Montana Administrative Register Notice 2-21-448 No. 11   06/09/2011    
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In the matter of the adoption of New Rules I through IX, the amendment of ARM 2.21.4001, 2.21.4002, 2.21.4005, 2.21.4013, 2.21.4014, and the repeal of ARM 2.21.4003, 2.21.4004, 2.21.4006, 2.21.4007, and 2.21.4012 pertaining to equal employment opportunity, nondiscrimination, and harassment prevention














TO:  All Concerned Persons


1.  On July 8, 2011, at 9:00 a.m., the Department of Administration will hold a public hearing in Room 136 of the Mitchell Building, at 125 N. Roberts Street, Helena, Montana, to consider the proposed adoption, amendment, and repeal of the above-stated rules.


2.  The Department of Administration will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice.  If you require an accommodation, contact the department no later than 5:00 p.m. on June 29, 2011, to advise us of the nature of the accommodation needed.  Please contact John Pavao, Department of Administration, P.O. Box 200127, 125 N. Roberts Street, Helena, MT 59620-0127; telephone (406) 444-3984; Montana Relay Service 711; FAX (406) 444-0703; or e‑mail jpavao@mt.gov.


3.  The rules proposed to be adopted provide as follows:


NEW RULE I  COMPLIANCE WITH THE FEDERAL GENETIC INFORMATION NONDISCRIMINATION ACT OF 2008 (GINA)  (1)  To comply with GINA, which prohibits discrimination based on genetic information with respect to employment or state-sponsored group health plans, agency managers may not:

(a)  request, require, or purchase genetic information about employees or their family members; or

(b)  use genetic information to:

(i)  discriminate against an individual in hiring, discharge, compensation, terms, conditions, or privileges of employment;

(ii)  make decisions about admission to apprenticeship and training programs, including on-the-job training;

(iii)  limit, segregate, or classify an individual;

(iv)  fail or refuse to refer an individual for employment;

(v)  deprive an individual of employment opportunities; or

(vi)  acquire health insurance or set premiums under the group health plan.

(2)  Requests for genetic information include, but are not limited to:

(a)  conducting Internet searches on individuals in a way that is likely to result in obtaining genetic information;

(b)  knowingly or purposefully listening to third-party conversations or searching an individual's personal effects for the purpose of obtaining genetic information; and

(c)  making requests for information about an individual's current health status in a way that is likely to result in obtaining genetic information.

(3)  To avoid inadvertently receiving genetic information, agency representatives who request medical information as part of an employment-related medical exam or a medical certification in response to a request for sick leave, leave qualifying under the Family Medical Leave Act, or a reasonable accommodation request under the Americans with Disabilities Act, shall include the following statements verbatim in their written request for medical information:

(a)  ''The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members.  To comply with this law, we ask you not to provide any genetic information when responding to this request for medical information."

(b)  "Genetic information, as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services."

(c)  ''Genetic test means an analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes."

(4)  Agency managers may not ask probing questions of an individual if they inadvertently learn of a health condition of an applicant, employee, or the health condition of a family member.

(a)  Probing questions include, but are not limited to, asking the individual whether other family members have the condition or whether the individual has been tested for the condition.  These questions are likely to result in the acquisition of genetic information.

(5)  Agency representatives possessing genetic information about an employee shall maintain the information as confidential in compliance with ARM Title 2, chapter 21, subchapter 66, Employee Records Management Policy.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


STATEMENT OF REASONABLE NECESSITY:  While GINA was enacted in 2008 and requires compliance by all states, the Equal Employment Opportunity Commission (EEOC) did not release the federal regulations until November 2010.  It is important for agency personnel to understand the law's requirements.  In particular, knowing what genetic information is and the limits of using the information and avoiding acquiring genetic information inadvertently through medical information requests or probing questions are not parts of a knowledge base that is necessarily intuitive.  If this approach was not taken, state personnel would not have the tools to comply with GINA, thereby exposing the state to potential liability.  This proposed rule follows the EEOC's rule.  The department has determined that because the EEOC's rule thoroughly covers the subject matter, the department saw no need to craft its own original rules.


