@StateDept to Hold “Harassment in the Workplace” Session But First, Read This FSI Sexual Harassment Case

Posted: 3:40 am ET

 

For those attending the event, here are a few items to read though this is not an exhaustive list. Help us ask these presenters questions that State/PA and State/DS have long ignored:

While we are on the subject, let us revisit a classic case of sexual harassment, where the State Department, specifically one of the presenting offices in the January 11 session had determined that “the alleged acts of sexual harassment did not occur” only to be reversed by the EEOC.

On January 4, 2012, Complainant filed Complaint 24 alleging that the Agency discriminated against her based on her national origin (Arabic/Iraqi), sex (female), religion (Christian), color, and in reprisal for prior protected EEO activity under Title VII when:

3. Her teaching contract was not renewed after August 5, 2011;

4. She was subjected to a hostile work environment characterized by, but not limited to, name calling and sharing an office.  She specifically asserted that since her conversion to Christianity, she was taunted by her Iraqi colleagues, who called her a “peasant,” a “prostitute,” a “bitch,’ and a “daughter of a dog.” She asserted further that she had been told that she had “sold her religion” and had a shoe thrown at her.  Complainant further asserted that she had been the victim of an unsolicited sexual overture by a colleague; and

5. On September 23, 2011, she was not selected for a full time teaching position.

The Agency completed its initial investigation on Complaint 1 in November 2012.  It did not complete an investigation on Complaint 2.  On Complaint 2, according to the Agency, Complainant did not submit an affidavit for the investigation.  Around that time – on March 14, 2013 – Complainant signed forms withdrawing Complaints 1 and 2.5  The Agency ceased processing Complaint 2, but went ahead and issued a FAD on Complaint 1 on May 13, 2013.

In its FAD, the Agency found no discrimination on Complaint 1.  Complainant filed an appeal.  On appeal, the Agency did not note that Complainant previously withdrew her complaint.

In EEOC Appeal No. 0120132236 (May 16, 2014), we recounted that Complainant was provided the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge, but there was no evidence she did so.  We reversed the FAD on the ground that the investigation was inadequate.  Unaware that that Complainant withdrew Complaints 1 and 2, we ordered the Agency to do a supplemental investigation and to consolidate Complaint 2 with Complaint 1 if the Agency was still processing Complaint 2 and had not yet issued a final decision thereon.

In its request for reconsider EEOC Appeal No. 0120132236, the Agency argued that it issued its FAD on Complaint 1 in error, and that Complainant previously withdrew Complaints 1 and 2.  It submitted a copy of its letter to the EEOC compliance officer about the withdrawal of Complaint 1, and Complainant’s signed withdrawals.  We denied the request on the ground that it was untimely filed, and repeated our order in EEOC Appeal No. 0120132236.

Following a supplemental investigation on Complaint 1, the Agency issued a new FAD finding no discrimination therein.  The Agency found that Complainant was not denied the opportunity to attend training and to proctor tests, and the alleged acts of sexual harassment did not occur.  The Agency recounted that it ceased processing Complaint 2 after she withdrew it.6

The EEOC’s decision says that the “Complainant was not subjected to discrimination regarding issue 2” but it determined that “Complainant was subjected to discrimination based on her sex regarding issue 1 – sexual harassment.”

This case which was filed in 2010 was decided by the EEOC on July 7, 2016. Six years. The State Department was ordered to take the following remedial actions within 150 days after the decision became final, and was directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.”  The report shall include supporting documentation of the agency’s calculation of back pay and other benefits due complainant, including evidence that the corrective action has been implemented.”

1. The Agency is directed to conduct training at FSI, School of Language Studies for all management and staff in the Arabic Section.  The training shall focus on how to identify and prevent sexual harassment connected with employment.14

2.  If S2 is still employed with the Agency, it shall consider taking disciplinary action against him.  The Agency shall report its decision.  If the Agency decides to take disciplinary action, it shall identify the action taken.  If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.

3.  The Agency shall gather evidence on compensatory damages, including providing Complainant an opportunity to submit evidence of her pecuniary and non-pecuniary damages regarding being sexually harassed.  For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.)  Thereafter, the Agency shall calculate damages, pay Complainant any damages awarded, and issue a new FAD on damages appealable to the Commission.

