APRIL 2020

BRIEFING

REPORT

U.S. COMMISSION ON CIVIL RIGHTS

U.S. COMMISSION ON CIVIL RIGHTS

Washington, DC 20425

Official Business

Penalty for Private Use $300

Visit us on the Web: www.usccr.gov

Federal #MeToo

EXAMINING SEXUAL HARASSMENT IN GOVERNMENT WORKPLACES
U.S. COMMISSION ON CIVIL RIGHTS

The U.S. Commission on Civil Rights is an 

independent, bipartisan agency established 

by Congress in 1957. It is directed to:

• Investigate complaints alleging that citizens are 

being deprived of their right to vote by reason of their 

race, color, religion, sex, age, disability, or national 

origin, or by reason of fraudulent practices.

• Study and collect information relating to discrimination or a 

denial of equal protection of the laws under the Constitution 

because of race, color, religion, sex, age, disability, or 

national origin, or in the administration of justice.

• Appraise federal laws and policies with respect to 

discrimination or denial of equal protection of the laws 

because of race, color, religion, sex, age, disability, or 

national origin, or in the administration of justice.

• Serve as a national clearinghouse for information 

in respect to discrimination or denial of equal 

protection of the laws because of race, color, 

religion, sex, age, disability, or national origin.

• Submit reports, findings, and recommendations 

to the President and Congress.

• Issue public service announcements to discourage 

discrimination or denial of equal protection of the laws.1

1 42 U.S.C. §1975a.

MEMBERS OF THE COMMISSION

Catherine E. Lhamon, Chairperson

Patricia Timmons-Goodson, Vice Chairperson*

Debo P. Adegbile

Gail L. Heriot

Peter N. Kirsanow

David Kladney

Karen Narasaki**

Michael Yaki

Mauro Morales, Staff Director

U.S. Commission on Civil Rights

1331 Pennsylvania Avenue, NW

Washington, DC 20425

(202) 376-8128 voice

TTY Relay: 711

www.usccr.gov

* Term ended 12/05/2019.

** Term ended 11/29/2019. 
Federal #MeToo: 

Examining Sexual 

Harassment in Government

Workplaces

Briefing Before 

The United States Commission on Civil Rights 

Held in Washington, DC 

Briefing Report 

April 2020
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Letter of Transmittal

April 1, 2020 

President Donald J. Trump 

Vice President Mike Pence 

Speaker of the House Nancy Pelosi

On behalf of the United States Commission on Civil Rights (“the Commission”), I am pleased to 

transmit our briefing report, Federal #MeToo: Examining Sexual Harassment in Government

Workplaces. The report is also available in full on the Commission’s website at www.usccr.gov.

In this report, the Commission examined the Equal Employment Opportunity Commission’s 

(EEOC) enforcement efforts to combat workplace sexual harassment across the nation’s largest 

employer, the federal government. The Commission’s review included the frequency of such 

claims and findings of harassment, the resources dedicated to preventing and redressing 

harassment, and the impact and efficacy of these enforcement efforts. The Commission also 

evaluated agency-level sexual harassment practices at the State Department and at the National 

Aeronautics and Space Administration (NASA).

The Commission majority approved key findings including the following: Despite the passage of 

over thirty years since the landmark ruling establishing that sexual harassment claims may be 

pursued under Title VII of the Civil Rights Act, sexual harassment continues to be a significant 

problem, including in federal workplaces. According to a 2018 Merit Systems Protection Board 

(MSPB) survey, an estimated 1 in 7 federal employees experienced sexually harassing behaviors 

at work between 2016 and 2018. Women face the highest risk of sexual harassment in federal 

workforces. The EEOC does not report intersectional data on sexual harassment; however, 

studies have shown that black women are at the highest risk of being victims of sexual 

harassment across all sectors. Within the federal workforce, black workers are substantially more 

likely to be the victims of sexual harassment than members of any other race.

Between 2014 and 2016, EEOC reviewed anti-harassment programs at each federal agency 

under its jurisdiction, finding that a vast majority of federal agencies had ineffective antiharassment programs.

The Commission majority voted for key recommendations, including the following: The federal 

government, as the largest employer in the nation, must be a model employer and it, through its 

Office of Personnel Management and following guidance from EEOC, should continually 

disseminate sexual harassment policies and practices consistent with the conduct of a model 

UNITED STATES COMMISSION ON CIVIL RIGHTS

1331 Pennsylvania Ave., NW  Suite 1150  Washington, DC 20425 www.usccr.gov
employer and a leader of protecting the rights of all workers. Federal agencies need to implement 

mandatory anti-harassment training programs that are specific, clear, and accessible and target 

every level of employee. Federal agencies should take steps to prevent the incidence of 

workplace sexual harassment, including:

• Implementing department-wide, uniform penalties to be used in disciplinary actions

• Banning serious perpetrators from receiving promotions and performance awards

• Ending the practice of reassigning perpetrators to other divisions

• Embracing and training employees regarding bystander intervention

Congress should establish a federal ombudsperson, empowered to investigate alleged sexual 

harassment claims of complainants who may not have adequate recourse through available 

channels where existing agency structures may be compromised by conflicts. Congress should 

allocate additional funds to enable EEOC to help agencies proactively identify and prevent 

sexual harassment.

Specifically, with respect to the two federal agencies that the Commission investigated, the 

Commission recommended that NASA engage in stricter enforcement of the anti-discrimination 

and anti-harassment laws that protect individuals in federally funded institutions under Title IX 

to address the culture of sexual harassment and misogyny in grant-receiving research institutions.

The Commission also determined that in light of testimony we received, and the often isolated 

geographic conditions in which diplomatic functions must be discharged, it is important that 

State Department leadership, including the Secretary, direct and ensure that the culture of State 

workplaces globally is to have zero tolerance for sexual harassment, meaningful access to fair 

processes where claims are asserted, and no tolerance for retaliation.

We at the Commission are pleased to share our views, informed by careful research and 

investigation as well as civil rights expertise, to help ensure that all Americans enjoy civil rights 

protections to which we are entitled. 

For the Commission,

Catherine E. Lhamon 

Chair
TABLE OF CONTENTS i

TABLE OF CONTENTS

ACKNOWLEDGEMENTS ........................................................................................................v

EXECUTIVE SUMMARY.........................................................................................................1

Federal #MeToo: Highlighted Findings and Recommendations...............................................9

Findings..............................................................................................................................9

Recommendations.............................................................................................................10

CHAPTER 1: INTRODUCTION AND BACKGROUND ........................................................13

Increased Awareness of Sexual Harassment ..........................................................................13

Sexual Harassment Under Title VII and Major Federal Court Decisions ...............................17

Defining Sexual Harassment .................................................................................................26

Quid Pro Quo....................................................................................................................29

Hostile Work Environment................................................................................................31

Sexual Harassment Data and Trends .....................................................................................33

Extent of Sexual Harassment in the Federal Workplace.....................................................34

Retaliation and Backlash ...................................................................................................45

Costs of Sexual Harassment ..............................................................................................51

Relationship of Wage Gaps to Sexual Harassment ................................................................60

Culture of Harassment...........................................................................................................64

Strategies to Address and Prevent Sexual Harassment...........................................................73

CHAPTER 2: EQUAL EMPLOYMENT OPPORTUNITY PROTECTIONS IN THE FEDERAL 

WORKPLACE .........................................................................................................................84

History of Equal Employment Opportunity Protections in the Federal Workplace.................84

Federal Sector Complaints Process........................................................................................89

Agency Self-Investigation .................................................................................................92

Initial 45 Days to File Informal Complaint ........................................................................92

Anti-Harassment Policies....................................................................................................104

Disciplinary Actions and Role of the Merit Systems Protection Board ................................105

CHAPTER 3: EEOC’S ROLES IN ENFORCING PROTECTIONS AGAINST SEXUAL 

HARASSMENT IN THE FEDERAL SECTOR......................................................................108

Federal Sector Data and Trends...........................................................................................108

Caps on Monetary Damages and Lack of Legal Counsel .................................................117
ii FEDERAL #METOO

EEOC’s Technical Assistance and EEO Complaint Processing Guidance............................119

EEOC’s Sexual Harassment Guidance ................................................................................122

Role of EEOC in the Federal Complaint Process.................................................................127

Remedies and Enforcement Tools.......................................................................................129

Training and Other Tools....................................................................................................135

CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES .....................................146

National Aeronautics and Space Administration (NASA)....................................................148

Overview of Agency and Workforce ...............................................................................150

Sexual Harassment Policies.............................................................................................154

Training ..........................................................................................................................161

Prevalence.......................................................................................................................165

NASA’s EEO Complaint Process....................................................................................170

Processing Times............................................................................................................177

Claims Processing Efficacy.............................................................................................178

Outcomes of Investigations.............................................................................................181

Department of State (State) .................................................................................................185

Overview of Agency and Workforce ...............................................................................187

Sexual Harassment Policies.............................................................................................191

Training ..........................................................................................................................205

Prevalence.......................................................................................................................209

Processing Times............................................................................................................222

Outcomes of Investigations.............................................................................................224

CHAPTER 5: FINDINGS AND RECOMMENDATIONS......................................................232

FINDINGS .........................................................................................................................232

Background and Rule ......................................................................................................232

The Complaint Process....................................................................................................234

Organizational Factors ....................................................................................................236

Investigation of State Department and NASA .....................................................................239

NASA.............................................................................................................................239

Department of State.........................................................................................................241

RECOMMENDATIONS ....................................................................................................243
TABLE OF CONTENTS iii

The Administration ......................................................................................................... 243

Congress ......................................................................................................................... 245

The EEOC....................................................................................................................... 246

NASA............................................................................................................................. 246

Department of State......................................................................................................... 246

COMMISSIONERS’ STATEMENTS, DISSENTS, AND REBUTTALS................................249

Statement of Commissioner Debo P. Adegbile ....................................................................249

Personal Testimony.........................................................................................................250
iv FEDERAL #METOO

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ACKNOWLEDGEMENTS v

ACKNOWLEDGEMENTS

This report was produced under the direction and with the contribution of Katherine CullitonGonzález, Esq., the Commission’s Office of Civil Rights Evaluation (OCRE) Director. Dr. Marik 

Xavier-Brier, OCRE Civil Rights Analyst, performed principal research and writing. OCRE intern

Juliette Singarella (J.D. Candidate 2021, Georgetown University Law Center) also offered 

valuable research assistance.

Commissioner Special Assistants Alec Deull, Carissa Mulder, Amy Royce, Rukku Singla, Alison 

Somin, and Irena Vidulovic, assisted their Commissioners in reviewing the report. Commissioner 

Legal Interns Kori Pruett (J.D. Candidate 2021, Georgetown University Law Center) and Ryan 

Kelley (J.D. Candidate 2021, George Washington University Law School) also offered valuable 

research assistance.

With the assistance of Attorney-Advisor Pilar Velasquez McLaughlin, the Commission’s General 

Counsel Maureen E. Rudolph reviewed and approved the report for legal sufficiency.
vi FEDERAL #METOO 

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EXECUTIVE SUMMARY 1

EXECUTIVE SUMMARY

Federal employees, like all workers, are entitled to work environments that are free from sexual 

harassment.1 Sexual harassment under Title VII and federal regulations includes unwelcome 

sexual advances, requests for sexual favors, and other verbal and/or physical harassment that is of 

a sexual nature. Harassment, however, need not be motivated by sexual desire to support an 

inference of discrimination on the basis of sex. Studies show that harassing behaviors can be either 

“direct,” which is targeted at a specific individual or “ambient” meaning that there is “a general 

level of sexual harassment in an environment.”2 Sexual harassment directly harms the person who 

is subject to the inappropriate conduct, and it also can negatively impact the employment 

conditions of others in the workplace by creating a hostile work environment. This legally 

prohibited conduct can impose painful and sometimes lifelong harms that are disproportionately 

borne by women. 

The federal government is the largest employer in the United States, and it employs an estimated 

two million workers domestically and internationally.3 Between fiscal years 2015 and 2018 federal 

employees filed 2,257 sexual harassment claims,

4 and women filed the great majority—over 80 

percent—of these complaints.5 This figure represented a 36 percent increase from fiscal year 2015 

to fiscal year 2018.6 Further, the number of claims are likely to reflect substantial underreporting 

of actual occurrences of sexual harassment because many studies suggest that sexual harassment 

is substantially underreported even if the estimates of the extent of underreporting vary. In 2016,

the Equal Employment Opportunity Commission (the EEOC) estimated that up to 85 percent of 

women will experience sexual harassment at work at least one or more times during their careers.7

The EEOC also estimated that three out of four individuals who experience sexual harassment in 

 

1 See infra notes 64-86 (discussing applicable civil rights law and standards).

2 National Academies of Sciences, Engineering, and Medicine, Sexual Harassment of Women: Climate, Culture, and 

Consequences in Academic Sciences, Engineering, and Medicine, 2018, at 2, 

https://www.linguisticsociety.org/sites/default/files/24994.pdf.

3 See Office of Personnel Management, “FedScope: Federal Workforce Data,” (Sept. 2018), 

https://www.fedscope.opm.gov. 

4 Equal Employment Opportunity Commission, EEOC Responses to U.S. Commission on Civil Rights 

Interrogatories, Sept. 6, 2019.

5 Ibid.

6 Ibid.

7 See Equal Employment Opportunity Commission, Select Task Force on the Study of Harassment in the Workplace, 

Report of Co-Chairs Chai Feldblum and Victoria Lipnic, June 2016, 

https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm.
2 FEDERAL #METOO

the workplace never tell a supervisor, manager, or union representative about the incident.8

Similarly, according to a study by the University of Massachusetts’ Center for Employment 

Equity, about five million employees are sexually harassed at work every year, but 99.8 percent of 

them never file a formal charge.9 Moreover, in a 2017 survey of U.S. workers, approximately one 

in three (31 percent) reported that they had been sexually harassed at work.10 Overall, the poll 

found that 45 percent of women, and 15 percent of men reported being sexually harassed in the 

workplace. Of those who responded to the poll, 73 percent of women and 81 percent of men 

indicated that they never reported it to their employers.

11

Workplace sexual harassment is not new, but it has gained widespread attention in recent years

that has served to give greater visibility to the extent of the problem. Tarana Burke began the Me 

Too movement in 2006, when she created the organization Just Be Inc. to help victims of sexual 

harassment and sexual abuse.12 Ten years later, following heightened attention on college 

campuses regarding sexual assault, a wave of sexual harassment allegations in the media industry

drove several prominent public figures to resign from their positions. This national spotlight on 

the prevalence of sexual harassment in workplaces intensified what became known as the Me Too 

or the #MeToo movement. The movement has also caused many industries and companies to 

assess the adequacy of their efforts to curb misconduct and protect workers.13 Responding to 

#MeToo, some companies and organizations have changed their sexual harassment policies, 

required more training, altered their claim resolution approaches, and taken incremental steps 

 

8 Ibid; see also infra notes 213-22 (discussing low reporting in the federal system for various reasons, including fear 

of retaliation).

9 Carly McCann, Donald Tomaskovic-Devey, and M.V. Lee Badgett, “Employer’s Responses to Sexual 

Harassment,” Center for Employment Equity at the University of Massachusetts Amherst, Dec. 2018, 

https://www.umass.edu/employmentequity/employers-responses-sexual-harassment.

10 Rachel Gillett, “Sexual harassment isn’t a Hollywood, tech, or media issue – it affects everyone,” Business 

Insider, Nov. 30, 2017, https://www.businessinsider.com/sexual-harassment-affects-nearly-everyone-2017-11. 

11 Ibid.

12 Sandra Garcia, “The Woman Who Created #MeToo Long Before Hashtags,” New York Times, Oct. 20, 2017, 

https://www.nytimes.com/2017/10/20/us/me-too-movement-tarana-burke.html. Sexual harassment is generally 

understood as an unwanted sexual advance, request for sexual favors, and/or other verbal or physical harassment 

that is sexual in nature. But sexual harassment does not have to be sexual in nature and can include offensive 

remarks about a person’s gender or sex. See EEOC, “Sexual Harassment,” 

https://www.eeoc.gov/laws/types/sexual_harassment.cfm. Sexual abuse or sexual assault—while harassment can be 

a part of the abuse—is differentiated because it is unwanted sexual activity, often with perpetrators using force, 

making threats, or taking advantage of a victim that is unable to consent. See American Psychological Association, 

“Sexual abuse,” https://www.apa.org/topics/sexual-abuse/. 

13 Sandra Garcia, “The Woman Who Created #MeToo Long Before Hashtags,” New York Times, Oct. 20, 2017, 

https://www.nytimes.com/2017/10/20/us/me-too-movement-tarana-burke.html.
EXECUTIVE SUMMARY 3

towards fostering better workplace cultures.14 Congress has also had its share of scrutiny regarding 

allegations of sexual harassment and misconduct against Members of Congress.

The federal government is not immune from workplace sexual harassment. In the face of this 

increased awareness and activity, there is a lack of research specifically focusing on how sexual 

harassment affects federal workers, and what agencies are doing to protect people on the job. A

full assessment of every facet of the problem in the federal government is beyond the reach of this 

report. Here the U.S. Commission on Civil Rights investigates whether the federal government is 

successfully combating sexual harassment in federal workplaces generally and examines those 

efforts in two agencies. While the size of the federal government’s workforce makes a 

comprehensive review difficult, it also makes attention to sexual harassment in federal workplaces 

imperative. 

Sexual harassment reportedly exists at varying levels throughout every federal agency,15 and this

report examines the Equal Employment Opportunity Commission’s (EEOC’s) relevant oversight, 

guidance, and adjudication processes, and how internal sexual harassment policies and practices 

unfold at two agencies: the U.S. Department of State (State) and the National Aeronautics and 

Space Administration (NASA). The Commission identified these two agencies for review by

examining federal data regarding the processing of sexual harassment complaints, as well as 

independent research indicating that both agencies have characteristics that are correlated with 

higher risks of sexual harassment.16 For instance, both are large federal agencies with workforces 

 

14 See e.g., Stefanie Johnson, Ksenia Keplinger, Jessica Kirk, and Liza Barnes, “Has Sexual Harassment at Work 

Decreased Since #MeToo,” Harvard Business Review, July 18, 2019, https://hbr.org/2019/07/has-sexualharassment-at-work-decreased-since-metoo; Jodi Kantor, “#MeToo Called for an Overhaul. Are Workplaces Really 

Changing?” New York Times, March 23, 2018, https://www.nytimes.com/2018/03/23/us/sexual-harassmentworkplace-response.html. 

15 Under Executive Order 12067 all federal agencies are required to submit annual workplace statistics to the EEOC 

reflecting their efforts to prevent workplace discrimination and ensure equal opportunities. See Equal Employment 

Opportunity Commission, https://www.eeoc.gov/federal/eo-12067.cfm.

16 See e.g., Louise Fitzgerald, Michele Gelfand, and Fritz Drasgow, “Measuring Sexual Harassment: Theoretical and 

Psychometric Advances,” Basic and Applied Social Psychology, vol. 17, no. 4, (1995)(discussion of gender 

disparities being correlated to higher risks of sexual harassment); Chelsea Willness, Piers Steel, and Kibeom Lee, “A 

Meta-Analysis of the Antecedents and Consequences of Workplace Sexual Harassment,” Personnel Psychology, 

vol. 60, (2007), https://onlinelibrary.wiley.com/doi/epdf/10.1111/j.1744-6570.2007.00067.x (discussion of gender 

disparities being correlated to higher risks of sexual harassment); Elyse Shaw, Ariane Hegewisch, Cynthia Hess, 

“Sexual Harassment and Assault at Work: Understanding the Costs,” Oct. 15, 2018, https://iwpr.org/wpcontent/uploads/2018/10/IWPR-sexual-harassment-brief_FINAL.pdf; EEOC, Select Task Force on the Study of 

Harassment in the Workplace, June 2016, https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm (for 

research breaking down these criteria and finding correlation with increased sexual harassment); Marina Koren,

“When Scientists Are Sexually Harassed in the Field,” The Atlantic, Oct. 11, 2017,

https://www.theatlantic.com/science/archive/2017/10/sexual-harassment-fieldwork-science/542559/ (for research 

showing isolated or decentralized environments may be correlated to increased risks.
4 FEDERAL #METOO

that fit the definition of being male-dominated,17 and both have workplaces that are either isolated 

or decentralized.18 According to research, both factors are correlated to higher incidence of sexual 

harassment.19 The Commission also selected these agencies because they are representative of 

large federal agencies (those with 10,000 to 74,999 employees). One has a high number of formal 

sexual harassment complaints (State) in contrast to the other which has few formal complaints 

(NASA). Lastly, the Commission selected these agencies in order to facilitate an analysis of how 

different workplace cultures (e.g., hierarchal and bureaucratic versus scientific and collegial) may 

play a role in either preventing or encouraging sexual harassment.

The Commission held a briefing titled Federal #MeToo: Examining Sexual Harassment in 

Government Workplaces on May 9, 2019, convening current and former government officials, 

academic and legal experts, advocates, and impacted persons. The briefing included a public 

comment session and was supplemented by written materials submitted by the general public. This

report is also informed by responses to Commission’s interrogatories and documents provided by 

the EEOC, NASA and Department of State. 

Together the research, testimony, and personal accounts informed the Commission’s investigation

and underscored a common misconception about the nature of the workplace sexual harassment 

problem. That is, sexual harassment is not about sex or sexual attraction; instead, sexual 

harassment is ultimately about power.20 And under civil rights law, as the Supreme Court has 

recognized, “harassing conduct need not be motivated by sexual desire to support an inference of 

discrimination on the basis of sex.”21

A group of employment law professors recently reviewed patterns of sexual harassment, and found 

that “the 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 

 

17 See Chapter 4, Table 10 (breakdown of NASA’s workforce); Chapter 4, Table 20 (breakdown of State’s 

workforce). 

18 Department of State, HR Fact Sheet, June 30, 2019, (last accessed, Aug. 21, 2019), https://www.state.gov/wpcontent/uploads/2019/07/Human-Resources-Fact-Sheet-as-of-032019.pdf; NASA Center Assignments by State, 

https://www.nasa.gov/pdf/313552main_NASA_Center_Assignments_by_State.pdf.

19 See supra note 16.

20 Heather McLauglin, Christopher Uggen, and Amy Blackstone, “Sexual Harassment, Workplace Authority, and 

the Paradox of Power,” American Sociological Review, 2012, vol. 77, no. 4; Christopher Uggen and Amy 

Blackstone, “Sexual Harassment as a Gendered Expression of Power,” American Sociological Review, (Feb. 2004), 

vol. 69, no. 1; Afroditi Pina and Theresa Gannon, “An overview of the literature on antecedents, perceptions, and 

behavioral consequences of sexual harassment,” Journal of Sexual Aggression, (2012), vol. 18, no. 2; see also Katz 

Testimony, Washington Briefing, p. 125.

21 Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998).
EXECUTIVE SUMMARY 5

monopolize prized work roles and to maintain a superior masculine position and sense of self.”22

Moreover “[w]omen, too, sometimes act to uphold their relative positions. ... [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.”23

Effectively combatting sexual harassment requires an understanding of what contributes to it. 

Studies show that sexual harassment occurs in all workplaces and across all job sectors. Research 

suggests that there are characteristics in some workplaces that may make them more susceptible 

to harassment. Some data suggest that workplaces that differentiate roles and duties based on 

gender stereotypes and are more permissive of sexism often have more incidents of sexual 

harassment.24 Further, jobs with gender imbalances in leadership and managerial positions also 

tend to have more incidents of harassment compared to workplaces with more gender parity.25

Research indicates that “[s]ex segregation and inequality in employment, where men hold most of 

the top positions or prized jobs in an organization, field, or industry, and women are relegated to 

lower-status jobs, are a major cause of sex harassment.”26 In addition, research shows that isolated 

or remote or decentralized workplaces may also correlate with increased sexual harassment.27

 

22 Vicki Schultz, “Open Statement on Sexual Harassment from Employment Discrimination Law Scholars,” 71 Stan. 

L. Rev., June 2018, https://digitalcommons.law.yale.edu/fss_papers/5301, at p. 19, (citing research). See also Title 

VII; EEOC, “What You Should Know About EEOC and the Enforcement Protections for LGBT Workers,” 

https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm; Complaint v. U.S. Postal 

Service, EEOC Appeal No. 0120133382 2015 WL 755097 (Feb. 11, 2015) (held that hateful nature of the alleged 

comments calling Complainant “homo” and telling him he was “living in sin” and would be “going to hell” coupled 

with the alleged lack of adequate response on the part of management, sufficiently severe to state a viable claim of 

harassment due to gender-based stereotyping that required further investigation and processing), 

https://www.eeoc.gov/decisions/0120133382.r.2.txt.

