Sexual Harassment & Sexual Assault in the Federal Government Workplace
Posted By fedpractice || 8-Feb-2018
Sexual harassment, and sometimes even sexual assault, in the workplace occur no matter where you work, including the federal government. Despite the incredible progress women have made in the federal government over the past few decades, the existence of agency policies, and the prevalence of training, this illegal behavior still takes place.
Title VII of the Civil Rights Act of 1964 makes sexual harassment at work illegal, as it has been held by the U.S. Equal Employment Opportunity Commission (EEOC) and federal courts to constitute a form of sex discrimination. No one should have to work in a hostile environment where they are exposed to unwanted sexual advances. Sexual harassment of subordinates by supervisors can make climbing the career ladder especially treacherous, as retaliation for protesting sexual harassment is also all too common.
Federal employees, like other workers in this country, are protected against sexual harassment. If you are subject to sexual harassment, sexual assault or discrimination, there is a strict process for reporting the incident, filing a complaint and seeking a remedy.
What Constitutes Sexual Harassment in the Federal Government Workplace?
The federal government prohibits sexual harassment of any kind in its workplaces, but often federal employees are uncertain of what constitutes sexual harassment and when harassment rises to the level of being illegal. The EEOC issues guidances and decisions on sexual harassment, and is usually the best place for a federal employee to look for direction on understanding how sexual harassment is defined under the law. The EEOC’s definition of sexual harassment includes the following elements:
- First and foremost is conduct or comments based on sex versus some other factor. This is often clear because of the sexual nature of the comments or conduct.
- The conduct must also be “unwelcome” to be sexual harassment. In other words, while two co-workers mutually and consensually flirting with each other or going on dates together is not sexual harassment, if one co-worker asks the other to stop, but the conduct continues, it then becomes sexual harassment. In cases where the harasser is a supervisor, the question of whether the conduct was “unwelcome” is always at issue because of the inherent power a supervisor has over a subordinate.
- Also, to be sexual harassment, the unwelcome conduct must be either sufficiently “severe or pervasive” such that it affects the terms or conditions of an individual’s employment. The term severe is used in the typical way, and the EEOC has found sexual harassment severe when it includes inappropriate touching, like shoulder rubs or hugs, and certainly any type of sexual assault.
- The term pervasive means that the conduct occurs frequently. For example, if a male employee tells a female employee that she is attractive and asks her on a date, it is considered to be an isolated incident. However, if every Friday for six weeks the male employee tells a female employee she is attractive and asks her on a date, it becomes pervasive.
- Sexual harassment is also considered illegal if it is what used to be referred to as “quid pro quo” harassment, which is when, for example, a promotion is offered in exchange for a sexual favor or a promotion is denied because a sexual advance is rebuffed.
Examining the Nuances of Federal Government Employee Sexual Harassment Policies
In real life, what constitutes sexual harassment is not always so straightforward, as what occurs in real life does not always fit neatly into the boxes offered on EEO complaint forms. Some common issues causing confusion include:
- The sexual harasser may be, and often is, the supervisor, within the chain of command or in a senior management/leadership position within the agency. However, sexual harassment can also violate Title VII if the sexual harassment is committed by a supervisor in a separate area or division, a co-worker or even someone who is not a federal employee but who is in the workspace, like a consultant or contractor.
- If the harassment is committed by someone other than the victim’s supervisor, and the victim complains, the agency may be liable if it fails to promptly correct the situation. The EEOC has stated that “promptly” means taking action within a matter of hours or days, not weeks or months.
- An employee can be the victim of sexual harassment even if that person is not the actual target of the sexual harassment if they are impacted by the offensive conduct. For example, in often male-dominated workplaces, such as many federal law enforcement environments or mechanic shops, sexual jokes or stories told between male peers but in front of a female colleague can give rise to a sexual harassment claim.
- A consensual relationship can turn into sexual harassment once the consent ends. The fact that two individuals once had a consensual personal or sexual relationship doesn’t make sexual behavior or comments “welcome” after that relationship ends, or even after one person in the relationship has said something like “not at work” with regard to flirtatious comments or actions.
