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Sexual Harassment

Experienced Federal Employment Attorneys

Federal Employee Rights: Sexual Harassment & Sexual Assault in the Federal Government Workplace

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?

Sexual harassment in the federal government is strictly forbidden, but is not always clearly defined. While most believe that with sexual harassment, “you will know it when you see it” or experience it, this is not always the case. The EEOC, which adjudicates sexual harassment and other discrimination complaints filed by federal employees, defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that are sufficiently severe (typically any physical contact/inappropriate touching, and certainly any assault, is considered “severe”) or pervasive (meaning occurring frequently, meaning more than isolated incidents spread out in time) to affect an individual's terms or conditions of employment. This means that, to be illegal, the sexual harassment must interfere with an employee’s performance, create an intimidating, hostile, or offensive work environment, or actually affect an individual’s salary, position, duties, advancement opportunities, etc.

In real life, this 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 that:

  • The sexual harasser can be, and often is, the victim's supervisor, within the chain of command, or in a senior management/leadership position within the agency, but sexual harassment can also be illegal if it is done by a supervisor in another area or division, a peer, co-worker, or a non-employee (e.g., a contractor or consultant). In cases where the harassment is being done by someone other than the victim’s supervisor, the agency can be liable for sex discrimination if it fails to promptly correct the situation.
  • The victim does not have to be the actual target of the sexual harassment, but could be anyone affected 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.
  • The fact that the harasser and victim at some time had a consensual sexual or personal relationship does not mean that the harassing behavior is “welcome” after the consent ends. For example, if a male and a female employee go on a few dates together, or even have a months’ long relationship, this does not permit the male employee to make flirtatious comments at work unless the female employee welcomed and consented to this conduct.
  • Sexual harassment is illegal whether the harasser is the same or opposite sex as the victim. Sexual orientation is not necessarily relevant. For example, a heterosexual woman could sexually harass another heterosexual woman by sharing inappropriate stories or images.

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!

  • Make a record. If there is one take-away 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 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 to file a sexual harassment complaint, to timely file an EEO complaint, federal employees must initiate contact with an EEO Counselor at your agency within 45 days of the most recent incident 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 Supervisorsprovides 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, and no amount of sexual harassment that should be tolerated. All federal agencies have anti-harassment policies which, at a minimum must contain: (1) a clear explanation of what constitutes prohibited conduct; (2) assurances that employees who bring complaints of harassment or provide information related to such complaints will be protected against retaliation; (3) a clearly described complaint process that provides possible avenues of complaint; (4) assurance that the employer will protect the confidentiality of harassment complaints to the extent possible; (5) a complaint process that provides a prompt, thorough, and impartial investigation; and (6) assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.” If your agency fails to have a policy or fails to disseminate and/or post the policy, it may be liable for that failure.

 

What Will Happen to My Job? Will I Get Fired or Retaliated Against for Reporting the Incident(s)?

Just as Title VII of the Civil Rights Act of 1964 makes sexual harassment illegal, it also makes retaliation for reporting sexual harassment 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?

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 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 affected 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 us today for a consultation. We protect the rights of federal employees against sexual harassment, discrimination and retaliation.

Debra D'Agostino

Debra D’Agostino, a Founding Partner of the Federal Practice Group and leader of the firm’s federal employment law team, focuses on providing representation to federal employees in a wide range of matters against federal agencies, including EEO complaints and U.S. Equal Employment Opportunity Commission (EEOC) hearings, U.S. Merit Systems Protection Board (MSPB) appeals, U.S. Office of Special Counsel (OSC) complaints, and replying to proposed adverse actions or disciplinary actions. She has more than 20 years of experience in this complicated area of the law and has obtained multiple successful outcomes for her clients, including findings of liability in discrimination claims and reversals of adverse actions such as removal from federal service. Additionally, Ms. D’Agostino has successfully represented clients in appellate matters before the EEOC’s Office of Federal Operations, the MSPB, and the U.S. Court of Appeals for the Federal and D.C. Circuits.

Ms. D’Agostino is routinely looked to by her peers for her niche expertise in representing federal employees, including those in the intelligence community (IC) who work at agencies including the Central Intelligence Agency (CIA), Defense Intelligence Agency (DIA), and the National Security Agency (NSA). In 2016, she was selected to be part of a focus group run by the Government Accountability Office to review the best method to implement the Whistleblower Protection Enhancement Act of 2012. The report was sent to the Senate Committee on Homeland Security and Government Affairs and the House Committee on Oversight and Government Reform. Ms. D’Agostino has been invited to speak before multiple federal employee organizations including Blacks in Government (BIG), at the Federal Dispute Resolution (FDR) Conference, and at events hosted by the Federal Circuit Bar Association, of which she is a member.

