This file was prepared for electronic distribution by the inforM staff. Questions or comments should be directed to inform-editor@umail.umd.edu. CHAPTER 7 Recommendations Many times, there was an "old boys network" that served to tacitly condone or at least "look the other way" at cases of discrimination or harassment. This situation inhibits female employees from making complaints. The action I took to prevent sexual harassment was to dress abnormally. That meant I either put on more clothes than normal, or dressed unattractively and out of style. A Survey Respondent Introduction This report finds that sexual harassment remains widespread in the Federal workplace. At the same time, agencies have established and publicized policies that prohibit sexual harassment on the job. Overall, Federal employees are aware of these policies. Agencies have also provided related training to their managers and personnel and EEO officials, as well as some of their nonsupervisors, so that they will understand what sexual harassment is and how to prevent it. However, given the persistence and pervasiveness of sexual harassment in the Federal workplace, it is clear that efforts to prevent it have not been successful enough. Also, as the data presented in chapters 3 and 4 indicate, many employees are skeptical about the efforts of their agencies to deal with the problem. As this report has discussed, there is still considerable confusion and disagreement about what behaviors can constitute sexual harassment. Part of this disagreement may well stem from the fact that whether an action or behavior constitutes sexual harassment depends not only on the intent of the person taking the action but also on the perceptions of those affected by it. Based on the responses to the Merit Systems Protection Board's latest questionnaire, a considerable percentage of Federal employees experience unwelcome and uninvited behavior of a sexual nature on the job. It is this behavior which this report defines as sexual harassment. Based on the results of this study, it also appears that some managers and employees do not take the prohibition against sexual harassment seriously. As illustrated by the comment below, sexual harassment can be met with tolerance--tolerance that is a peculiar mix of sufferance on the one hand and refusal to even see the behavior as an issue on the other. The courts are continuing to develop and refine case law on sexual harassment. In the process they are leveling penalties against the men and women they find responsible. Courts at various levels are repeatedly supporting the EEOC guidelines on sexual harassment as a violation of Title VII of the Civil Rights Act of 1964. Aggressive action to ensure that the Federal workplace is free from sexual harassment is both proper and in the best interests of the Government. To assist Federal agencies in this regard, we recommend the following actions. In my agency, sexual jokes, gestures, and teasing, are practically an everyday experience. You learn to put up with it, or you leave. A Survey Respondent Recommendations 1. Training Agencies should tailor their training/educational programs on sexual harassment to the individual needs of each agency and ensure that they address the underlying issues discussed in this report. For training efforts to succeed, agencies must provide Federal employees with more than generic warnings that sexual harassment is improper. It must be clear that certain behavior can be deemed illegal and that sanctions can and will be applied to the responsible parties. In addition, however, the training should strive to increase the sensitivity of all parties as to the many faces of sexual harassment and what can be done informally as well as formally to reduce the incidence. As an example of an innovative approach in this area, one Federal official responsible for a large installation took actions to halt sexual harassment that are similar to methods often used in the Federal Governmcnt to prevent alcohol and drug abuse. All managers and supervisors at this workplace were required to take sexual harassment training. Among those attending that training were employees with a history of sexually harassing behavior. These latter employees were notified by management that their attendance at training was required in a final effort to eliminate their prohibited behavior. They were informed that further sexual harassment of others on the job would result in a personnel action against them-- including possible dismissal. Aiming sexual harassment training at managers and personnel officials (sce ch. 4) may have been appropriate initially, considering always-limited training resources, competing needs, and the imperative for initiating training focused on a problem newly recognized as serious in the Federal workplace. However, in view of the continued high level of alleged sexual harassment in the Government and increasing attention to the possible existence of a "hostile environment," agency training programs should also be broadened to include the entire work force. Specifically, training should: * Thoroughly cover the range of possible behaviors and the circumstances under which those behaviors may be considered sexual harassment; the formal and informal actions for seeking relief; the right to confidentiality under certain circumstances for those alleging harassment; the prohibition against reprisals; and current case law relevant to sexual harassment; * Be provided to all employees, including nonsupervisory personnel. Also, training should enlighten all employees on their roles and responsibilities in preventing sexual harassment; * Be quickly offered to new employees; and * Be periodically evaluated for effectiveness. Agencies must be concerned with both the quantity and quality of sexual harassment training they offer. Managers should do a "quality control" review of their training efforts. 