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Federal employees are clearly not immune to this type of harassment. A 2015 study commissioned by the Equal Employment Opportunity Commission (EEOC) revealed out of 6,741 harassment complaints that year, 44 percent involved “alleged harassment on the basis of sex.” The actual number of federal employees who experienced sexual harassment in 2015 is undoubtedly higher than the nearly 3,000 people who filed claims to the EEOC that year, primarily because it has been a topic few have wanted to address until now.
According to a study regarding the subject issued on October 19, 2017 by the House of Representatives’ Committee on Oversight and Government Reform, there is no standard definition of sexual misconduct among federal agencies. Each agency has its own definition, which varies from vague to specific.
The EEOC – the primary administrative body for adjudicating discrimination and harassment claims, among other matters – defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.” The harassment can also include offensive remarks about someone’s gender. Additionally, the harassment can come from someone of the opposite or the same sex.
EEOC guidelines also state that the harassment is only illegal “when it is so frequent or severe that it creates a hostile or offensive work environment, or when it results in an adverse employment decision,” such as demotion or removal. The EEOC will not consider an offhand remark or an isolated incident as sexual harassment.
It should be noted that the EEOC does not define policies for federal agencies. Rather, its sexual harassment definition is applied to any claims that reach the point of adjudication.
Lack of defined penalties
Many federal agencies don’t have policies in place to deal with sexual harassment claims. According to the Committee on Oversight and Government Reform’s report, eight agencies did not have a “Table of Penalties,” and seven agencies did not address sexual misconduct in their Tables of Penalties. Additionally, those that did address the issue created broad disciplinary recommendations, ranging from verbal reprimands to removals. Without a clearly defined set of guidelines to follow, employees accused of sexual harassment or misconduct could face arbitrary punishments.
Taken together, a lack of a uniform definition of sexual harassment and a lack of a uniform policy to deal with sexual harassment claims makes it difficult for agencies to adequately handle an employee’s claim.
Lack of trust
The Committee on Oversight and Government Reform’s report also revealed a general reluctance by federal employees to report sexual harassment and misconduct. According to studies they cite in the report, approximately 30 percent of employees who experienced harassment discussed the matter with their supervisor, manager or union representative, and only 6-13 percent of individuals filed a formal complaint. Among the reasons cited why employees did not file or discuss a complaint were indifference from managers, trivialization of the complaint and the fear of hostility or retaliation.
The #MeToo Movement may yet change this attitude in the federal workplace, as it has in other areas of the workforce. With more people willing to share their sexual harassment stories, it may not be long before there is a significant increase in the number of people reporting harassment or misconduct issues.
What should you do
None of the above points should prevent you from reporting sexual harassment or misconduct when it’s directed against you. Report any such claims to your immediate supervisor, manager or union representative at the first instance in order to begin establishing a timeline. A timeline is important, since you can only establish a hostile workplace claim if the incidents are consistently repeated. If the person committing the harassment or misconduct is your supervisor, you should report it to another manager or your union representative.
If it is an isolated incident, the supervisor or manager should meet with you and the offending party separately to discretely get both sides of the story. Depending on the severity of the accusation, the supervisor or HR representative can choose to resolve the matter through mediation, reprimand, suspension or removal.
If the behavior reaches the point where a hostile work environment is established and your supervisor/HR representative has been ineffective in resolving the matter, there are two steps you should take. The first is to contact an experienced federal labor and employment law attorney and go over the timeline of complaints you have filed with your supervisor or HR representative. The second is to file a complaint with your agency’s EEO Counselor.
The EEO Counselor acts as an independent administrator. The counselor will review the case and complete an investigation within 180 days from when you filed your complaint. The counselor may also recommend an alternative dispute resolution, such as mediation, which can be conducted while the formal investigation continues. When the investigation is complete, the counselor issues a notice that gives you the choice of requesting a hearing before an administrative judge or a final decision. If a final decision is issued and it goes against you, you have the option of appealing the decision to the EEOC or taking the matter to federal court.
Having an experienced labor and employment attorney by your side during the formal complaint process is essential. An experienced labor and employment attorney will work with you to ensure you meet all of the filing deadlines and represent you before the EEOC or any federal appellate court. The attorney will also treat your case with discretion, so you can be assured that your confidential information will not be revealed to others.
Above all, do not allow sexually harassing behavior to persist. If you are the victim of harassment or misconduct by a co-worker, say something and get it on the record. You have the power to stop this behavior in its tracks. That is, in essence, what the #MeToo Movement is about.
Ryan C. Green, Esq. is a Partner at Tully Rinckey PLLC’s Washington, D.C. office. He focuses his practice on labor and employment law, representing employees in a range of issues including harassment, discrimination, retaliation, equal pay and adverse action claims.