Agencies Called Inconsistent in Addressing Sexual Misconduct

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Louis C. LaBrecque

Federal agencies aren’t consistent in how they discipline employees found to have engaged in workplace sexual misconduct, the chairman of the House Oversight and Government Reform Committee said.

“Federal employees deserve a safe work environment, free of predatory behavior,” Rep. Trey Gowdy (R-S.C.) wrote in an Oct. 19 letter to agency heads. “Employees should feel safe and protected doing the people’s business.”

A review by the committee’s majority staff “showed no standardized definition of sexual misconduct and no requirement agencies have standardized recommended penalties,” Gowdy’s letter said. “This could lead to inconsistent responses to unlawful or noxious behavior and disparate treatment of the conduct and offenders depending on the agency.”

Eight of 26 agencies that the committee examined didn’t have “tables of penalties,” which are lists of recommended disciplinary actions, for addressing misconduct. That includes “the Office of Personnel Management—which is the agency ostensibly serving as the human resources manager for the federal government,” the committee’s review found.

The review was launched more than a year ago, in March 2016. But the findings were issued as recent events have brought new attention to the problem of sexual misconduct in the workplace. These include the firing of movie producer Harvey Weinstein after reports that he had settled sexual harassment claims brought by at least eight women.

Plans for following up on the review may include hearings or legislation, a committee aide told Bloomberg Law Oct. 20.

An OPM spokesperson said the office has received the House panel’s findings and is reviewing them.

Call for `Concise and Narrow’ Penalties

Federal agencies don’t have a standard definition of sexual misconduct, and many agencies’ penalty tables are outdated, the review said. While some agencies hold supervisors to higher standards than rank-and-file employees, others do not, it said.

The OPM should work with the federal Chief Human Capital Officers Council on guidance for standardizing agency penalty tables, including “a range of recommended penalties that is concise and narrow for cases of sexual misconduct,” the committee said.

Agencies that don’t have penalty tables should create them, and those that have outdated tables should update them, it said.

The tables “are guidelines that work in conjunction with the criteria supervisors use to determine appropriate penalties for misconduct, called the Douglas Factors,” the committee said, referring to the 12 criteria used by federal supervisors to determine penalties for misconduct. According to the OPM, the factors were established by the Merit Systems Protection Board in its 1981 ruling in Douglas v. Veterans Administration.

Consistency or Box Checking?

The oversight committee has “identified the gulf between how different agencies address sexual misconduct in the federal workplace,” Jason Briefel, executive director at the Senior Executives Association, told Bloomberg Law Oct. 20.

“We do think that the systems can be streamlined and that there are opportunities for standardization,” Briefel said.

At the same time, Briefel warned that the government should be careful to ensure that new requirements for uniform penalty tables don’t become box-checking exercises for federal managers.

“How do you strike the balance?” he asked. “Does adherence to a unified table become a goal in and of itself, or is the goal to reduce instances of sexual misconduct in the workplace?”

The SEA, a Washington-based professional association, represents the interests of about 7,000 career federal executives.

To contact the reporter on this story: Louis C. LaBrecque in Washington at llabrecque@bna.com

To contact the editor responsible for this story: Peggy Aulino at maulino@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law