EEOC: Sexual Harassment Compensatory Damage Award After a 7-Year Saga

 

 

Via EEOC Nancey D. v. Dep’t of Justice, EEOC Appeal 2019005600:
Commission Increased AJ’s Compensatory Damage Award to $100,000.
The AJ found that Complainant’s supervisor subjected her to sexual harassment, including instances of unwanted touching, inappropriate comments, and requests for dates and sex.  As relief, the AJ, among other things, awarded Complainant $80,000 in nonpecuniary compensatory damages.  The Commission increased the award to $100,000 on appeal, noting that amount was more consistent with amounts awarded in similar cases.  The record showed that Complainant was diagnosed with PTSD and Severe Depression as a result of her supervisor’s sexual harassment over a three-year period.  Complainant underwent treatment for these conditions including medication and counseling.  Complainant testified that she suffered humiliation, anger, panic attacks, withdrawal, weight fluctuation, migraines, erratic sleeping patterns, and frequent crying spells.   The Commission concurred with the  AJ that the weight of the evidence adequately tied the harm directly to the harassment.  The Commission affirmed the AJ’s award of $2,877 in past pecuniary damages, and $2,500 in future pecuniary damages.  Nancey D. v. Dep’t of Justice, EEOC Appeal 2019005600 (Sept. 14, 2020).
This is a DOJ/Bureau of Prisons sexual harassment case. We are highlighting it here to point out that a 7-year saga awarded a $100,000 in compensation amounts to $39 a day in damages.
That’s $91.32 day for each day in the 3-year period the individual was subjected to harassment by her supervisor.

This case was originally filed on June 21, 2013, when Complainant filed a formal EEO complaint claiming that she was repeatedly harassed on the bases of her race (African-American), sex (female), and in reprisal for prior protected EEO activity when she was subjected to sexual comments, gestures, and emails, as well as rumors of a sexual nature.

On August 7, 2019, the Agency issued a final order fully adopting the AJ’s decision and award of remedies.

On appeal, Complainant, through counsel, requests an increase in the damage awards. Specifically, Complainant requests $34,854.36 in past pecuniary damages (covering past prescriptions and counseling) and $16,000 in future pecuniary damages (covering future counseling sessions). Complainant reasons that her award for past pecuniary and future pecuniary damages should have included the full price for the medical expenses and not limited to the co-payments for the medical expenses. Regarding her request for an increase in non-pecuniary damages, Complainant reasons that the AJ’s $80,000 award should be increased to $100,000 to conform with the Commission’s prior damages decisions at the present-day value. Alternatively, Complainant argues that her nonpecuniary damages award should be increased to $190,000 to compensate for sexual harassment she endured from 1998 to 2010 during the period that she and AW were co-workers. Therefore, Complainant argues that the AJ incorrectly limited her sexual harassment claims to the period that AW was her supervisor and did not account for AW’s sexually-charged conduct that occurred twelve years before 2010.

 

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EEOC: @StateDept Liable For Supervisor’s Harassment of Pregnant Subordinate at US Mission/UNVIE

Via EEOC: Cecille W. v. Dep’t of State, EEOC Appeal No. 2019001540 (Aug. 19, 2020).
Sex Discrimination & Sexual Harassment Found.  Complainant, an Assistant Public Affairs Officer, filed a formal complaint alleging that the Agency discriminated against her on the basis of sex (pregnancy) when her work responsibilities were altered; she received written performance counseling; and she was subjected to a hostile work environment, including receiving inappropriate comments and being excluded from meetings and emails.  On appeal, the Commission found that Complainant was subjected to discrimination and harassment as alleged.  The record showed that Complainant’s work duties were altered due to her pregnancy, and the Agency incorrectly concluded otherwise.  Complainant’s supervisor specifically stated that she could not supervise Complainant if Complainant was pregnant, and Complainant then ceased performing tasks that were under the supervisor’s purview.  The Agency also excluded Complainant from certain weekly meetings at the supervisor’s request.  The Agency conceded that Complainant was subjected to harassment based on sex that affected a term or condition of her employment.  The Commission found that the Agency was liable for the harassment.  The Commission noted that the Agency could not use an affirmative defense because Complainant’s changed work duties constituted a tangible employment action.  Furthermore, even if there were no tangible employment actions, the Agency failed to take prompt and effective action when it failed to fully remove the responsible management official from supervisory authority over Complainant.  The Agency was ordered, among other things, to investigate Complainant’s claim for compensatory damages, and reinstate Complainant’s assignments.  Cecille W. v. Dep’t of State, EEOC Appeal No. 2019001540 (Aug. 19, 2020).
This Assistant Public Affairs Officer’s EEO case was investigated by the State Department (that would be S/OCR).
“The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination or harassment as alleged.”
BUT.
The EEOC found that the Complainant “has proven that she was discriminated against and subjected to a hostile work environment based on her sex as alleged.”
The Commission concluded that “Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein” and reversed the Agency’s final decision.
It also remanded the case to the State Department for further processing in accordance with its decision and remedial actions ordered to include among other things, complainant’s entitlement to compensatory damages, disciplinary actions against responsible management officials, and a requirement of “no less than eight (8) hours of appropriate in-person or interactive training to the management officials involved in this case regarding their obligations under Title VII with special emphasis on harassment and responding to claims of harassment.”‘
Note that EEOC cases have randomly assigned pseudonyms which replace Complainants’ names when decisions are published to non-parties and the Commission’s website.
Excerpts:

At the time of events giving rise to this complaint, Complainant worked as an Assistant Public Affairs Officer (APAO), FS-04, at the Agency’s U.S. Mission to International Organizations in Vienna, Austria.

Complainant identified her first-level supervisor (S1), a Public Affairs Officer (PAO), as the individual who discriminated against and subjected her to a hostile work environment.

Complainant stated that over a series of days in early October 2017, following S1’s miscarriage, S1 sent Complainant Facebook messages discussing S1’s miscarriage, desire to curtail, and disappointment with how she felt that Complainant was treating her. Complainant averred that prior to October 2017, she and S1 were friends. However, S1 informed Complainant that she could no longer supervise her following her miscarriage and Complainant’s pregnancy.
[…]
On October 30, 2017, Complainant and S1 participated in mediation. Following the mediation, the mediator expressed concern that due to personal circumstances, S1 was hypersensitive to remarks and interaction with Complainant. The mediator stated that the it was “clear that [S1] rationalized her decisions as business appropriate and not based on personal situations.” The mediator added that S1’s remarks and the timing of events made it clear that S1 wanted to minimize contact with Complainant, however, it “look[ed] on face value as an effort to remove [Complainant] from places [S1] is attending and appears to lessen the exposure of [Complainant] to people and meetings she attended for over a year and a half.”

On November 3, 2017, management officials counseled S1, stating that they did not believe that S1 could properly carry out her supervisory responsibilities if she minimized direct contact with Complainant. Management officials informed S1 that excluding Complainant from Senior Staff meetings and removing her from the Senior Staff distribution list was inappropriate. On November 6, 2017, Complainant informed Human Resources officials that she was removed from her social media duties and inquired about what options were available.

On November 15, 2017, the Chargé d’Affaires informed Complainant that she wanted Complainant to attend Senior Staff meetings but did not feel the same way about the PAS meeting. She acknowledged that Complainant was experiencing a very difficult situation, stating “we know it is a bad situation and we want to, and are trying, to find a solution.” On the following day, Complainant informed the Chargé d’Affaires and S2 that the daily situation was worsening and complained of minimal communication from S1 and uncertainty about her portfolio because S1 outsourced areas of her portfolio. Complainant added that S1 did not talk to her, make eye contact, or provide information. In response, the Chargé d’Affaires informed Complainant that “if a simple solution existed, it would have been found and acted upon immediately.” She assured Complainant that she was involved in daily meetings and discussions to find a solution.

On November 20, 2017, Agency officials informed Complainant that her rater would be changed from S1 to S2. Further, coordination between Complainant and S1 would be conducted through email. Finally, Complainant would continue to attend Senior Staff meetings.

On November 30, 2017, Complainant reported that S1 remained in a position “where she is exercising biased supervision and decision-making over my work.”

On December 13, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (pregnancy) when:

1. On October 15, 2017, Complainant’s work responsibilities were altered;

2. In October 2017, Complainant received written performance counseling; and

3. Complainant was subjected to a hostile work environment, characterized by, but not limited to inappropriate comments and being excluded from meetings and emails.

[…]
The Agency has already conceded in its final decision that Complainant established the first four elements of her prima facie hostile work environment case. The Agency held that Complainant failed to establish that it was liable for the hostile work environment, as it had established an affirmative defense. However, with respect to vicarious liability, element (5), the affirmative defense is not available to the Agency because we have found that S1’s actions culminated in a tangible employment action, changed worked duties.

Moreover, even if there was no tangible employment action, we find that the Agency failed to take prompt and effective action when it was notified of S1’s harassment of Complainant. While we acknowledge that the Agency initiated an informal investigation, counseled S1, and instituted a “carve-out” for evaluation purposes, we find that these actions were insufficient to meet the Agency’s full responsibility to take appropriate corrective action. ROI, at 500-501, 548-549, 599- 600, 621-623. Specifically, the Agency failed to fully remove S1 from supervisory authority over Complainant. According to counseling notes, it was S1 who stated that she did not want to rate Complainant and Agency officials initially encouraged S1 to work with Complainant despite the Agency’s contention that it did so at Complainant’s request. ROI, at 538-540. For example, on November 3, 2017, the Agency counseled S1 regarding her supervision of Complainant and instructed S1 to “provide regular guidance and coaching to help her develop professionally.” Id. at 538. The record further shows that S1 still exercised some level of control over Complainant’s work beyond November 2017 when the Agency changed Complainant’s rater.