- That the harasser and the victim of the harassment are the same or opposite sex is not necessarily important to whether illegal sexual harassment occurred. The key is whether the offensive conduct was sexual in nature. It would be illegal for a heterosexual woman to sexually harass another heterosexual woman by sharing inappropriate stories or images, for example. Likewise, sexual orientation is not necessarily relevant to whether sexual harassment occurred.
- Women are not the only potential victims of sexual harassment. It is also unlawful to subject men in the workplace to sexual harassment.
Also, harassment generally, when not based on a protected class such as sex or race, is not always unlawful in a federal government workplace, even though it may violate agency policy. Comments do not have to be of a sexual nature to be considered illegal harassment, but they do have to have a connection to sex to be illegal. Saying things to a woman, for example, that are offensive to women in general, e.g., women belong at home, can be illegal sex-based harassment even if it is not sexual harassment.
What Should You Do If You’ve Been or Are Being Sexually Harassed or Sexually Assaulted?
Sexual harassment violates Title VII of the Civil Rights Act of 1964 and is unacceptable and illegal in federal government workplaces. Whether the harassment creates a hostile work environment or sexual assault takes place, there are remedies for victims and there should be consequences for perpetrators. If you’ve been sexually harassed or assaulted by a supervisor or colleague, there are steps you can take protect yourself and your career and reputation.
Know Your Rights as a Federal Employee Under the Federal Government Sexual Harassment Policy!
You should understand what rights you have when it comes to federal government workplace harassment. Consider the following tips and guidance to help navigate this tricky time.
Make a Record
If there is one takeaway for federal employees from James Comey’s termination, it is to document what occurred when something seems off. Memories fade and details can become fuzzy, especially when you are stressed, and one inappropriate incident that seems isolated at the time might become part of a pattern.
It is a good idea to write down things like the time, date and place of any incident of sexual harassment for your own reference or possibly as evidence should you need to pursue an EEO complaint. You may be asked for these details many times as you pursue justice. You want to make sure you have them right. Add as many specifics as you can, including:
- What was said or done
- Any witnesses to the incident and who was involved
- How the incident of harassment affected your work or yourself, e.g., if you had to take sick leave, had trouble sleeping, etc.
Reporting the Harassment Is Not the Same As Filing an EEO Complaint
If you report to your supervisor that a co-worker is sexually harassing you or report to Human Resources that your supervisor is sexually harassing you, the agency is obligated to make a prompt inquiry into your allegations and take corrective action. However, reporting the sexual harassment is not the same as filing an individual EEO complaint. Filing an EEO complaint is the only means through which a victim of sexual harassment can obtain relief such as compensatory damages.
Federal Employees Must Initiate Contact With an EEO Counselor at Your Agency Within 45 Days
Unlike in the private sector, where employees have 180 days to file a sexual harassment complaint, to file a timely EEO complaint, federal employees must initiate contact with an EEO Counselor at your agency within 45 days of the most recent episode of harassment or what is called a “discrete act,” such as a non-promotion decision or change to your duties.
The Agency Should Move or Reassign the Harasser, Not the Victim of the Harassment
Upon receiving a report of sexual harassment, the agency should take measures to separate the victim from the harasser while it conducts an inquiry.
The EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors provides that an agency may need to take intermediate action pending the investigation of a claim, such as transferring the alleged harasser, to ensure further harassment does not occur, and specifies that the victim should not be involuntarily transferred or otherwise burdened, because such measures could constitute unlawful retaliation.
There Is No Federal Agency Where Sexual Harassment Is Legal
There is no amount of sexual harassment at work in the federal government that should be tolerated. All federal government agencies are required by law to have sexual harassment policies which, at a minimum, should include:
- A explanation of what actions, conduct and comments constitute sexual harassment;
- A statement explaining that federal employees who complain of sexual harassment or serve as a witness in a sexual harassment complaint are protected from retaliation;
- A clear description of the agency’s EEO complaint process;
- A statement that the agency will keep any complaints of sexual harassment confidential;
- Information on the agency’s requirement to provides a prompt, thorough and impartial investigation of any sexual harassment complaints, regardless of whether the victim files an EEO complaint;
- A statement that the agency will take immediate corrective action if its inquiry shows harassment did occur.