NEW RULE II  RULE VIOLATIONS  (1)  Employees who violate these rules are subject to discipline, up to and including discharge under ARM Title 2, chapter 21, subchapter 65, Discipline Policy.  A rule violation includes managers who allow discrimination to occur or fail to take appropriate action to correct inappropriate behavior, including discrimination or harassment.

(2)  Failure to conduct an investigation in a proper and timely manner, interference with an investigation, failure to cooperate with an investigator, or making a false statement to an investigator may result in disciplinary action, up to and including discharge.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


STATEMENT OF REASONABLE NECESSITY:  This rule is necessary to reinforce these rules and let managers and employees know that discrimination or harassment will not be tolerated.  Employees should know that management may take disciplinary action for violations of the rules; for failure to correct inappropriate, discriminatory, or harassing behavior; or failure to conduct an investigation in a proper and timely manner.  The alternative would be to remain silent regarding the consequences of violating the applicable rules; however, this approach would be unfair to employees.


NEW RULE III  INITIATING AN INTERNAL COMPLAINT  (1)  Agency managers shall encourage employees, applicants, clients, and customers who believe they have been discriminated against or harassed to contact their  supervisor, another manager, or the agency's EEO officer, ADA coordinator, or human resources staff.

(2)  Complaints may be oral or in writing; however, complainants are encouraged to use the Department of Administration's complaint form found at http://hr.mt.gov/hrpp/policies.mcpx.

(3)  For complaints not submitted on a complaint form, the agency representative receiving the complaint shall obtain and document the following information:

(a)  name, address, and phone number(s) of the complainant(s);

(b)  date(s), time(s), and location(s) of the alleged discriminatory behavior or conduct;

(c)  name(s), if known, of the accused(s);

(d)  description of the behavior or conduct that resulted in an alleged violation;

(e)  whether the alleged discrimination was based on a protected class; and

(f)  names of potential witnesses who may have heard or observed the alleged discriminatory conduct or behavior.

(4)  Agency representatives who receive a complaint or become aware of allegations of discrimination or harassment shall promptly notify the human resource manager, EEO officer, or ADA coordinator, regardless of their perception of the validity of the complaint.

(5)  The human resource manager, EEO officer or ADA coordinator, legal counsel, and appropriate manager shall meet to discuss the appropriate course of action.  If the complaint is against any of these individuals, they are excluded from the meeting.  The discussion must focus on measures to stop the alleged behavior, a review of the investigative process, and management's role in the process.

(6)  If management determines an internal investigation would not be appropriate because of a potential conflict, they may request assistance from the State Human Resources Division or other outside source.

(7)  The human resource manager or human resource staff, as appropriate, shall coordinate with the investigator and advise management throughout the course of the investigation.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


STATEMENT OF REASONABLE NECESSITY:  Quite often, individuals who feel that they are the victims of discrimination are hesitant about raising the matter for fear of "rocking the boat" or reprisals.  This silence will not resolve the issue.  Therefore, it is important to encourage individuals who believe they are the victims of discrimination or harassment to report their concerns so that appropriate and timely action may be taken.  Employees must know their complaints will be investigated and not be treated as inconsequential.  While the proposed rule allows for oral complaints, the department encourages written complaints so management can act on the actual allegations of the complainant rather than an interpretation of what the complainant said.  This is important to ensure an impartial, accurate, and thorough investigation of the allegations.

If the employee decides to orally report the incident(s), the proposed rule provides guidance regarding what to include within a report.  This guidance will help the agency representative stick to the material and relevant facts of the allegations.  Otherwise, a report may exclude critical information or, conversely, include irrelevant or immaterial information.  Consistent reporting will yield consistent and fair results.

The rule proposes a team approach to handling complaints.  The department believes this is appropriate because discrimination or harassment issues can be complicated and often implicate several disciplines including human resources and legal.  Human resources and legal personnel are trained to address these issues.

The proposed rule highlights the importance of promptly addressing conflict of interest issues.  Otherwise, the investigation will be tainted.