For example, S2 “counseled [S1] to let Complainant know if there was action she should be taking that she was not” in December 2017. ROI, at 554. Even in January 2018, S1 continued to email Complainant in a supervisor capacity. Id. at 313-314. The record reflects that although S1 was removed from completing Complainant’s rating, S1 continued to harass Complainant. Complainant indicated that she reported the harassment, but it continued. Taking only some remedial action does not absolve the Agency of liability where that action is ineffective. Logsdon v. Dep’t of Justice, EEOC Appeal No. 0120081287 (Apr. 23, 2009).

The Agency asserted that it further took detailed and effective action when Complainant was offered an alternative position, which she declined, as a solution to her concerns. However, remedial measures should not adversely affect the complainant and Complainant viewed the offer as punitive. Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999), at 28-9. If it is necessary to separate the parties, then the harasser should be transferred (unless the complainant prefers otherwise). Id. The Agency did not move S1, despite requests from Complainant and S1, until April 2018 while Complainant was on maternity leave. We find that the Agency failed to take prompt and effective action. Accordingly, we find that the Agency is liable for S1’s harassment of Complainant. For the foregoing reasons, we find that Complainant has proven that she was discriminated against and subjected to a hostile work environment based on her sex as alleged.

CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency’s final decision and REMAND the matter to the Agency for further processing in accordance with this decision and the ORDER below.

ORDER The Agency is ordered to take the following remedial action:

1. Within ninety (90) calendar days from the date this decision is issued, the Agency shall conduct a supplemental investigation of Complainant’s entitlement to compensatory damages. The Agency is directed to inform Complainant about the legal standards associated with providing compensatory damages and give Complainant examples of the types of evidence used to support a claim for compensatory damages. Complainant shall be given 30 calendar days from the date she receives the Agency’s notice to provide all supporting evidence of her claim for compensatory damages. Within thirty (30) calendar days of the date the Agency receives Complainant’s submission, the Agency shall issue a new final decision determining Complainant’s entitlement to compensatory damages, together with appropriate appeal rights.

2. Within ninety (90) days of the date this decision is issued, provide no less than eight (8) hours of appropriate in-person or interactive training to the management officials involved 9 2019001540 in this case regarding their obligations under Title VII with special emphasis on harassment and responding to claims of harassment. The Commission recommends that the Agency review the following EEOC publication: Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors (June 18, 1999).

3. The Agency shall consider taking disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. 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. If any of the responsible management officials have left the Agency’s employ, the Agency shall furnish documentation of their departure date(s).

4. Within thirty (30) days of the date this decision is issued, the Agency shall reinstate Complainant’s assignments changed by S1 and remove all documentation and references to the October 2017 written performance counseling from all personnel records, including Complainant’s official personnel files.

5. The Agency shall post a notice in accordance with the Posting Order below. The Agency is further 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 verifying that the corrective action has been implemented.

Read the full case here: Cecille W. v. Dep’t of State, EEOC Appeal No. 2019001540 (Aug. 19, 2020).

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What was the cause for “universal revulsion and anger” at one post?

13 Going on 14 — GFM: https://gofund.me/32671a27

 

Via FSGB Case No. 2020-009 | Interim Decision | February 4, 2021
Held –The Department of State (“Department) met its burden of proving that grievant committed one specification of Improper Personal Conduct, and one charge of Notoriously Disgraceful Conduct. The Department also established that the conduct showed poor judgment and lack of discretion, and that such misconduct had an impact upon the efficiency of the Service. The Department did not meet its burden of proving the charge of Inappropriate Comments and one specification of Improper Personal Conduct. The case was remanded to the Department to re- determine an appropriate consequence in light of the Board’s findings.
Case Summary – Grievant, a married Senior Foreign Service officer, while serving as Management Counselor at the U.S. Embassy REDACTED, was accused of sexual harassment based on inappropriate statements he reportedly made to female colleagues and conduct considered professionally improper. Grievant also appeared in a video published on a local website showing grievant and a local national woman seated together in the driver’s seat of a vehicle on a public road. The website article identified grievant as a foreign diplomat and commented on foreign diplomats and young host country women. Grievant later admitted to having an extramarital affair with the woman in the video, who was employed as a nanny by one of grievant’s subordinates. Grievant requested a voluntary curtailment because of the negative response by members of the embassy community concerning the video and to attend to a family illness.
The Department’s Office of Civil Rights (S/OCR) investigated the sexual harassment allegations and forwarded its report to the Bureau of Human Resources (HR). Based on the findings of the S/OCR and after consideration of a description of the video showing grievant with the foreign national woman in the car, the Department proposed to suspend grievant for eight days without pay as discipline for Inappropriate Comments (three specifications), Improper Personal Conduct (two specifications), and Notoriously Disgraceful Conduct.
Grievant challenged the suspension proposal, however, it was sustained by the Department. After a grievance was denied, grievant appealed to the Foreign Service Grievance Board that found that the Department met its burden of proving that grievant committed one of two acts of Improper Personal Conduct and he engaged in Notoriously Disgraceful Conduct. The Board remanded the case to the Department for reconsideration of the proposed discipline in light of the Board’s decision.