23 Schultz, 71 Stan. L. Rev. at 19.

24 Julia Becker, Matthew Zawadzki, and Stephanie Shields, “Confronting and Reducing Sexism: A Call for Research 

on Intervention,” Journal of Social Issues, (Dec. 2014), vol. 70, no. 4; Cailin Stamarski and Leanne Son Hing, 

“Gender inequalities in the workplace: the effects of organizational structures, processes, practices, and decision 

makers’ sexism, Frontiers in Psychology, (Sept. 16, 2015); Emily Leskinen and Lilia Cortina, “Dimensions of 

Disrespect: Mapping and Measuring Gender Harassment in Organizations,” Psychology of Women Quarterly, 2014, 

vol. 38, no. 1.

25 See e.g., Myrtle Bell, Mary McLaughlin, Jennifer Sequeria, “Discrimination, Harassment, and the Glass Ceiling: 

Women Executives as Change Agents,” Journal of Business Ethics, vol. 37, (2002); Louise Fitzgerald, Professor 

Emerita of Psychology, Women’s Studies and Management, University of Illinois at Urbana Champaign, Written 

Statement for Federal Me Too: Examining Sexual Harassment in Government Workplaces Briefing before the U.S. 

Commission on Civil Rights, May 9, 2019 at 2-3 (hereinafter Fitzgerald Statement). 

26 Vicki Schultz, “Open Statement on Sexual Harassment from Employment Discrimination Law Scholars,” 71 Stan. 

L. Rev., June 2018, https://digitalcommons.law.yale.edu/fss_papers/5301, at pp. 22-23, citing various social science 

studies.

27 See e.g., New America, “Sexual Harassment: A Severe and Pervasive Problem,” Sept. 2018, 

https://d1y8sb8igg2f8e.cloudfront.net/documents/Sexual_Harassment_A_Severe_and_Pervasive_Problem_2018-10-
6 FEDERAL #METOO

Within the federal government, and its nearly 2,000 individual agencies, an administrative process 

exists for handling claims of sexual harassment that is specific to employees and applicants of the 

federal government and, as explained below, is separate and different from the process for 

employees of private companies and state and local government employees.28 In order to bring a 

claim of sexual harassment, employees and applicants for employment must first file a complaint 

with their employing agency. The EEOC, through its regulations, requires that all federal agencies 

have an internal process for reviewing, accepting, mediating, investigating, and deciding the merits 

of such claims. This “Equal Employment Opportunity” complaint process or, “EEO” process, 

takes place within the complainant’s agency and begins by the employee or applicant for 

employment filing an informal sexual harassment complaint with an EEO counselor within 45 

days of the alleged incident. If the matter is not resolved at the informal stage, the Complainant 

may file a formal complaint after which the agency will either dismiss the complaint or accept it 

and conduct a formal investigation. Once the investigation is complete, the Complainant can elect 

either a decision from the agency, or request an in-person hearing before the EEOC. The 

Complainant does not have the opportunity to appeal (either to the EEOC or federal district court) 

until all agency administrative rights have been exhausted. 

In the federal government, the EEOC’s role is largely oversight over agency EEO programs as 

well as adjudicative. One of EEOC’s core roles is to oversee the administrative EEO hearings 

process; as explained above, a complainant can either elect a decision on their case from their 

employing agency, or a hearing before an EEOC administrative judge. To accommodate those 

hearings, EEOC employs hundreds of administrative judges (who are also federal employees) 

throughout nearly 40 field offices and 15 district offices spread out across the country, and a 

headquarters located in Washington D.C.29 When a complainant requests a hearing, they may have 

the opportunity to present their case to an EEOC administrative judge who will decide whether 

discrimination occurred. The EEOC also has appellate functions; when a complainant receives an 

unfavorable decision from their employing agency, the complainant may pursue an appeal through 

 

10_190248.pdf, at 55; Irma Morales Waugh, “Examining the Sexual Harassment Experiences of Mexican 

Immigrant Farmworking Women, Violence Against Women, vol. 16, no. 3, (2010); Alexia Fernández Campbell, 

“Housekeepers and Nannies Have No Protection from Sexual Harassment under Federal Law,” Vox, (2018), 

https://www.vox.com/2018/4/26/17275708/housekeepers-nannies-sexual-harassment-laws; Chai Feldblum and 

Victoria Lipnic. EEOC Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs Chai 

R. Feldblum and Victoria A. Lipnic, (June 2016); Bernice Yeung, “Rape on the Night Shift: Under the Cover of 

Darkness, Female Janitors Face Rape and Assault.” Frontline, (June 23, 2015), 

https://www.pbs.org/wgbh/frontline/article/rape-on-the-night-shift/.

28 This is the same process for other theories of discrimination including disparate treatment or disparate impact 

claims based on other protected bases. See e.g., U.S. Commission on Civil Rights, Are Rights A Reality?, November 

2019, https://www.usccr.gov/pubs/2019/11-21-Are-Rights-a-Reality.pdf. 29 U.S. Equal Employment Opportunity Commission, EEOC Office List and Jurisdictional Map, 

https://www.eeoc.gov/field/
EXECUTIVE SUMMARY 7

EEOC’s Office of Federal Operations who will review their case and may issue a different 

decision. This process is discussed more thoroughly in chapter 3 of this report.

The procedure described above is the EEO claims process for federal government employees and 

applicants and the role EEOC plays in federal sector employment. EEOC however, plays a 

different role in the enforcement of Title VII and in private sector and state and local government 

employees’ claims alleging sexual harassment. In the private sector, EEOC is directly responsible 

for enforcing individual Title VII claims against private employers by pursuing an individual’s 

claim on their behalf.30 With respect to state and local government employees’ claims, EEOC has 

less involvement; here, Department of Justice enforces Title VII, and ensuing sexual harassment 

claims, and may bring a lawsuit against a state or local government, but typically only after EEOC 

conducts an initial investigation and attempts to conciliate the matter.31 Thus, the path a sexual 

harassment complaint will follow is entirely dependent on where the employee works.

Sexual harassment imposes substantial burdens on individual victims, workplaces, and society at 

large.32 Sexual harassment has both physical and psychological consequences, which can include 

survivors suffering from depression, stress, anxiety, and high blood pressure, among other harmful 

consequences.

33 These conditions not only negatively affect an individual’s health, but they can 

also lead to missed workdays, reduced productivity, and increased turnover.34 Sexual harassment 

 

30 U.S. Equal Employment Opportunity Commission, “Title VII of the Civil Rights Act of 1964,” 

https://www.eeoc.gov/laws/statutes/titlevii.cfm.

31 U.S. Equal Employment Opportunity Commission and U.S. Dep’t of Justice, Title VII Employment 

Discrimination Charges Against State and Local Governments, Dec. 21, 2018, https://www.justice.gov/opa/pressrelease/file/1122816/download

32 See e.g., Kathleen Rospenda, Judith Richman, and Candice Shannon, “Prevalence and Mental Health Correlates of 

Harassment and Discrimination in the Workplace: Results from a National Study,” Journal of Interpersonal 

Violence, vol. 24, no. 5, (May 2009); Zar and Castillo v. Brennan, Case No. 19-cv-250, U.S. District Court for 

Northern District of California, (Jan. 2019), at 7, https://legalaidatwork.org/wp-content/uploads/2019/01/USPS-SexHarrassment-Complaint.pdf; Jason Houle, Jeremy Staff, Jeylan Mortimer, Christopher Uggan, and Amy Blackstone, 

“The Impact of Sexual Harassment on Depressive Symptoms during the Early Occupational Career,” Society and 

Mental Health, vol. 1, no. 2 (July 2011), 

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3227029/pdf/nihms318538.pdf. 

33 See e.g., Kathleen Rospenda, Judith Richman, and Candice Shannon, “Prevalence and Mental Health Correlates of 

Harassment and Discrimination in the Workplace: Results from a National Study,” Journal of Interpersonal 

Violence, vol. 24, no. 5, (May 2009); Jason Houle, Jeremy Staff, Jeylan Mortimer, Christopher Uggan, and Amy 

Blackstone, “The Impact of Sexual Harassment on Depressive Symptoms during the Early Occupational Career,” 

Society and Mental Health, vol. 1, no. 2 (July 2011),

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3227029/pdf/nihms318538.pdf. 

34 See e.g., Kathleen Rospenda, Judith Richman, and Candice Shannon, “Prevalence and Mental Health Correlates of 

Harassment and Discrimination in the Workplace: Results from a National Study,” Journal of Interpersonal 

Violence, vol. 24, no. 5, (May 2009); Zar and Castillo v. Brennan, Case No. 19-cv-250, U.S. District Court for 

Northern District of California, (Jan. 2019), at 7, https://legalaidatwork.org/wp-content/uploads/2019/01/USPS-SexHarrassment-Complaint.pdf; Jason Houle, Jeremy Staff, Jeylan Mortimer, Christopher Uggan, and Amy Blackstone, 
8 FEDERAL #METOO

can also result in an employee questioning his or her skills and abilities as a worker. Taken 

together, these results can push valuable workers out of their jobs or limit promotion opportunities 

which can hurt an individual’s career trajectory and be costly to employers.35 Many workers, 

however, are forced to endure harassment because they cannot financially afford to leave a hostile 

and damaging work environment.36 Accordingly, the Commission’s research shows that sexual 

harassment in the federal workplace is a civil rights issue of national and federal importance.

The federal government has a special role in enforcing civil rights nationally and should strive to 

set the standard in harassment free workplaces.37 Like all employers, for federal agencies to 

effectively attract and retain qualified and dedicated workers, they must promote practices that are 

free from harassment and discrimination. All workers should face a level employment playing 

field and have an opportunity to contribute to their fullest potential. The EEOC notes that “while 

the promise of workplace equality is a legal right afforded to all of our nation’s workers, equal 

opportunity is more than a matter of social justice. It is a national economic imperative.”38 

The Commission’s investigation also revealed a discrepancy between federal and private sector 

requirements for sexual harassment claims. Before bringing a claim to EEOC or commencing a 

civil action, employees alleging sexual harassment in the federal workplace must first work 

 

“The Impact of Sexual Harassment on Depressive Symptoms during the Early Occupational Career,” Society and 

Mental Health, vol. 1, no. 2 (July 2011), 

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3227029/pdf/nihms318538.pdf; Heather Metcalf, Chief Research 

Officer at Association for Women in Science, Written Statement for Federal Me Too: Examining Sexual 

Harassment in Government Workplaces Briefing before the U.S. Commission on Civil Rights, May 9, 2019, at 4 

(hereinafter Metcalf Statement).

35 See e.g., Elyse Shaw, Ariane Hegewisch, Cynthia Hess, “Sexual Harassment and Assault at Work: Understanding 

the Costs,” Oct. 15, 2018; Amanda Rossie, Jasmine Tucker, and Kayla Patrick, “Out of the Shadows,” National 

Women’s Law Center, 2018, https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wpcontent/uploads/2018/08/SexualHarassmentReport.pdf; Heather Boushey and Sarah Jane Glynn, “There are 

Significant Business Costs to Replacing Employees,” Center for American Progress, Nov. 16, 2012, 

https://cdn.americanprogress.org/wp-content/uploads/2012/11/16084443/CostofTurnover0815.pdf.

36 See e.g., Rebecca Thurston, Yuefang Chang, Karen Matthews, Roland von Kanel, and Karestan Koenen, 

“Association of Sexual Harassment and Sexual Assault with Midlife Women’s Mental and Physical Health,” 

Journal of the American Medical Association (JAMA) Internal Medicine, vol 179, no. 1, (2019), 

https://jamanetwork.com/journals/jamainternalmedicine/article-abstract/2705688; Kathleen Rospenda, Judith 

Richman, and Candice Shannon, “Prevalence and Mental Health Correlates of Harassment and Discrimination in the 

Workplace: Results from a National Study,” Journal of Interpersonal Violence, vol. 24, no. 5, (May 2009); Shannon

Barth, Rachel Kimerling, Joanne Pavao, Susan McCutcheon, Sonja Batten, Erin Dursa, Michael Peterson, and Aaron 

Schneiderman, “Military Sexual Trauma Among Recent Veterans: Correlates of Sexual Assault and Sexual 

Harassment,” American Journal of Preventive Medicine, vol. 50, no. 1, (Jan. 2016), 

https://www.sciencedirect.com/science/article/abs/pii/S0749379715003189. 

37 See infra notes 41-43 (discussing that the federal government should be a model workplace).

38 See U.S. Equal Employment Opportunity Commission, “Equal Employment Opportunity: Management Directive 

715,” (effective date: Oct. 1, 2003), https://www.eeoc.gov/federal/directives/md715.cfm.
EXECUTIVE SUMMARY 9

through and navigate the Equal Employment Opportunity (EEO) process within their own 

agencies.39 The EEO process raises questions of conflicts of interest because the agency is tasked 

with investigating the allegations and also with defending itself. Federal employees are also subject 

to confusing time restrictions, and in many cases unwittingly forfeit their right to bring formal 

claims at all.40 These policies, which also raise questions of conflict of interest, may leave victims 

of sexual harassment in the federal workforce at a distinct disadvantage compared to their nonfederal employee counterparts.

The following report examines data trends, as well as the adequacy of prevention, redress, and

reporting efforts to address sexual harassment in the federal workplace. After discussing the 

relevant civil rights law and procedures, background literature, and an overview of federal sexual 

harassment data in Chapter 1, Chapter 2 examines the role of federal equal employment 

opportunity protections through the EEOC as an oversight and regulatory agency, and Chapter 3 

provides more specific information on the EEOC policies and procedures regarding sexual 

harassment. Chapter 4 then analyzes and compares the policies and procedures of the State 

Department and NASA. The report concludes with the Commission’s findings and 

recommendations, which are highlighted below, and discussed in full in Chapter 5.

Federal #MeToo: Highlighted Findings and Recommendations

Findings

1. Despite the passage of over thirty years since the landmark ruling establishing that sexual 

harassment claims may be pursued under Title VII of the Civil Rights Act, sexual 

harassment continues to be a significant problem, including in federal workplaces. 

2. There is a dearth of publicly available data regarding sexual harassment among federal 

employees. The challenge of fully understanding the scope of the issue in federal 

workplaces is compounded by the fact that sexual harassment often goes unreported.

3. While harassment may sometimes be part of inappropriate workplace manifestations of 

sexual attraction, it is ultimately a demonstration of power, control, and dominance. Any 

person can be a victim of sexual harassment, regardless of the victim’s or the harasser’s 

sex or sexual orientation.

4. According to a 2018 Merit Systems Protection Board (MSPB) survey, an estimated 1 in 7 

federal employees experienced sexually harassing behaviors at work between 2016-2018.

 

39 See infra notes 461-62.

40 See infra notes 463-72; 479-82.
10 FEDERAL #METOO

5. Structural risk factors for sexual harassment often intersect and are exacerbated by other 

discriminatory biases based on race, ethnicity, national origin, religion, age, gender 

identity, sexual orientation, and disability. 

6. Interns and contractors are especially vulnerable to sexual harassment in federal 

workplaces because many established protections are unavailable to them.

7. The federal EEO complaint process is unduly complex for victims.

8. Organizational factors have strong correlations in predicting harassment.

9. Overall, the total number of sexual harassment claims – and the number of claims per 

employee – has been steadily increasing in recent years.

10. Foreign nationals, or locally employed staff, are especially vulnerable to sexual 

harassment in State Department workplaces abroad, because incidents that occur in 

overseas posts are handled locally and are often not addressed adequately.

11. Women face the highest risk of sexual harassment in federal workforces.

12. The EEOC estimates that three out of four individuals who experience sexual harassment 

in the workplace never tell a supervisor, manager, or union representative about the 

incident.

13. Sexual harassment contributes substantially to the enduring gender pay gap by causing 

reductions in productivity, increased use of sick and annual leave, and attrition of women. 

14. Studies have found that sexual harassment decreases linearly as structural gender 

imbalances approach parity. 

15. Between 2014 and 2016, EEOC reviewed anti-harassment programs at each federal 

agency under its jurisdiction, finding that a vast majority of federal agencies had 

ineffective anti-harassment programs.

16. Effectively combatting sexual harassment often requires changing workplace culture, and 

bystander training can achieve cultural change from within by demonstrating that 

complaints are welcomed and everyone is working collectively towards a safe and 

effective workplace.

Recommendations

1. The federal government, as the largest employer in the nation, must be a model employer 

and it, through its Office of Personnel Management and following guidance from EEOC, 

should continually disseminate sexual harassment policies and practices consistent with 

the conduct of a model employer and a leader of protecting the rights of all workers.
EXECUTIVE SUMMARY 11

2. Federal agencies should take steps to prevent the incidence of workplace sexual 

harassment, including:

o Implementing department-wide, uniform penalties to be used in disciplinary 

actions,

o Banning serious perpetrators from receiving promotions and performance awards,

o Ending the practice of reassigning perpetrators to other divisions,

o Embracing and training employees regarding bystander intervention.

3. Federal agencies need to implement mandatory anti-harassment training programs that 

are specific, clear, and accessible and target every level of employee.

4. Federal agencies should scrutinize policies that permit the use of nondisclosure clauses in 

settlements of harassment and other discrimination claims.

5. Congress should enact explicit statutory protections from sexual harassment for federal 

government contractors and interns, whether paid or unpaid. 

6. Congress should establish a federal ombudsperson, empowered to investigate alleged 

sexual harassment claims of complainants who may not have adequate recourse through 

available channels where existing agency structures may be compromised by conflicts.

7. Congress should allocate additional funds to enable EEOC to help agencies proactively 

identify and prevent sexual harassment.

8. The EEOC should begin collecting and reporting intersectional data on sexual harassment 

in federal workplaces, so that more effective and targeted measures can be taken to 

combat harassment against the people most affected by it.

9. Stricter enforcement of the anti-discrimination and anti-harassment laws that protect 

individuals in federally funded institutions under Title IX is needed to address the culture 

of sexual harassment and misogyny in grant-receiving research institutions.

10. In light of testimony that the USCCR received, and the often isolated geographic 

conditions in which diplomatic functions must be discharged, it is important that State 

Department leadership, including the Secretary, direct and ensure that the culture of State 

workplaces globally is to have zero tolerance for sexual harassment, meaningful access to 

fair processes where claims are asserted, and no tolerance for retaliation.
12 FEDERAL #METOO

Below is the agenda from the briefing the Commission held in May 2019 to inform this report:

U.S. Commission on Civil Rights Public Briefing:

Federal Me Too: Examining Sexual Harassment in Government Workplaces

Thursday, May 9, 2019

National Place Building, 1331 Pennsylvania Ave. NW, Suite 1150, 

Washington, DC 20425 (also live-streaming)

Introductory Remarks: Chair Catherine E. Lhamon: 9:00 am - 9:10 am

Panel One: EEOC & Outside Experts: 9:10 am - 10:40 am 

• Congresswoman Jackie Speier

• Dexter Brooks, Associate Director, Federal Sector Programs, Equal Employment 

Opportunity Commission (EEOC)

• Sunu Chandy, Legal Director, National Women’s Law Center

• George Chuzi, Attorney, Kalijarvi, Chuzi, Newman, & Fitch

Panel Two: State Dept, NASA, & STEM organizations: 10:50 am - 12:10 pm 

• Gregory Smith, Director, Office of Civil Rights and Chief Diversity Officer, U.S. 

Department of State

• Jenna Ben-Yehuda, President & CEO, Truman National Security Project 

• Stephen Shih, Associate Administrator, Diversity & Equal Opportunity, NASA

• Heather Metcalf, Chief Research Officer, Association for Women in Science

Panel Three: Academics and Community Stakeholders: 1:10 pm - 2:30 pm

• Christine Back, Legislative Attorney, Congressional Research Service

• Tamara Chrisler, Managing Policy Director, Leadership Conference on Civil and Human 

Rights

• Donald Tomaskovic-Devey, Professor of Sociology & Executive Director, Center for 

Employment Equity, University of Massachusetts-Amherst

• Rhonda Davis, Head of Office of Diversity and Inclusion, National Science Foundation

• Louise Fitzgerald, Professor Emerita, Psychology, Women Studies, & Management, 

University of Illinois at Urbana-Champaign

Panel Four: Legal and Community Experts: 2:40 pm - 4:00 pm

• Dariely Rodriguez, Director of Economic Justice Project, Lawyers’ Committee for Civil 

Rights Under Law

• Mona Charen, Senior Fellow, Ethics & Public Policy Center

• Jane Liu, Legal Director, National Asian Pacific American Women’s Forum

• Debra Katz, Attorney, Katz, Marshall & Banks

Open Public Comment Session: 5:00 pm - 6:30 pm
CHAPTER 1: INTRODUCTION AND BACKGROUND 13

CHAPTER 1: INTRODUCTION AND BACKGROUND

The federal government is the largest employer in the nation and employs an estimated two million 

workers both domestically and internationally.41 The federal government also is a principal 

enforcer of the nation’s antidiscrimination laws. Accordingly, the federal government must 

position itself as a model employer and a leader of protecting the rights of all workers.42 Debra 

Katz testified that: 

When sexual harassment is permitted and enabled in the federal sector, taxpayers are 

funding it. Taxpayers are paying the salaries of people who are harassing in the workplace. 

...And taxpayers should not be funding these kinds of violations of discrimination law. 

They undermine our nation’s commitment to equality.43

This chapter begins with a discussion of the current historical timeframe and increased awareness 

of sexual harassment across all workplaces. Next, the chapter provides an introduction to the 

applicable civil rights law legal definition of sexual harassment. The chapter also includes a 

discussion of the extent of sexual harassment in the federal workplace, the role of workplace 

culture and environment, and strategies to prevent and address sexual harassment.

Increased Awareness of Sexual Harassment 

The issue of sexual harassment most recently intensified in the national spotlight after October 15, 

2017, when actor Alyssa Milano famously tweeted to her Twitter followers to use the hashtag 

#MeToo if they had experienced harassment or assault. Her tweet instantly went viral, and 

according to the Pew Research Center, a year later the hashtag had been used more than 19 million 

times.44

 

41 See Office of Personnel Management, “FedScope: Federal Workforce Data,” (Sept. 2018), 

https://www.fedscope.opm.gov/.

42 Brooks Testimony, Washington Briefing, p. 76. See also U.S. Merit Systems Protection Board, The Federal 

Government: A Model Employer or a Work In Progress, Sept. 2008, http://testpublic.mspb.gov/studies/studies/The_Federal_Government_A_Model_Employer_or_a_Work_in_Progress_384592.

pdf (noting that the federal government “has long aimed to be a ‘model employer’”). 

43 Katz Testimony, Washington Briefing, p. 143.

44 Monica Anderson and Skye Toor, “How social media users have discussed sexual harassment since #MeToo went 

viral,” Pew Research Center, Oct. 11, 2018, https://www.pewresearch.org/fact-tank/2018/10/11/how-social-mediausers-have-discussed-sexual-harassment-since-metoo-wentviral/?utm_source=Pew+Research+Center&utm_campaign=bc6a468ed2-

EMAIL_CAMPAIGN_2018_10_11_05_08&utm_medium=email&utm_term=0_3e953b9b70-bc6a468ed2-

400487317. 
14 FEDERAL #METOO

Although Alyssa Milano’s tweet brought a renewed focus to the expression,45 the phrase “me too” 

was originally used by social activist Tarana Burke in 2006.46 Burke began the movement and

coined the phrase “me too” to express solidarity with women and girls who had experienced sexual 

assault.47 The more recent #MeToo movement initially focused on sexual harassment in 

Hollywood, but advocates have now expanded its scope to demonstrate that harassment is 

prevalent across industries of all types, including those largely dominated by low-paid, low-wage 

women of color.48 For instance, research has shown that in the fast-food industry, black and Latina 

women experience sexual harassment at higher rates than white female employees.49 Other 

industries that are heavily dominated by women of color workers, such as domestic work, healthcare, and agricultural labor, also have rampant rates of sexual harassment and assault, yet due to 

the inherent power dynamics, women in these industries are often more fearful of reporting their 

alleged attackers.50 Jane Liu, Legal Director at the National Asian Pacific American Women’s 

Forum, testified at the Commission’s briefing that Asian and Pacific Islander immigrant workers 

are also less likely to report harassment because they may face many barriers in reporting, such as 

language barriers, cultural stigma, fear, or lack of knowledge on what behaviors constitute sexual 

harassment.51 

 

45 Monica Anderson and Skye Toor, “How social media users have discussed sexual harassment since #MeToo went 

viral,” Pew Research Center, Oct. 11, 2018.

46 Emma Brockes, “#MeToo founder Tarana Burke: ‘You have to use your privilege to serve other people,’” 

Guardian, Jan. 15, 2018, https://www.theguardian.com/world/2018/jan/15/me-too-founder-tarana-burke-womensexual-assault.