Finally, the department proposes that human resources personnel help facilitate the investigation process.  The human resource staff is trained to handle these issues and can assist the investigator by arranging interviews and gathering information.  The process runs much more smoothly when the investigator has a knowledgeable contact within the agency.


NEW RULE IV  INVESTIGATING A COMPLAINT  (1)  The EEO officer, ADA coordinator, or another representative chosen by management shall promptly begin an investigation upon receiving a complaint.

(2)  Before the investigation begins, the appropriate manager shall separately explain the following to the complainant and accused:

(a)  the investigation process and anticipated timelines;

(b)  what retaliation is and that it will not be tolerated; and

(c)  expectations and consequences of discussing the complaint with anyone other than the investigator, management, union representative, or legal counsel.

(3)  Agency managers shall provide:

(a)  periodic updates to the complainant and the accused; and

(b)  documentation of their initial meeting and all subsequent follow-up action to the investigator.  

(4)  The investigator shall:

(a)  gather evidence to determine a "cause" or "no-cause" finding;

(b)  coordinate with the agency's legal counsel before conducting interviews and throughout the investigation; and

(c)  provide periodic updates to the agency's human resource manager.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


STATEMENT OF REASONABLE NECESSITY:  The department believes that the EEO officer or ADA coordinator, depending on the issue, should lead the investigation since this person has the most training and expertise in these areas.  However, in rare cases, management may need to choose another resource from within or outside the department to conduct the investigation; for example, when it would create a conflict of interest for the EEO officer or ADA coordinator to conduct the investigation.  Experience has also taught that it is important that management keep the complainant and accused aware of the status of the investigation and certain "do's" and "don'ts."  A lack of communication creates distrust and allows rumors to overtake fact, which makes the workplace a difficult place for all employees.  The department believes that keeping good records from the beginning to the end of the process will avoid confusion and provide support for the ultimate decision that is made.

The proposed rule recommends the investigator issue a "cause" or "no-cause" finding.  Such a finding is consistent with how the Montana Human Rights Bureau handles discrimination claims, and the department has determined that this approach has worked well for that bureau.  Also, if the complainant decides to file a complaint with the bureau, the bureau's investigator will be familiar with the standards the agency investigator used in reaching their conclusion.  Having legal counsel involved in the process will help the investigator navigate the legal issues that inevitably arise in these situations.


NEW RULE V  POST-INVESTIGATION ACTIONS  (1)  After receiving the final report, the appropriate manager shall promptly inform the complainant and accused of the outcome of the investigation in writing.

(2)  In the case of a cause finding, the appropriate agency manager shall:

(a)  take appropriate disciplinary action, if necessary, according to the ARM Title 2, chapter 21, subchapter 65, Discipline Policy;

(b)  advise the complainant corrective action to stop the behavior has been taken, but not disclose the details or nature of disciplinary action;

(c)  reemphasize that retaliation will not tolerated; and

(d)  contact the complainant within 30 days to ensure the behavior has stopped and there was no retaliation.

(3)  In the case of a no-cause finding, the appropriate agency manager shall contact the complainant within 30 days to ensure the complainant has not experienced retaliation.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


            STATEMENT OF REASONABLE NECESSITY:  Closure is an important part of the complaint resolution process.  Although the complainant is not entitled to know what, if any, disciplinary action management imposed on the accused, the complainant does have the right to know the complaint was addressed.  The department also believes management and employees need to know retaliation will not be tolerated whatever the outcome of the investigation.  This emphasis and timely follow-up with the complainant will help avoid future issues that could expose the state to additional liability.


NEW RULE VI  CONFIDENTIALITY REQUIREMENTS  (1)  Agency managers shall make every attempt to protect the privacy of individuals involved in the complaint process; however, individual privacy cannot be guaranteed.

(2)  Employees involved in the complaint process (e.g., complainant, accused, witnesses, etc.) may not discuss the complaint or investigation with anyone other than management, the EEO officer, ADA coordinator, human resources manager, investigator, union representative, or legal counsel.  Discussing the complaint or investigation with individuals who do not have an official need to know may result in disciplinary action under the ARM Title 2, chapter 21, subchapter 65, Discipline Policy.

