Sexual Harassment

Man reaching for woman with woman putting up hands to ward off touch

Attorneys in the Employment and Labor Law Unit (ELLU) defend the Agency against Equal Employment Opportunity (EEO) claims of sexual harassment.  ELLU attorneys are also available to provide legal advice to managers and supervisors on responding appropriately when they receive notice of allegations of sexual harassment. Not all allegations of inappropriate conduct of a sexual nature will rise to the level of illegal sexual harassment. However, even if conduct does not rise to the level of illegal sexual harassment, managers and supervisors are responsible for holding employees accountable for unprofessional conduct that adversely affects the workplace.  

What is illegal sexual harassment?

The Equal Employment Opportunity Commission defines “sexual harassment” as unwelcome sexual advances, request for sexual favors, and other verbal and physical conduct of a sexual nature when:

  1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment;
  2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
  3. Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating hostile or sexually offensive work environment.

Sexual harassment can be any activity which creates an intimidating, hostile, or offensive work environment for members of one sex, whether such activity is carried out by a supervisor or by a co-worker. This could include such workplace conduct as displaying “pinup” calendars or sexually demeaning pictures, telling sexually oriented jokes or stories, making sexually offensive remarks, engaging in unwanted sexual teasing, subjecting another employee to pressure for dates, sexual advances, or unwelcome touching.

Both the victim and the harasser can be either a woman or a man, and the victim and the harasser can be the same sex. The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not in the same organizational unit, such as an employee in another office or bureau.

Other inappropriate conduct even if not illegal.

Anti-harassment laws do not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious.  Harassment becomes illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

Managers and supervisors should take action to stop harassing behavior before it becomes so frequent or severe that it constitutes illegal harassment.  Any manager or supervisor who receives a complaint should see that a prompt, objective, and thorough investigation is conducted and take steps to ensure that the harassment or inappropriate conduct does not happen again. Any possible criminal misconduct should be reported to the OIG and/or the law enforcement component of the employing Bureau. The fact that an employee has raised a claim of sexual harassment with the EEO Office does not relieve a manager and supervisor of his or her responsibility to independently investigate the allegations and take prompt remedial action.

Because managers and supervisors have a duty to act promptly, they are encouraged to consult with the ELLU Harassment Duty Attorney as soon as possible after learning of allegations of a sexual nature.  

Disciplinary Actions for Sexual Misconduct/Harassment

Employees are subject to disciplinary action, up to and including removal, for engaging in sexually harassing behavior. Although not every instance of inappropriate sexual behavior may fit the legal definition of sexual harassment, such behavior in the workplace undermines morale and violates the Agency's standards of conduct. Accordingly, disciplinary action may result even if the conduct is not sexual harassment under the law. Conversely, the fact that conduct may constitute a violation of the standards of conduct does not mean that such conduct constitutes illegal sexual harassment that would give rise to remedies under EEO law.

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