47 Ibid.

48 See e.g., National Organization of Women, “Black Women & Sexual Violence,” Feb. 2018, at 4, 

https://now.org/wp-content/uploads/2018/02/Black-Women-and-Sexual-Violence-6.pdf; Doreen St. Felix, “One 

Year of #MeToo: We Need a More Inclusive Language of Abuse and Victimhood, New Yorker, Oct. 10, 2018, 

https://www.newyorker.com/culture/culture-desk/one-year-of-metoo-we-need-a-more-flexible-language-of-abuseand-victimhood.

49 Hart Research Associates, “Key Findings from a Survey of Women Fast Food Workers,” Oct. 5, 2016, 

https://hartresearch.com/wp-content/uploads/2016/10/Fast-Food-Worker-Survey-Memo-10-5-16.pdf.

50 Interview with Tarana Burke, Alicia Garza, and Mily Trevino-Sauceda, “Farmworkers, Domestic Workers & 

Women in Low-Wage Jobs Face Challenges Reporting Sexual Assault,” Democracy Now, Dec. 8, 2017, 

https://www.democracynow.org/2017/12/8/farmworkers_domestic_workers_in_women_in; National Organization 

of Women, “Black Women & Sexual Violence,” Feb. 2018, at 4, https://now.org/wpcontent/uploads/2018/02/Black-Women-and-Sexual-Violence-6.pdf; Robin Runge, “Failing to Address Sexual and 

Domestic Violence at Work: The Case of Migrant Farmworker Women,” Journal of Gender, Social Policy & the 

Law, vol. 20, no. 4, 2012, 

https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://scholar.google.com/&httpsredir=1&art

icle=1566&context=jgspl. 

51 Jane Liu, testimony, Briefing Before the U.S. Commission on Civil Rights, Washington, D.C., May 9, 2019, 

transcript, p. 123 (hereinafter cited at Washington Briefing).
CHAPTER 1: INTRODUCTION AND BACKGROUND 15

Following the investigative reporting of the Harvey Weinstein scandal,52 claims of harassment 

and/or assault against many prominent men across different sectors of the workforce came to light, 

and often raised by multiple women.53 Notably, several federal and state politicians resigned in the 

wake of allegations of sexual harassment.54 These accusations not only revealed how widespread 

sexual harassment is, but also exposed limitations of the processes designed to handle sexual 

harassment complaints. In Congress, for example, a complainant was forced to work with an 

alleged harasser for a thirty-day “cooling off period.”55 At the Commission’s briefing, 

Representative Jackie Speier testified that “Congress has been a breeding ground for a hostile work 

environment for far too long. It’s time to throw back the curtain on the repulsive behavior that has 

thrived in the dark without consequences.”56 Representative Speier emphasized that while it was 

difficult to talk about her own experience of sexual assault when she was a congressional staffer, 

she did so because she was concerned about the prevalence of mistreatment of women staff and 

Members of Congress.57

Since the rise of the #MeToo movement, women serving in Congress have played a central role in 

acknowledging and condemning their colleagues’ inappropriate conduct. When allegations that 

Senator Al Franken had forcibly kissed and groped two of his female coworkers became public in 

late 2017, Senator Kirsten Gillibrand publicly called for his resignation. The same day, dozens of 

other Democratic senators joined in urging Senator Franken to step down. Under increasing 

pressure from colleagues in his own party, Senator Franken announced his resignation in 

December 2017.58 That sexual harassment allegations and admissions would have such immediate 

 

52 High profile actors accused Weinstein of sexually propositioning them, creating hostile work environments, and 

assaulting them. As more and more women actors spoke out about the abuses they had suffered by him, Weinstein 

was fired by his company on October 8, 2017. He has since been arrested on rape charges and awaits trial. See e.g., 

Daniel Victor, “How the Harvey Weinstein Story Has Unfolded,” New York Times, Oct. 18, 2017, 

https://www.nytimes.com/2017/10/18/business/harvey-weinstein.html; Al Baker and James McKinley, Jr. “The 

Case Against Harvey Weinstein, Explained,” New York Times, May 25, 2018, 

https://www.nytimes.com/2018/05/25/nyregion/weinstein-case-legal-explainer.html.

53 See e.g., Editors, “After Weinstein: More than 100 high-powered men accused of sexual misconduct,” USA 

Today, Nov. 22, 2017, https://www.usatoday.com/story/news/2017/11/22/weinstein-aftermath-all-men-accusedsexual-misconduct/884778001/.

54 Leila Ettachfini, “These 9 Politicians Have Resigned for Sexual Misconduct in the Wake of #MeToo,” Vice, May 

9, 2018, https://www.vice.com/en_us/article/kzkeyv/these-9-politicians-have-resigned-for-sexual-misconduct-inthe-wake-of-metoo.

55 Rachael Bade and Elana Schor, “Capitol Hill’s Sexual Harassment Policy ‘Toothless,’ ‘A Joke,’” Politico, Oct. 

27, 2017, https://www.politico.com/story/2017/10/27/capitol-hill-sexual-harassment-policies-victims-244224.

56 Ibid.

57 Speier Testimony, Washington Briefing, p. 9.

58 Clare Foran, “Senate Democrats Call for Al Franken to Resign,” The Atlantic, Dec. 6, 2017, 

https://www.theatlantic.com/politics/archive/2017/12/al-franken-women-senators-resign/547658/.
16 FEDERAL #METOO

and dramatic consequences for those implicated in wrongdoing is a relatively new phenomenon of 

the attention that #MeToo brings to these issues. However, the problem runs deep: in March 2019, 

based on a Congressional inquiry, the Inspector General of the Architect of the Capitol published 

a report detailing 57 incidents of sexual harassment over the past ten years, including allegations 

that Members of Congress had harassed custodial staff, who did not report these incidents due to 

fear of losing their jobs.

59

In order to bring greater accountability for sexual harassment in Congress, in December 2018, 

Senator Amy Klobuchar, along with 43 bipartisan co-sponsors, introduced the Congressional 

Accountability Act of 1995 (CAA) Reform Act that would amend the 1995 bill of the same shorter 

name.60 The bill was signed into law in December 2018.61 It revised the CAA as follows: 

• eliminated CAA counseling requirements and made mediation an employee’s option 

(rather than a requirement) before filing a claim with the Office of Compliance (OOC) 

alleging the violation;

• required current and former Members of Congress to reimburse the federal Department of 

Treasury for compensatory damages included in an award or settlement resulting from the 

Member’s alleged act of discrimination or retaliation;

• required referral to congressional ethics committees of final disposition of claims alleging 

CAA violations by Members of Congress and senior staff of employing offices;

• required all legislative offices (including non-congressional offices) that violate CAA to 

reimburse the Treasury for resulting award or settlement payments;

• extended CAA anti-discrimination requirements and remedies to uncompensated 

legislative branch interns, detailees, and fellows; and

• provided OOC and CAA resources and services to employees outside of the Washington, 

D.C. area.62

 

59 U.S. Architect of the Capitol, Congressional Request: Office of Inspector General Sexual Harassment Inquiry, 

Mar. 15, 2019, https://www.oversight.gov/sites/default/files/oigreports/archive/18579//Combined%20AOC%20OIG%20Sexual%20Harassment%20Inquiry%20with%20AOC%20r

esponse.pdf, at 12.

60 Congressional Accountability Act of 1995 Reform Act, S. 2952, 115th Congress, 2017-2019.

61 Id.; see also Pub. L. 115-397.

62 S.3749, Congressional Accountability Act of 1995 Reform Act, 115th Congress (2017-2018), 

https://www.congress.gov/bill/115th-congress/senate-bill/3749.
CHAPTER 1: INTRODUCTION AND BACKGROUND 17

Just as it appears that essentially every industry is touched by allegations of sexual harassment, so 

too is every branch of the federal government.63

Sexual Harassment Under Title VII and Major Federal Court Decisions

Title VII of the Civil Rights Act of 1964 (“Title VII”) applies to employers, including federal, state 

and local governments (with 15 or more employees), and to the federal government.

64 Title VII 

also applies to private and public colleges and universities, employment agencies, and labor 

organizations.65 Title VII states that:

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate 

against any individual with respect to his compensation, terms, conditions, or privileges 

of employment, because of such individual’s race, color, religion, sex, or national 

origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way 

which would deprive or tend to deprive any individual of employment opportunities or 

 

63 See e.g., Dahlia Lithwick, “He Made Us All Victims and Accomplices,” Slate, Dec. 13, 2017, 

https://slate.com/news-and-politics/2017/12/judge-alex-kozinski-made-us-all-victims-and-accomplices.html; Stacy 

Cammarano, “#MeToo in the federal court system is doomed to fail,” Washington Post, May 8, 2018, 

https://www.washingtonpost.com/opinions/metoo-in-the-federal-court-system-is-doomed-tofail/2018/05/08/3d299380-52da-11e8-abd8-265bd07a9859_story.html (citing Matt Zapotowski, “Judiciary closes 

investigation of sexual misconduct allegations against retired Judge Alex Kozinski,” Washington Post, Feb. 5, 2018, 

https://www.washingtonpost.com/world/national-security/judiciary-closesinvestigation-of-sexual-misconductallegations-against-retired-judge-alex-kozinski/2018/02/05/e3a94bb8-0ac0-11e8-95a5-

c396801049ef_story.html?utm_term=.237b0d6329ed; Office of the Inspector General, Office of the Inspector 

General Sexual Harassment Inquiry, Mar. 15, 2019, https://www.oversight.gov/sites/default/files/oigreports/archive/18579//Combined%20AOC%20OIG%20Sexual%20Harassment%20Inquiry%20with%20AOC%20r

esponse.pdf; Andrew Restuccia, Emily Goldberg, and Rebecca Morin, “How the federal government hides sexual 

harassment payouts, Politico, Jan. 3, 2018, https://www.politico.com/story/2018/01/03/sexual-harassmentexecutive-branch-payments-319151.

64 Title VII of the Civil Rights Act of 1964, Pub. L. 88-352; 42 U.S.C. § 2000e(a) and (b); 42 U.S.C. § 2000e-16(a) 

(application to federal government).

65 42 U.S.C. § 2000e(b) (employment agency), (d) (labor organization), (e) (schools, colleges, and universities); 

Equal Employment Opportunity Act of 1972, 42 USC § 2000e-1 note, Pub. L. 92-261, 86 Stat. 103 (1988) (the 

Equal Employment Opportunity Act was amended in 1988 to remove the previous exemption for educational 

institutions); see also Susan L. Pacholski, Title VII in the University: The Difference Academic Freedom Makes, 59 

U. Chicago L. Rev. 1317, 1317-18 (1991).
18 FEDERAL #METOO

otherwise adversely affect his status as an employee, because of such individual’s race, 

color, religion, sex, or national origin.

66

The following legal standards for when sexual harassment creates liability under Title VII for an 

employer have been established by federal court decisions. EEOC has also issued decisions 

interpreting the terms used to establish liability. These legal lability standards under Title VII apply 

to all employers, including the federal government. Chapters 2 and 3 discuss the federal 

government’s anti-harassment procedures, the processing of sexual harassment complaints, and 

disciplinary actions based on sexual harassment.

The Supreme Court first held that Title VII prohibits sexual harassment in the workplace in 1986, 

in the case of Meritor Savings Bank v. Vinson.

67 As set forth in paragraph (1) above, Title VII 

makes it unlawful for employers to discriminate with respect to terms and conditions of 

employment because of sex.

68 In Meritor, the Court unanimously held that Title VII prohibits 

sexual harassment as a form of sex-based discrimination because it requires victims to work in an 

“abusive” or “hostile” environment.69 The Court also held that to be prohibited, the harassment 

must be “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and 

create an abusive working environment.’”70 This ruling established what is now known as the 

“severe or pervasive” standard that is used to assess the frequency or gravity of sexual harassment, 

to determine whether it is a violation of Title VII.71

In 1993, in Harris v. Forklift Systems, Inc. the Supreme Court considered whether a plaintiff must 

prove psychological injury in order to prevail on a sexual harassment hostile work environment 

claim.72 The Court held that if a workplace is permeated with behavior that is so severe or pervasive

as to create a hostile or abusive working environment, a Title VII violation exists regardless of 

whether the plaintiff suffered a psychological harm.73 In emphasizing that Title VII does not 

require proof of an injury, the Harris court stated that:

 

66 42 U.S.C. § 2000e-2(a).

67 Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986).

68 42 U.S.C. § 2000e-2(a)(1).

69 Meritor, 477 U.S. at 64.

70 Id. at 67 (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). Justice Marshall, joined by Justices 

Brennan, Blackmun, and Stevens, concurred in this aspect of the judgment. Meritor, 477 U.S. at 74 (Marshall, J. 

concurring) (“I fully agree with the Court’s conclusion that workplace sexual harassment is illegal, and violates Title 

VII.”).

71 Id.

72 Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).

73 Id. at 21-22.
CHAPTER 1: INTRODUCTION AND BACKGROUND 19

A discriminatorily abusive work environment, even one that does not seriously affect 

employees’ psychological well-being, can and often will detract from employees’ job 

performance, discourage employees from remaining on the job, or keep them from 

advancing in their careers. Moreover, even without regard to these tangible effects, the very 

fact that the discriminatory conduct was so severe or pervasive that it created a work 

environment abusive to employees because of their race, gender, religion, or national origin 

offends Title VII’s broad rule of workplace equality.74

The Harris Court also introduced a reasonable person standard to evaluate whether the harassment 

violated federal law, clarifying that conduct must be sufficiently severe or pervasive to create both 

an objectively and subjectively hostile or abusive work environment.75 The Court held that in 

determining whether an environment is hostile or abusive, “all the circumstances” should be taken 

into account, and that:

These may include the frequency of the discriminatory conduct; its severity; whether it is 

physically threatening or humiliating, or a mere offensive utterance; and whether it 

unreasonably interferes with an employee’s work performance. The effect on the 

employee’s psychological well-being is of course, relevant to determining whether the 

plaintiff actually found the environment abusive. But while psychological harm, like any 

other relevant factor, may be taken into account, no single factor is required.76

In a concurring opinion, Justice Scalia stated that he did not believe the standards for indicating 

that harassment must rise to the level of being “abusive” or “hostile” were made clear, or 

ameliorated by adding the term “objectively,” or “by appealing to a ‘reasonable person[’s] notion 

of what the vague word means.”77 He opined that the majority’s decision “add[ed] little certitude,” 

“opening more expansive vistas of litigation.”78

The ambiguity of the “severe and pervasive” legal standard regarding what constitutes sexual 

harassment and which behaviors violate Title VII has resulted in split decisions among circuit 

courts. For instance, two appellate court cases—one from the Seventh Circuit and one from the 

Eighth Circuit—show how the standards established in Meritor and Harris can be interpreted 

differently. The Seventh Circuit case, Turner v. The Saloon, involved a male waiter who alleged 

that his female supervisor grabbed his genitals and buttocks, and asked him to kiss her, among 

 

74 Harris, 510 U.S. at 22.

75 Id. at 21-22.

76 Id. at 23.

77 Id. at 24 (Scalia, J. concurring).

78 Id. at 24 (Scalia, J. concurring).
20 FEDERAL #METOO

other unwelcome behaviors.

79 The Seventh Circuit reasoned that in the cases it had decided, 

unwelcome touching “increases the severity of the situation,” “especially when the touching is ‘of 

an intimate body part.’”80 Therefore, the Court ruled that the actions against Turner were 

sufficiently severe to prove a violation of Title VII and affirmed the lower court’s ruling against 

the restaurant’s motion to dismiss the case.81

The Eighth Circuit case, LeGrand v. Area Resources for Community and Human Resources, 

involved a male employee of a nonprofit group who was allegedly subjected to similar conduct by 

a board member. The named harasser engaged in inappropriate behavior, such as grabbing the 

plaintiff’s buttocks, reaching for his genitals, gripping his thigh, forcibly kissing him on the mouth, 

and asking him to participate in watching pornographic movies, among other things.82 The court

of appeals stated that in light of the “demanding standards set by the Supreme Court...” the 

harassment was not deemed to be sufficiently severe or pervasive to violate Title VII.83 Following 

other cases in the Eighth Circuit that involved demeaning remarks or even touching of intimate 

body parts, the court ruled that the behavior did not meet the severe or pervasive standard.84 The 

court also considered that the harasser’s behavior occurred in three “isolated incidents” that were 

“not physically threatening or violent,” and held that the behavior was “not so severe or pervasive 

as to poison [the victim’s] work environment.”85 At the Commission’s briefing, Christine Back, 

Legislative Attorney for the Congressional Research Service, testified that the Seventh and Eighth 

Circuits’ seemingly inconsistent rulings about highly similar fact patterns show that “in addition 

to the evidence in a case, how courts characterize the evidence ... shape [their] ultimate 

conclusion.”86

In her statement submitted to the Commission, Dariely Rodriguez, Director of the Economic 

Justice Project at the Lawyers’ Committee for Civil Rights Under Law, argued that the ambiguity 

around the Supreme Court’s “severe or pervasive” standard has made it difficult for complainants 

 

79 Turner v. The Saloon, 595 F.3d 679 (7th Cir. 2010).

80 Turner, 595 F.3d at 685-86 (citing and quoting 7th Circuit cases).

81 Minute Entry, Turner v. The Saloon, 1:05-cv-04595 (N.D. Ill. 2010) (notice that parties have reached a settlement 

agreement and declaring court’s intent to dismiss case with prejudice, and vacating previously scheduled trial).

82 LeGrand v. Area Resources for Community and Human Services, No. 04-1284, 348 F.3d 1098, 1100 (8th Cir. 

2005).

83 LeGrand, 348 F.3d at 1102.

84 Id.

85 Id.

86 Back Testimony, Washington Briefing, p. 87.
CHAPTER 1: INTRODUCTION AND BACKGROUND 21

to bring cases of harassment, and even harder to win them.87 Rodriguez also notes, however, that 

some courts have accurately recognized that harassment may encompass a variety of behaviors 

that can “alter the terms, conditions, or privileges of employment, with no single type, frequency, 

or duration of conduct required to make a showing of severe or pervasive harassment.”88 

At the Commission’s briefing, Debra Katz, who has specialized in litigation of sexual harassment 

cases including having participated in bringing the Meritor case in which the Supreme Court first 

recognized Title VII coverage of sexual harassment, also testified that while the severe or 

pervasive standard is longstanding, it is not applied consistently. She explained that judges have 

broad discretion in how to rule in sexual harassment cases. Regarding the severe or pervasive 

standard, Katz testified that: 

I know it’s a longstanding standard, but the problem is it’s like [a] Rorschach test...There’s 

going to be discretion in how courts look at these kinds of issues. [] [T]he severe and 

pervasive standard just lends itself to a much more subjective look at some really terrible 

things that happen in workplaces. In one workplace it’s actionable, in the other it’s not.89 

In light of criticisms of the severe or pervasive standard, in April 2019, Senator Patty Murray and 

Representative Katherine Clark introduced the Bringing an End to Harassment by Enhancing 

Accountability and Rejecting Discrimination (BE HEARD) in the Workplace Act.90 As part of the 

proposed legislative changes, the Act seeks to replace the severe or pervasive standard with a 

definition of sexual harassment as conduct “regardless of whether it is direct or indirect, or verbal 

or nonverbal, that unreasonably alters an individual’s terms, conditions, or privileges of 

employment, including by creating an intimidating, hostile, or offensive work environment.”91 The 

legislation would also clarify that harassment evaluations should be determined by the “totality of 

the circumstances,” but violations may also arise from a single incident.92

In their statement to the Commission, Debra Katz and Hannah Alejandro, Senior Counsel at Katz, 

Marshall & Banks, stated that this bill would also direct judges to “consider whether humiliating 

or degrading language or conduct occurred, whether the conduct reflects stereotypes about the 

 

87 Dariely Rodriguez, Director of the Economic Justice Project at the Lawyers’ Committee for Civil Rights Under 

Law, Written Statement for Federal Me Too: Examining Sexual Harassment in Government Workplaces Briefing 

before the U.S. Commission on Civil Rights, May 9, 2019, at 2 (hereinafter Rodriguez Statement). 

88 Ibid. 

89 Katz Testimony, Washington Briefing, p. 135.

90 Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination (BE HEARD) in the 

Workplace Act, H.R. 2148, 116th Congress (2019-2020).

91 Id. at Tit. II, § 204(c)(1).

92 Id. at § 204(c)(3) vii.
22 FEDERAL #METOO

target, and whether there is a ‘power differential’ between the alleged harasser and target.”93

Lastly, the Act would also broaden the scope of conduct in harassment investigations by explicitly 

stating that the following acts do not preclude a finding of unlawful behavior: 

(A) The complaining party is not the individual being harassed;

(B) The complaining party acquiesced or otherwise submitted to, or participated in, the 

conduct;

(C) The conduct is also experienced by others outside the protected class involved;

(D) The complaining party was able to continue carrying out duties and responsibilities of 

the party’s job despite the conduct;

(E) The conduct did not cause a tangible injury or psychological injury; or

(F) The conduct occurred outside of the workplace.94

Katz and Alejandro assert that the provisions of the BE HEARD Act, if enacted, would establish 

a standard for unlawful sexual harassment that is significantly more objective, more robust, and 

more reflective of real-world workplaces than the current severe or pervasive standard.95

The parameters of the legislation could also be impacted by other cases. For example, the Supreme 

Court also took up the issue of when harassing behavior violated Title VII in the 1998 Oncale v. 

Sundowner Offshore Services decision, in which it held that the statute is not meant to be a “general 

civility code.”96 The Court held that the behavior must be “so objectively offensive as to alter the 

‘conditions’ of the victim’s employment.”97 Moreover, the Oncale opinion stated that “[t]itle VII 

does not prohibit all verbal or physical harassment in the workplace; it is directed only at 

“discriminat[ion] ... because of ... sex.”98

The Oncale decision also addressed how Title VIIshould be applied when a claim involves persons 

of the same sex. Before the case went up to the Supreme Court, the federal District Court for the 

 

93 Id. at § 204(c)(4).; see also Debra Katz, Partner and Hannah Alejandro, Senior Counsel, at Katz, Marshall & 

Banks, Written Statement for the Federal Me Too: Examining Sexual Harassment in Government Workplaces 

Briefing before the U.S. Commission on Civil Rights, May 9, 2019 at 2 (hereinafter Katz Statement). 

94 Id. § 204 (c)(4); see also, Katz Statement, at 2.

95 Katz Statement at 2.

96 Oncale v. Sundowner Offshore Services, 523 U.S. 75, 81 (1998).

97 Id.

98 Oncale, 523 U.S. at 80 (emphasis in original).
CHAPTER 1: INTRODUCTION AND BACKGROUND 23

Eastern District of Louisiana ruled that “Mr. Oncale, a male, has no cause of action under Title 

VII for harassment by male co-workers.”99 Oncale lost on appeal in the 5th Circuit,

100 but in the 

opinion written by the late Justice Scalia, the Supreme Court unanimously reversed that decision, 

holding that Title VII’s prohibition of discrimination “because of sex” applied to members of the 

same sex.101 As discussed above, the Supreme Court’s opinion also clarified that “harassing 

conduct need not be motivated by sexual desire to support an inference of discrimination on the 

basis of sex.”102 The above line of reasoning could possibly be impacted by two Title VII cases 

currently before the Supreme Court, which were combined and heard in oral arguments on October 

8, 2019.103 These cases do not involve sexual harassment, but they do question the breadth of 

application of Title VII and Price Waterhouse. The first disputes whether Title VII’s prohibition 

of discrimination applies to claims based on discrimination because of sexual orientation,104 and 

the second questions whether Title VII prohibits discrimination against transgender people.105

The Supreme Court has also set legal precedents about sexual harassment in hostile work 

environment cases. In these cases, an employer can be found liable for failing to prevent or address 

sexual harassment, unless the employer can prove that it made sufficient attempts to prevent the 

harassment, and that the employee failed to utilize the anti-harassment measures provided by the 

employer or otherwise avoid harm. In 1998, in Burlington Industries, Inc. v. Ellerth106 and 

Faragher v. City of Boca Raton,

107 the Supreme Court clarified under what circumstances an 

employer is vicariously liable in Title VII sexual harassment cases. In Ellerth, the Court held that 

 

99 Oncale v. Sundowner Offshore Services, Civ. A. No. 94–1483, 1995 WL 133349, at *2 (E.D. La. 1995).

100 Oncale v. Sundowner Offshore Services, 83 F.3d 118 (5th Cir. 1996).

101 Oncale, 523 U.S. at 79-80.

102 Id. at 80.

103 See U.S. Supreme Court, Oral Arguments, Argument Transcripts, Term Year: 2019, Argument Session: October 

7, 2019 – October 16, 2019, No. 17-1618, Bostock v. Clayton County and No. 18-107, R.G. & G.R. Harris Funeral 

Homes, Inc. v. EEOC, https://www.supremecourt.gov/oral_arguments/argument_transcript/2019. 