Charge 3: Notoriously Disgraceful Conduct

The Department contends that grievant’s conduct, captured in the video which showed a young woman sitting in front of grievant in the driver’s seat while driving a car, had a negative impact upon mission morale. The Department noted that this video appeared on a popular local website and the existence of the video and its content were widely known within the mission. Grievant also admitted that he was having an extramarital affair with the woman who appeared with him in the video who was employed as a nanny for the family of one of grievant’s subordinates in the mission. The Department cites a statement by the CLO that both grievant’s family and the post family that employed the woman who appeared in the video were deeply affected. Grievant claims that his wife was aware of the relationship and argues that the video did not explicitly show his involvement in a sexual relationship. Nonetheless, the Department concluded that the video exposed the close relationship grievant was engaged in with the nanny of his subordinate, thereby embarrassing his colleagues, his family, and the mission.
[…]
With respect to the Charge of Notoriously Disgraceful Conduct, the Department notes that grievant admitted to having an extramarital affair with the woman in the video and the S/OCR report specifically corroborated that the video was publicized in the media in the host country. The Department argues that the physical closeness exhibited between grievant and the woman in the video, the nanny of one of his subordinates, and grievant’s admission that he was engaged in an affair with the woman, demonstrated his failure to maintain the high standard of conduct required of Foreign Service employees representing the U.S. abroad. The Department also points out that all new Foreign Service employees are briefed about their role representing the U.S. government abroad and the expectation that each maintain the highest standard of conduct demonstrating integrity, reliability and prudence whether at work or during their non- work hours. Further, the publication of the video resulted in embarrassment to others in the mission and disrupted grievant’s effectiveness as Management Counselor because his colleagues and supervisees refused to work with him. In fact, the Department points out that the publication of the video partially motivated grievant to request voluntary curtailment from post, thereby detrimentally affecting management operations at post.
[…]
Grievant maintains that the disciplinary action against him is unwarranted and that the statements upon which the charges and specifications are based are factually inaccurate and mischaracterized. He argues that the Department cannot meet its burden to establish that he engaged in Notoriously Disgraceful Conduct (Charge 3). Moreover, grievant argues that the proposed discipline is excessive for the alleged offenses, that the DO did not give adequate weight to several mitigating factors in his case, and that the penalty, therefore, is unreasonable.
[…]
Grievant maintains that the Department cannot meet its burden of proving that he engaged in Notoriously Disgraceful Conduct, as defined in the regulation. Grievant acknowledges that he did have an extramarital affair but maintains that it was discreet, not conducted publicly, not disgraceful but, instead, it was a meaningful relationship.

[…]
The FAM definition of notoriously disgraceful conduct is normative; that is, it is defined by the reaction to the conduct. In the instant matter, grievant is charged with engaging in an extra-marital affair with a local national woman, which was publicized by inference in a video on local media. Thus, grievant’s conduct is notoriously disgraceful because, were it widely known, it would embarrass or discredit him, the embassy, and the United States, or would subject them to censure or opprobrium. Grievant’s argument that the video was posted to a non- mainstream sensationalist website is unavailing, as the Department does not need to prove that grievant’s extramarital affair was in fact widely known or published by a widely-accessed medium, only that, if known, it would cause the concerns described in the regulation. In fact, though, the Department describes the internet website where the video was posted as popular and the record shows that it was sufficiently well-known that the embassy community quickly saw it, identified grievant and the nanny, and reacted negatively. Judging from the strong negative reaction, described by the Deputy Chief of Mission as “universal revulsion and anger,” we are satisfied that if evidence of the affair and the circumstances were widely known in the host country, a socially conservative country, the embassy and the United States would have been embarrassed and likely censured.
[…]
According to the S/OCR investigator, interviews with the Management staff revealed that the disclosure of the video made grievant’s “relationship with his subordinates irreparably bad [and] … brought forth a torrent of further negative reporting from across the mission about [grievant’s] behavior and his interpersonal skills.” Agency-Level Grievance Decision at 15. In the aftermath of the release of the video, grievant agreed to work from home and discontinued any contact with his subordinates or others at the embassy. Grievant also admitted that he ultimately voluntarily curtailed from post in part due to release of the video, even though the official rationale was listed as his mother’s health situation. The embassy had the unanticipated absence of a key senior official who supervised a large staff and provided administrative services to 15 U.S. government agencies. It is clear to the Board that the evidence supports the Department’s conclusion that grievant’s appearance in the video and his extramarital affair with a subordinate’s nanny led to his discredit as a senior embassy official within the mission and possibly in the wider community; adversely affected the embassy’s ability to carry out its responsibilities when grievant could no longer perform his job.

