual harassment complaints to those of New York, Massachusetts, and Rhode Island.

SUMMARY

The investigative procedure and overall handling of sexual harassment complaints is similar for all four states' correction departments in a number of ways: (1) all four prohibit sexual harassment, (2) employees may file departmental complaints that are internally investigated, (3) complaints and investigations are kept confidential, (4) sustained complaints can lead to discipline against the offender, and (5) complainants also have the option of bringing complaints to a statewide quasi-judicial body outside of the department.

But there are significant differences in the level of detail in the policies. Massachusetts's and Rhode Island's sexual harassment policies include, among other things, detailed procedures on handling internal departmental investigations. For example, Massachusetts provides a statewide policy that is detailed down to the specific questions an investigator must ask during separate interviews with the complainant and the alleged harasser.

Massachusetts stands apart from the other states by requiring that all state departments name at least one sexual harassment officer trained to take and investigate sexual harassment complaints. At its DOC, this results in one sexual harassment officer for each facility.

The DOCs in Connecticut and New York have broadly worded sexual harassment policies that leave some elements of the investigative process up to the department officials charged with carrying out the investigation.

DEFINING SEXUAL HARASSMENT

All four states define sexual harassment in very similar terms: any unwelcome sexual advances or requests for sexual favors when (1) submission to such conduct is explicitly or implicitly a term or condition of employment, (2) submission to, or rejection of, such conduct is used as a basis for employment decisions about the individual, or (3) such conduct has the purpose or effect of creating an intimidating, hostile, humiliating, or sexually offensive work environment.

Several of the DOCs, including Connecticut's, cite examples of prohibited behavior such as (1) any sexual flirtation, touching, advance, or proposition; (2) the workplace display of sexually suggestive objects or pictures, including nude photographs; and (3) any threat or insinuation, implicit or explicit, that an employee's refusal to submit to advances will adversely affect the employee's condition of employment in any way.

Massachusetts and Rhode Island harassment policies contain further factors.

Massachusetts's statewide policy, which is also its DOC policy, specifies that the perspective of the victim, not the alleged harasser, is what defines unwelcome sexual behavior. It also specifies that the victim does not have to be the opposite sex from the harasser, nor does the harasser have to be the victim's supervisor. Furthermore, it states that the victim does not have to be the person targeted by the unwelcome behavior. He or she could be a witness to offensive behavior aimed at someone else.

In Rhode Island, the DOC is the only one of the four departments' policies that includes in its sexual harassment definition "conduct so infused with hostility towards members of one sex that it alters the conditions of employment, interferes with an individual's work performance or creates an intimidating, hostile, or offensive working environment. " This aspect of the definition focuses on gender hostility rather than on sexual advances.

SIMILARITIES AMONG THE FOUR STATES

All four states prohibit sexual harassment as a discriminatory employment practice either by state law or executive order (and all cite the federal law prohibition). In all four, the staff investigating a case may seek to informally resolve the situation through mutual agreement of the involved parties before the investigation is completed.

Furthermore, all four states' sexual harassment policies are similar in the following ways:

1. statewide policies stress keeping investigations confidential for the interests of both the complainant and the alleged harasser,

2. investigations involve taking statements from the complainant and the alleged harasser,

3. investigators conclude investigations with a recommendation on whether the allegation is supported by the preponderance of the evidence,

4. discipline is determined by higher administrative staff not directly involved in the investigation, and

5. a hearing is required before any discipline is determined.

DIFFERENCES AMONG THE FOUR STATES

Details of Investigative Policy

In Connecticut, New York, and Rhode Island the overarching state policy is very broad prohibiting sexual harassment and requiring individual state departments to have internal complaint procedures and policies. Both Massachusetts and Rhode Island policy is very detailed, to the point of requiring what questions must be asked during an investigation (see Attachments 1 and 2). Massachusetts also requires each agency to designate a sexual harassment officer. Rhode Island's policy was generated at the DOC level; Massachusetts's policy was generated at the statewide level and applied to all agencies.

Connecticut and New York have more general departmental policies and guidelines that include some specifics, such as who does the investigation (affirmative action) and keeping investigations confidential, but the details of conducting an investigation are left up to the individual departments.

Timeframe to Complete Investigations

Connecticut DOC must follow the 90-day maximum timeframe established for all state departments by Commission on Human Rights and Opportunities (CHRO) regulations. This is to ensure that internal investigations are completed so the victim may retain the option of filing the complaint with the statewide body (CHRO in Connecticut) or the U. S. Equal Employment Opportunity Commission (EEOC). Connecticut is the only state of the four with an explicit deadline for internal investigations, although New York requires a status report at 30 days if the investigation is not complete by then. Although the other states do not have deadlines, their policies call for swift or prompt investigations and they require the investigators to keep victims apprised of their other legal options including filing deadlines with the statewide entity or EEOC.

POLICY ELEMENTS UNIQUE TO MASSACHUSETTS

Sexual Harassment Officers

Massachusetts stands apart from the other states by requiring all state departments to name at least one sexual harassment officer trained by the Human Resources Division (HRD) to take and investigate sexual harassment complaints. At DOC, this results in one sexual harassment officer for each facility.

The harassment officer is usually an agency's civil rights or affirmative action officer. The policy requires these officers to (1) publicize their availability to all department employees, (2) distribute the DOC sexual harassment policy and complaint procedure to all new employees and annually thereafter, and (3) arrange for training on the sexual harassment policy and how to prevent sexual harassment for all DOC employees. (The other three DOCs all provide their sexual harassment policies to new employees and offer periodic employee training. )

The harassment officer also maintains confidential and current records of all sexual harassment complaints and their disposition.

Recording Non-Complaint Situations

If an employee informs a sexual harassment officer of a possible sexual harassment situation and then decides not to file an official complaint, the officer must fill out a sexual harassment contact report and send it to HRD, part of the Massachusetts Executive Office for Administration and Finance (see Attachment 3). Within five business days, HRD will inform the harassment officer whether any further action should be taken. None of the other three states has such a policy.

HRD maintains a file of all contact reports from all state agencies, and the agencies, such as DOC, keep a copy with the name of the alleged harasser stricken. The Massachusetts harassment officer policy guide gives the following explanation for the contact form: "[Removing the name] provides for protection of the rights of the alleged harasser, since he/she has not been given an opportunity to respond to the charges through a complete investigation, but it also provides the Commonwealth as employer with some ability to identify cases with a high potential for liability and thus take appropriate action on them. "

Investigations Without Formal Complaints

In some situations, possibly based in information gathered through the contact reports, HRD may advise an agency harassment officer to conduct an investigation even if there is no formal complaint.

Examples of this include:

· incidents raised by several employees concerning the same alleged harasser;

· incidents involving possible criminal behavior, such as rape or physical assault; and

· several incidents reported by the same employee over a period of time, that may or may not involve the same alleged harasser.

JM: eh