104 See Bostock v. Clayton Cty. Bd. Commissioners, 894 F. 3d 1335, 1337-38 (Mem) (11th Cir. 2018) (denying 

rehearing based on analysis that Title VII protects against discrimination because of sexual orientation, and that 

Price Waterhouse “requires the conclusion that Title VII prohibits discrimination against gay and lesbian individuals 

because their sexual preferences do not conform to their employers’ views of whom individuals of their respective 

genders should love”) (internal citations omitted).

105 See R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, 884 F.3d 560, 572 (6th Cir. 2018) (“Based on Price 

Waterhouse, we determined that “discrimination based on a failure to conform to stereotypical gender norms” was 

no less prohibited under Title VII than discrimination based on “the biological differences between men and 

women.” Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004). And we found no “reason to exclude Title VII 

coverage for non sex-stereotypical behavior simply because the person is a transsexual.” Id. at 575.”).

106 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

107 Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
24 FEDERAL #METOO

an employer is always vicariously liable if a supervisor harasses an employee and the employee 

suffers a tangible employment harm (e.g., demotion, firing, failure to promote) and in these 

situations, no affirmative defense is available to the employer.108 The Court reasoned that this 

outcome is always applicable because the employer acts through its supervisors: 

Tangible employment actions fall within the special province of the supervisor. The 

supervisor has been empowered by the company as a distinct class of agent to make 

economic decisions affecting other employees under his or her control. Tangible 

employment actions are the means by which the supervisor brings the official power of the 

enterprise to bear on subordinates. A tangible employment decision requires an official act 

of the enterprise, a company act.109

In Faragher, the Court held that where a supervisor creates an unlawful hostile work environment, 

but there is no resulting tangible employment action, employers are only liable if they were 

negligent (i.e., knew or should have known the harassment was occurring and failed to stop it).110

In these instances, the employer may raise an affirmative defense: “(a) that the employer 

exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and 

(b) that the plaintiff employee unreasonably failed to take advantage of any preventive or 

corrective opportunities provided by the employer or to avoid harm otherwise.”111

Federal employees may elect to have the EEOC decide if sexual harassment occurred (and whether 

an agency is liable) by electing a hearing before the EEOC in the first instance, or they may instead 

first seek agency determination and then, as they deem necessary, file an appeal with the EEOC 

following an agency’s determination as to whether harassment has occurred. Consistent with the 

case law discussed above, EEOC’s decisions have also found federal agencies automatically liable 

when a manager or supervisor engages in a tangible employment action harassment for accepting 

or denying a sexual advance, e.g., hiring or firing, promotion or failing to promote, demoting, 

reassigning, or changing benefits or the terms and conditions of employment. 

EEOC also finds agencies liable for a supervisor or co-worker who engages in hostile environment 

harassment unless the agency took steps to promptly correct the harassment, make a complainant 

whole, and prevent additional harassment from occurring. In making this determination, EEOC 

 

108 Ellerth, 524 U.S. at 765; see also Faragher, 524 U.S. at 807-808.

109 Ellerth, 524 U.S. at 762.

110 Faragher, 524 U.S. at 807 (“An employer is subject to vicarious liability to a victimized employee for an 

actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the 

employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to 

liability or damages, subject to proof by a preponderance of the evidence.”).

111 Faragher, 524 U.S. at 778.
CHAPTER 1: INTRODUCTION AND BACKGROUND 25

considers such factors as interim relief, appropriate disciplinary action against the harasser, and 

other corrective action. An example of corrective action found to be proportionate and effective 

by EEOC is where upon learning of sexually harassing behavior (sexual comments and showing 

complainant pornographic pictures), the complainant’s supervisor immediately counseled the 

harasser, and the harassing behavior stopped.112 EEOC has also found immediate removal and 

permanently transferring a supervisor to be prompt and effective action.113 Conversely, EEOC has 

considered the following examples to be ineffective remedial action: not taking any actions to 

redress the behavior, intentionally preventing an EEO investigation, or requiring a complainant to 

use personal leave to avoid harassment.114 EEOC does not view reassignment of a complainant as 

appropriate corrective action.115

An agency may also avoid liability under Title VII for the actions of a manager if the employee 

did not take advantage of any preventative or corrective opportunities offered by the agency. With 

regard to anti-harassment policies (discussed in this report below) and the obligation of employees 

to utilize them, the EEOC has held that if an agency has an anti-harassment policy that conforms 

to the EEOC’s guidance the agency is not liable if the employee “unreasonably failed to take 

advantage of any preventive or corrective opportunities provided by the employer.”116 If on the 

other hand, the agency does not have a conforming anti-harassment policy in place, the agency 

will be liable under Title VII.117

 

112 See Alycia R. v. Dep’t of Hous. & Urban Dev., EEOC Appeal No. 0120172284 (Mar. 8, 2019).

113 See Theresia B. v. U.S. Postal Service, EEOC Doc. No. 0120140780, 2016 WL 7666515.

114 See Taryn S. v. Dep’t of Veteran Affairs, EEOC Appeal No. 0120162172 (Sept. 14, 2018) (no corrective action 

taken based on report of sexual harassment including inappropriate touching, kissing, and asserting the desire to 

have sexual relations, and supervisor affirmatively instructed the EEO manager not to investigate one of the 

complaints); Erline S. v. Dep’t of Justice, EEOC Appeal No. 0120160618 (Feb. 22, 2018) (same – no action taken to 

prevent further harassment); Maxine C. v. U.S. Postal Service, EEOC Appeal No. 0120162531 (Sept. 12, 2018) 

(agency must restore any leave used as a result of harassment); Danita S. v. Dep’t of Transp., EEOC Appeal No. 

0120161096 (May 17, 2018) (same – did not restore complainant leave used to avoid harassment).

115 See Margaret M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120151790 (Jan. 11, 2018) (finding agency 

liability where 1) the agency acknowledged that complainant has proved she was subjected to sexual harassment by 

a co-worker, 2) the agency was aware of the conduct, and 3) the only corrective action taken was to remove 

complainant from the workplace and place her on administrative leave instead of disciplining the harasser). 

116 See Rhodes-Coleman v. U.S. Postal Service, EEOC Doc. No. 01A42059, 2004 WL 1646771, *4 (2004) (Case 

dismissed despite evidence of a hostile work environment where agency had anti-harassment policy that followed 

EEOC guidance and employee had not used it).

117 Briggs v. U.S. Postal Serv., EEOC Doc. NO. 01A32026, WL 1494489 (2004) (reversing a final agency decision 

that found no agency liability because the agency’s anti-harassment policy did not contain: 1) a clear explanation of 

prohibited conduct, 2) assurance that employees who make complaints of harassment or provide information related 

to such complaints will be protected against retaliation, 3) a clear description of the anti-harassment complaint 

process, 4) assurance to protect confidentiality to the extent possible, 5) an anti-harassment complaint process that 
26 FEDERAL #METOO

Defining Sexual Harassment

According to the EEOC:

it is unlawful to harass a person (an applicant or employee) because of that person’s sex. 

Harassment can include ‘sexual harassment’ or unwelcome sexual advances, requests for 

sexual favors, and other verbal or physical harassment of a sexual nature.

Harassment does not have to be of a sexual nature, however, and can include offensive 

remarks about a person’s sex. For example, it is illegal to harass a woman by making 

offensive comments about women in general. Both victim and the harasser can be either a 

woman or a man, and the victim and harasser can be the same sex.

Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents 

that are not very serious, harassment is 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).

The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or 

someone who is not an employee of the employer, such as a client or customer.118

Sexual harassment is often defined in part by reference to the above-described case law, and by 

subsequent federal regulations. Under Title VII of the Civil Rights Act of 1964, EEOC is charged 

with handling sexual harassment complaints brought by workers against their employers.

119

Updated in 1999 after the 1998 Supreme Court cases on vicarious employer liability described 

above,120 EEOC’s federal regulations provide that:

 

provides a prompt, thorough, and impartial investigation, and 6) assurance that the employer will take immediate 

and appropriate corrective action when it determines that harassment has occurred).

118 U.S. Equal Employment Opportunity Commission, “Sexual Harassment,” (accessed Nov. 12, 2019), 

https://www.eeoc.gov/laws/types/sexual_harassment.cfm.

119 42 U.S.C. § 2000e-4; 42 U.S.C § 2000e-16.

120 45 FR 74677, Nov. 10, 1980, as amended at 64 FR 58334, Oct. 29, 1999 (“Appendix A to § 1604.11—

Background Information: The [EEO] Commission has rescinded § 1604.11(c) of the Guidelines on Sexual 

Harassment, which set forth the standard of employer liability for harassment by supervisors. That section is no 

longer valid, in light of the Supreme Court decisions in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), 

and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The Commission has issued a policy document that 

examines the Faragher and Ellerth decisions and provides detailed guidance on the issue of vicarious liability for 

harassment by supervisors.”)
CHAPTER 1: INTRODUCTION AND BACKGROUND 27

Harassment on the basis of sex is a violation of section 703 of Title VII. Unwelcome sexual 

advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature 

constitute sexual harassment 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 or creating an intimidating, hostile, or offensive working 

environment.121

Sexual harassment can include anything from unwelcome sexual advances, requests for sexual 

favors, and other verbal and/or physical harassment that is of a sexual nature.122 EEOC states that 

Title VII does not prohibit behaviors such as “simple teasing, offhand comments, or isolated 

incidents that are not ‘extremely serious.’”123 However, the law does prohibit harassment when it 

is frequent or severe and creates a hostile or offensive work environment or when the harassment 

results in a tangible employment action.

124

Sexual harassment is the lived experience of millions of workers. Studies have shown that 

harassing behaviors can be “direct” that target a specific individual or “ambient,” which means 

that there is “a general level of sexual harassment in an environment.”125 These behaviors do not 

have to be overtly sexual in nature, and instead may reflect disparaging attitudes based on 

gender.126 Some evidence suggests this form of harassment—often known as gender harassment—

 

121 29 C.F.R. § 1604.11(a).

122 “Sexual Harassment,” Equal Employment Opportunity Commission, 

https://www.eeoc.gov/laws/types/sexual_harassment.cfm (accessed Aug. 21, 2019).

123 Faragher, 118 S.Ct. at 2283.

124 “Sexual Harassment,” Equal Employment Opportunity Commission; see e.g., Harris v. Forklift Systems, Inc., 

510 U.S. 17, 21 (1993); Katz v. Dole, 709 F. 2d 251 (4th Cir. 1983); see also Equal Employment Opportunity 

Commission, Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, 

June 18, 1999, https://www.eeoc.gov/policy/docs/harassment.html. For a full discussion of the role of EEOC in 

federal sector cases, see discussion in Chapter 2.

125 National Academies of Sciences, Engineering, and Medicine, Sexual harassment of women: Climate, culture, and 

consequences in academic sciences, engineering, and medicine, 2018, at 2, 

https://www.linguisticsociety.org/sites/default/files/24994.pdf.

126 Note: while sex and gender are often used interchangeably, these concepts are separate. An individual’s gender 

expression or identity may or may not be connected to a person’s sex. See generally, Candace West and Don 

Zimmerman, “Doing Gender,” Gender & Society, Vol. 1, No. 2, June 1987, pp. 125-151, 
28 FEDERAL #METOO

is the most common form of sexual harassment.127 In fact, the Commission received testimony 

from Louise Fitzgerald, Professor Emerita Department of Psychology at University of Illinois that 

the scenario of sexual coercion, or “sleep with me or you’re fired” form of sexual harassment is 

the least common scenario that occurs in the workplace.

128

At the Commission’s briefing, Heather Metcalf, Chief Research Officer for the Association for 

Women in Science, testified that:

Gender harassment is the most common form of sexual harassment and consists of verbal 

and non-verbal behaviors that convey hostility, objectification, exclusion or second-class 

status based on a person’s gender. This is so widespread that it goes unnoticed, and often 

isn’t recognized as a form of discrimination or harassment when people experience it. 

Harassment also is not just based on gender or sex, and for workers who are part of more 

than one marginalized social group, it often has a multiplicative effect.129

Fitzgerald argues that gender harassment can also be understood as “gender hostility,” where, for 

example, men denigrate women and convey contempt often in the attempt to push them out of the 

workplace or dissuade them from continuing to pursue a particular career.130 Fitzgerald explains 

that gender hostility is not about sexual desire or conquest.131 Her research shows that instead, 

 

http://www.csun.edu/~snk1966/West%20and%20Zimmerman%20Doing%20Gender.pdf; Kristen Schilt and Laural 

Westbrook, “Doing Gender, Doing Heteronormativity: ‘Gender Normals,’ Transgender People, and the Social 

Maintenance of Heterosexuality,” Gender & Society, Vol 23, No. 4, Aug. 2009, 

https://scholarworks.gvsu.edu/cgi/viewcontent.cgi?article=1002&context=soc_articles; Equal Employment 

Opportunity Commission, “Sexual Harassment,” https://www.eeoc.gov/laws/types/sexual_harassment.cfm; U.S. 

Merit Systems Protection Board, “Update on Sexual Harassment in the Federal Workplace,” March 2018, 

https://www.mspb.gov/MSPBSEARCH/viewdocs.aspx?docnumber=1500639&version=1506232&application=ACR

OBAT. 

127 See e.g., Emily Leskinen, Lilia Cortina, & Dana Kabat, “Gender harassment: Broadening Our Understanding of 

Sex-Based Harassment at Work,” Law and Human Behavior, vol. 35, no. 1, (2011), at 32. (In a study of 9,725 

women in the military, of the respondents who reported harassment, 89.4 percent reported gender-based 

harassment). Ibid; Paula Johnson, Shelia Widnall, and Frazier Benya, eds., Sexual harassment of women: Climate, 

culture, and consequences in academic sciences, engineering, and medicine, National Academies of Sciences, 

Engineering, and Medicine, 2018, at 25; Louise Fitzgerald, Michele Gelfand, and Fritz Drasgow, “Measuring Sexual 

Harassment: Theoretical and Psychometric Advances,” Basic and Applied Social Psychology, vol. 17, no. 4, (1995), 

430. 

128 Fitzgerald Written Statement at 1-2.

129 Metcalf Testimony, Washington Briefing, p. 57.

130 Louise Fitzgerald, Professor Emerita of Psychology, Women’s Studies and Management, University of Illinois at 

Urbana Champaign, Written Statement for Federal Me Too: Examining Sexual Harassment in Government 

Workplaces Briefing before the U.S. Commission on Civil Rights, May 9, 2019 at 2 (hereinafter Fitzgerald 

Statement). 

131 Ibid; see also supra note 102 (quoting Justice Scalia’s opinion in the Oncale case).
CHAPTER 1: INTRODUCTION AND BACKGROUND 29

these behaviors, while not always illegal, can be psychologically and emotionally damaging 

because they are often degrading and offensive.132 Studies have shown that three types of sexual 

harassment (i.e., gender harassment/hostility, unwanted sexual attention, and sexual coercion) may 

“frequently co-occur, not only in the experiences of any woman over time, but also in her 

interactions with a single offender.”133 Fitzgerald asserts that these patterns exist because 

harassment is “only incidentally about sexual attraction,” and is actually a manifestation of power, 

control, and dominance.134 

According to the EEOC, harassment can occur regardless of the victim’s or the harasser’s sex, or 

the victim’s or the harasser’s sexual orientation. EEOC clarifies that a harasser may be the victim’s 

direct supervisor, a supervisor in another department of an agency, a co-worker or colleague, or 

someone not affiliated with the employer, such as a client or customer.

135 Debra Katz testified to 

the Commission succinctly that: “[s]exual harassment is about abuse of power, plain and 

simple.”136

Quid Pro Quo

In a final set of delineating terms, sexual harassment claims are generally broken into two types: 

“quid pro quo” harassment or hostile work environment.137 In incidents of quid pro quo 

harassment, a supervisor demands sexual favors, sexual contact, or sexual intercourse from an 

employee or potential employee as a condition of employment. Researchers assert that “while 

sexual coercion is by definition quid pro quo sexual harassment, sometimes unwanted sexual 

attention can be considered quid pro quo sexual harassment if tolerating such behaviors becomes 

a term or condition of employment.”138 Under quid pro quo claims, defining who is a supervisor 

and what authority the supervisor has over the victim have become threshold issues.

 

132 Ibid.

133 Ibid.

134 Ibid.

135 “Sexual Harassment” Equal Employment Opportunity Commission.

136 Katz Testimony, Washington Briefing, p. 125.

137 Equal Employment Opportunity Commission, Policy Guidance on Current Issues of Sexual Harassment, March 

19, 1990, (accessed Aug. 26, 2019), https://www.eeoc.gov/policy/docs/currentissues.html.

138 See Paula Johnson, Shelia Widnall, and Frazier Benya, eds. Sexual Harassment of Women: Climate, Culture, and 

Consequences in Academic Sciences, Engineering, and Medicine, National Academies of Sciences, Engineering, 

and Medicine, (2018) (citing Louise Fitzgerald, Michele Gelfand, and Fritz Dragow, “Measuring Sexual 

Harassment: Theoretical and Psychometric Advances,” Basic and Applied Social Psychology, vol. 17, no. 4, (1995), 

at 27, https://www.nap.edu/catalog/24994/sexual-harassment-of-women-climate-culture-and-consequences-inacademic. 
30 FEDERAL #METOO

The Supreme Court has stated that the ability of a supervisor to use his/her authority either 

explicitly or implicitly over an employee defines quid pro quo sexual harassment.139 According to 

federal regulations implementing Title VII, to establish quid pro quo, a plaintiff must prove that 

the plaintiff was subjected to unwelcome sexual conduct, and the demand to perform such act was 

explicitly or implicitly a determining factor in securing a job, maintaining their job, or being 

promoted within the agency.140 In the 1998 Faragher case, in addition to the holdings discussed 

above, the Supreme Court held that colleagues and co-workers cannot engage in quid pro quo 

harassment;

141 therefore, for an employer to be vicariously liable, the action must have been 

committed by a supervisor “with immediate (or successively higher) authority over the 

employee.”142

Defining who is a supervisor is the threshold issue to determining strict liability where a tangible 

employment action has taken place. In the 2013 case of Vance v. Ball State University, which

involved allegations of harassment based on race, the Supreme Court held that only immediate or 

successively higher supervisors or others who have the authority to carry out a tangible 

employment action that constitutes a significant change in one’s employment status, like firing, 

failing to promote, or even a position reassignment, can be liable for quid pro quo harassment.143

The Vance Court considered that some federal courts of appeals “have substantially followed the 

more open-ended approach advocated by the EEOC’s Enforcement Guidance, which ties 

supervisor status to the ability to exercise significant direction over another’s daily work.”144

However, the Supreme Court decided that, “[w]e reject the nebulous definition of a ‘supervisor’ 

advocated in the EEOC Guidance and substantially adopted by several courts of appeals.”145

Therefore, after the 2013 Vance decision, “an employer is a ‘supervisor’ for purposes of vicarious 

liability under Title VII [only] if he or she is empowered by the employer to take tangible 

employment actions against the victim.”146 A supervisor may also include someone who has the 

 

139 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 750-51 (1998).

140 29 C.F.R. §1604.11(a)(1) and (2).

141 Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) (“An employer is subject to vicarious liability to a 

victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively 

higher) authority over the employee.”).

142 Id.

143 Vance v. Ball State University, 570 U.S. 421 (2013) (citing Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 

761 (1998)). 

144 Vance, 570 U.S. at 431.

145 Id.

146 Id. at 424.
CHAPTER 1: INTRODUCTION AND BACKGROUND 31

power to recommend such decisions subject to tacit approval by others.147 In this regard, the 

Supreme Court has clarified that: 

Tangible employment actions are the means by which the supervisor brings the official 

power of the enterprise to bear on subordinates. A tangible employment decision requires 

an official act of the enterprise, a company act. The decision in most cases is documented 

in official company records, and may be subject to review by higher level supervisors.148

Still, the definition is narrower than what EEOC set forth in their prior guidance. In her written 

testimony to the Commission, Christine Back, Legislative Attorney for the Congressional 

Research Service pointed out that “by defining a supervisor solely in those terms, the Court 

expressly rejected a definition based on whether the alleged harasser had authority to direct the 

victim’s daily work, thereby narrowing the definition of supervisor that some lower courts had 

previously applied.”149 Civil rights advocates argue that this narrow definition essentially created 

a standard that absolves employers of responsibility even when their employees effectively act as 

supervisors of employees.

150

Hostile Work Environment

The other form of sexual harassment is known as hostile work environment, which can be the 

result of forms of gender harassment discussed above. This is where an employee or group of 

employees create a workplace that is intimidating, hostile, or offensive to work in due to behaviors, 

comments, or actions.

151 According to the 2016 U.S. Merit Systems Protection Board survey of 

 

147 Id. at note 8 (“The dissent suggests that it is unclear whether Terry would qualify as a supervisor under the test 

we adopt because his hiring decisions were subject to approval by higher management. Post, at 2458, n. 1 (opinion 

of GINSBURG, J.). See also Faragher, 524 U.S., at 781, 118 S.Ct. 2275. But we have assumed that tangible 

employment actions can be subject to such approval. See Ellerth, 524 U.S., at 762, 118 S.Ct. 2257. In any event, the 

record indicates that Terry possessed the power to make employment decisions having direct economic 

consequences for his victims. See Brief for Petitioner in Faragher v. Boca Raton, O.T. 1997, No. 97–282, p. 9 (“No 

one, during the twenty years that Terry was Marine Safety Chief, was hired without his recommendation. [He] 

initiated firing and suspending personnel. [His] evaluations of the lifeguards translated into salary increases. [He] 

made recommendations regarding promotions ...” (citing record).”).

148 Ellerth, 524 U.S. at 762 (citing “E.g., Shager v. Upjohn Co., 913 F.2d 398, 405 (C.A.7 1990) (noting that the 

supervisor did not fire plaintiff; rather, the Career Path Committee did, but the employer was still liable because the 

committee functioned as the supervisor's “cat's-paw”). The supervisor often must obtain the imprimatur of the 

enterprise and use its internal processes. See Kotcher v. Rosa & Sullivan Appliance Center, Inc., 957 F.2d 59, 62 

(C.A.2 1992) (“From the perspective of the employee, the supervisor and the employer merge into a single entity”).

149 See Back Statement, at 4.

150 Katz Testimony, Washington Briefing, p. 134.

151 29 C.F.R. §1604.11(a)(3); see also “Sexual Harassment,” Equal Employment Opportunity Commission.
32 FEDERAL #METOO

federal employees regarding sexual harassment,

152 in the previous two years, federal employees 

reported multiple occurrences of unwelcome sexual teasing, jokes, comments, or questions; 

exposure to sexually oriented materials (e.g., photos, videos, written materials); unwelcome 

communications (e.g., emails, phone calls, notes, text messages, social media contacts) of a sexual 

nature; derogatory or unprofessional terms related to sex or gender to name just a few.153 Their 

March 2018 survey results found that “[a]pproximately 1 in 7 Federal employees experienced one 

or more of the sexual harassment behaviors during the preceding 2 years.”154

As stated above, isolated incidents or off-color jokes may or may not violate the law, as the 

Supreme Court has established standards to “make clear that conduct must be extreme to amount 

to a change in the terms and conditions of employment. . . [and] to ensure that Title VII does not 

become a ‘general civility code.’”155 Rather, the behaviors must be “severe or pervasive”156 and 

reach a point where they create a workplace that would be intimidating, hostile, or offensive to a 

“reasonable” person.157

According to the Congressional Research Service, generally, courts have ruled that for a plaintiff 

to bring a successful hostile work environment claim the plaintiff must meet the following criteria: 

• He or she [was subject to conduct based on] a protected category under Title VII;158

 

152 Merit Systems Protection Board, Update on Sexual Harassment in the Federal Workplace, March 2018, 

https://www.mspb.gov/MSPBSEARCH/viewdocs.aspx?docnumber=1500639&version=1506232&application=ACR

OBAT, at 1 (Regarding methodology: “When MSPB conducted its first study of sexual harassment in 1981, there 

was little published research or data available. Accordingly, MSPB staff conducted independent research and 

consulted with experts to craft a detailed survey to measure Federal employees’ views of and experiences with 

sexual harassment. That survey has provided baseline data and served as a model for subsequent research into sexual 

harassment. To permit comparison over time, the MPS 2016 repeated numerous items from the preceding surveys 

(with revision to reflect new possibilities such as harassment though text messaging or social media). The survey 

also included new items to reflect a contemporary understanding of sexual harassment.”).

153 Ibid.

154 Ibid., 3.

155 Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) at 788; see also, Oncale v. Sundowner Offshore 

Services, Inc., 523 U.S. 75, 81 (1998).

156 Meritor Savings Bank v. Vinson 477 U.S. 57, 67 (1986) (“For sexual harassment to be actionable, it must be 

sufficiently severe or pervasive ‘to alter the conditions of [the victim]’s employment and create an abusive working 

environment.”). Id.