If your agency fails to have a sexual harassment policy or fails to distribute and/or post the policy, it may be liable for that failure.
Can Someone Retaliate Against Me for Reporting Sexual Assault or Harassment? Will I Get Fired?
Just as Title VII of the Civil Rights Act of 1964 makes sexual harassment illegal, it also makes sexual assault complaint retaliation illegal. You cannot legally lose your job for reporting sexual harassment, even if you decide not to pursue an EEO complaint or the EEOC later dismisses your complaint, for whatever reason.
It is against the law for employers, including federal agencies, to retaliate against employees who bring discrimination complaints or who report or oppose sexual harassment in the workplace. Victims and witnesses who participate in the investigation of sexual harassment or who testify at an EEOC hearing or otherwise participate in the EEO process cannot be penalized for doing so.
If your agency retaliates by changing your duties, reassigning you or disciplining you, among other adverse actions, because of your participation in a sexual harassment complaint or EEO investigation or EEOC hearing, you will have a serious claim against the agency. Any action taken by the agency or your supervisor that can be deemed retaliation for your complaint is against the law.
If you are facing retaliation, you have 45 days from the retaliatory act to contact an EEO Counselor to initiate an informal EEO complaint or to amend your existing EEO complaint to add a claim of retaliation.
Is There Confidentiality in This Process? Will My Colleagues, Family or the General Public Know?
The EEO process is confidential, but the relevant responsible management officials and witnesses will be contacted as part of the process, and thus they will likely learn of your claims. Nevertheless, the proceeding is not open to the public, and the Privacy Act protects you against having your supervisors, for example, discuss your complaint with their colleagues or your co-workers.
Have Other People Been Successful in These Cases? Am I Fighting an Uphill Battle?
The best way to evaluate the potential success of your EEO complaint is to talk with an attorney experienced in handling sexual harassment complaints against the federal government. An experienced attorney will understand the severity of your situation and could discuss with you how your complaint might be resolved and what relief you are entitled to receive.
While these are tough cases to bring against the federal government, having an attorney by your side can make the process less stressful.
Do I Need a Lawyer for an EEOC Complaint for Sexual Assault in the Workplace?
You are not required to have a lawyer to represent you when you file an EEO complaint. Getting a lawyer to represent you is a good idea, however, for a number of reasons:
- Sexual harassment and sexual assault are emotional issues. In the course of resolving your EEO complaint, you will have to describe the incident(s) several times and may be upset or offended by how others, including the alleged perpetrator, characterize what happened. An attorney can provide objective representation because they are not emotionally involved in the situation.
- The EEO process can be difficult to navigate, and following it up with the best legal decisions to protect your rights can be complicated. Knowing whether to request a hearing before the EEOC can be a matter of understanding the most successful legal strategy to pursue in your case. An experienced attorney can better protect your rights and fight for a positive resolution of your complaint than you.
- Your career with the federal government could be seriously impacted by the handling and outcome of your EEO complaint. Having a lawyer to represent you throughout the process can ensure your rights and the future of your career are protected.
- Bringing a complaint against the federal government can feel like a David vs. Goliath match-up if you are not represented by counsel. Having your own legal representation will help balance the scales.
- Failure to follow procedures or meet deadlines can get your complaint dismissed before it is even investigated. At many points in the process, if you make a mistake in procedure, your case may be over before you even get your day in court. It would be in your best interest to have a lawyer familiar with the EEO process and the EEOC’s procedures to handle your complaint. An attorney can get you the best possible outcome.
If you are the victim of sexual harassment or sexual assault in the federal government workplace, contact The Federal Practice Group. We protect the rights of federal employees against sexual harassment, discrimination and retaliation.