A year after the U.S. Commission on Civil Rights began its investigation of federal #MeToo complaints, the agency has finally issued recommendations for federal employers and Congress. The report calls for the federal government to act as a “model employer”. But it also shows just how far short governmental agencies fall from that mark.

U.S. Federal Government Investigates #MeToo Trends

On May 9, 2019, the United States Commission on Civil Rights hosted a public briefing named “Federal Me Too: Examining Sexual Harassment in Government Workplaces.” The briefing invited academics, legal experts, victims advocates, and federal employees with personal experience to testify about the government’s response to sexual harassment in the workplace. This briefing spurred further investigation, including a review of EEOC complaints and internal administrative procedures at the EEOC and in two representative federal agencies: the State Department and the National Aeronautics and Space Administration (NASA).

On April 1, 2019, nearly a year after hearing testimony, the U.S. Commission on Civil Rights released its report. It included an assessment of federal policies and procedures as they exist today, and recommendations for the future. The general consensus was there is a lot that can be improved. Catherine E. Lhamon, Chair of the commission, said in a press release:

“The federal government’s longstanding and persisting failure to take adequate steps necessary to address this form of serious workplace misconduct is especially concerning given its dual role as the largest employer in the United States and as the principal enforcer of federal civil rights protections. We urge all agencies and Congress to take up the Commission’s recommendations immediately to protect federal workers and serve as the model employer government should be in our nation.”

Federal #MeToo Complaints are On the Rise

The Commission reviewed workplace sexual harassment complaints within the federal government from 2016-2018. During that period, 1 in 7 federal employees experienced sexually harassing behaviors. And those numbers are on the rise. Federal employees filed 2,257 sexual harassment complaints with the Equal Employment Opportunity Commission (EEOC) during fiscal years 2015-2018. Before getting to that step, they first had to complete an internal Equal Employment Opportunity claims process (EEO Complaint). Those claims numbered:

• 6,990 in 2016
• 7,560 in 2017
• 8,418 in 2018

Even those numbers likely represent only a fraction of the actual sexual harassment taking place within federal government workplaces. The EEOC estimates that three out of four sexual harassment victims never tell a supervisor or file a complaint, many due to fear of retaliation.

Sexual Harassment is About Power, Not Sex

One of the key points made by the Commission is that federal agencies and the general public continue to misunderstand the reason sexual harassment occurs.

“[S]exual harassment is not about sex or sexual attraction: instead, sexual harassment is ultimately about power. . . . ‘[T]he bottom line is that harassment is more about upholding gendered status and identity than it is about expressing sexual desire or sexuality. Harassment provides a way for some men to monopolize prized work roles and to maintain a superior masculine position and sense of self.’ . . . ‘[W]here unwanted sexual misconduct occurs, it is typically a telltale sign of broader patterns of discrimination and inequality at work such as sex segregation and gender stereotyping.’”

This was supported by the commission’s findings of characteristics that made sexual harassment more likely to occur:

• Differentiated roles and duties based on sex stereotypes
• Gender imbalances in leadership and managerial positions
• Isolated, remote, or decentralized workplaces

Federal EEO Processes Make Reporting Sexual Harassment Difficult

The Commission noted that federal employees have a particularly difficult time preserving their sexual harassment claims and getting compensated for the physical and psychological harm done to them. It noted that the internal EEO processes across different agencies were “unduly complex” and vulnerable to conflicts of interests as departments acted as both fact finder and defendant. This was especially true in the State Department, where claims by foreign nationals or locally employed staff working abroad were handled locally and “often not addressed adequately.” The Commission also noted that the short, 45-day reporting window and “confusing time restrictions” caused many employees to “unwittingly forfeit their right to bring formal claims at all.” Together, these policies put federal workers at a distinct disadvantage, compared to their private-sector counterparts.

The Commission’s Recommendations

The United States Commission on Civil Rights made several direct recommendations for the specific agencies evaluated, the EEOC acting in oversight, and to Congress for legal changes needed to protect federal employees:

• The Office of Personnel Management send out model employer sexual harassment policies and practices that protect the rights of all workers
• Federal agencies should use department-wide uniform penalties for all disciplinary actions
• Perpetrators should be banned from receiving promotions or performance awards
• Perpetrators should not be reassigned to other divisions
• Employees should complete bystander intervention training
• Agencies should implement mandatory anti-harassment trainings
• Non-disclosure clauses in discrimination settlements should be closely scrutinized
• Congress should enact laws to protect federal government contractors and interns from sexual harassment (many do not qualify as employees under the current law)
• A federal ombudsperson should be empowered to investigate sexual harassment claims in cases where the existing structure creates conflicts of interest
• Additional funds should be assigned to the EEOC for proactive and preventative measures
• The EEOC should collect and report intersectional data on sexual harassment and racial and other forms of discrimination
• Existing anti-harassment laws should be strictly enforced to address “the culture of sexual harassment and misogyny in grant-receiving research institutions.”
• State Department workplaces globally should have zero tolerance for sexual harassment and retaliation, and workers should have access to fair access to the claims process

Many of these recommendations would take legislative change. Others might be implemented at the agency level. However, there is little motivation for the federal government to move quickly in response to the report. Federal employees facing sexual harassment in the meantime will still need to navigate the complex and often intimidating EEO procedures to protect their rights and preserve their claims.

At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys have seen all kinds of employment discrimination cases, in the private sector and the federal government. We know how to meet the EEO procedural requirements and file a claim with the EEOC. We are ready and able to work for federal employees whose claims might otherwise be lost. Contact us to schedule a consultation at our office in New York City, or over the phone.