157 Harris v. Forklift Systems, Inc. (1993).

158 See Congressional Research Service, Sexual Harassment and Title VII: Selected Legal Issues, by Christine Back 

and Wilson Freeman, April 9, 2018, p. 2-3, https://fas.org/sgp/crs/misc/R45155.pdf (noting that: “Title VII prohibits 

discrimination ‘because of such individual’s race, color, religion, sex, or national origin.’ 42 U.S.C. §§ 2000e2(a)(1) and (a)(2).” Ibid., note 8).
CHAPTER 1: INTRODUCTION AND BACKGROUND 33

• The conduct was unwelcome;

• The conduct was based on the plaintiff’s protected category;159

• The plaintiff subjectively viewed the harassment as creating an abusive work 

environment; and

• A “reasonable” person would also objectively view the work environment as abusive.160

Sexual Harassment Data and Trends

Despite the passage of over thirty years since the landmark Meritor ruling establishing that sexual 

harassment may violate Title VII,

161 sexual harassment continues to be a significant problem in 

private, public, and federal workplaces. Since the Meritor ruling, many empirical studies have 

come to suggest that one in every two women encounter some form of harassing behavior during 

their working lives. Moreover, research studies suggest that this statistic may underestimate the 

prevalence of the issue.

162 For instance, a 2009 study conducted by Associate Professor of 

Psychology at the University of Illinois, Kathleen Rospenda and colleagues found that in a 

nationally representative sample of over 2,000 respondents, one of every two women had been 

harassed in the previous year alone.

163 The researchers also note that reports of sexual harassment 

 

159 Ibid., 3 (noting that: “With respect to showing that the alleged harassment or hostile treatment was based on sex, 

some courts have held that the harassment did not have to be sexual in nature. See, e.g., Boumehdi v. Plastag 

Holdings, LLC., 489 F.3d 781, 788 (7th Cir. 2007) (stating that though “most of [harasser]’s alleged comments were 

sexist rather than sexual, our precedent does not limit hostile environment claims to situations in which the 

harassment was based on sexual desire.” Ibid., note 9)).

160 Ibid., 4 (noting: “See e.g., LeGrand v. Area Resources for Community and Human Services, 394 F.3d 1098, 1102 

(8th Cir. 2005)(prima facie elements require the plaintiff to show: membership in a protected group, subjection to 

unwelcome sexual harassment, that the harassment was based on sex, and that the harassment was “sufficiently 

severe or pervasive as to affect a term, condition, or privilege of employment by creating an objectively hostile or 

abusive environment”); Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en banc) (setting forth 

similar elements to establish a “hostile-environment sexual-harassment claim”). Ibid, note 10.

161 See supra note 50.

162 Fitzgerald Statement, at 2; see also, Kathleen Rospenda, Judith Richman, and Candice Shannon, “Prevalence and 

Mental Health Correlates of Harassment and Discrimination in the Workplace: Results from a National Study,” 

Journal of Interpersonal Violence, vol. 24, no. 5, (May 2009). 

163 Kathleen Rospenda, Judith Richman, and Candice Shannon, “Prevalence and Mental Health Correlates of 

Harassment and Discrimination in the Workplace: Results from a National Study,” Journal of Interpersonal 

Violence, vol. 24, no. 5, (May 2009), at 837. 
34 FEDERAL #METOO

were more prevalent among women than men, and people of color experienced the highest levels 

of harassment and discrimination in the workplace overall.164

The researchers also found that the type of occupation and workplace results in gender differences 

regarding the experience and reporting of sexual harassment.165 They studied male-dominated, 

same-sex, and women-dominated jobs, and they also studied whether race was a factor. They found 

that women in the sample who worked in occupations dominated by men were more likely to 

experience sexual harassment. However, the researchers found that occupation was unrelated to 

the rates of harassment of women, since women were more likely to experience harassment 

compared to men, even in same-sex or women-dominated occupations. Yet occupation did have 

an effect on men in the sample. For instance, the researchers found that men had a higher 

prevalence of experiencing sexual or gender harassment in women-dominated jobs.

166 Regarding 

race, the researchers found that black respondents and individuals who identified as other or mixed 

race/ethnicity experienced the highest levels of harassment in the workplace.167 Therefore, the 

researchers assert that:

same-sex dominant occupations were protective for men, but not women, making 

occupation a more salient correlate of gender-based harassment and discrimination among 

men. Similarly, race was a significant correlate of gender-based and generalized HDW 

[harassment and discrimination in the workplace] for men. This suggests that visible social 

status characteristics (e.g., gender, race/ethnicity) are more likely to provoke harassment 

or discrimination from prejudiced individuals.168

Extent of Sexual Harassment in the Federal Workplace

Despite the fact that researchers have been studying the issue of sexual harassment for at least the 

past thirty years, there continues to be a lack of publicly available data regarding sexual harassment 

against federal employees.169 One impediment is that the majority of federal agencies only release 

 

164 Ibid., 826.

165 Ibid.

166 Ibid.

167 Ibid., 828.

168 Ibid., 837 (emphasis in original).

169 See e.g., Fitzgerald Statement, at 2; Legal Aid at Work Written Statement for Federal Me Too: Examining Sexual 

Harassment in Government Workplaces Briefing before the U.S. Commission on Civil Rights, May 9, 2019; 

(hereinafter Legal Aid Statement); Diana Boesch, Jocelyn Frye, and Kaitlin Holmes, “Driving Change in States to 

Combat Sexual Harassment,” Center for American Progress, Jan. 15, 2019, 

https://www.americanprogress.org/issues/women/reports/2019/01/15/465100/driving-change-states-combat-sexualharassment/.
CHAPTER 1: INTRODUCTION AND BACKGROUND 35

their raw statistical data, which make it difficult to understand both the full extent of sexual 

harassment, as it may be under-reported, as well as why sexual harassment is occurring in the first 

place. At the Commission’s briefing, Associate Director of EEOC’s Office of Federal Operations 

Dexter Brooks explained that this data release is a choice that federal agencies make and some 

agencies chose to publish more details than just statistical information regarding sexual 

harassment. For example, the Central Intelligence Agency (CIA) released an annual report 

announcing, without names, sexual harassment cases it had that year and how they were resolved.

He told the Commission that “if CIA can do that, why can’t other agencies.”170 As a result of these 

varied federal agency choices, the information on sexual harassment in the workplace that is most 

readily available tends to come from academic sources or the private sector.

In 2017 one poll found that about one in three people, and 45 percent (or approximately 33.6 

million) of women and 15 percent of men reported experiencing sexual harassment at work.171 Of 

women who reported, those between the ages of 30 and 44 experienced the most harassment (49 

percent), followed by women between the ages of 45 to 64 (47 percent), 18 to 20 (41 percent), and 

65 or older (40 percent). The survey also found that of those who had been sexually harassed on 

the job, 73 percent of women and 81 percent of men did not report the harassment.

172 Researchers 

at the Center for Employment Equity found that women were least likely to file sexual harassment 

charges in industries such as the government, health care, social assistance, and finance, but were 

most likely to file in mining, warehousing, and transportation industries.173 Overall, the study 

found that sexual harassment charges filed by women were higher in male-dominated work 

places.174 The study concluded that: 

Sexual harassment remains a persistent and serious threat to women and men in American 

workplaces. While the vast majority of those who experience sexual harassment in the 

workplace never report this harassment internally nor file a formal discrimination charge, 

those who do are typically confronted by harsh outcomes.175

 

170 Brooks Testimony, Washington Briefing, p. 33.

171 Rachel Gillett, “Sexual harassment isn’t a Hollywood, tech, or media issue – it affects everyone,” Business 

Insider, Nov. 30, 2017, https://www.businessinsider.com/sexual-harassment-affects-nearly-everyone-2017-11. Note: 

in terms of methodology: MSN polls its readers and then uses machine learning to model how a representative 

sample of the U.S. would have responded, using big data, such as the Census.” Ibid.

172 Ibid. 

173 Carly McCann, Donald Tomaskovic-Devey, and M.V. Lee Badgett, “Employer’s Responses to Sexual 

Harassment,” Center for Employment Equity at University of Massachusetts Amherst, Dec. 2018, 

https://www.umass.edu/employmentequity/employers-responses-sexual-harassment.

174 Ibid.

175 Ibid.
36 FEDERAL #METOO

In one 2014 study on sexual harassment and assault in the military (part of the federal sector), 

researchers found that an estimated 26 percent of active-duty women had experienced sexual 

harassment or gender discrimination in the previous year, which included almost 5 percent who 

had experienced one or multiple sexual assaults (compared to seven percent and one percent of 

active-duty men, respectively).176

Other empirical research has also found that reports of sexual harassment are higher in: 

1. Occupations in which job duties and tasks are defined as “traditionally masculine” or being 

performed by men (e.g., military service, law enforcement, construction)177

2. Occupations with gender imbalance in supervisory and managerial roles, where these 

positions are more likely to be filled by men (e.g., technology and STEM professions)178

3. Occupations that station employees in remote and/or isolated work environments (e.g., 

military bases, construction or agricultural sites, field and research sites).179

 

176 National Defense Research Institute, “Sexual Assault and Sexual Harassment in the U.S. Military: Top-Line 

Estimates for Active-Duty Service Members from the 2014 RAND Military Workplace Study,” RAND Military 

Workplace Study, 2014, https://www.rand.org/pubs/research_reports/RR870.html; see also, U.S. Commission on 

Civil Rights, Sexual Assault in the Military, (Sept. 2013), 

https://www.usccr.gov/pubs/docs/09242013_Statutory_Enforcement_Report_Sexual_Assault_in_the_Military.pdf.

177 Lauren P. Daley, Dnika J. Travis, and Emily S. Shaffer, “Sexual Harassment in the Workplace: How Companies 

Can Prepare, Prevent, Respond, and Transform Their Culture,” Catalyst, March 15, 2018, at 6,

https://www.catalyst.org/wp-content/uploads/2019/01/sexual_harassment_in_the_workplace_report.pdf; Anika 

Warren, “Cascading Gender Biases, Compounding Effects: An Assessment of Talent Management Systems, 

Catalyst, Feb. 9, 2009, at 6 (discussing gender composition and male-dominated industries),

https://www.catalyst.org/wpcontent/uploads/2019/01/Cascading_Gender_Biases_Compounding_Effects_An_Assessment_of_Talent_Manageme

nt_Systems.pdf; Murali Shanker, Marina N. Astakhova, and Cathy L.Z. DuBois, “ Sexual Harassment: A Complex 

Adaptive System Viewpoint,” Gender, Technology, and Development, (2015), vol. 19, no. 3, at 6-7.

178 Kevin Stainback and Donald Tomaskovic-Devey, “Intersections of Power and Privilege: Long-Term Trends in 

Managerial Representation,” American Sociological Review, 2009, vol. 74, no. 5; Heather McLauglin, Christopher 

Uggen, Amy Blackstone, “The Economic and Career Effects of Sexual Harassment on Working Women,” Gender 

& Society, 2017, vol. 31, no. 3; Catalyst, “Women in Male-Dominated Industries and Occupations: Quick Take, 

Aug. 23, 2018, https://www.catalyst.org/research/women-in-male-dominated-industries-and-occupations/; Dana 

Kabat-Farr and Lilia M. Cortina, “Sex-Based Harassment in Employment: New Insights into Gender and Context,” 

Law and Human Behavior, 2014, vol. 38, no. 1, https://lsa.umich.edu/psych/lilia-cortina-lab/KabatFarr%20&%20Cortina%20(2014).pdf; New America, “Sexual Harassment: A Severe and Pervasive Problem,” Sept. 

2018, 

https://d1y8sb8igg2f8e.cloudfront.net/documents/Sexual_Harassment_A_Severe_and_Pervasive_Problem_2018-10-

10_190248.pdf.

179 New America, “Sexual Harassment: A Severe and Pervasive Problem,” Sept. 2018, 

https://d1y8sb8igg2f8e.cloudfront.net/documents/Sexual_Harassment_A_Severe_and_Pervasive_Problem_2018-10-

10_190248.pdf, at 55; Irma Morales Waugh, “Examining the Sexual Harassment Experiences of Mexican 

Immigrant Farmworking Women, Violence Against Women, 2010, vol. 16, no. 3; Alexia Fernández Campbell, 
CHAPTER 1: INTRODUCTION AND BACKGROUND 37

While sexual harassment is a significant issue across all job sectors and all industries, longstanding 

research shows that organizational factors (rather than individual factors) have strong correlations 

in predicting harassment.180 “Harassment flourishes because of a climate of tolerance and a culture 

of silence in the face of it.”181 For instance, in a study comparing workers across three different 

job sectors: academia (studying “virtually all employees of a small public university”), the court 

system (studying “one of the larger federal circuit courts”), and the military (sample of employees 

in all branches of the U.S. military), researchers found that the underrepresentation of women in 

workgroups was correlated to an increased likelihood in women experiencing gender 

harassment.182 When the researchers compared the odds of workers experiencing harassment in 

“gender-balanced workgroups” (i.e., equal numbers of women and men) with those who work with 

almost all men, researchers found that women who work mainly with men were 1.68 times more 

likely to encounter gender harassing behaviors.183 Interestingly, however, the women did not report 

experiencing an increase in harassment that was directly sexual; instead, they reported an increase 

in gender harassment.184 For the men across all three samples (academia, federal courts and 

military), an opposite pattern emerged, where underrepresentation of men did not increase men’s 

risk for either sexual or gender harassment and in some cases led to a decreased likelihood of 

experiencing harassment overall.185 These findings show a high correlation of nonsexual 

discriminatory experiences of women increasing in male-dominated work environments, and 

 

“Housekeepers and Nannies Have No Protection from Sexual Harassment under Federal Law,” Vox, 2018, 

https://www.vox.com/2018/4/26/17275708/housekeepers-nannies-sexual-harassment-laws; Chai Feldblum and 

Victoria Lipnic. EEOC Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs Chai 

R. Feldblum and Victoria A. Lipnic, June 2016; Bernice Yeung, “Rape on the Night Shift: Under the Cover of 

Darkness, Female Janitors Face Rape and Assault.” Frontline, June 23, 2015, 

https://www.pbs.org/wgbh/frontline/article/rape-on-the-night-shift/.

180 See e.g., Heather McLaughlin, Christopher Uggen, and Amy Blackstone, “Sexual Harassment, Workplace 

Authority, and the Paradox of Power,” American Sociological Review, Aug. 2012, vol. 77, no. 4, 

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3544188/pdf/nihms376621.pdf; Lilia Cortina, Written Testimony 

for Select Task Force Meeting- Workplace Harassment: Examining the Scope of the Problem and Potential 

Solutions, U. S. Equal Employment Opportunity Commission, June 15, 2015,

https://www.eeoc.gov/eeoc/task_force/harassment/testimony_cortina.cfm.

181 New America, “Sexual Harassment: A Severe and Pervasive Problem,” Sept. 2018, 

https://d1y8sb8igg2f8e.cloudfront.net/documents/Sexual_Harassment_A_Severe_and_Pervasive_Problem_2018-10-

10_190248.pdf, at 26.

182 Dana Kabat-Farr and Lilia M. Cortina, “Sex-Based Harassment in Employment: New Insights into Gender and 

Context,” Law and Human Behavior, 2014, vol. 38, no. 1, https://lsa.umich.edu/psych/lilia-cortina-lab/KabatFarr%20&%20Cortina%20(2014).pdf, at 61 (regarding academia), 63 (regarding the court system) and 65 

(regarding the U.S. military).

183 Ibid., 68.

184 Ibid.

185 Ibid.
38 FEDERAL #METOO

underscore that in many cases harassment of women is not about sexual attraction or gratification, 

but rather an exercise of power and an expression of prevailing sexist notions about gender.186 

Every year, federal employees file thousands of sexual harassment claims against their agency 

employers which are processed through the federal EEO administrative process. In fiscal year 

2016, federal employees filed a total of 6,990 sexual and non-sexual harassment claims. As 

discussed previously, non-sexual forms of sexual harassment (i.e., gender harassment, hostile work 

environment) represent the majority of sexual harassment claims compared to harassment that was 

sexual in nature (6,505 and 485, respectively). Claims increased in FY 2017 to 7,560 (6,975 and 

585, respectively); and in FY 2018 claims further increased to 8,418 (7,733 and 685, respectively) 

(see chart 1).187 Comparatively, private sector employees filed a total of 12,860 sex-based 

harassment charges in FY 2016, which decreased to 12,428 in FY 2017, but increased to 13,055 

in FY 2018.188

 

186 See e.g., Ibid., 68; Katz Testimony, Washington Briefing, p. 125; Christopher Uggen and Amy Blackstone, 

“Sexual Harassment as a Gendered Expression of Power,” American Sociological Review, (Feb. 2004), vol. 69, no. 

1.

187 See EEOC, Form 462 Complaints Tables, Federal Sector Reports, 

https://www.eeoc.gov/federal/reports/tables.cfm. 

188 See EEOC, Charges Alleging Sex-Based Harassment (Charges filed with EEOC), FY 2010- FY 2018, 

https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm. 
CHAPTER 1: INTRODUCTION AND BACKGROUND 39

Chart 1: EEOC Federal Sexual Harassment Claims (2016-2018)

Source: EEOC Data, https://www.eeoc.gov/federal/reports/index.cfm

Further, these data show that not only have the number of federal sexual harassment complaints 

increased, but the rate (i.e., the number of complaints per employee) has also increased.189 For 

instance, in 2017, the change in complaint rate was 21.2 percent from the previous year; and while 

the change in percentage was less in 2018 compared to 2017 rates (with an 8.8 percent increase), 

the complaint rate overall still increased. 

As discussed above, decades of data show that women are more likely to be sexually harassed than 

men in the workplace. The past several years reflect similar recent data in the federal sector. 

 

189 Equal Employment Opportunity Commission, EEOC responses to U.S. Commission on Civil Rights 

Interrogatory Responses, Sept. 6, 2019, at 14.

0

1000

2000

3000

4000

5000

6000

7000

8000

9000

2016 2017 2018

Sexual Harassment Claims

Sexual Non-Sexual
40 FEDERAL #METOO

Chart 2: EEOC Federal Sexual Harassment Claims by Sex (2016-2018)

Source: EEOC Data, https://www.eeoc.gov/federal/reports/index.cfm

In addition, breaking these data out by race/ethnicity reveal that among all racial groups, black 

employees consistently report more harassment based on race (see Chart 3).

190 While EEOC does 

not report intersectional data on sexual harassment (e.g., race and gender), studies have shown that 

black women are at the highest risk of being victims of sexual harassment in the federal, public, 

and private sector workforces.191 Sunu Chandy, Legal Director at the National Women’s Law 

Center, testified that laws regarding sexual harassment claims need to take complainants’ multiple 

identities into account. 

I [] think because courts have not grappled with intersectional discrimination so often, I 

think plaintiffs and employees have not brought those claims in ways that have allowed 

that body of law to develop much. But I think there’s a lot of interest in doing that because 

that is how we experience discrimination in our lives, and it’s not simply saying I have a 

 

190 See EEOC, Annual Report on Federal Workforce Fiscal Year 2016, Complaint Tables; EEOC, Annual Report on 

Federal Workforce Fiscal Year 2017, Complaint Tables; EEOC, Annual Report on Federal Workforce Fiscal Year 

2018, Complaint Tables, https://www.eeoc.gov/federal/reports/index.cfm. 

191 Hart Research Associates, “Key Findings from a Survey of Women Fast Food Workers,” Oct. 5, 2016, 

https://hartresearch.com/wp-content/uploads/2016/10/Fast-Food-Worker-Survey-Memo-10-5-16.pdf; Elyse Shaw, 

Ariane Hegewisch, and Cynthia Hess, “Sexual Harassment and Assault at Work: Understanding the Costs,” Institute 

for Women’s Policy Research, Oct. 15, 2018; Amanda Rossie, Jasmine Tucker, and Kayla Patrick, “Out of the 

Shadows,” National Women’s Law Center, 2018, https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wpcontent/uploads/2018/08/SexualHarassmentReport.pdf; Equal Employment Opportunity Commission, Federal 

Sector Data, https://www.eeoc.gov/federal/reports/index.cfm.

0

500

1000

1500

2000

2500

3000

3500

4000

4500

5000

2016 2017 2018

Sexual Harassment by Sex

Women Men
CHAPTER 1: INTRODUCTION AND BACKGROUND 41

race claim. I have a sex claim. But rather, as a woman of color, I have a particular kind of 

claim and that should be put forward together – more and more before the courts.192

Chart 3: EEOC Federal Harassment Claims by Race/Ethnicity (2016-2018)

Source: EEOC Data, https://www.eeoc.gov/federal/reports/index.cfm

At the Commission’s briefing, EEOC’s Dexter Brooks testified that annually about 15,000 to 

16,000 formal complaints of discrimination are filed by the roughly three million federal 

employees. Brooks explained that “[w]hen we look at those complaints of discrimination, the 

growing trend is now that over 50 percent of our complaints of discrimination contain an allegation 

of harassment.”193 In 2016, testimony provided to the EEOC’s Select Task Force on the Study of 

Harassment in the Workplace and research reviewed by Task Force staffers revealed a wide range 

in the percentages of women who reported experiencing sexual harassment at work, from 25 

percent to 85 percent.194 Further, academic studies suggest that approximately 70 percent of 

 

192 Chandy Testimony, Washington Briefing, p. 44.

193 Brooks Testimony, Washington Briefing, p. 12.

194 Equal Employment Opportunity Commission, Select Task Force on the Study of Harassment in the Workplace, 

Report of Co-Chairs Chai Feldblum and Victoria Lipnic, June 2016, 

https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm.

0

500

1000

1500

2000

2500

2016 2017 2018

Harassment Claims by Race/Ethnicity

Native American/Alaska Native Asian

Native Hawaiian/Pacific Islander Black

Latinx White

Two or More Races
42 FEDERAL #METOO

workers who experience sexual harassment in the workplace never tell a supervisor, manager, or 

union representative about the incident.

195

Similar results were found in the Merit Systems Protection Board 2016 survey, which found that 

government-wide, approximately 1 in 7 (14.3 percent) federal employees experienced one or more 

sexual harassment behaviors during the preceding two years. Breaking these down by gender, 

women were more than twice as likely as men to report experiencing sexual harassment in the 

survey (20.9 percent, 8.7 percent, respectively).

196 The Merit Systems Protection Board survey 

breaks sexual harassment into three categories: gender harassment (i.e., unwelcome behaviors that 

disparage or objectify others based on their sex or gender); unwanted sexual attention (i.e., 

unwelcome behaviors of a sexual nature that are directed towards a person); and sexual coercion 

(i.e., pressure or force to engage in sexual behavior).197 Among these categories, a vast majority 

of both women and men stated that these behaviors were inappropriate in the workplace. Yet, the 

researchers note that this does not necessarily mean that workers are not engaging in inappropriate 

behaviors.198

In terms of specific behaviors, when comparing the 1994 Merit Systems Protection Board (MSPB) 

survey to the 2016 survey (most recent), the researchers found that overall, the numbers of 

employees who had experienced sexual harassment (measured by eight harassing behaviors) had 

decreased (see table 1). 

 

195 Ibid. (citing Lilia M. Cortina and Jennifer L. Berdahl, Sexual Harassment in Organizations: A Decade of 

Research in Review, 1 The Sage Handbook of Organizational Behavior (J. Barling & C. L. Cooper eds., 2008), at 

485, 

https://pdfs.semanticscholar.org/a41c/9c91cc084fede9faca785bf099ec7adb8264.pdf?_ga=2.1264113.1304292683.1

574102662-413231289.1574102662. 

196 U.S. Merit Systems Protection Board, “Update on Sexual Harassment in the Federal Workplaces,” March 2018, 

https://www.mspb.gov/MSPBSEARCH/viewdocs.aspx?docnumber=1500639&version=1506232&application=ACR

OBAT.

197 Ibid., 2.

198 Ibid., 3.
CHAPTER 1: INTRODUCTION AND BACKGROUND 43

Table 1: MSPB Survey Comparison (1994 and 2016)

Percent of Employees Indicating Types of Sexual Harassing Behaviors

Men Women

1994 2016 1994 2016

Unwelcome invasion of personal space 8% 3% 24% 12%

Unwelcome sexual teasing, jokes, comments, or 

questions 14% 3% 37% 9%

Unwelcome sexually suggestive looks or gestures 9% 1% 29% 9%

Unwelcome communications of a sexual nature 4% 1% 10% 6%

Pressure for dates 4% 1% 13% 3%

Stalking 2% 1% 7% 2%

Pressure for sexual favors 2% 1% 7% 1%

Actual or attempted rape or sexual assault 2% 1% 4% 1%

Source: Merit Systems Protection Board, 

https://www.mspb.gov/MSPBSEARCH/viewdocs.aspx?docnumber=1442317&version=1447804&application=ACR

OBAT

According to a 2016 EEOC Select Task Force on the Study of Harassment in the Workplace report, 

researchers found that anywhere from 25 percent to 85 percent of women reported experiencing 

sexual harassment in the workplace.199 This broad range reflects some of the inconsistencies about 

what constitutes sexual harassment and how this information is gathered methodologically.200 For 

instance, some people may think that sexual harassment consists only of behaviors that are sexual 

in nature. 