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Snapshot: Top Five Bureaus & Posts With the Highest Number of Sexual Harassment Complaints (2014-2017)

Via State/OIG:

Related post:
State/OIG Releases Long-Awaited Report on @StateDept Handling of Sexual Harassment Reports

 

 

 

State/OIG Releases Long-Awaited Report on @StateDept Handling of Sexual Harassment Reports

On October 2, 2020, State/OIG released its long-awaited report on the State Department handling of sexual harassment, including sexual assault reports in the agency. The IG reviewed the extent to which employees report sexual harassment, how the agency addresses reports, and the extent that State ensures consistent outcomes for individuals found to have engaged in such harassment.
The report notes that both Acting IG Stephen Akard, and his replacement, Acting IK Matthew Klimow “recused themselves from this review and delegated final clearance authority to Deputy IG Diana Shaw.” It looks like this review as initiated by State/OIG in early 2018. The report says that the issuance of this report was delayed because of “the lapse in OIG’s appropriation that occurred from December 21, 2018, through January 25, 2019, as well as the COVID-19 pandemic and resulting operational challenges.” We’re curious what happened to this report after the shutdown in January 2019 and before the pandemic was declared on March 11, 2020.
The Office of Civil Rights’ (S/OCR) response to this IG report is dated August 24, 2020; DGHR’s response is dated September 8, 2020.
Sexual harassment, generally a violation of civil laws, while sexual assault usually a reference to criminal acts (penetration of the victim’s body, also known as rape; attempted rape; forcing a victim to perform sexual acts, such as oral sex or penetration of the perpetrator’s body; fondling or unwanted sexual touching.
Within State, per 3 FAM 1711.2 says sexual assault is a form of sexual harassment.  Per 3 FAM 1712.2-4, S/OCR has the responsibility for investigating or overseeing investigations of alleged sexual harassment, which may include sexual assault. OIG report notes that it does not generally investigate claims of sexual harassment itself because OCR is specifically designated in the FAM as the responsible entity for investigating alleged sexual harassment. If the allegations rise to the level of a sexual assault, S/OCR will refer the allegations to DS/DO/OSI.
This report is distressing to read, and the underreporting is understandable. Of the 24 cases where misconduct allegations including sexual assaults were substantiated, we don’t know how many were criminally charged. One? None?

(font in blue, lifted from the report)

Office of Civl Rights (S/OCR), Office of Special Investigations (DS/OSI), and Conduct, Suitability, and Discipline Division (GTM/CSD)

      • lacks coordination guidance
      • lacks inter-operability of reporting systems
      • tracking system sucks
      • lacks updated supervisory guides
      • lacks data on the consistency of investigative and disciplinary processes
      • lack timeliness standards 

“OIG could not assess the timeliness of sexual harassment cases because the offices did not have timeliness standards. Additionally, lack of reliable and comprehensive data hampers the Department’s ability to effectively oversee and administer efforts to address sexual harassment.”
[…]
OCR, OSI, and CSD have individual systems to track and monitor sexual harassment cases, but the systems do not track similar data or share data with each other. For example, each office uses different identification numbers for the cases and different names for the subject’s bureau, office, or post. Additionally, OCR and CSD use different definitions when tracking sexual harassment cases. […] the three systems do not share data among each other and the other offices relevant to the disciplinary process. OCR, OSI, and CSD officials stated that only staff of the individual offices have access to the office’s data system and that the offices do not grant access to each other.
[…]
Because the offices lack a mechanism for tracking sexual harassment cases from intake until the final disciplinary action, OIG was not able to determine the length and disciplinary outcomes of all sexual harassment and sexual assault reports to OCR and OSI from 2014 to 2017.

S/OCR investigated just 22% of complaints for possible violations of Department policy

Of the 636 complaints of sexual harassment that OCR received from 2014 to 2017, OCR investigated 142 (22 percent) as possible violations of Department policy.

Top Five Bureaus and Posts With the Highest Number of Sexual Harassment Complaints From 2014 to 2017

      • Consular Affairs
      • Diplomatic Security
      • US Embassy Baghdad, Iraq
      • US Embassy Kabul, Afghanistan
      • Foreign Service Institute

CA, DS, Embassy Kabul, Chennai Consulate, and the Bureau of Overseas Building Operations represented the five bureaus and posts with the highest number of investigations.

