In the past couple months since the allegations against movie mogul Harvey Weinstein surfaced, we have seen the rebirth of the “#metoo” movement, which calls on survivors of sexual harassment or sexual assault to share their personal stories in an effort to demonstrate the magnitude of the problem. The federal government is certainly not immune to these problems. For example, a survey of National Park Service employees revealed that 39 percent of its workforce has experienced harassment or discrimination in the last year, with over 10 percent of NPS employees experiencing sexual harassment, almost 20 percent experiencing gender-based harassment, and 0.95 percent experiencing sexual assault.

While the issues at NPS are alarming, its unlikely NPS is all that unique. But what should a federal employee do if they are being sexually harassed, and what rights does the victim of harassment have as a federal employee?

The Equal Employment Opportunity Commission (EEOC), which adjudicates sexual harassment 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 is considered “severe”) or pervasive (meaning occurring frequently) to affect an individual’s terms or conditions of employment. This means that, to be illegal, the harassment must interfere with an individual’s performance, create an intimidating, hostile or offensive work environment, or actually affect an individual’s salary, position, duties, advancement opportunities, etc. While many people believe that with sexual harassment, “you will know it when you see it” or experience it, this is not always the case. Some common points of confusion include:

• 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.
• The harasser can be the victim’s supervisor, but sexual harassment can also be illegal if it’s done by a supervisor in another area, a co-worker or a non-employee (e.g., a contractor or consultant).
• The victim does not have to be the actual target of the harassment, but could be anyone affected by the offensive conduct.
• 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, this does not permit the male employee to make flirtatious comments at work unless the female employee welcomed and consented to this conduct.

Although it may be difficult to report sexual harassment, and employees may fear retaliation for reporting the sexual harassment, retaliation is absolutely illegal. If a federal employee reports sexual harassment, the agency is obligated to take a number of immediate steps to remedy the situation, including separating the harasser and the victim of harassment (and the law is clear that the agency is to move the harasser, not the victim) while it conducts an inquiry into the allegations.

If a supervisor’s sexual harassment of a subordinate culminates in what is called a tangible employment action, such as a removal, suspension, demotion, etc., the agency will always be liable for the sexual harassment. In cases where the harasser is not the supervisor, for example when a co-worker is the harasser, an employee has an affirmative duty to report the sexually harassing conduct to the agency to give the agency the opportunity to take prompt remedial action, and its only when the agency fails to do so that it will be held liable for the harassment.

It is also important for federal employees to understand that making a report of sexual harassment is not necessarily the same as filing an EEO complaint. While a report of sexual harassment may result in the harasser being punished, an employee will only receive personal relief, such as damages, through an EEO complaint. If a federal employee wants to bring an EEO complaint, the time limit for doing so is 45 days from the most recent incident of harassment. To satisfy this time limit, a federal employee need only contact an EEO Counselor and state that they want to file an informal EEO complaint.

Additionally, the EEOC has mandated that all federal agencies have anti-harassment policies which at a minimum 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.
6. Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

There is no federal agency where sexual harassment is legal, and no amount of sexual harassment that should be tolerated.

Isabel Cottrell is an associate at The Federal Practice Group and has substantive experience in federal employment.

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