Academic research indicates that when the term is undefined in surveys and respondents are asked 

if they had experienced “sexual harassment,” approximately a quarter of women reported 

experiencing “sexual harassment” in the workplace. 201 When researchers utilized probability 

sampling202 and asked employees whether they had experienced one or more specific sexually

 

199 Chai Feldblum and Victoria Lipnic, Select Task Force on the Study of Harassment in the Workplace, U.S. Equal 

Employment Opportunity Commission, June 2016, at 8.

200 Remus Ilies, Nancy Hauserman, Susan Schwochau, and John Stibal, “Reported incidence rates of work-related 

sexual harassment in the United States: Using meta-analysis to explain reported rate disparities,” Personnel 

Psychology, vol. 56, no.3, (Dec. 2006), at 609-12.

201 Ibid.

202 A probability sample is a methodological research design that allows each respondent from the sampling frame or 

population being studied equal chances of being selected for the study (i.e., being randomly selected). This type of 
44 FEDERAL #METOO

based behaviors (e.g., unwanted sexual attention or sexual coercion), the rate of reported 

harassment rose to approximately 60 percent of women.203 When researchers used convenience 

sample surveys204 (non-probability sampling) to inquire about the same behaviors, the incident 

rate rose to about 75 percent; and in one case the rate rose to 90 percent.205 These differences could 

be the result of an availability bias or “sample-selection bias,” meaning that researchers are simply 

going to have more access to individuals who are more likely to report. It is important to note, 

however, that surveys or interviews utilizing convenience samples can also downwardly report the 

rates of sexual harassment.206 For instance, if an organization had an increased awareness 

regarding sexual harassment and positive mechanisms to address and report incidents, employees 

would presumably be more likely to engage in research studies.207 However, the prevalence of 

sexual harassment occurring at that particular organization would potentially be lower, thus it may 

not offer an accurate gauge to the severity of the issue.208 

Researchers have thus concluded that individuals often do not label certain sexually based 

behaviors–despite being unwelcome, problematic, or offensive–as “sexual harassment.”209 The 

issue of defining sexual harassment becomes even clearer when studies utilize the Sexual 

Experiences Questionnaire, which is the most widely used survey of harassment of women at 

work, and does not limit questions to only those that are sexual in nature, but also asks questions 

 

sampling allows researchers to generalize their results to population being studied. See e.g., Norman Denzin, 

Sociological Methods, (New York, NY: Routledge), 2017. 

203 Chai Feldblum and Victoria Lipnic, Select Task Force on the Study of Harassment in the Workplace, U.S. Equal 

Employment Opportunity Commission, June 2016, at 8.

204 A convenience sample is a methodological research design that constructs the sample from a population or group 

of individuals that are “convenient” or close-by to the researcher to make the sampling frame. Results from these 

samples cannot be generalized to the broader population. See e.g., Norman Denzin, Sociological Methods, (New 

York, NY: Routledge), 2017.

205 Remus Ilies, Nancy Hauserman, Susan Schwochau, and John Stibal, “Reported incidence rates of work-related 

sexual harassment in the United States: Using meta-analysis to explain reported rate disparities,” Personnel 

Psychology, vol. 56, no.3, (Dec. 2006), 612.

206 Ibid. 

207 Ibid., 612-13.

208 Ibid.

209 Vicki Magley, Charles Hulin, Louise Fitzgerald, and Mary DeNardo, “Outcomes of Self-Labeling Sexual 

Harassment,” Journal of Applied Psychology, vol. 84, no.3, 1999.
CHAPTER 1: INTRODUCTION AND BACKGROUND 45

about gender harassment.210 When this definition is added into surveys, researchers find that 

almost 60 percent of women report experiencing harassment in probability samples.211

Retaliation and Backlash

Federal law prohibits retaliation against employees who make EEO complaints, in both the federal 

and the private sector.212 Fear of retaliation was a consistent theme that emerged at the 

Commission’s briefing. Several panelists explained that victims of sexual harassment and/or other 

colleagues who witness the behavior often will not report incidents because they do not want to 

face negative repercussions.213 Attorney George Chuzi flatly stated that “federal employees are 

terrified to serve as witnesses. It’s hard to prove these cases without contemporaneous witness 

testimony. They are paralyzed with fear about being retaliated against.”214 

In a January 2018 U.S. Department of Agriculture Office of Inspector General survey of almost 

2,000 U.S. Forest Service employees in California, the majority of the respondents stated that they 

were aware of the agency’s “zero tolerance” harassment policy.215 The survey also indicated, 

however, that most of the employees who alleged experiencing harassment did not report the 

incident(s) because they did not trust the reporting process, did not believe that the process would 

be confidential, or feared that reporting would negatively affect their job.216 

 

210 Emily Leskinen, Lilia Cortina, and Dana Kabat, “Gender harassment: Broadening Our Understanding of SexBased Harassment at Work,” Law and Human Behavior, vol. 35, no. 1, (2011), at 27,

https://lsa.umich.edu/psych/lilia-cortina-lab/Leskinen%20et%20al.%202010%20LHB.pdf. (Authors argue that the 

Sexual Experiences Questionnaire (SEQ), developed by Dr. Fitzgerald and her colleagues is the most validated and 

widely used measure of sexual harassment experiences). See also, Louise F. Fitzgerald, Vicki Magley, Fritz 

Drasgow, & Craig Waldo, “Measuring Sexual Harassment in the Military: The Sexual Experiences Questionnaire 

(SEQ-DoD),” Military Psychology, vol. 11, no. 3, (1998).

211 Remus Ilies, Nancy Hauserman, Susan Schwochau, and John Stibal, “Reported incidence rates of work-related 

sexual harassment in the United States: Using meta-analysis to explain reported rate disparities,” Personnel 

Psychology, vol. 56, no.3, (Dec. 2006) (This is based on 86,578 respondents from 55 independent probability 

samples, utilizing the SEQ. The researchers found that 58 percent of women report having experienced sex-based 

harassment across a variety of work environments.) Ibid.

212 See No FEAR Act, Pub. L. 107-174, 116 Stat. 566 (codified as amended in scattered sections of 5 U.S.C.).

213 See e.g., Speier Testimony, Washington Briefing, p. 9 and 29; Ben-Yehuda Testimony, Washington Briefing, p. 

52; Rodriguez Testimony, Washington Briefing, p. 117.

214 Chuzi Testimony, Washington Briefing, p. 46.

215 Virginia E. B. Rone, Survey of the Forest Service Region 5 Regarding Sexual Harassment, United States 

Department of Agriculture Office of Inspector General, Jan. 23, 2018, https://www.usda.gov/oig/webdocs/17-

028.pdf. The Forest Service is part of the USDA. The Commission chose not to investigate the Forest Service or 

USDA since other investigations of this agency were already underway.

216 Ibid.
46 FEDERAL #METOO

A March 2018 PBS NewsHourinvestigation of the U.S. Forest Service found a series of allegations 

by women who faced discrimination and harassment at work, but many of the women who were 

interviewed stated they were too afraid of retaliation to report the incidents and that that fear was 

a common theme among the interviews.217 In interviews with 34 current and former Forest Service 

women, across 13 states, they all described workplaces that were hostile to women that were 

expressed through patterns of bullying, gender discrimination, sexual harassment and assault by 

fellow crew members and supervisors.218 Many of these women alleged that when they chose to 

report these incidents they were met with retaliatory actions, such as verbal threats, bullying letters, 

being stripped of duties, negative performance reviews, and demotions.219 In 7 of the 34 

interviews, these federal workers asked to remain anonymous because they feared further 

retaliation.220 For instance, one woman asked for the interview transcript to be destroyed after her 

interview because she was too afraid of the consequences.221 Another woman summed up the 

experiences like this: “We all live in this fear ... So, if I have to speak up I will. But it’s frustrating 

because there’s so many more out there who are not talking.”222

In interviews with employees, union representatives, lawyers, and congressional investigators, 

PBS NewsHour also found that all discussed that the agency struggles with long-standing issues 

related to the Forest Service’s “boys’ club” culture across the country.223 Further, women are often 

assigned to duties in remote forest locations, which may place them in higher risk scenarios for 

sexual harassment and assault.

224 Many of the women who were interviewed stated that the worst 

offenses often occur in the agency’s wildland firefighting division, where gender disparities are 

prominent.225 For instance, in 2018 during the off-season, the Forest Service had 6,633 male fire 

employees compared with only 890 female fire employees.226 That is, only 11.8 percent of the 

workforce was female.227 

 

217 PBS NewsHour, Mar. 1, 2018, https://www.pbs.org/newshour/nation/they-reported-sexual-harassment-then-theretaliation-began. 

218 Ibid.

219 Ibid.

220 Ibid.

221 Ibid.

222 Ibid.

223 Ibid.

224 Ibid.

225 Ibid.

226 Ibid.

227 6,633 + 890 = 7,523. 890/7,523 = 11.8%.
CHAPTER 1: INTRODUCTION AND BACKGROUND 47

Testifying to the House Oversight and Government Reform Committee, Shannon Reed, an air 

quality scientific specialist who formerly worked at the National Park Service and Forest Service, 

described a “dark history” of “gender discrimination, sexual harassment, assault and rape” over 

the past eight years.228 While Reed was training to be a fire-fighter, she testified to being called a 

“slut, whore, and c*nt,” and was told that she would have to “suck c*ck” to keep her job.229 Reed 

further recalled male supervisors threatening to “bend me over and spank me” and other men told 

her that she was “unwelcome as a female,” “seen as a sex object,” and was also tripped, pushed, 

and kicked.230

Available data show that sexual harassment is a prevalent issue for federal employees in many 

agencies. Federal employees filed a total of 29,657 harassment claims between fiscal year 2015

and 2018; of these, sexual harassment accounted for 2,257 complaints and non-sexual harassment 

27,400 complaints.231 These numbers do not necessarily reflect the total number of sexual 

harassment claims for those years, however, since this figure only reflects those employees who 

filed a claim with EEOC.232 In fiscal year 2015 alone, the EEOC reported that federal sector 

employees “filed 6,741 complaints alleging harassment as all of, or part of, alleged 

discrimination.”233 These complaints made up 43 percent of all federal sector complaints filed by 

employees that year.234

EEOC reports that these statistics offer a snapshot into the prevalence of federal workplace 

harassment, but are both under- and over-inclusive. These data are over-inclusive because not all 

complaints about harassment are based on behaviors that are protected under employment 

discrimination laws and/or the complaint may not have met the legal standard of severe or 

 

228 Charles Clark, “Sexual Harassment Continues to Infect Forest Service, Park Service, Government Executive, 

Nov. 15, 2018, https://www.govexec.com/oversight/2018/11/sexual-harassment-continues-infect-forest-servicepark-service/152873/.

229 Committee on Oversight and Reform, “Examining Misconduct and Retaliation at the U.S. Forest Service,” Nov. 

15, 2018, https://oversight.house.gov/legislation/hearings/examining-misconduct-and-retaliation-at-the-us-forestservice.

230 Shannon Reed, Testimony, Committee on Oversight and Reform, “Examining Misconduct and Retaliation at the 

U.S. Forest Service,” Nov. 15, 2018, at 2, https://docs.house.gov/meetings/GO/GO00/20181115/108759/HHRG115-GO00-Wstate-ReedS-20181115.pdf.

231 EEOC Responses to U.S. Commission on Civil Rights Interrogatories, Sept. 6, 2019.

232 Ibid.

233 Chai Feldblum and Victoria Lipnic, Select Task Force on the Study of Harassment in the Workplace, U.S. Equal 

Employment Opportunity Commission, June 2016, at 6, 

https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf.

234 Ibid.
48 FEDERAL #METOO

pervasive to constitute actionable, unlawful harassment.235 On the other hand, these data may be 

under-inclusive because approximately 90 percent of individuals who claim to have experienced 

harassment do not take formal action against the harasser (e.g., filing a charge or a complaint).236 

In the latest Merit Systems Protection Board study on sexual harassment released in March 2018, 

researchers found that only 11 percent of the complainants formally filed a complaint, whereas the 

majority (61 percent) of those surveyed stated that they avoided the harasser(s).237 Only 8 percent 

of federal employees believed that their agency took corrective action against the harasser(s); 

leading the researchers to conclude that “the risks of reporting harassment outweigh any potential 

personal or organizational benefits, and [employees] decide not to use agency procedures for 

addressing sexual harassment and holding the harasser(s) accountable for their misconduct.”238

Private sector research has also suggested that employees choose not to file sexual harassment 

claims because they “do not trust the process, do not expect it to be confidential, and/or expect 

retaliation.”239 At the Commission’s briefing, Donald Tomaskovic-Devey, Professor of Sociology 

and Executive Director of the Center for Employment Equity at University of Massachusetts, 

Amherst, testified that a large proportion of employees who do report sexual harassment 

experience retaliation. He stated: 

and it’s pretty much across the board that discrimination complaints are associated with 

job loss. If you file a discrimination charge you have or will lose your job, at least more 

than 60 percent of the time. [And] sexual harassment actually stands out as having a much 

higher level of retaliation behavior after the charge is filed. So, job loss is common for 

sexual harassment, retaliation and job loss are the common responses to filing a charge. So 

far, if you get my drift, filing a charge is dangerous.240 

 

235 Chai Feldblum and Victoria Lipnic, Select Task Force on the Study of Harassment in the Workplace, U.S. Equal 

Employment Opportunity Commission, June 2016, at 8.

236 Ibid., at 8. 

237 Ibid., 8. U.S. Merit Systems Protection Board, “Update on Sexual Harassment in the Federal Workplace,” 

Research Brief, March 2018, at 8, 

https://www.mspb.gov/MSPBSEARCH/viewdocs.aspx?docnumber=1500639&version=1506232&application=ACR

OBAT.

238 Ibid., 8.

239 Donald Tomaskovic-Devey, Professor of Sociology and Executive Director at Center for Employment Equity at 

University of Massachusetts, Amherst Written Statement for Federal Me Too: Examining Sexual Harassment in 

Government Workplaces Briefing before the U.S. Commission on Civil Rights, May 9, 2019, at 3 (hereinafter 

Tomaskovic-Devey Statement).

240 Tomaskovic-Devey, Testimony, Washington Briefing, p. 92.
CHAPTER 1: INTRODUCTION AND BACKGROUND 49

While these data refer to the private sector, at the briefing, Tomaskovic-Devey reported that due 

to the lack of transparency, there are not comparable federal data available.241 

Similarly, Heather Metcalf of the Association of Women in Science testified before the 

Commission that victims of sexual harassment may not report because the stakes are too high. 

Metcalf stated that in her research she encountered a woman who was in a three-year battle with 

her employer due to a serial harasser in a technology department.242 But instead of punishing the 

harasser, her employer moved her to a different department despite the fact that other women also 

came forward.243 Metcalf continued on to testify that this was:

Similar to my own situation in graduate school. They moved her, and offered her a 

settlement and she decided that the settlement wasn’t worth it, that she wanted to fight it 

and she actually went public with this. But it ended up creating some backlash, where she 

was getting hate mail at her home. She has two young children. People were coming by 

her home and she felt like her children were unsafe. She incurred tens of thousands of 

dollars in legal debt to pursue this case, and these are the kinds of things that people have 

to think about, as well as the emotional labor concern about potentially losing her job and 

whether she should walk away from her employer, whether she should pursue with the 

EEOC[.]244 

As discussed above, Jane Liu, Legal Director at the National Asian Pacific American Women’s 

Forum testified that Asian and Pacific Islander women often are fearful to report harassment 

because of fear of retaliation as well as concerns about how it would affect their own and their 

family’s reputation.245 Individuals who experience harassment in a variety of professions can also 

find themselves in situations where they have to work closely with their harassers in isolated 

environments and are faced with few options on how to resolve the harassing behavior.246 Reported 

sexual harassment allegations from a remote research expedition illustrate this phenomenon. 

Several women made allegations against David Marchant, a Boston University geologist, 

 

241 Ibid., at 101, 106.

242 Metcalf Testimony, Washington Briefing, p. 82.

243 Ibid.

244 Ibid.

245 Liu Testimony, Washington Briefing, pp. 122-23; See also Retaliation and Backlash, at infra notes 213-256.

246 See e.g., National Academies of Sciences, Engineering, and Medicine, Sexual harassment of women: Climate, 

culture, and consequences in academic sciences, engineering, and medicine, 2018, at 55; Marina Koren, “When

Scientists Are Sexually Harassed in the Field,” The Atlantic, Oct. 11, 2017,

https://www.theatlantic.com/science/archive/2017/10/sexual-harassment-fieldwork-science/542559/.
50 FEDERAL #METOO

regarding interactions while they were on research expeditions in Antarctica.247 The allegations 

against Marchant included him calling one woman a “sl*t” and a “wh*re.”248 A former graduate 

student of Marchant, Jane Willenbring alleged that: 

Merchant shoved her, threw rocks at her when she urinated in the field and [i]n another 

instance.... Marchant declared it was “training time.” Excited that he might be about to 

teach her something, Willenbring allowed him to pour volcanic ash, which includes tiny 

shards of glass, into her hand. She had been troubled by ice blindness, caused by excessive 

ultraviolet light exposure, which sensitizes the eyes. She says she leaned in to observe, and 

Marchant blew the ash into her eyes. “He knew that glass shards hitting my already 

sensitive eyes would be really painful—and it was.”249

Willenbring also said that she waited to file her complaint until after she received a tenure position 

because she feared retribution, and other women stated that Marchant threatened to impede them 

from getting research funding if they went public.250 An investigation by Boston University’s 

Equal Opportunity Office found “by a preponderance of the evidence [] Dr. [David] Marchant 

engaged in sexual harassment in violation of Boston University’s Sexual Harassment Policy ... by 

directing derogatory and sex-based slurs and sexual comments at you [Willenbring] during the 

1999-2000 field expedition to Antarctica.”251 Provost Jean Morrison elected to terminate 

Marchant, a decision he appealed.252 After a faculty hearing committee recommended a lesser 

remedy, the President of Boston University chose to enforce his termination in April 2019.253

Allegations like these are far from isolated. According to a 2014 survey of field scientists, 64

percent reported they had experienced sexual harassment while on the job, and 20 percent reported

having been sexually assaulted.254 Further, the remote nature of some occupations may actually

amplify the possibility of harassment due to the very nature of the job site. For instance, in remote

 

247 Marina Koren, “When Scientists Are Sexually Harassed in the Field,” The Atlantic, Oct. 11, 2017,

https://www.theatlantic.com/science/archive/2017/10/sexual-harassment-fieldwork-science/542559/.

248 Ibid.

249 Ibid.

250 Ibid.

251 Meredith Wadman, “Boston University concludes geologist sexually harassed student,” Science Magazine, Nov. 

17, 2017, https://www.sciencemag.org/news/2017/11/boston-university-concludes-geologist-sexually-harassedstudent.

252 Ibid.

253 Ibid.

254 Kathryn Clancy, Robin Nelson, Julienne Rutherford, and Katie Hinde, “Survey of Academic Field Experiences 

(SAFE): Trainees Report Harassment and Assault,” PLOS ONE, (2014), vol. 9, no. 7,

https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0102172.
CHAPTER 1: INTRODUCTION AND BACKGROUND 51

locations there is often little to no communication with the outside world.255 This isolation can

magnify the feeling of helplessness that often comes with abuse, and victims in these situations

may find themselves without anywhere to go.256

Costs of Sexual Harassment

Studies have shown that sexual harassment in the workplace can affect victims’ daily functioning 

and may cause victims to seek extensive mental health support.257 When examining the effects of 

sexual harassment in the workplace, Rospenda and colleagues found that experiences with 

harassment had a significant correlation with mental health issues “beyond life and job stressors, 

particularly in women.”258 At the Commission’s briefing, Foreign Service Officer Alissa Redmond 

shared her experience and testified that subsequent to being assaulted and date raped after attending 

a Marine Ball, she experienced consistent panic attacks and nightmares. She shared that:

I know my rank as a junior officer meant I had to keep my head down, handle all tasks 

thrown my way, and never, ever complain, especially to HR yet after a year of panic attacks 

and nightmares, I knew I couldn’t function as a professional without additional support that 

wasn’t available to me overseas. I ultimately felt somewhat comfortable admitting to a med 

in HR at post that I had been assaulted when I read Secretary Clinton’s directive to State 

employees which explicitly stated that those who sought mental health treatment would 

not automatically face loss of or a downgrade in their security or medical clearances to 

continue to serve.

I remain profoundly grateful to those at post who did grant me the leave I requested to treat 

subsequently diagnosed anxiety, depression, and PTSD [Post-Traumatic Stress Disorder]. 

To [receive] leave, I did have to sit through the male psychiatrist at our med office, 

employed by our med office telling me, you don’t need to dramatize things to leave this 

post if that’s what you want to do. I tallied up [fees] for my female psychiatrist, private 

psychologist, psychiatrist in the U.S., whose exorbitant, but worthwhile fees I paid for out 

of pocket, recouping in part through medical insurance reimbursements after the fact, that 

I had to tell over half a dozen men that I was raped by our colleague before I could complete 

all of the paperwork I needed to leave post for counseling... I had to advance sick leave 

 

255 Ibid.

256 Ibid.

257 Elyse Shaw, Ariane Hegewisch, Cynthia Hess, “Sexual Harassment and Assault at Work: Understanding the 

Costs,” Oct. 15, 2018, https://iwpr.org/wp-content/uploads/2018/10/IWPR-sexual-harassment-brief_FINAL.pdf.

258 Kathleen Rospenda, Judith Richman, and Candice Shannon, “Prevalence and Mental Health Correlates of 

Harassment and Discrimination in the Workplace: Results from a National Study,” Journal of Interpersonal 

Violence, vol. 24, no. 5, (May 2009), 819.
52 FEDERAL #METOO

over three months with a reduction in pay, loss of differential, while purchasing my own 

plane ticket and accommodations in the U.S. to remain away from my work overseas to 

treat my PTSD domestically. I’m extremely proud of myself for returning to complete that 

assignment.259

Other studies have shown that regardless of whether women label unwanted behaviors as sexual 

harassment or not, the negative consequences of enduring such behavior remains the same.260

Professor of Psychological Sciences at the University of Connecticut Vicki Magley and colleagues 

found that in a sample of almost 1,200 female employees from three separate workplaces “whether 

or not a woman considers her experience to constitute sexual harassment, she experiences similar 

negative psychological, work, and health consequences.”261 This means that “reported experiences 

with unwanted sex-related behavior on the job consistently led to negative outcomes; labeling 

these experiences as sexual harassment had no effect on the degree of the negative outcomes.”262

Further, these long term physical and mental negative health effects can lead to long-term costs 

for federal employees. For instance, in Zar and Castillo v. Brennan, the victims in a sexual 

harassment lawsuit against the United States Postal Service sought medical care due to “severe 

distress” along with “pain, stress, and anxiety” allegedly caused by “unwelcome sexual comments 

and sexual attacks and acts that were terrifying, humiliating, harmful, and degrading. . . [and] 

[t]hese unwelcomed acts were severe or pervasive and created a hostile work environment for the 

Plaintiffs.”263

Yet, if agencies work to prevent harassment and discrimination in their workplaces, that work has 

the possibility of reducing rates of mental health issues and decreasing life stressors for all 

employees;264 and since data show that harassment plays a stronger role in predicting problem 

 

259 Alissa Redmond Testimony, Washington Briefing, pp. 156-7.

260 See Vicki Magley, Charles Hulin, Louise Fitzgerald, and Mary DeNardo, “Outcomes of Self-Labeling Sexual 

Harassment,” Journal of Applied Psychology, vol. 84, no.3, 1999; Liberty Munson, Andrew Miner, & Charles 

Hulin, “Labeling sexual harassment in the military: An extension and replication,” Journal of Applied Psychology, 

vol. 86, no. 2, (May 2001).

261 Vicki Magley, Charles Hulin, Louise Fitzgerald, and Mary DeNardo, “Outcomes of Self-Labeling Sexual 

Harassment,” Journal of Applied Psychology, vol. 84, no.3, 1999, at 399.