Top Five Sexual Assault Complaints by Regional Bureau From 2014 to 2017

      • South and Central Asian Affairs
      • European and Eurasian Affairs
      • Near Eastern Affairs
      • East Asian and Pacific Affairs
      • Western Hemisphere Affairs
      • African Affairs
      • Domestic

Of the 106 complaints received during the relevant time period, 16 were still under investigation; of the 90 investigations OSI had completed, 24 cases (27 percent) had some kind of substantiated misconduct. […] However, this does not mean that 24 cases of sexual assault were confirmed; rather, it means that during the investigation, OSI concluded that some type of misconduct or criminal activity occurred and it was referred it to CSD for possible disciplinary action. In other words, OSI may receive an allegation of sexual assault and, during the investigation, obtain evidence that some other form of misconduct occurred.

Reporting on sexual harassment (63%) and sexual assaults (71%) are up but there are concerns of significant underreporting

According to information obtained by OIG, both through data collection and through interviews with Department employees, reports of sexual harassment increased from 2014 to 2017. OCR officials told OIG that this trend appears to be continuing. Additionally, one employee group expressed concern that sexual harassment is significantly underreported at the Department.

According to OCR data, reports of sexual harassment increased by 63 percent from 2014 to 2017, from 128 reports in 2014 to 209 reports in 2017. An OCR official told OIG that this increase may reflect an increased willingness to report sexual harassment based on an increased focus within the Department on the issue.

Reports of sexual assault have increased as well; OSI data shows a 71 percent increase in the number of reports of sexual assault from 2014 to 2017.

For overseas employees, a bigger challenge

Current and former Department employees interviewed by OIG expressed the belief that, for employees serving overseas, there are no mechanisms in place to hold embassy management accountable for failing to address sexual harassment at post.
[…]
According to OCR data, OCR received 636 complaints of sexual harassment from 2014 to 2017. That’s an average of 212 complaints a year. Of the 636 complaints, 441 originated at overseas posts. An average of 147 cases a year.
[..]
From the beginning of 2014 until the end of 2017, OSI received 106 reports of alleged sexual assault. […] Of the 106 complaints received during the relevant time period, 16 were still under investigation; of the 90 investigations OSI had completed, 24 cases (27 percent) had some kind of substantiated misconduct.
[…]
For cases opened before 2018, OSI did not track substantiated sexual assault allegations as a separate category so OIG could not identify the precise number of sexual assaults.

Underreporting due to lack of confidence in its resolution, fear of retaliation

Based on interviews and the survey of Department employees, OIG identified a number of factors that may contribute to underreporting, including lack of confidence in the Department’s ability to resolve complaints, fear of retaliation, and reluctance to discuss the harassment with others. Of the 154 survey respondents who responded that they experienced or observed sexual harassment within the last 2 years, 73 responded that they did not report the incident to OCR or DS. When asked why they had not reported incidents, of those 73, 25 employees agreed that they did not think that reporting would stop the sexual harassment; 19 employees agreed that they were afraid of retaliation; and 25 employees agreed that they did not want to discuss the incident (see Table 2).

… of the survey participants who experienced or observed sexual harassment but did not report it to OCR or DS, 34 percent stated that they did not do so because they did not think reporting would stop the harassment.

Lack of protection for complainants

Employees who were interviewed and survey respondents stated that another likely cause of underreporting is fear of retaliation. Interviewees told OIG that they do not believe that OCR will protect their identities during the course of the investigation if they do decide to speak out.
[…]
According to the FAM, “the Department will seek to protect the identities of the alleged victim and harasser, except as reasonably necessary (for example, to complete an investigation successfully).” 3 FAM 1525.2-1(d). According to OCR’s guidance for harassment inquiries, however, upper-level management (such as CSD) may need to know the victim’s identity in order to assess the disciplinary action. CSD and L/EMP officials told OIG that employees accused of sexual harassment are entitled to procedural due process if CSD proposes discipline. For sexual harassment cases, this means that the accused receive the OCR investigative file that includes all victim and witness statements, including their names; for sexual assault cases, the discipline package includes OSI’s report of investigation.

“Corridor Reputation”

Employees in interviews also expressed fear that reporting sexual harassment could harm their careers, either through overt retaliation or through the creation of a negative stigma and damage to the reporter’s “corridor reputation.”

One group representing Department employees told OIG that employees who experience sexual harassment are fearful that reporting it will cause their colleagues to view them as “troublemakers.”

Another employee group told OIG that the Foreign Service is a fairly small organization and reporting sexual harassment could give employees a poor reputation that will “follow them to future posts.”

Advised Against Reporting Sexual Harassment

…some Department employees told OIG that they were advised not to report the harassment that they experienced. Four survey respondents who experienced or observed sexual harassment stated that they did not report after being told not to do so.