(3)  The human resource staff shall maintain the investigative report and supporting documents in a secure, confidential case file separate from the regular employee file.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


STATEMENT OF REASONABLE NECESSITY:  This rule is proposed to maintain confidentiality in the complaint process.  Confidentiality is important for several reasons.  First, confidentiality will encourage the parties and witnesses to speak freely without fear of reprisal.  If confidentiality does not exist, the investigator will not get all the facts to make an informed decision.  Second, a confidential process promotes a relatively peaceful working environment in the midst of a difficult time, especially when one coworker accuses another of inappropriate behavior.  Third, in some people's minds, allegations are facts.  Harassment and discrimination complaints are serious, having the potential to stain a person's reputation.  Allowing an investigation to be publicly aired will only heighten tensions and could unjustly compromise a person's integrity.  The department, however, has determined it cannot guarantee privacy.  In past cases, some individuals, including the complainant, accused, and witnesses felt compelled to disclose the matter even after being told the process is confidential.  In these cases, every effort was made to protect confidentiality, but the involved parties chose to breach the process.  An agency cannot control this behavior, and it is important to acknowledge this fact.  It is equally important to inform individuals they may be disciplined for violating confidentiality, so they know there will be consequences arising from their behavior.  The department believes privacy must be taken seriously from the beginning of the process to the end, including maintaining a filing system that preserves confidentiality.



(1)  Agency EEO officers shall track internal complaints using the Complaint Tracking Sheet located on the State Human Resources Division web site: http://hr.mt.gov/hrpp/policies.mcpx.  EEO officers shall provide quarterly summaries of internal complaints to the State Human Resources Division no later than the fifteenth day of each quarter.

(2)  The report must include:

(a)  the total number of complaints;

(b)  whether the complainant and accused was an employee, customer, or client;

(c)  basis of the complaint (protected class);

(d)  reason for complaint (e.g., employment-related, denied access to a program or service, or inappropriate comment); and

(e)  outcome of the complaint. 

(3)  The report is for tracking purposes only and must not include confidential information such as names of individuals involved.

(4)  The State Human Resources Division shall collect and analyze the data to:

(a)  assess program effectiveness;

(b)  develop or modify existing policies, procedures, and guides; and

(c)  promote compliance with applicable laws, regulations, and policies.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


            STATEMENT OF REASONABLE NECESSITY:  The department proposes this rule to fulfill the EEO requirement that states provide tracking reports containing the identified, nonconfidential information.  Having this rule will provide guidance to agencies and will ensure reports are consistent from agency to agency.  These reports will also help the State Human Resources Division to assess EEO program effectiveness and focus future training and prevention efforts to help the state avoid liability.


NEW RULE VIII  INITIATING AN EXTERNAL COMPLAINT  (1)  In addition to the internal complaint process, complaints may be filed with the following agencies:

(a)  Montana Human Rights Bureau (HRB), 1625 11th Avenue, P.O. Box 1728 Helena, MT 59624-1728, (406) 444-2884, (800) 542-0807, TTY (406) 444-0532; or e-mail http://erd.dli.mt.gov/humanright/hrhome.asp; or

(b)  United States Equal Employment Opportunity Commission (EEOC)

San Francisco District Office, 350 The Embarcadero, Suite 500, San Francisco, CA 94105-1260, (800) 669-4000, TTY (800)-669-6820; or e-mail www.eeoc.gov.

(2)  Jurisdiction may vary based on the nature of the complaint.  For example, neither the HRB nor the EEOC considers complaints based on sexual orientation, culture, social origin or condition, or ancestry.

(3)  The HRB or EEOC must receive the complaint within 180 days of the alleged incident or when first discovered.  If the complainant uses the internal complaint process, they will have 300 days from the alleged incident to file a complaint with the HRB or EEOC.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


            STATEMENT OF REASONABLE NECESSITY:  The department has proposed this rule because the average person will likely not know other avenues are also available to pursue discrimination complaints.  Providing contact information and letting people know that deadlines exist for filing complaints will avoid confusion and assist a person in exercising their legal rights.