262 Ibid.

263 See Complaint, Zar and Castillo v. Brennan Jan. 2019, at 7, https://legalaidatwork.org/wpcontent/uploads/2019/01/USPS-Sex-Harrassment-Complaint.pdf; Order Denying Defendant’s Motion for Judgment 

on the Pleadings, Zar and Castillo v. Brennan, No. 19-cv-00250, 2019 Westlaw 2503650 (N.D. Cal. June 17, 

2019); Stipulation of Agreement of Compromise and Settlement Order, Zar and Castillo v. Brennan, No. 19-cv00250 (N.D. Cal. Nov. 8, 2019)

264 Kathleen Rospenda, Judith Richman, and Candice Shannon, “Prevalence and Mental Health Correlates of 

Harassment and Discrimination in the Workplace: Results from a National Study,” Journal of Interpersonal 

Violence, vol. 24, no. 5, (May 2009), at 838.
CHAPTER 1: INTRODUCTION AND BACKGROUND 53

drinking and mental health in women compared to men this means that these benefits could extend 

to as many as approximately 860,000 employees or 43 percent of the federal workforce 

nationwide.265 

In their submission to the Commission, Legal Aid at Work asserted that in addition to the physical 

and emotional effects, sexual harassment may also “discourage women from seeking learning 

opportunities, asking for promotions, or otherwise advancing to higher paid and more powerful 

positions, which contributes to the enduring pay gap between men and women.”266 And these 

negative career effects are further heightened when harassment occurs at the intersection of gender, 

race, immigration status, and other social and demographic characteristics.267

The long-term organizational costs may also be high.268 In a study examining the effects of sexual 

harassment on early career attainment, researchers found that women who were targets of 

harassment were 6.5 times as likely to leave their jobs compared to non-targeted women.

269

Heather Metcalf told the Commission that harassment has been shown to have an array of costs to 

employees and organizations, ranging from “reduced productivity, increased use of sick and 

annual leave, and workplace attrition in response to harassment.”270

 

265 Partnership for Public Service, “Federal Workforce,” Fed Figures 2019, https://ourpublicservice.org/wpcontent/uploads/2019/01/FedFigures_19Shutdown.pdf; Kathleen Rospenda, Judith Richman, and Candice Shannon, 

“Prevalence and Mental Health Correlates of Harassment and Discrimination in the Workplace: Results from a 

National Study,” Journal of Interpersonal Violence, vol. 24, no. 5, (May 2009).

266 Legal Aid at Work, submission to U.S. Commission on Civil Rights, June 10, 2019, at 4 (citing Elyse Shaw, 

Ariane Hegewisch, Cynthia Hess, “Sexual Harassment and Assault at Work: Understanding the Costs,” Oct. 15, 

2018).

267 Legal Aid at Work, submission to U.S. Commission on Civil Rights, June 10, 2019, at 4; Amanda Rossie, 

Jasmine Tucker, and Kayla Patrick, “Out of the Shadows,” National Women’s Law Center, https://nwlcciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2018/08/SexualHarassmentReport.pdf. 

268 Elyse Shaw, Ariane Hegewisch, Cynthia Hess, “Sexual Harassment and Assault at Work: Understanding the 

Costs,” Oct. 15, 2018; Senators’ Letter to R. Alexander Acosta, Secretary of Labor and William Wiatrowski, Acting 

Commissioner, Bureau of Labor Statistics, Jan. 29, 2018, 

https://www.gillibrand.senate.gov/imo/media/doc/1.29.18%20DoL%20BLS%20on%20Sexual%20Harassment.pdf; 

Robert Faley, Deborah Erdos Knapp, Gary Kustis, and Cathy Dubois, “Estimating the Organizational Costs of 

Sexual Harassment: The Case of the U.S. Army,” Journal of Business and Psychology, vol. 13, No. 4, 1999.

269 Heather McLaughlin, Christopher Uggen, and Amy Blackstone. 2017. “The Economic and Career Effects of 

Sexual Harassment on Working Women.” Gender & Society 31(3): 333– 58. 

https://doi.org/10.1177/0891243217704631.

270 Metcalf Statement, at 4 (citing U.S. Merit Systems Protection Board, “Update on Sexual Harassment in the 

Federal Workplace,” March 2018, 

https://www.mspb.gov/MSPBSEARCH/viewdocs.aspx?docnumber=1500639&version=1506232&application=ACR

OBAT).
54 FEDERAL #METOO

One significant challenge to fully understanding the cost of sexual harassment in federal 

workplaces is that the Labor Department does not collect these data. In a joint letter in January 

2018, U.S. Senator Kirsten Gillibrand along with 22 senators, called for the Labor Department and 

Bureau of Labor Statistics (BLS) to start collecting data on the prevalence and cost of sexual 

harassment in the workforce.271 In the letter the senators stated that:

in some instances when workplace sexual harassment occurs, employees choose to leave 

their job, or even their career, rather than continue to experience harassment. In fact, 

women who have been harassed are 6.5 times more likely to change jobs than those who 

have not. These consequences are particularly concerning in science, technology, 

engineering, and math fields, where approximately one in five women report experiencing 

sexual harassment at work.

When a worker changes jobs or industries, there are costs for the employer as well as the 

worker. Employees lose out on the ability to be promoted or receive raises or bonuses, and 

employers have to cover replacement costs to find a new worker. This drives down the 

labor force participation rate and increases the wage gap. Moreover, it is a loss to society.

Right now, we do not know how many gifted workers and innovators were unable to 

contribute to our country because they were forced to choose between working in a 

harassment-free workplace and their career.272

In response to the senators, the Bureau of Labor Statistics Acting Commissioner William J. 

Wiatrowski stated that while the Labor Department “takes sexual harassment very seriously . . . 

collecting this information would be complex and costly.”273 In response, Senator Gillibrand and 

her 22 colleagues sent a follow-up letter stating that: 

While your letter indicated the Department takes workplace sexual harassment ‘very 

seriously,’ your lack of commitment to collect this data undermines your assurances. ... 

The notion that this work is complex by nature does not seem to be a sufficient justification 

to decline this request.274

 

271 Senators’ Letter to R. Alexander Acosta, Secretary of Labor and William Wiatrowski, Acting Commissioner, 

Bureau of Labor Statistics, Jan. 29, 2018, 

https://www.gillibrand.senate.gov/imo/media/doc/1.29.18%20DoL%20BLS%20on%20Sexual%20Harassment.pdf.

272 Ibid. 

273 William Wiatrowski, Acting Commissioner, Bureau of Labor Statistics, Letter to Senator Gillibrand, April 11, 

2018, https://www.documentcloud.org/documents/4498008-Sexhar041118-DOL-Response.html. 

274 Senators’ Letter to R. Alexander Acosta, Secretary of Labor and William Wiatrowski, Acting Commissioner, 

Bureau of Labor Statistics, Jan. 29, 2018, https://www.help.senate.gov/ranking/newsroom/press/gillibrand-murray-
CHAPTER 1: INTRODUCTION AND BACKGROUND 55

Starting in the 1980s, Merit Systems Protection Board has collected data on the federal workforce

that was similar to those that the senators were requesting, but focusing on the federal workforce. 

In the MSPB 1994 study, the agency found that a “conservative estimate” of the cost of sexual 

harassment in the federal workplace over the course of two years “cost the government a total of 

$327.1 million as a result of job turnover, sick leave, and decreased productivity.”275 At the writing 

of this report, this $327 million in 1994 dollars would be the equivalent of approximately $574 

million in 2019.276

Many argue that these figures underestimate the true financial cost of sexual harassment in federal 

workplaces.277 Further, these figures are likely to have increased in the subsequent decades as the 

number of sexual harassment claims have also increased.278 And due to the confidential nature of 

federal agency settlements, getting a full understanding of the cost of sexual harassment to federal 

agencies continues to be difficult.279 

Following the Labor Department’s rejection of the request to collect these data, in March 2018, 

Senator Gillibrand, along with Senators Patty Murray, Dianne Feinstein, and Elizabeth Warren,

called on the Government Accountability Office (GAO) to open an investigation to determine the 

economic effects of workplace sexual harassment on the nation’s workforce. The joint letter stated 

that: 

As recent media reports have made abundantly clear, far too many U.S. workers continue 

to suffer from sexual harassment in their workplaces, resulting in substantial costs to our 

nation’s economy and workforce. While employers tend to focus on direct costs to a 

business, such as legal fees or settlement amounts, the true cost of sexual harassment 

 

urge-department-of-labor-to-start-taking-workplace-harassment-seriously-reconsider-decision-not-to-collecteconomic-data.

275 Merit Systems Protection Board, “Sexual Harassment in the Federal Workplace,” (1994), at 24-26, 

https://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=253661&version=253948. 

276 Calculation by Commission staff utilizing the Bureau of Labor Statistics (BLS) inflation calculator. Note, the 

updated 2018 Merit Systems Protection Board research brief did not include the economic costs in its report. 

277 Elyse Shaw, Ariane Hegewisch, and Cynthia Hess, “Sexual Harassment and Assault at Work: Understanding the 

Costs,” Oct. 15, 2018; Legal Aid at Work, submission to U.S. Commission on Civil Rights, June 10, 2019; Joe 

Davidson, “#MeToo, #NoMore, now #HowMuch? What is the cost of sexual harassment?” Washington Post, June 

8, 2018, https://www.washingtonpost.com/news/powerpost/wp/2018/06/08/senators-continue-search-for-sexualharassment-economic-data-after-labor-dept-refuses-to-help/.

278 Elyse Shaw, Ariane Hegewisch, Cynthia Hess, “Sexual Harassment and Assault at Work: Understanding the 

Costs,” Oct. 15, 2018.

279 Ibid., Senators’ Letter to R. Alexander Acosta, Secretary of Labor and William Wiatrowski, Acting 

Commissioner, Bureau of Labor Statistics, Jan. 29, 2018, 

https://www.gillibrand.senate.gov/imo/media/doc/1.29.18%20DoL%20BLS%20on%20Sexual%20Harassment.pdf.
56 FEDERAL #METOO

includes indirect costs such as decreased productivity, increased turnover, and reputational 

harm. All of this is an impediment to employee performance and employers’ bottomlines.280

Specifically, the Senators urged GAO to provide information about the prevalence of sexual 

harassment, the method by which the government tracks and compiles data on the prevalence and 

costs of sexual harassment in the workplace, and recommended actions to address this pervasive 

problem.281 They further stated that it is important to consider that “[t]he economic impact of 

workplace sexual harassment extends beyond the cost of formal complaints and lawsuits. Sexual 

harassment also leads to decreased productivity, increased turnover, absenteeism, decreased job 

satisfaction, and reputational harm to employees and employers.”282 

There are potentially even further costs. Heather Metcalf explained that her research has shown 

that “organizations unnecessarily lose talented employees and public trust when the culture of 

harassment is left unaddressed. These costs are even greater in environments...where harassment 

in normalized and downplayed, threats of retaliation are high, and a lack of trust in the reporting 

and investigative process all produce barriers to reporting and seeking support.”283 At the 

Commission’s briefing, several panelists also discussed these invisible costs of harassment, and 

specifically the concern about reputational harm and how that concern kept victims of alleged 

harassment from coming forward. For instance, Jenna Ben-Yehuda, Former Political-Military 

Advisor at the Department of State and current President and CEO at the Truman National Security 

Project, explained that she learned quickly that there was a “corridor reputation” at the State 

 

280 Senator Gillibrand, Senator Patty Murray, Senator Feinstein, and Senator Elizabeth Warren, Letter to Gene 

Dodaro, Comptroller General of the United States, Government Accountability Office, May 29, 2018, 

https://www.gillibrand.senate.gov/imo/media/doc/GAO%20Letter%205.29.18.pdf, at 1.

281 Ibid; see also, Gillibrand, Murray, Feinstein, Warren Call on Government Accountability Office to Investigate 

the Economic Effect of Sexual Harassment on U.S. Workforce, May 31, 2018, 

https://www.gillibrand.senate.gov/news/press/release/gillibrand-murray-feinstein-warren-call-on-governmentaccountability-office-to-investigate-the-economic-effect-of-sexual-harassment-on-us-workforce. Note: at the writing 

of this report, the GAO has not responded or released a report in response specifically to the above cited letter. 

However, the GAO is currently conducting an investigation on sexual harassment in federal workplaces. 

282 Legal Aid at Work, submission to U.S. Commission on Civil Rights, June 10, 2019, at 5 (citing Joe Davidson, 

“#MeToo, #NoMore, now #HowMuch? What is the cost of sexual harassment?” Washington Post, June 8, 2018, 

https://www.washingtonpost.com/news/powerpost/wp/2018/06/08/senators-continue-search-for-sexual-harassmenteconomic-data-after-labor-dept-refuses-to-help/); see also, Chelsea Willness, Piers Steel, and Kibeom Lee, “A MetaAnalysis of the Antecedents and Consequences of Workplace Sexual Harassment,” Personnel Psychology, vol. 60, 

no. 1, 2007; Victor Sojo, Robert Wood, and Anna Genat, “Harmful Workplace Experiences and Women’s 

Occupational Well-Being: A Meta-Analysis,” Psychology of Women Quarterly, vol. 40, no. 1, 2016.

283 Renee Binder, Paul Garcia, Bonnie Johnson, and Elena Fuentes-Afflick, “Sexual Harassment in Medical Schools: 

The Challenge of Covert Retaliation as a Barrier to Reporting,” Academic Medicine, vol. 12, no. 1, 2018, 

https://journals.lww.com/academicmedicine/Fulltext/2018/12000/Sexual_Harassment_in_Medical_Schools___The.

17.aspx#pdf-link; see also, Metcalf Statement, at 4. (hereinafter Metcalf Statement).
CHAPTER 1: INTRODUCTION AND BACKGROUND 57

Department that matters “more than anything on your CV [curriculum vitae] or anything else. 

What that also becomes shorthand for is hearsay, and in a workforce where Foreign Service 

officers are changing positions and vying for new positions every one to three years, the corridor 

reputation becomes a major factor for selection and promotion.”284 Ben-Yehuda also explained 

that the fear of reputational harm has a lasting effect because “a number of these cases are taking 

18 months, two years to adjudicate, [and] that silences people from coming forward, and it also 

can carry the rumor mill for years to come because it’s not adjudicated in a timely fashion.”285

Each of these issues could have a substantial economic impact on federal agencies. For example, 

in the same 1994 MSPB study discussed above, researchers found that employers sustained 

substantial costs due to sexual and gender harassment.286 That year, employee turnover cost federal 

employers $24.7 million, workers taking sick leave cost federal employers $14.9 million, and 

diminished productivity at work cost federal employers $287.5 million, all of which were found 

to be the result of workplace sexual and gender harassment.287

The EEOC reported that from 2010-2018, employers paid out $1.084 billion through the EEOC’s 

administrative enforcement pre-litigation process alone to employees whose charges included an 

allegation of harassment.288 These figures do not include the millions more paid to employees in 

 

284 Ben-Yehuda Testimony, Washington Briefing, p. 75.

285 Ibid., 81.

286 Merit Systems Protection Board, “Sexual Harassment in the Federal Workplace,” (1994), at 26.

287 Legal Aid at Work, submission to U.S. Commission on Civil Rights, June 10, 2019; Lynn Parramore, “#MeToo: 

The Economic Cost of Sexual Harassment,” Institute for New Economic Thinking, Jan. 2018, 

https://www.ineteconomics.org/research/research-papers/metoo-the-economic-cost-of-sexual-harassment; Merit 

Systems Protection Board, “Sexual Harassment in the Federal Workplace,” (1994), at 24, 

https://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=253661&version=253948; Gillibrand and 21 Senate 

Colleagues Call on Department of Labor Secretary Acosta and Bureau of Labor Statistics Acting Commissioner 

Wiatrowski to Collect Data on Economic Costs of Sexual Harassment in the Labor Force, Jan. 29, 2018, 

https://www.gillibrand.senate.gov/news/press/release/gillibrand-and-21-senate-colleagues-call-on-department-oflabor-secretary-acosta-and-bureau-of-labor-statistics-acting-commissioner-wiatrowski-to-collect-data-on-economiccosts-of-sexual-harassment-in-the-labor-force; Gillibrand, Murray, Feinstein, Warren Call On Government 

Accountability Office To Investigate The Economic Effect Of Sexual Harassment On U.S. Workforce, May 31, 

2018, https://www.gillibrand.senate.gov/news/press/release/gillibrand-murray-feinstein-warren-call-on-governmentaccountability-office-to-investigate-the-economic-effect-of-sexual-harassment-on-us-workforce. 288 See U.S. Equal Employment Opportunity Commission, Enforcement & Litigation Statistics, All Charges 

Alleging Harassment (FY 2010 - FY 2018), https://www.eeoc.gov/eeoc/statistics/enforcement/all_harassment.cfm. 

To note, this figure includes sexual harassment allegations, but EEOC does not disaggregate or isolate only sexual 

harassment benefits for these years. The EEOC noted that: “In addition, when a charge contains more than one 

allegation, the EEOC records the monetary benefits awarded to the Charging Party, to resolve the charge, but does 

not calculate separate monetary amounts for each allegation. The $1083.7 million is the amount paid to resolve 

charges which include harassment allegations, but those charges may also include other allegations as well.” See 

EEOC, Affected Agency Review Responses to Commission on draft report, Nov. 14, 2019 [on file].
58 FEDERAL #METOO

settlements after EEOC filed successful lawsuits for harassment.289 EEOC stated that “while we 

do not have strictly comparable cost data with respect to the various agencies of the federal 

government, we surmise it would likely be similar, given the diverse and varied nature of the 

federal workforce and its worksites.”290

While certainly not all employees separated from the federal government due to issues with 

harassment, data show that sexual harassment clearly contributes to employees leaving their 

jobs.291 For instance, in the 1994 MSPB survey, researchers found that sexual harassment caused 

19,727 federal employees – specifically the victims of sexual harassment— to leave their jobs 

through reassignment, being fired, being transferred, or quitting.292 While more recent federal data 

is not available, a survey from the private sector found that over a quarter of women reported 

having experienced sexual harassment at their jobs, of those, 46 percent stated that harassment 

caused them to leave their jobs or switch careers.293 Heather McLaughlin, assistant professor of 

sociology at Oklahoma State University, found that those employees who experienced sexual 

harassment left their jobs within two years, which is higher than the average job turnover rate.294

 

289 Gillibrand, Murray, Feinstein, Warren Call On Government Accountability Office To Investigate The Economic

Effect Of Sexual Harassment On U.S. Workforce, May 31, 2018, 

https://www.gillibrand.senate.gov/news/press/release/gillibrand-murray-feinstein-warren-call-on-governmentaccountability-office-to-investigate-the-economic-effect-of-sexual-harassment-on-us-workforce.

290 See EEOC Select Task Force June 2016 Report. (As we heard from one witness at the first public meeting of the 

Task Force: The federal government is the most diverse workforce in the world. We have federal grocery stores -

over two hundred federal grocery stores, federal butchers, federal cashiers. We have park rangers who spend two 

months surveying the wilderness and VA hospitals that have the full range of medical professionals, doctors, and 

nurses. We have police departments, we have fire departments, so when people think of the federal government you 

think of bureaucracy you don't think of the traditional employment." Oral Testimony of Dexter Brooks, Workplace 

Harassment: Examining the Scope of the Problem and Potential Solutions, Meeting of the E.E.O.C. Select Task 

Force on the Study of Harassment in the Workplace (June 17, 2015). Ibid.

291 See e.g., Heather McLaughlin, Christopher Uggen, and Amy Blackstone, “The Economic and Career Effects of 

Sexual Harassment on Working Women.” Gender & Society, vol. 31 no. 3, (2017), p. 333–58. 

https://doi.org/10.1177/0891243217704631.

292 U. S. Merit Systems Protection Board, Sexual Harassment in the Federal Workplace: Trends, Progress, and 

Continuing Challenges, 1995, at 24, 

https://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=253661&version=253948. MSPB notes that these 

numbers have decreased from the estimated 36,647 employees who left their jobs due to sexual or gender 

harassment in 1987. Ibid. 

293 Erika Beras, “Poll: Nearly half of the women who experienced sexual harassment leave their jobs or switch 

careers,” Marketplace, Mar. 9, 2018, https://www.marketplace.org/2018/03/09/new-numbers-reflect-lasting-effectsworkplace-harassment-women/.

294 Ibid. (citing from Heather McLaughlin, Christopher Uggen, and Amy Blackstone, “The Economic and Career 

Effects of Sexual Harassment on Working Women.” Gender & Society, vol. 31 no. 3, (2017), p. 333–58. 

https://doi.org/10.1177/0891243217704631).
CHAPTER 1: INTRODUCTION AND BACKGROUND 59

She added that: “Many also suffered career stagnation. So, their earnings really plateaued when 

compared to women who continued on in those same career paths.”295 

Bureau of Labor Statistics data suggest that the turnover costs resulting from harassment (e.g., due 

to quitting, transferring) have grown even more significant in the past several years. For example, 

in 2017, the overall federal government turnover rate increased to 16.7 percent (up from 16.4 

percent in 2016), which equates to 468,000 employees who left the federal government that year, 

resulting in additional costs to replace them.

296 Of the total, 189,000 employees quit federal service 

in 2017, which resulted in a rate of 6.7 percent, compared to 5.8 percent in 2016 and 5.4 percent 

in 2015.297 Therefore, utilizing the same measures the MSPB used in 1994 – after adjusting for 

inflation— data would indicate that the cost of federal employee turnover (or total separation) rose 

to about $986 million.298 Making a more conservative estimate of cost, by isolating only those 

employees who quit, the cost to the federal government was over $398 million in 2017. Looking 

at the cost in 2019, from January to April (the most current data available), BLS reported 140,000 

employees separated from the federal government, which amounts to over $305 million in turnover 

costs for those four months alone.299

In a study examining the costs of sexual harassment in the military, researchers found turnover 

costs represent the largest financial cost of sexual harassment, which was considerably higher than 

the costs related to litigation.300 Evaluating over 30 case studies, researchers found that for private 

 

295 Ibid. (quoting McLaughlin).

296 According to BLS, turnover is the combined numbers of quits, layoffs and discharges, and other separations. See 

Bureau of Labor Statistics, “Job Openings and Labor Turnover,” April 2019, at 2, 

https://www.bls.gov/news.release/pdf/jolts.pdf. 

297 Michal Wald, “Turnover Up as More Workers Quit the Federal Government,” FedSmith, March 22, 2018, 

https://www.fedsmith.com/2018/03/22/turnover-workers-quit-federal-government/. Note these numbers do not 

include other separations such as retirement, deaths, and disabilities. Ibid.

298 In the 1994 survey, the cost of turnover was based on 19,727 federal employees who left their jobs due to 

reassignment, being fired, being transferred, or quitting. The MSPB calculated these expenses by using the cost 

associated with replacing these employees which include the costs of recruitment and placement, cost of background 

checks for new or potential employees, and training costs of replacements. In the 1987 study, MSPB used a 

conservative estimate of $1,000 per employee; in 1994, controlling for inflation, the researchers conservatively 

estimated the cost to be $1,250 to replace employees which amounted to an estimated cost of $24.7 million for 

federal agencies during the two-year study period. See U. S. Merit Systems Protection Board, Sexual Harassment in 

the Federal Workplace: Trends, Progress, and Continuing Challenges, 1994, at 24, 

https://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=253661&version=253948. For the 2017 calculation, 

Commission staff utilized the BLS inflation calculator to determine the cost per employee to be $2,107 for that year.

299 See Bureau of Labor Statistics, “Job Openings and Labor Turnover,” April 2019, at 2, 

https://www.bls.gov/news.release/pdf/jolts.pdf. Commission staff calculated the cost associated with employee 

turnover by readjusting the cost per employee to $2,184 (controlling for inflation). 

300 Robert Faley, Deborah Erdos Knapp, Gary Kustis, and Cathy Dubois, “Estimating the Organizational Costs of 

Sexual Harassment: The Case of the U.S. Army,” Journal of Business and Psychology, vol. 13, No. 4, 1999. 
60 FEDERAL #METOO

sector employers, replacing an employee on average cost 16 to 20 percent of an employee’s annual 

salary, with that figure rising up to 213 percent of an employee’s salary for experienced managerial 

and professional staff.301 Further, the negative effects of sexual harassment are not isolated to just 

the target(s) of harassment, but can also include negative effects for other employees who may 

witness or hear about the harassing behavior (i.e., bystanders). Researchers found that “ambient 

sexual harassment”302 had a damaging effect on team performance and was also linked to similar 

individual-level outcomes (e.g., job satisfaction, physical and psychological health, and 

turnover).303 “Coworkers are often aware of colleagues’ experiences with sexual harassment and 

that incidents of sexual harassment in a group may create a generally stressful environment that 

others in the work group also experience.”304

In sum, while there is an absence of data regarding the costs specific to the federal government, 

the Commission’s research shows that the estimated costs discussed above are significant. Perhaps 

more importantly, research also suggests that people who file discrimination complaints often are 

“not seeking monetary damages, but simply want their job back, the perpetrator stopped, and to 

improve the working conditions for themselves and coworkers.”305

Relationship of Wage Gaps to Sexual Harassment

Wage disparities between employees can represent a significant risk factor for harassment power 

imbalances, which may be heightened on the bases of race/ethnicity, gender, sexual orientation, 

and gender identity.306 According to Legal Aid at Work’s written comments to the Commission: 

 

301 Heather Boushey and Sarah Jane Glynn, “There are Significant Business Costs to Replacing Employees,” Center 

for American Progress, Nov. 16, 2012, https://cdn.americanprogress.org/wpcontent/uploads/2012/11/16084443/CostofTurnover0815.pdf. 