Intake until Final Action: Length Varied from 139 days to 1,705 days

On average, OIG’s selected cases took 21 months to move from intake to resolution.54 The length of cases varied from 139 days (i.e., almost 5 months) to 1,705 days (i.e., over 4 years)

Final Disciplinary Actions for Selected Cases Ranged from No Action to Suspension

Final disciplinary decisions for OIG’s selected sexual harassment cases ranged from no action to suspension. Although the Department had proposed discipline for 11 of the 20 cases, only 5 resulted in implementation of the disciplinary action.

For example, one case resulted in no action taken after FSGB overturned the Department’s disciplinary decision to issue a Letter of Reprimand. For the three cases resulting in resignations, CSD had decided on either suspensions or separations but ultimately reached negotiated settlements for resignation. One individual retired after receiving CSD’s proposed decision, and another retired as CSD was reviewing the case. According to CSD officials, individuals who retire before a final disciplinary decision do not have the proposal or disciplinary decision included in their official personnel file.

2010-2020! Hello!

CSD has not updated the Foreign Service supervisory guide since 2004 and the civil service supervisory guide since 2007 to reflect sexual harassment policy changes. The supervisory guides aim to help supervisors and managers identify and address conduct and performance problems. The guides discuss the supervisor’s responsibilities, the disciplinary process, and certain types of misconduct. The guides do not, however, explain that supervisors are required to report allegations or observations of sexual harassment to OCR, although doing so has been a requirement in the FAM since 2010.

State/IG surveyed 2000 randomly selected employees and got a 27% response rate

OIG randomly selected 2,000 Department direct-hire employees who were employed as of October 1, 2018. OIG conducted a pre-test of the survey with 20 of the randomly selected employees. OIG surveyed the remaining 1,980 employees and received “undeliverable” responses from 215 email accounts.  A total of 479 employees responded to the survey, accounting for a 27 percent response rate.
[…]
Several factors may have affected the response rate: lack of access to Department e-mail during the 5-week lapse in appropriations; the sensitive nature of the subject; and employees being out of the office during the timeframe.4 Additionally, due to limited resources, OIG did not select a sample of respondents to validate their survey responses. OIG’s statistician analyzed the data by reviewing the responses of survey respondents. OIG also interviewed 10 employees who contacted OIG to share their personal experiences with sexual harassment at the Department. Additionally, OIG interviewed employee groups representing Department employees for additional employee perspectives on sexual harassment.

Related posts from 2014-2016:

 

Sexual Harassment in the Federal Government: Public Comments #FedMeToo

 

This is a follow-up to our posts on the U.S. Commission on Civil Rights’s  examination of sexual harassment in the federal government.  The Commission specifically examined agency-level practices to address sexual harassment at the U.S. Department of State and the National Aeronautics and Space Administration (NASA).
The U.S. Commission on Civil Rights (USCCR) says that the testimony from their May 2019 briefing and public comments “will inform” their 2020 report “to Congress, the President, and the American people regarding the federal government’s response to sexual harassment in the federal workplace.”
USCCR has now made available the public comments sent to the Commission.
Note that S/OCR is one of those offices that report directly to the Secretary of State,
Also, left on its own, we don’t think the State Department would willingly release the victims of harassment, discrimination or assaults from the Non Disclosure Agreements signed.  It is left to the U.S. Congress to mandate such a release, as well as require the Department to make public the cost of these taxpayer funded-settlements each fiscal year.
Individual 2: FSO-01 with 17 years in the Foreign Service and six years of active duty in the U.S. Military

 

Individual 3: Retired FSO (2006-2017) with 16 co-signers

 

Individual 5: FSO for Locally Employed Staff

FSO, assault survivor

Senior Litigator at the Justice Department, stalked by supervisor for over a year
Related posts:

USCCR will accept public comments by an anonymous author in #sexualharassment inquiry

Help Fund the Blog Diplopundit 2019 — 60-Day Campaign from June 5, 2019 – August 5, 2019

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This is a follow-up post to USCCR extends comment period for sexual harassment inquiry to Monday, June 25th and U.S. Civil Rights Commission Examines Sexual Harassment in Federal Govt (State, NASA) #FedMeToo.

We asked the USCCR how federal employees can protect themselves from potential retaliation from their agencies, and still be able to contribute to the Commission’s inquiry on sexual harassment in government offices. We understand that some State Department employees may also be tied  up with NDAs that may prevent them from discussing some details (for instance sensitive or classified locations, etc). We were also interested in learning if the Commission is also looking into practices at other agencies, and if so, which agencies are also being looked at (besides NASA and the State Department).

Below is the response we received from USCCR:

The US Commission on Civil Rights will accept public comments by an anonymous author. In regard to the application of non-disclosure agreements (NDA’s) the Commission cannot provide legal advice. We recommend that an individual who is a party to an NDA consult an attorney.