Ms. D’Agostino is on the Board of Directors of the Metropolitan Washington Employment Lawyers Association (MWELA) and is a member of the National Employment Lawyers Association (NELA). For the past several years she has been recognized for her skill as an attorney by being named to the Super Lawyers list for Washington, DC. Ms. D’Agostino is also a AAA certified mediator.

Ms. D’Agostino earned her Juris Doctorate with honors from the George Washington University Law School, and her B.A. from New York University. She is admitted to practice in the U.S. Supreme Court, the U.S. Court of Appeals for the Federal, D.C., and 4th Circuits, and to practice law in D.C. and New York.

Heather White

Heather White is a Partner with the Federal Practice Group. She specializes in federal sector employment litigation, practicing before the EEOC, the MSPB, the D.C. Office of Employee Appeals, the D.C. Office of Human Rights, as well as local and federal courts in civil rights, anti-discrimination and personnel/civil service cases. She is admitted to practice law in New York and Washington, D.C., and before the U.S. District Court for the District of Columbia. She has also appeared pro hac vice before the U.S. District Court for the Eastern District of Virginia. Ms. White is a member of the Metropolitan Washington Employment Lawyers Association, the D.C. Bar’s Employment Law section, and the New York State Bar Association. Ms. White has served as a faculty member at the EEOC’s Annual EXCEL Conferences, and has served a presenting panel member at the 2011 and 2017 MWELA Conferences in Washington, D.C.

Prior to joining the Federal Practice Group, Ms. White specialized in federal sector and private sector employment litigation. She has represented federal employees in EEO complaints and MSPB appeals, in federal court and in administrative proceedings. Ms. White has represented federal employees in proceedings before Administrative Judges in Washington, D.C., Baltimore, Atlanta, Dallas, Denver, and San Francisco. Her practice has often involved factually-related EEO complaints filed by employees of the same repeat-offender federal agencies. She has also represented federal contractors seeking to vindicate their rights to a safe and discrimination-free workplace.

Ms. White’s first job after law school was with a Union-side law firm in Upstate New York which specialized in labor law and employment litigation before the National Labor Relations Board, the New York State Division of Human Rights, and federal and state courts.

Ms. White graduated from The College of William & Mary in Virginia (B.A., 1995) with Honors in International Relations (specializing in Russian Area studies). She earned a graduate degree at Georgetown University, also in Russian and Eurasian Studies (M.A.,1998). She attended Tulane University Law School (J.D., 2003), completing Tulane’s common law curriculum. During all three years of law school, she clerked for the Innocence Project New Orleans, a non-profit legal organization specializing in non-DNA-based exonerations of people wrongfully convicted and sentenced to life without parole in Louisiana state prisons. In 2003 she was awarded Tulane’s McSherry Award for Outstanding Public Service for her years of work with IPNO. Ms. White also served as the Senior Articles Editor of Tulane’s Journal of American Arbitration. She is the author of Clear and Unmistakable: The Third Circuit’s Specificity Requirements for Contractual Waiver of the Federal Arbitration Act, 1 J.Am. Arb. 285 (2002).

Ricardo J. A. Pitts-Wiley

Ricardo J.A. Pitts-Wiley is a partner at the Federal Practice Group and has more than 15 years of experience in the areas of federal sector employment and labor law.

Mr. Pitts-Wiley provides representation to federal employees in a wide range of employment and labor matters, including discrimination, harassment, reasonable accommodation, family and medical leave, performance-based actions, conduct-based actions, ethics, security clearance, collective bargaining agreement violations, debt collection, whistleblower retaliation, inspector general investigations, Freedom of Information Act, Privacy Act, disability retirement, retirement annuity calculations, and unemployment insurance appeals. He has significant experience representing clients at various stages of the administrative process, as well as during settlement negotiations and mediations.

Mr. Pitts-Wiley has practiced numerous times before the U.S. Equal Employment Opportunity Commission, the U.S. Merit Systems Protection Board, the U.S. Office of Special Counsel, as well as before Federal and District of Columbia courts.

Prior to joining the Federal Practice Group, Mr. Pitts-Wiley worked for three Washington, D.C. law firms, with a focus on employment law. He also served as General Counsel for a Rhode Island-based nonprofit organization, where he managed a myriad of issues ranging from corporate tax and securities to copyright and trademark, to performance art contracts. Previously, he worked as an Associate and Senior Associate in the labor and employment law department of a New York-based law firm. At the outset of his professional career, Mr. Pitts-Wiley ascended from paralegal to law clerk, and to law associate with a boutique D.C.-based law firm specializing in federal employment and labor law. He also worked for a D.C non-profit organization which operated an employment legal clinic for low-income workers.

Mr. Pitts-Wiley received his Juris Doctor from American University’s Washington College of Law in Washington, D.C. While pursuing his law degree, he participated in the clinical program and, as a student-trial attorney, he represented local residents in the Montgomery County District Court of Maryland. He holds dual Bachelor of Arts degrees in Public Policy Studies as well as African & African-American Studies from Duke University in Durham, North Carolina.

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