NEW RULE IX  RESPONSIBILITIES  (1)  The Department of Administration shall:

(a)  periodically review and update equal opportunity (EO) standards, guidelines, and administrative processes and procedures;

(b)  assist agencies in maintaining an effective EO program;

(c)  provide annual utilization analysis reports to agencies;

(d)  provide EEO analyses, reports, and technical assistance to agencies;

(e)  recommend strategies to promote diversity and overcome potential barriers to employment; and

(f)  design and develop equal opportunity training.

(2)  Executive branch department heads shall:

(a)  appoint an EEO officer responsible for:

(i)  managing the agency's EEO program;

(ii)  training employees on EO;

(iii)  assisting employees and managers with resolving EO issues;

(iv)  conducting internal investigations; and

(v)  developing written EEO action plans; and

(b)  appoint an ADA coordinator responsible for:

(i)  training employees on the ADA, disability awareness, and reasonable accommodations;

(ii)  conducting self-evaluations to assess accessibility of programs, services, and activities; and

(iii)  assisting with reasonable accommodation requests.

(3)  Agency managers shall:

(a)  retain electronic records for all jobs recording the sex, race, and ethnic group of employees and applicants as provided in 49-2-102, MCA, and the Uniform Guidelines on Employee Selection Procedures (1978); 43 FR 38295 (August 25, 1978);

(b)  provide reasonable accommodations, upon request, for qualified individuals with disabilities and for applicants and employees based on their religious practices, unless doing so would create an undue hardship;

(c)  post the state's EO policy poster and complaint-resolution procedures, including contact information for the agency EEO officer and ADA coordinator, in areas frequented by employees and the public;

(d)  provide a copy of these rules to all employees;

(e)  provide EO and harassment prevention training to all new employees within 90 days of hire or within [six months of the effective date of these rules] for current employees who have not yet received training;

(f)  provide EO and harassment prevention refresher training for all employees every three years or more frequently as needed; and

(g)  document all training in the employee's personnel file.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


STATEMENT OF REASONABLE NECESSITY:  The department believes this rule is important to promote consistent enforcement of the policy without question and to minimize duplication of effort.  The department oversees the state's equal opportunity program and provides technical assistance, tools, and resources to help agencies effectively implement the state's equal opportunity rules.  Since department heads are ultimately responsible for fair and equitable treatment of applicants, employees, and customers of their respective agencies, agency EEO officers and ADA coordinators are critical to successful implementation of the agency's equal opportunity program.  EEO officers and ADA coordinators have insight into the unique needs and challenges of their respective agencies and serve as a subject matter expert.  Agency personnel must understand the state's rules prohibiting discrimination and harassment and the consequences of violating these rules.  Providing a copy of the rules and subsequent training increases individual awareness and promotes accountability.  Maintaining training records demonstrates a good-faith effort to prevent discrimination and harassment and promotes compliance with 49-3-201, MCA, requiring agencies to provide orientation and training programs with emphasis on human relations and fair employment practices.


OVERALL STATEMENT OF REASONABLE NECESSITY FOR ALL NEW RULES:  Section 49-3-201, MCA, addresses employment of state and local government personnel.  Section 49-3-205, MCA, addresses equal access to governmental services.  These sections are necessary to emphasize state and local governments' responsibilities to make employment decisions and to provide equal access to governmental services without regard to an individual's race, color, religion, creed, political ideas, sex, age, marital status, physical or mental disability, or national origin.

As part of its required biennial review of rules, the Department of Administration proposes new rules I through IX to update the policy to include prohibition of discrimination based on genetic information in compliance with new federal laws and regulations; provide much-needed standardized procedures for filing, responding to, and tracking discrimination complaints and for conducting investigations; clarify and address agency and management responsibilities; and emphasize the consequences for not complying.  This guidance is lacking in the current rules.