The State Department was also directed to post the EEOC order:

The Agency is ordered to post at its Foreign Service Institute, School of Language Studies copies of the attached notice.  Copies of the notice, after being signed by the Agency’s duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted.  The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material.  The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled “Implementation of the Commission’s Decision,” within 10 calendar days of the expiration of the posting period.

We should note that the EEOC decision includes reference to Coworker 1’s Excel spreadsheet “which contained significant incidents.”

If you were at FSI in 2016, were you aware of this case and compliance to this order?  We should also add that the EEOC cited its own Report of the Select Task Force on the Study of Harassment in the Workplace (June 2016), which found that “much of the harassment training done over the last 30 years has been ineffective in preventing harassment.”

We strongly recommend that prior to conducting the training, those responsible for doing so review the EEOC’s Report of the Select Task Force on the Study of Harassment in the Workplace (June 2016), which found that much of the harassment training done over the last 30 years has been ineffective in preventing harassment. See https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm,

Training Must Change. Much of the training done over the last 30 years has not worked as a prevention tool – it’s been too focused on simply avoiding legal liability. We believe effective training can reduce workplace harassment, and recognize that ineffective training can be unhelpful or even counterproductive. However, even effective training cannot occur in a vacuum – it must be part of a holistic culture of non-harassment that starts at the top. Similarly, one size does not fit all: Training is most effective when tailored to the specific workforce and workplace, and to different cohorts of employees. Finally, when trained correctly, middle-managers and first-line supervisors in particular can be an employer’s most valuable resource in preventing and stopping harassment.

Below is a lengthy summary of this case with the incidents dating back years according to eeoc.gov. We recognized that this is difficult and disturbing to read, but we think that it serves a purpose to post this in its entirety. The original decision is available to read here:

In October 2009, under authority of the Agency’s formal anti-sexual harassment policy, the Agency’s Office of Civil Rights completed a comprehensive sexual harassment inquiry into allegations of harassment in the Arabic Section.  Detailed signed and dated declarations were taken from the two alleged victims – Complainant and Coworker 1 (another contract Arabic Section instructor), the alleged perpetrator – S2, and 15 Arabic Section witnesses.  Documentation was also collected.  The Agency’s remand supplemental investigation on sexual harassment mainly consisted of incorporating this inquiry.8

Complainant started working in the Arabic Section in April 2008.  The following paragraphs below recount her declaration account.  She was discussing students in S2’s office in May 2008, when S2 said “give me a kiss, to your Uncle.” She responded “what? I don’t even give kisses to my blood relative Uncle,” and S2 laughed, trying to pass it off as a joke.  While it was normal for a supervisor to observe Complainant’s classes, around this time S2 started doing this so frequently that a student asked her about it.  By June 2008, S2 started asking her to come to his office with excuses such as talking about a student or teaching.  S2 would ask Complainant to tell him Iraqi jokes, which are usually sexual and dirty, and would tell her some Iraqi jokes. In response to S2’s request, Complainant said she did not know any Iraqi jokes, and was upset.  In his office in June 2008, S2 said to Complainant let’s go to a restaurant to talk about her contract with a sexually suggestive look in his eyes.9 After learning that Complainant applied for a direct contract with FSI, S2 was surprised and said let’s go out and celebrate, and she said no, and asked S2 why he asks her out.

In October 2008, S2 asked Complainant “how do you feel about sex? Did you have sex before marriage?” and “if you don’t do it (sex) with men, than do you do anything with women?” S2 told Complainant women with women or men with me is very common in Iraq and Kuwait, and she responded that she did not know of this and had other issues to concern herself with.  In October 2008, S2 also asked Complainant if she saw any sexual movies lately, especially ones with women with women.  Complainant told S2 no, was shocked, and S2 continued that lots of stores sell these kind of sexual movies and asked if there were sex movies in Iraq.  Complainant responded that she did not know and women do not know about these things.

One day in (December 2008) after they finished testing students on the 2nd floor, S2 got up and pinched her cheeks and kissed her forehead.10  Another time in December 2008, S2 told Complainant “one of my friends told me that Iraqi men like to do things from behind (sex).  When she responded this was very dirty, S2 said “oh, you haven’t done this before?” and “it’s nice to try (having sex) with women to women, but men to men isn’t so nice.”  In February 2009, Complainant met S2 in an office on the first floor so she could obtain an Arabic keyboard, and when the person went to another room to get it, S2 put his hand on Complainant’s “butt and touched it.”  Complainant asked “what are you doing,” and he said “oh, sorry, my hand just went the wrong way.” In March 2009, S2 came to Complainant’s office and after asking how she was doing, took her hand and started to put it on his penis.  She pretended she did not know what S2 was doing and pulled her hand away, but he was trying to force it on his penis.