As far as what our investigation entails we are looking at the Equal Employment Opportunity Commission’s (EEOC) enforcement efforts to combat workplace sexual harassment across the federal government, including the frequency of such claims and findings of harassment, the resources dedicated to preventing and redressing harassment, and the impact and efficacy of these enforcement efforts. The investigation and subsequent report will also examine agency-level practices to address sexual harassment at the U.S. Department of State and the National Aeronautics and Space Administration (NASA).

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USCCR extends comment period for sexual harassment inquiry to Monday, June 25th

Help Fund the Blog Diplopundit 2019 — 60-Day Campaign from June 5, 2019 – August 5, 2019

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This is a follow-up to our post: U.S. Civil Rights Commission Examines Sexual Harassment in Federal Govt (State, NASA) #FedMeToo

The U.S. Commission by unanimous vote extended the public comment period for its sexual harassment in the federal workplaces investigation from June 10th to Monday, June 25th.

The Commission is seeking to learn more from the public about sexual harassment in the federal government, including:

  • the culture surrounding the reporting of harassment in federal agencies,
  • the reporting process,
  • and new tools that can be used to address the issue.

The Commission will now accept written materials for consideration as we prepare our report on the subject. Please submit no later than June 25th, 2019 to sexualharassment@usccr.gov or by mail to: Staff Director/Public Comments, U.S. Commission on Civil Rights, 1331 Pennsylvania Ave. NW, Suite 1150, Washington, DC 20425. Testimony from this briefing and public comments will inform our 2019 report to Congress, the President, and the American people regarding the state of sexual harassment in the federal government.

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U.S. Civil Rights Commission Examines Sexual Harassment in Federal Govt (State, NASA) #FedMeToo

 

On May 9, 2019, the U.S. Commission on Civil Rights held a public hearing in Washington, D.C. to examine the Equal Employment Opportunity Commission’s (EEOC) enforcement efforts to combat workplace sexual harassment across the federal government, including the frequency of such claims and findings of harassment, the resources dedicated to preventing and redressing harassment, and the impact and efficacy of these enforcement efforts. The briefing also examined agency-level practices to address sexual harassment at the U.S. Department of State and the National Aeronautics and Space Administration (NASA). Commissioners heard from current and former government officials, academic and legal experts, advocates, and individuals who have experienced harassment.

Below is the video of the event. The State Department portion starts at the 2 hour mark. After listening to the State Department representative OCR’s Gregory Smith presentation in this hearing, we’re now actually curious about the kind of training he is talking about. It almost sound as if he’s waving the State Department training as a magic wand.  And after everything he said during the hearing, we are no closer in understanding what specifically is involved in their sexual harassment training.

Also, apparently, according to the State Department rep, they “strongly enforced” steps against people taking any type of retaliation but … admitted under questioning by the USCCR that “no one has been  fired” for retaliation (3:07 mark). Well, now …

Jenna Ben-Yehuda, the President and CEO of the Truman National Security Project and a former State Department employee also spoke at this hearing as well as Stephen T. Shih, NASA’s Associate Administrator for Diversity and Equal Opportunity.  Both were impressive.  This is worth your time, and don’t miss the Q&A at the end.

Morning Session: https://www.youtube.com/watch?v=K0GjPYRAsHQ . (includes State, NASA Reps)
Afternoon Session: https://www.youtube.com/watch?v=OOZqWFIimoQ (includes CRS rep, NSF)
Public Comments: https://www.youtube.com/watch?v=KgEFjUr3gHE . (includes USDOJ, State FSO)

The Commission says it routinely seeks public comments on the substance of its briefings. The public comment period is 30 days following the date of the hearing or briefing, unless provided otherwise.  Since the public briefing: “Federal Me Too: Examining Sexual Harassment in Government Workplaces” occurred on May 9, the  Commission will accept written materials until June 10 for consideration as they prepare their report on the subject. Please submit no later than June 10, 2019 to sexualharassment@usccr.gov or by mail to: Staff Director/Public Comments, U.S. Commission on Civil Rights, 1331 Pennsylvania Ave. NW, Suite 1150, Washington, DC 20425.

We understand that the USCCR has asked employees (and the public) for information about:

  • the culture surrounding the reporting of harassment in State and other agencies
  • the reporting process, and
  • new tools that can be used to address the issue
  • prevention of harassment
  • suggestions how to increase enforcement of existing regulations against harassment
USCCR said during the public comment portion that interested parties may submit materials for the Commission’s consideration, including anonymous submission (mark 13.14). Those who are submitting comments with their names attached may want to inquire about privacy/confidentiality for the reporting individual and material as the USCCR will be releasing a public report at some point. An employee  speaking on background notes that individuals who signed NDAs with State may also wish to consult with  a lawyer before writing to the USCCR. We’re not equipped to give legal advice and we think it’s prudent to consult with a lawyer on the limitations on what is shareable to USCCR given the uniqueness of each sexual harassment case.

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