4.  The rules proposed to be amended provide as follows, new matter underlined, deleted matter interlined:


2.21.4001  SHORT TITLE  (1)  This subchapter may be cited as the nondiscrimination eEqual eEmployment oOpportunity, Nondiscrimination, and Harassment Prevention pPolicy.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


STATEMENT OF REASONABLE NECESSITY:  The department believes a new title is needed to clearly capture the essence of these rules and to promote a logical flow for the reader.


2.21.4002  POLICY AND OBJECTIVES  (1)  It is the policy of the state of Montana that state government:

(a)  is an equal employment opportunity employer;

(b)  does not discriminate in employment based upon race, color, national origin, age, physical or mental disability, marital status, religion, creed, sex, sexual orientation, or political beliefs; and

(c)  implement and maintain an effective equal employment opportunity program which may include a written affirmative action plan.

(2)  It is the objective of this policy to establish minimum standards for the implementation of an equal employment opportunity program for all executive branch agencies, in compliance with relevant state and federal laws, regulations, and executive orders. 

(1)  These rules establish the minimum requirements for implementing and maintaining an equal opportunity program that promotes compliance with:

(a)  federal laws and regulations prohibiting illegal discrimination including the Genetic Information Nondiscrimination Act of 2008 (GINA);

(b)  the Montana Human Rights Act, Title 49, MCA;

(c)  the Governmental Code of Fair Practices, Title 49, chapter 3, MCA; and

(d)  and the Governor's Executive Order 41-2008, Equal Employment Opportunity, Nondiscrimination, and Harassment Prevention.

(2)  These rules establish complaint procedures to promote prompt and equitable resolution of discrimination complaints.

(3)  These rules cover all agencies in Montana's executive branch except:

(a)  the Montana University System;

(b)  the Montana State Fund;

(c)  elected officials:

(d)  personal appointed staff of elected officials; and

(e)  any other position specifically excluded under 2-18-103 and 2-18-104, MCA.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


STATEMENT OF REASONABLE NECESSITY:  These rules are proposed as the minimum necessary to comply with the laws listed.  However, if agencies have reason to impose even stricter standards, they should have that flexibility.  The department believes it is important to reference federal and state laws, regulations, and policies that serve as the primary source documents for establishing the standards set forth in this policy.  This gives the reader information on where they can find additional information.  It is also important for readers to understand that these rules apply to the executive branch of state government because the department has rulemaking authority for personnel issues but not over the excluded entities.  Other state entities may adopt these rules or adopt their own internal policies and procedures for preventing and addressing discrimination and harassment.


2.21.4005  EQUAL EMPLOYMENT OPPORTUNITY (EEO) AND NONDISCRIMINATION  (1)  The state of Montana is an equal employment opportunity employer and prohibits discrimination based on race, color, national origin, age, physical or mental disability, marital status, religion, creed, sex, sexual orientation or political beliefs unless based on a bona fide occupational qualification (BFOQ).  The state of Montana's prohibition of discrimination includes discrimination in hiring, firing, promotions, compensation, job assignments and other terms, conditions or privileges of employment.

(2)  Any employee or applicant for employment with the state of Montana who believes he or she has been subjected to discrimination based upon any of these factors may contact the department EEO officer and also may contact the Montana human rights bureau and/or the federal equal employment opportunity commission (EEOC).  Jurisdiction to address any one of the above types of discrimination complaints varies.  For example, neither the EEOC nor the Montana human rights bureau considers discrimination complaints based on sexual orientation. 

(1)  The executive branch is committed to equal opportunity, nondiscrimination, and harassment prevention in all aspects of employment and in programs, services, and activities offered to the public.

(2)  Agency managers may not tolerate discrimination or harassment based on an individual's race, color, national origin, age, physical or mental disability, marital status, religion, creed, sex, sexual orientation, political beliefs, genetic information, veteran's status, culture, social origin or condition, or ancestry.  Likewise, agency management may not tolerate discrimination or harassment because of a person's marriage to or association with individuals in one of the previously mentioned protected classes.