In May 2009, S2 told Complainant he could make sure her contract with FSI was renewed if she was smooth with him (nice – giving him what he wanted), but if she was strong with him he would kick her out of FSI.  In May 2009 S2 said to Complainant “Oh [name], let’s go to a hotel,” and she responded “Hotel? What are we going to do in a hotel?” S2 replied “don’t think I’m going to fuck you” and Complainant said “what?!” S2 said he wanted to go to the hotel to talk about students and her contract.  After Complainant did not give a straight answer, S2 everyday asked her if she decided yet and what she thought before he went on a trip – about a three week period.

In her declaration,11 Coworker 1 also detailed allegations of sexual harassment from 2004 to May 2009, against S2, who was one of her supervisors.  The following paragraphs are a summary of some of the incidents in Coworker 1’s declaration account.  After being invited to restaurants by S2 with coworkers, the harassment began.  In the Spring of 2004, following a celebration in FSI, S2 ran after her saying he wanted to tell her something and said “by the way, I am a licker and your boobs turn me on and I’m very good at sucking nipples and boobs.”  She was embarrassed and walked away quickly.  In the same Spring S2 asked about a birth mark on Coworker 1’s upper chest, to which she responded by dressing more modestly.  After lunchtime in the Fall of 2004, S2 rubbed his private organ against her buttocks at parking lot gate 5.  When S2 touched her, Coworker 1 would tell him to stop.  In the Fall and Winter of 2004, at two specified restaurants, whenever she went to the buffet S2 would follow her close and over complimented her on her appearance.  At a specified restaurant in the Winter of 2004, S2 quickly touched his private parts on her buttocks at the buffet.  S2 continued to invite Coworker 1 to restaurants, and she repeatedly refused.  In a second floor hallway in the Spring of 2005, Coworker 1 asked S2 about Coworker 2’s whereabouts, an Agency Instructor of Arabic Language and Culture, and S2 responded by asking if they were both lesbians. Coworker 1 was disgusted by the remark.

In the Winter of 2005, in the FSI parking lot, S2 asked Coworker 1 to go with him to a hotel room.  In the Spring of 2006 in the kitchen/pantry room S2 used one hand to grab one of her breasts and then moved back as if nothing happened.  She said “are you crazy?!” and S2 replied “Oh [name], you always turn me on.” In the Fall of 2006, while riding an elevator to the Testing unit, S2 impulsively and quickly grabbed Coworker 1’s buttocks.  She stopped riding the elevator with him.  On many occasions, Coworker 1 asked S2 to leave her alone and stop his dirty and forbidden behavior – he replied these are small sins.  S2 once suggested that he did not want sexual intercourse, but “just liked playing.” In S2’s office in September 2008, S2 told Coworker 1 that “he’s a licker, and he’s very good at sucking nipples and breasts.” Coworker 1 suggested this was in response to her telling him to leave her alone and stop his dirty behavior.  In March 2009, after calling Coworker 1 into his office to discuss testing training, S2 told her the Sudanese slang terms for vagina, breasts, buttock and penis, asked her for the equivalent in her Tunisian dialect, and told her dirty jokes and asked her what dirty jokes she knew.  S2 also looked toward Coworker 1’s vagina and asked “how is it doing?” When S2 did these things, Coworker 1 would always ignore him and shut him out.  In an undated instance, in the FSI kitchen S2 tightly grabbed Coworker 1’s hand and started to pull it down to rub his penis and she strongly resisted.12  In May 2009, when Coworker 1 was in front of S2’s office, he winked and looked at her in a suggestive manner.