2. Policy Statements Agencies should widely publicize a detailed list of specific actions that constitute sexual harassment, and penalties for each of the actions. A Survey Respondent Agencies should annually evaluate, modify, and reissue their policy statements on sexual harassment. Those statements should: * Make it clear that sexual harassment is against the law (see ch. 6) and the agency will not tolerate it; * Demonstrate thc agency's commitment to the policy issuing the statement under the signature of the agency head; * Define the various behaviors that may constitute sexual harassment; this information should include a description of activities that may create a hostile environment (see the EEOC's guidelines on sexual harassment as a form of discrimination, cited in ch. 1; see also for example, the descriptions of verbal, nonverbal, and physical sexual harassment in the selection of policy statements published in 1987 by the Bureau of National Affairs -1); and * State the range of penalties the agency can levy against the offender, from warning to dismissal; discuss the possibility of personal liability for unlawful acts of harassment; and include reinforcing facts such as anecdotal or summary information on penalties already levied within the agency (or in other agencies) against sexual harassers. 3. Enforcement Action I know my agency prouides for swift investigations and disciplinary action for sexual harassers and for superrisors who allow such misconduct to continue. A Survey Respondent Agencies should establish strong and effective sanctions against sexual harassment and issue penalties where appropriate. Agencies should, where possible, publicize to all employees the penalties harassers face, from harassers who make submission a condition or benefit of employment to those who contribute to creating an offensive or hostile environment. If policy statements treat penalties only in brief, such as by giving only range or examples, agencies should make doubly sure to publicize through additional means the complete array of penalties. Either way, agencies should ensure that all employees, including managers and supervisors, are given as complete and specific information as possible. 4. Complaint and Investigation Procedures In Meritor, FSB v. Vinson the Supreme Court found that the "mere existence of a grievance procedure...and [a] policy against discrimination...does not necessarily insulate the [employer] from liability." Also, the Court noted that the employer's insulation "from liability might be substantially stronger if its [grievance] procedures were better calculated to encourage victims of harassment to come forward." -2 Agencies should post prominently the grievance procedures available for an individual who wishes to report sexual harassment. A Survey Respondent Agencies should review both the formal and informal avenues of redress available to employees who believe they are victims of sexual harassment and quickly institute any needed reforms. As a beginning, agencies should determine whether the process is timely and is otherwise appropriate for dealing with a sexual harassment allegation. As noted in Meritor, it is possible that liability on the part of an employer could be mitigated if the complaint process is tailored to accommodate charges of sexual harassment. Agencies should review the ways in which they process formal complaints as part of a concerted effort to reduce the number of days it takes to resolve such complaints. A goal of 120 days is reasonable. Agencies should widely publicize the institutionalized, or formal, complaint channels available, as well as the more informal actions employees may take, such as informing a supervisor. This publicity should clarify the way in which employees may use the formal channels, including how to contact the appropriate persons for assistance. Agencies should designate such personnel carefully, since a situation dealing with a charge of sexual harassment is highly charged and needs to be handled by a sensitive, knowledgeable person. It is particularly important for agencies to be sensitive to the need to designate employees of both sexes in whom victims can confide. -3 As noted in chapter 4, employees view the effectiveness of agency actions less positively than agencies view them. This suggests that agencies need to instill more confidence in their employees with regard to agency concern about sexual harassment, determination to reduce its incidence, and commitment to strengthening procedures for dealing witll it. Ensuring that employees are fully aware of the alternatives available to them if they are harassed (and the specific steps to follow if they choose to pursue some type of action) can significantly help increase employees' confidence in their agencies' handling of sexual harassment. Each agency should have a complaint process that gives employees confidence that the agency will (l) take sexual harassment allegations seriously, (2) handle them expeditiously, (3) strive for forceful and fair resolution, (4) enforce penalties against harassers, and (5) not tolerate reprisals. 5. Additional Prevention Efforts Prevention efforts could include periodic random, anonymous surveys to determine whether sexual harassment is a problem in a given agency, department, or office within that agency. An evaluation/prevention effort could include conducting periodic followup interviews with all personnel involved in the settlement of both informal and formal complaints. These interviews would allow management to assess the current work environment of the employees involved to ensure that problems relating to that sexual harassment incident were no longer extant. In many cases, it seems that the person harassing you thinks he's cute and doesn't consider his off-color remarks, etc., to be distasteful or unwanted. Training should be provided on what is appropriate behavior. A Survey Respondent Conclusion MSPB recognizes that the complete absence of behaviors that some consider sexual harassment may not be possible. However, we believe agency heads must make it clear they are taking a "zero tolerance level" approach to sexual harassment in their workplaces. We also believe that implementation of the recommendations in this report will result in a significant, long-term reduction in the incidence of sexual harassment. NOTES 1. "Sexual Harassment: Employer Policies and Problems," PPF Survey No. 144, Wash., DC June 1987. 2. Meritor Savings Bank, FSB v. Vinson, 106 S.Ct. 2399, 2409 (1986). 3. In Meritor, at issue was that the bank's compliant procedure requires a sexually harassed employee to report the incident to his or her supervisor. In this case, the alleged harasser was also the supervisor of the woman who belived she was a victim. The Court found that this compliant process was not tailored to accomodate the person charging sexual harassment.