(3)  Agency managers may use a bona fide occupational qualification (BFOQ) where the reasonable demands of a position require a distinction based on age, physical or mental disability, marital status, sex, religion, or national origin.  A BFOQ is a legal exception to an otherwise discriminatory hiring practice.  Exceptions are strictly construed, as provided in 49‑2‑303, MCA, and the burden rests with the agency to demonstrate the exemption should be granted.  Federal and state laws prohibit BFOQs based on race or color.

(4)  To promote a work and customer service environment free from discrimination, agency managers shall:

(a)  base hiring decisions on individual competencies and qualifications;

(b)  promote an inclusive work environment where individuals are afforded every opportunity to reach their fullest potential;

(c)  recognize individual differences as a key element of organizational and team success;

(d)  treat individuals with dignity and respect; and

(e)  value the rights of all Montanans to benefit from equal access to employment and programs, services, and activities offered to the public.

(5)  Agency managers who observe behaviors that may be viewed as discriminatory shall immediately stop the behavior and promptly notify their agency's EEO officer, Americans with Disabilities Act (ADA) coordinator, or human resources manager.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


STATEMENT OF REASONABLE NECESSITY:  The department believes this rule is important because it emphasizes the state's commitment to diversity and to provide equal access to state employment, programs, and services.  The department, like other state and local governments and corporations around the country, has realized the value of a diverse workplace.  Diversity promotes innovation and problem solving by exploring different experiences and perspectives.  By embracing and capitalizing on individual differences, state agencies can discover more efficient ways of doing business and better meet the needs of our diverse customers.  This approach aligns the state's policy with the Montana Constitution, which recognizes an individual's inalienable rights, as well as individual dignity, and promotes compliance with 49-3-205, MCA, which prohibits discrimination in governmental services.  The policy adopts sexual orientation as a protected class to promote compliance with Executive Order 41-2008.  It identifies protected classes under this policy so that readers understand who is protected and what behaviors may lead to illegal discrimination.  The policy sends a strong message that agency managers are critical to promoting diversity and equal opportunity within their agencies.  This is important because agency managers are often in the best position to address and resolve inappropriate conduct and behavior within their work areas.  They also set the tone for the human relations climate within their work areas.  The rule identifies and allows those rare exceptions provided in federal and state laws, regulations, and policies where managers may make employment decisions based on otherwise protected classes.  Although rarely used, these exceptions are important in some situations.


2.21.4013  OTHER HARASSMENT  (1)  Harassment of employees, clients, customers, and any other persons because of a person's race, color, national origin, age, physical or mental disability, marital status, religion, creed, sexual orientation or political beliefs is prohibited.  It is the state of Montana policy to provide employees, clients, customers, and any other persons with a work environment free of these forms of harassment.

(2)  Examples of other prohibited harassment include, but are not limited to:

(a)  coercion of employees, clients, or customers in the participation or non-participation in religious activities; or

(b)  ethnic slurs, repeated jokes, innuendoes, or other verbal or physical conduct because of a person's nationality, race, color, age, physical or mental disability, martial status, religion, creed, sexual orientation or political beliefs if these actions create an intimidating, hostile or offensive working environment. 

(1)  Harassment, including sexual harassment, may consist of, but is not limited to oral, written, or electronic communications (e.g., voice mails, e-mails, text messages, or other social networking tools) in the form of repeated and unwelcomed jokes, slurs, comments, visual images, or innuendos based on a protected class.  Even mutually agreeable behavior, or behavior accepted between two or more people, can be offensive to others; for this reason it is prohibited in the workplace.

(2)  Sexual harassment is a form of discrimination that includes unwelcome verbal or physical conduct of a sexual nature when:

(a)  submission to the conduct is implicitly or explicitly made a term or condition of employment;

(b)  submission to or rejection of the conduct is used as the basis for an employment decision affecting the individual; or

(c)  the conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

(3)  Agency managers may not tolerate any behavior that negatively focuses on a protected class.  Although a behavior or pattern of behavior may not constitute illegal discrimination, it may still violate this rule.