Complainant indicated that she confided to an Agency Language and Culture Instructor (Coworker 3), who became her friend.  He was with FSI since 1988.  According to Coworker 3, Complainant told him that S2 made a pass at her when he said “give your uncle a kiss,” that S2 frequently visited her class, that he asked her to tell him some dirty Iraqi jokes, that he pinched her cheeks once when she tested with him, that he grabbed her hands and put them on his penis, that S2 asked her to go to a hotel room with him to talk about her contract, and when she said no replied “What? Do you think I’m going to fuck you?” Coworker 3 related that Complainant said she was scared by the penis incident, and that she shook every time she told him of these incidents, and she raised these things with him throughout months.  In his declaration, which was written in August 2009, Coworker 3 wrote Complainant raised the penis incident about two months prior (the incident allegedly occurred in March 2009).  S/ROI, 109 – 115.  Coworker 4 related that in July or August 2008, Complainant told her that when she was in S2’s office he asked her to go out socially and could give her a job at FSI.  Coworker 4 stated Complainant expressed that S2 implied it was not just a friendly invitation.  Coworker 4 stated that Complainant asked him why S2 would do this, saying “who does he think I am? I’m a married woman!” Coworker 4 wrote that Complainant was very distressed and nervous.  S/ROI, 184, 187.

Coworker 1 stated that she confided to coworkers about being sexually harassed by S2 – discussing specified incidents.  This is corroborated by statements of coworkers, one of whom indicated the confiding started in 2004.  S/ROI, at 126 – 128.

In 2004, S4 started with FSI as a contractor and became an Agency Language Training Supervisor in January 2008.  S4 stated that she had no reason to doubt the truth of Coworker 1’s statement.  She explained that S2 has a tendency to tell bad jokes about women’s body parts from the waist down, that she heard them, and that S2 likes to joke depending on whether the listener tells him to stop or not.  S4 wrote that once S2 told her he was in love with her, and when she told him to stop S2 rephrased his statement and said he loved her like a daughter.  S4 stated that she noticed that S2 tells his jokes to contractors, not direct Agency employees, and as soon as she transitioned to his colleague and a direct hire S2 stopped telling her these jokes.  S/ROI, 161 – 162.

S2 strongly denied Complainant and Coworker 1’s allegations of sexual harassment, categorically denying in detail each incident presented to him.  He also denied S4’s account.  Below are examples of his denials regarding Complainant.  S2, who is from Sudan, does not know anything about Iraqi culture, does not know Iraqi jokes, and would never ask someone to tell him a joke, let alone an Iraqi joke. He only sat in Complainant’s classes maybe twice and she expressed to him that she wanted supervisors to visit her classroom so they could see her level of teaching, and he told her he would do so when he had time.  Complainant sits with others in her office, there are 12 – 13 teachers in offices all around hers, and he never went to her office while she was alone and forcefully guided her hand to his penis and would never do this.  He never asked Complainant to go to a hotel to talk about her contract and did not even know there was a hotel near FSI.  S2 denied ever raising women having sex with women with Complainant, saying this is a taboo topic.  S2 questioned Complainant’s emotional stability, and noted she shook with anger when he pointed out grammatical and spelling errors in an article she wrote.  Complainant came to his office numerous times complaining about her colleagues, and early on she repeatedly raised her contract with him.

The record reflects that S2 had an open door policy, was jovial and outgoing, and instructors frequently visited his office, both individually and in groups, male and female. He stated everyone had equal access to his time.  Numerous instructors provided declarations and none stated they witnessed S2 engage in any of the sexually harassing incidents recounted by Complainant and Coworker 1, and many specifically stated they did not.  While Coworker 1 wrote that Coworker 2 told her she witnessed the Fall 2004 incident of S2 rubbing his private organ against Coworker 2’s buttocks at the parking lot gate, Coworker 2 denied witnessing any of the behavior Coworker 2 told her about, or anything inappropriate.  S/ROI at 127.

A number of witnesses stood up for S2’s character.  For example, Coworker 5, an Agency Instructor of Arabic Language and Culture, stated S2’s office is always flooded with instructors because he is so kind, people are always smiling and laughing there, and S2 has honor and integrity.  Coworker 5 stated S2’s jokes are always clean, and up to the time Coworker 1 stopped going to S2’s office (around April or May 2009), she was always smiling and laughing and happy to be there.  He stated S2 is involved in the Sudanese community, and serves as an elder to help reconcile families. S/ROI, 117 – 119.  Coworker 6, a contract Culture and Language Instructor stated that when Complainant went to S2’s office, she seemed to be happy and talking.  S/ROI, 152.  A lead Training Specialist stated that S2’s jokes to him and in front of others were not about female body parts, and are not inappropriate.  S/ROI, at 107.  S3 stated S2 is a man of honor.

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