(4)  Agency managers who observe behaviors that may be viewed as discrimination or harassment shall immediately stop the behavior and promptly notify their agency's EEO officer, ADA coordinator, or human resources manager.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


STATEMENT OF REASONABLE NECESSITY:  The department believes this rule is important because it provides specific examples of behaviors that may detract from a professional work environment or lead to workplace harassment.  It is important to address all forms of harassment, including sexual harassment, because federal and state laws recognize harassment as a form of discrimination.  For example, federal and state laws recognize sexual harassment as a form of sex discrimination.  It is important for employees to understand that agency managers will not tolerate harassment in any form, even if it does not rise to the level of illegal discrimination, because harassment is exclusionary, unprofessional, and hurtful.  Agency managers play an important role in preventing and addressing harassment, and this rule provides important guidance to managers who observe or become aware of potential harassment.


2.21.4014  RETALIATION  (1)  The state of Montana Agency managers may not retaliate or allow, condone, or encourage others to retaliate against any customer, applicant, or current or former employee for opposing unlawful discriminatory practices, filing a discrimination complaint, and/or testifying or participating in any other manner in a discrimination proceeding, including testifying in court.

(2)  Agency managers who become aware of retaliation shall immediately inform the agency's human resource manager, human resource staff, EEO officer, or ADA coordinator, who can advise management on the appropriate course of action.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


STATEMENT OF REASONABLE NECESSITY:  The number of retaliation claims has risen significantly at the federal and state levels over the past several years.  Although federal and state laws already prohibit retaliation, the department believes it is important to reinforce this prohibition.  This rule is necessary to inform employees and customers that they have the right to address discrimination and harassment concerns without fear of retribution.  Agency managers play an important role in preventing retaliation and must know what actions to take to stop it.  Retaliation breeds fear, subjects the state to liability, and undermines the complaint process.  The state cannot tolerate retaliation in any form.


5.  The department proposes to repeal the rules as follows:


2.21.4003  DEPARTMENT OF ADMINISTRATION ROLE found at page 2-1155 of the Administrative Rules of Montana (ARM).


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


2.21.4004  DEPARTMENT OR AGENCY ROLE found at ARM page 2-1156.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


2.21.4006  PRE-EMPLOYMENT INQUIRIES found at ARM page 2-1156.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


2.21.4007  PRE-EMPLOYMENT MEDICAL EXAMINATIONS found at ARM page 2-1157.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


2.21.4012  SEXUAL HARASSMENT found at ARM page 2-1157.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


STATEMENT OF REASONABLE NECESSITY:  As part of its required biennial review of rules, the Department of Administration proposes the repeal of ARM 2.21.4003, 2.21.4004, 2.21.4006, 2.21.4007, and 2.21.4012 as necessary to enhance flow of the rules and eliminate duplication of other rules or policies.  Some parts of the rules proposed to be repealed have been combined with other rules or replaced by new rules.


6.  Concerned persons may submit their data, views, or arguments, including comments on the proposed forms in NEW RULE III and NEW RULE VII, either orally or in writing at the hearing.  Written data, views, or arguments may also be submitted to John Pavao, Department of Administration, PO Box 200127, Helena, Montana 59620; telephone (406) 444-3796; fax (406) 444-0703; or e-mail jpavao@mt.gov, and must be received no later than 5:00 p.m., July 8, 2011.


7.  John Pavao, Department of Administration, has been designated to preside over and conduct this hearing.


8.  The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this department.  Persons who wish to have their name added to the mailing list shall make a written request which includes the name and mailing address or e-mail address of the person to receive notices and specifies that the person wishes to receive notices regarding State Human Resources Division rulemaking actions.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to the contact person in 6 above or may be made by completing a request form at any rules hearing held by the department.


9.  An electronic copy of this proposal notice is available through the department's web site at http://doa.mt.gov/administrativerules.mcpx.  The department strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that if a discrepancy exists between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.  In addition, although the department works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.


10.  The bill sponsor contact requirements of 2-4-302, MCA, do not apply.




By:   /s/ Janet R. Kelly                                         By:    /s/ Michael P. Manion                

         Janet R. Kelly, Director                                       Michael P. Manion, Rule Reviewer

         Department of Administration                            Department of Administration



Certified to the Secretary of State May 31, 2011.



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