302 Defined as a “general or ambient level of sexual harassment in a work group as measured by the frequency of 

sexually harassing behavior experienced by others in a woman’s work group.” Theresa Glomb, Wendy Richman, 

Charles Hulin, Fritz Drasgow, Kimberly Schneider, and Louise Fitzgerald, “Ambient Sexual Harassment: An 

Integrated Model of Antecedents and Consequences,” Organizational Behavior and Human Decision Processes, 

vol. 71, no. 3, 1997. 

303 Jana Raver and Michele Gelfand, “Beyond the Individual Victim: Linking Sexual Harassment, Team Processes, 

and Team Performance,” Academy of Management Journal, vol. 48, no. 3, 2005 at 388, 

http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.530.198&rep=rep1&type=pdf.

304 Jana Raver and Michele Gelfand, “Beyond the Individual Victim: Linking Sexual Harassment, Team Processes, 

and Team Performance,” Academy of Management Journal, vol. 48, no. 3, 2005 at 388, 

http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.530.198&rep=rep1&type=pdf.

305 Tomaskovic-Devey Written Statement, at 3.

306 See e.g., Alieza Durana, Amanda Lenhart, Roselyn Miller, Brigid Schulte, and Elizabeth Weingarten, “Sexual 

Harassment: A Severe and Pervasive Problem,” Better Life Lab, Sept. 26, 2018, https://www.newamerica.org/better-
CHAPTER 1: INTRODUCTION AND BACKGROUND 61

these imbalances are especially prevalent for low-income workers, who are much more 

likely to be women, people of color, people with limited English proficiency and 

immigrants. Structural risk factors for sexual harassment often intersect and are 

exacerbated by racism, discrimination, and harassment on the basis of age, disability, and 

national origin.307 

Comparing the civilian federal workforce to the private sector, federal employees are generally 

older than the American workforce at large (e.g., employees under 30 represent about 24 percent 

of the entire U.S labor force, but only 6 percent of federal employees in 2017), and almost half are 

over age 50.308 In terms of demographics, there are fewer women in the federal government than 

in the private sector: women represent 42.7 percent and men represent 57.3 percent of federal 

employees.309 Federal sector employees are majority white (62.4 percent), followed by black 

employees representing 18.8 percent, Latinx employees 9.0 percent, Asian employees 6.0 percent, 

employees identifying as more than one race 1.7 percent, Native American employees 1.6 percent, 

and Native Hawaiian/Pacific Islander employees .50 percent.310 By comparison, the private sector 

workforce is comprised of approximately 155,761 million employees: women comprise 46.9 

percent, white employees account for 78 percent, followed by black employees at 12.3 percent, 

Latinx employees represent 17.3 percent, and Asian employees constitute 6.3 percent (see table 

2).311

 

life-lab/reports/sexual-harassment-severe-and-pervasive-problem/; Fiona Wilson and Paul Thompson, “Sexual 

Harassment as an Exercise of Power,” Gender, Work, and Organization, vol. 8, no. 1, (Jan. 2001), 

https://onlinelibrary.wiley.com/doi/pdf/10.1111/1468-0432.00122; Shelley Cobb and Tanya Horeck, “Post 

Weinstein: gendered power and harassment in the media industries,” Feminist Media Studies, vol. 18, no. 3, (2018), 

https://www.tandfonline.com/doi/full/10.1080/14680777.2018.1456155; Elyse Shaw, Ariane Hegewisch, and 

Cynthia Hess, “Sexual Harassment and Assault at Work: Understanding the Costs,” Oct. 15, 2018, at 4, 

https://iwpr.org/wp-content/uploads/2018/10/IWPR-sexual-harassment-brief_FINAL.pdf. 

307 Legal Aid At Work, Public Comment submission to U.S. Commission on Civil Rights, June 10, 2019 at 1; see 

also, Elyse Shaw, Ariane Hegewisch, and Cynthia Hess, “Sexual Harassment and Assault at Work: Understanding 

the Costs,” Oct. 15, 2018, at 4, https://iwpr.org/wp-content/uploads/2018/10/IWPR-sexual-harassmentbrief_FINAL.pdf. 

308 Partnership for Public Service, “Federal Workplace,” Fed Figures 2019, https://ourpublicservice.org/wpcontent/uploads/2019/01/FedFigures_19Shutdown.pdf.

309 See Table 1.

310 Partnership for Public Service, “Federal Workplace,” Fed Figures 2019, https://ourpublicservice.org/wpcontent/uploads/2019/01/FedFigures_19Shutdown.pdf.

311 Bureau of Labor Statistics, “Labor Force Statistics from the Current Population Survey,” (as of Jan 18, 2019) 

(last accessed Aug. 26, 2019), https://www.bls.gov/cps/cpsaat18.htm.
62 FEDERAL #METOO

Table 2: Workforce Demographics

Demographics Federal Sector Private Sector

2.1 million 155,761 million

Gender

Women 42.7% 46.9%

Men 57.3% 53.1%

Race/Ethnicity

White 62.4% 78%

Black 18.8% 12.3%

Latinx 9.0% 17.3%

Asian 6.0% 6.3%

Multi-Race 1.7% *

Native American 1.6% *

Native Hawaiian/Pacific Islander 0.5% *

*Bureau of Labor Statistics did not report on these demographics

Source: Federal Sector Statistics, Source: Partnership for Public Service, “Federal Workplace,” Fed 

Figures 2019, https://ourpublicservice.org/wp-content/uploads/2019/01/FedFigures_19Shutdown.pdf; 

Private Sector Statistics, Bureau of Labor Statistics, “Labor Force Statistics from the Current Population 

Survey,” (as of Jan 18, 2019)(last accessed Aug. 26, 2019), https://www.bls.gov/cps/cpsaat18.htm.

Further, while people of color represent about 37.5 of the total federal workforce, this percentage 

drastically decreases at higher levels on the general schedule (GS) pay scale (see chart 4 below).312

The General Schedule Pay Scale is the pay system utilized in the federal government that 

represents the rate of basic pay based upon the specific level of work or range of difficulty, 

responsibility, and qualifications; and it is used to determine the salaries of the majority of white-

 

312 “The general schedule pay scale was established in 1949. According to the Office of Personnel Management, 

more than 75 percent of federal workers were in grade GS-7 or below in 1950. That’s compared to 20.5 at the end of 

June 2018, a 54.5 percent drop and another sign of the growing complexity of the work federal employees perform. 

In addition, more than 27 percent of employees are on pay plans outside of the GS-scale.” Partnership for Public 

Service, “Federal Workplace,” Fed Figures 2019, https://ourpublicservice.org/wpcontent/uploads/2019/01/FedFigures_19Shutdown.pdf.
CHAPTER 1: INTRODUCTION AND BACKGROUND 63

collar civilian federal employees.313 Breaking this scale down, people of color are more 

represented in positions at the GS-8 and lower levels, which consist mostly of entry-level to lowlevel positions within the federal government. These groups are underrepresented in top-level and 

supervisory positions in the GS-13 to GS-15 positions, where they represent about 25 to 30 

percent; there are even fewer represented at the Senior Executive Service (SES) level.314

Chart 4: Federal General Pay Scale by Race/Ethnicity

Source: Partnership for Public Service, “Federal Workplace,” Fed Figures 2019, https://ourpublicservice.org/wpcontent/uploads/2019/01/FedFigures_19Shutdown.pdf

In addition to racial wage disparities, it has been noted that the gender pay gap has also been a 

persistent issue in federal workplaces (see table 2).315 In May 2013, President Obama signed a 

memorandum directing the director of the Office of Personnel Management (OPM) to submit a 

government wide strategy to address the gender pay gap among the federal workforce.316

 

313 See Office of Personnel Management, “Pay & Leave,” https://www.opm.gov/policy-data-oversight/payleave/pay-systems/general-schedule/.

314 Partnership for Public Service, “Federal Workplace,” Fed Figures 2019, https://ourpublicservice.org/wpcontent/uploads/2019/01/FedFigures_19Shutdown.pdf.

315 The White House, “Presidential Memorandum – Advancing Pay Equality in the Federal Government and 

Learning from Successful Practices,” May 10, 2013, https://obamawhitehouse.archives.gov/the-pressoffice/2013/05/10/presidential-memorandum-advancing-pay-equality-federal-government-and-le.

316 Ibid.
64 FEDERAL #METOO

Table 3: Gender Breakdown of Federal Workers (2011-2015)

Fiscal Year Female Male Total

2011 796,627 1,059,952 1,856,580

2012 790,085 1,060,226 1,850,311

2013 781,268 1,050,455 1,831,723

2014 777,455 1,048,305 1,825,762

2015 781,303 1,057,033 1,838,352

Avg. Salary in FY 2015 $78,189 $84,083 $81,578

Source: Ralph Smith, “Gender, Age, and Salary in the Federal Workforce,” FedSmith, June 27, 2016, 

https://www.fedsmith.com/2016/06/27/gender-age-and-salary-in-the-federal-workforce/

In 2014, OPM conducted an audit and found that in 2012, the average gender pay gap among 

federal workers ranged from 11 to 13 percent, which equates to women earning about 87 to 89 

cents to the dollar compared to men.317 OPM posited that this gap was the result of other disparities, 

such as women only accounting for 36 percent of management or supervisory positions and 

generally holding lower GS positions.318 While OPM has not released an updated audit on the 

gender pay gap,319 others have noted that it has decreased among federal workers, but has yet to 

achieve full parity.320

Culture of Harassment

According to a National Academies of Sciences report, “organizational climate is, by far, the 

greatest predictor of the occurrence of sexual harassment, and ameliorating it can prevent people 

 

317 U.S. Office of Personnel Management, Governmentwide Strategy on Advancing Pay Equality in the Federal 

Government, April 2014, at 12, https://www.opm.gov/policy-data-oversight/pay-leave/referencematerials/reports/governmentwide-strategy-on-advancing-pay-equality-in-the-federal-government.pdf.

318 Ibid., 12.

319 Niv Elis, “Equal pay for women elusive 55 years after landmark law,” The Hill, June, 13, 2018, 

https://thehill.com/policy/finance/391965-equal-pay-for-women-elusive-55-years-after-landmark-law.

320 See e.g., Richard Eisenberg, “What women, employers and the government can do about the gender pay gap,” 

PBS, April 9, 2019, https://www.pbs.org/wnet/chasing-the-dream/stories/gender-pay-gap/.
CHAPTER 1: INTRODUCTION AND BACKGROUND 65

from sexually harassing others.”321 Researchers have found that many employers do not address 

factors in workplace culture that may lead to sexual harassment, for example, where employees, 

including managers and supervisors, do not take harassing behaviors and misconduct seriously.322

Many employers also do not promote an environment where victims of sexual harassment feel like 

they can safely report the behavior if it occurs.

323

In 1996, Professor Louise Fitzgerald and her colleagues published a study finding that 

organizational climate and the gender makeup of a workplace can either work to facilitate or to 

inhibit sexual harassment. They also demonstrated that how employers, managers, and supervisors 

respond to issues of sexual harassment can have lasting effects on employees and influence an 

employee’s decision on whether to remain at the employee’s job.324 At the Commission’s May 

2019 briefing, Professor Fitzgerald presented materials summarizing research showing that the 

organizational climate itself “exerts independent influence on outcomes, over and above the impact 

of sexual harassment itself. Women harassed in a tolerant organizational environment have worse 

outcomes of every sort, even after [] account[ing] for the impact of harassment itself.”325

Further, research has consistently shown that workplaces that are structured around a “masculine 

job gender context” have heightened likelihood of sexual harassment. These workplaces are 

structured by male-dominated occupations in which: 

1) Job duties and tasks are those traditionally performed by men, and

2) Supervisory and managerial roles are more likely to be filled by men.326

Fitzgerald also explained how these factors together create an environment where sexual 

harassment has a greater likelihood to occur (see chart 5). 

 

321 National Academies of Sciences, Engineering, and Medicine, Sexual Harassment of Women: Climate, Culture, 

and Consequences in Academic Sciences, Engineering, and Medicine, 2018, at 50, 

https://www.nap.edu/catalog/24994/sexual-harassment-of-women-climate-culture-and-consequences-in-academic

322 Ibid.

323 National Academies of Sciences, Engineering, and Medicine, Sexual Harassment of Women: Climate, Culture, 

and Consequences in Academic Sciences, Engineering, and Medicine, 2018, 

https://www.nap.edu/catalog/24994/sexual-harassment-of-women-climate-culture-and-consequences-in-academic.

324 Charles Hulin, Louise Fitzgerald, and Fritz Drasgow, “Organizational influences on Sexual Harassment,” in 

Sexual Harassment in the Workplace, ed. Margaret Stockdale, Sage Publications, 1996, 127-150, 

https://www.researchgate.net/publication/232470761_Organizational_influences_on_sexual_harassment;

325 Fitzgerald Materials, PowerPoint slide 20. 

326 Fitzgerald Statement, at 3.
66 FEDERAL #METOO

Chart 5: Core Antecedents and Consequences of Sexual Harassment

Source: Fitzgerald Materials submitted to U.S. Commission on Civil Rights 

Some studies have found that sexual harassment decreases linearly as structural gender imbalances 

approach parity and others suggest that organizations where women are more represented in 

managerial and supervisory positions also face fewer issues with sexual harassment.327 And studies 

have shown that increasing the number of women in management and positions with 

organizational authority not only helps reduce harassment, but also is significantly more helpful at 

reducing harassment than training programs and reporting systems alone.328

Yet, other studies suggest that women who hold positions of authority in the workplace may also 

be more likely to experience sexual harassment, even after controlling for prior incidents that 

occurred before their promotion.329 The researchers found that women supervisors were 138 

 

327 See e.g., Fitzgerald Statement, at 2-3; Frank Dobbin and Alexandra Kalev, “Training Programs and Reporting 

Systems Won’t End Sexual Harassment. Promoting More Women Will,” Harvard Business Review, Nov. 15, 2017, 

https://hbr.org/2017/11/training-programs-and-reporting-systems-wont-end-sexual-harassment-promoting-morewomen-will. 

328 Frank Dobbin and Alexandra Kalev, “Training Programs and Reporting Systems Won’t End Sexual Harassment. 

Promoting More Women Will,” Harvard Business Review, Nov. 15, 2017, https://hbr.org/2017/11/trainingprograms-and-reporting-systems-wont-end-sexual-harassment-promoting-more-women-will.

329 Heather McLaughlin, Christopher Uggen, and Amy Blackstone, “Sexual Harassment, Workplace Authority, and 

the Paradox of Power,” American Sociological Review, vol. 77, no. 4, 2012, 

https://journals.sagepub.com/doi/pdf/10.1177/0003122412451728.

Organizational 

Climate

Lowered Job 

Satisfaction

Sex Discrimination 

& Sexual 

Harassment

Masculinized 

Job Context

Psychological 

Distress

Target & 

Organization 

Response

Health 

Consequences
CHAPTER 1: INTRODUCTION AND BACKGROUND 67

percent more likely to experience any harassing behavior, reported a rate of harassment 73 percent 

greater than non-supervisors, and were 3.47 times as likely to interpret these behaviors as sexual 

harassment.330 As a whole, the researchers found that female supervisors were not only more likely 

to experience harassment, but they also report more varied and sustained forms of harassment than 

in the “typical harassment scenario of a male boss and a female subordinate.”331 The researchers 

argue that these findings may be due to women in managerial position within organizations being 

seen as threatening to the gender hierarchy, especially in predominately male-dominated 

industries.332

The federal government continues to struggle with gender parity among its workforce, especially 

at the leadership level. In fiscal year 2016 across the federal government, 56.8 percent of positions 

were held by men and 64.7 percent of the most senior-level non-political -appointee management 

positions – Senior Executive Services (SES) – were held by men, and in some federal agencies 

these gender imbalances were even more pronounced.333

Efforts to increase gender and racial diversity in the federal workplace continue to face challenges. 

From 2015 to 2016, there was an increase of 1 percent in women holding SES positions (from 34 

to 35 percent, respectively), and people of color in these positions remained steady at 21 percent.334

Due to these structural imbalances, women and especially women of color are more likely to hold 

lower-paying and non-leadership positions within the federal government. 

Research shows that if an organization’s leadership takes a strong anti-harassment stance and 

demonstrates ways that it is not tolerant of harassment and discrimination then sexual harassment 

 

330 Ibid., 634.

331 Ibid., 634, 636. It is significant to note, that the researchers tested the hypothesis that this finding could be the 

result of female supervisors being more aware of anti-harassment law and policies, thus more likely to report 

harassment. However, they compared these results from the prior year and conclude that while legal consciousness 

undoubtedly evolves over the life course, [] it is unlikely that supervisors’ consciousness changed so dramatically 

over a 12-month period. In addition, no evidence suggests that either consciousness or the lagged dependent variable 

would operate differently for male and female supervisors. 

See Ibid., 640. 

332 Ibid., 639.

333 United States Office of Personnel Management, Federal Equal Opportunity Recruitment Program (FEORP)

Report to Congress, Fiscal Year 2016, (Feb. 2018) at 1, https://www.opm.gov/policy-data-oversight/diversity-andinclusion/reports/feorp-2016.pdf.

334 Ibid., 1.
68 FEDERAL #METOO

seems to decrease.335 In contrast, in organizations that are perceived to be tolerant of sexual 

harassment: 

• Employees may believe that sexual harassment is not taken seriously;

• Employees may believe that it is risky to complain about sexual harassment; and,

• Employees may believe there is little likelihood of meaningful action.336

These factors have a significant effect on employees. At the Commission’s briefing, Tamara 

Chrisler, managing director of policy at the Leadership Conference on Civil and Human Rights, 

testified that to prevent sexual harassment from occurring, it is not enough for leadership to state 

that sexual harassment will not be tolerated. She explained that: 

[Federal] agencies must live the policy, model the appropriate behavior they want to see, 

thoroughly address each claim of harassment and not turn a blind eye to inappropriate 

behavior or make excuses for it. Implement practices that reduce or prevent inappropriate 

behavior that become part of the daily operations, like inappropriate jokes and comments.337

Employers also need to establish trust and accountability that those who violate these policies –

both co-workers and managers – will be held accountable.338 Thus, while an organization may 

have an official “zero tolerance” policy regarding sexual harassment, if it does not have 

mechanisms in place to address sexual harassment or if the leadership does not mirror that these 

behaviors will not be tolerated, then sexual harassment will be able to continue.339

The concern about organizational culture does not mean that individuals who engage in harassing 

and discriminatory behaviors should not be held individually responsible. However, more is 

needed to prevent sexual harassment, as data consistently have shown that the issue of sexual 

harassment is structural, and thrives in an environment that is tolerant of sexual harassment and/or 

dismissive of employees who report.340

 

335 John Pryor, Christine LaVite, and Lynnette Stoller, “A Social Psychological Analysis of Sexual Harassment: The 

Person/Situation Interaction,” Journal of Vocational Behavior, vol. 42, no. 1, 1993; Chelsea Willness, Piers Steel, 

and Kibeom Lee, “A Meta-Analysis of the Antecedents and Consequences of Workplace Sexual Harassment,” 

Personnel Psychology, vol. 60, 2007, https://onlinelibrary.wiley.com/doi/epdf/10.1111/j.1744-6570.2007.00067.x. 

336 Ibid.

337 Chrisler Testimony, Washington Briefing, at 88.

338 Ibid.

339 Ibid.

340 John Pryor, Christine LaVite, and Lynnette Stoller, “A Social Psychological Analysis of Sexual Harassment: The 

Person/Situation Interaction,” Journal of Vocational Behavior, vol. 42, no. 1, 1993; Chelsea Willness, Piers Steel, 
CHAPTER 1: INTRODUCTION AND BACKGROUND 69

Another factor that is shown to increase the likelihood of sexual harassment in workplaces is 

existence of relative power differences.341 While quid pro quo sexual harassment is defined 

specifically by an individual in a position of authority (explicitly or implicitly) coercing a 

subordinate, many other studies have shown that even when sexual harassment occurs between 

colleagues (e.g., in hostile work environment claims), it is still a manifestation of power 

imbalances within the workplace.342 These power imbalances may be due to the organizational 

structure itself, for instance, in highly structured, stratified, and bureaucratic organizations. These 

types of workplaces have been found to be likely settings for sexual harassment. One study found 

that among four different work environments examined – academic, private-sector, state 

government, and the military – sexual harassment was the most prevalent in the military, followed 

by the private-sector, government, and then academia.

343 The researchers suggest that “highly 

structured organizations with large differentials among organizational levels should pay increased 

attention to sexual harassment and implement specific training and prevention programs, as they 

are probably more sexual harassment prone than other organizations.”344 Yale Law Professor Vicki 

Schultz along with nine colleagues also point out that non-sexual forms of sexual harassment can 

manifest in a culture where sexism is prevalent and gender discrimination and sexist behaviors are 

considered routine. Some behaviors, such as hostile or ridiculing behavior, being patronizing or 

condescending, social ostracism, and work sabotage can make employees feel inferior, similar to 

a sexual advance.345 Schultz and her colleagues assert that: 

 

and Kibeom Lee, “A Meta-Analysis of the Antecedents and Consequences of Workplace Sexual Harassment,” 

Personnel Psychology, vol. 60, 2007, https://onlinelibrary.wiley.com/doi/epdf/10.1111/j.1744-6570.2007.00067.x; 

Fitzgerald Statement, at 3-4.

341 See e.g., Alieza Durana, Amanda Lenhart, Roselyn Miller, Brigid Schulte, and Elizabeth Weingarten, “Sexual 

Harassment: A Severe and Pervasive Problem,” New America Foundation, 2018; Chai Feldblum and Victoria 

Lipnic, EEOC Select Task Force on the Study of Harassment in the Workplace, June 2018; Jagdish Khubchandani 

and James Price, “Workplace Harassment and Morbidity Among U.S. Adults: Results from the National Health 

Interview Survey,” Journal of Community Health, vol. 40, no. 3, 2015.

342 See e.g., Remus Ilies, Nancy Hauserman, Susan Schwochau, & John Stibal, “Reported incidence rates of workrelated sexual harassment in the United States: Using meta-analysis to explain reported rate disparities,” Personnel 

Psychology, vol. 56, no.3, (Dec. 2006); Vicki Schultz, “Open Statement on Sexual Harassment from Employment 

Discrimination Law Scholars,” 71 Stan. L. Rev., June 2018, https://digitalcommons.law.yale.edu/fss_papers/5301; 

Heather McLaughlin, Christopher Uggen, and Amy Blackstone, “Sexual Harassment, Workplace Authority, and the 

Paradox of Power,” American Sociological Review, Aug. 2012, vol. 77, no. 4, 

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3544188/pdf/nihms376621.pdf.

343 Remus Ilies, Nancy Hauserman, Susan Schwochau, & John Stibal, “Reported incidence rates of work-related 

sexual harassment in the United States: Using meta-analysis to explain reported rate disparities,” Personnel 

Psychology, vol. 56, no.3, (Dec. 2006), at 624.

344 Ibid.

345 Schultz, supra note 8, at 20.
70 FEDERAL #METOO

Bosses not only demand sexual favors; they also insist that women serve food or clean up, 

submit to their angry tirades, or behave or dress in ways that please them. Bosses and 

coworkers engage in sexual advances and ridicule; they also downplay or take credit of 

women’s accomplishments, exclude them from meetings and information, undermine their 

work and reputation, and comment or otherwise convey that women don’t belong.346 

Research also has shown that other power differentials besides the internal structure of an 

organization may also be ripe for sexual harassment to occur. For instance, sexual harassment is 

more likely to occur against individuals who lack symbolic power in society and may mirror many 

of the same structural power imbalances that are present in society at large (e.g., race, gender, 

sexual orientation, class).347 While any individual can be the victim of sexual harassment, data 

show that marginalized groups (e.g., women of color, LGBT individuals, immigrants) are more 

likely to be the victims of harassment.348 In his statement to the Commission, Donald TomaskovicDevey stated that “[w]omen of course, are the primary targets [of sexual harassment], but Black 

women are at the highest risk. Most scholarship concludes that sexual harassment is fundamentally 

about the exercise of power. It is not surprising then to find that it is Black women who suffer the 

most.”349

At the Commission’s briefing, Dariely Rodriguez Director of the Economic Justice Project at the 

Lawyers’ Committee for Civil Rights Under Law, testified that: 

Women of color are more likely to experience harassment in compounded ways on the 

basis of their gender and race or ethnicity. Most victims of harassment, however, will not 

come forward and file complaints for fear of retaliation or inaction on their claim. In fact,

68 percent of sexual harassment charges include an allegation of retaliation, with black 

women being the most likely to experience retaliation. Women of color with limited 

economic resources who rely on their jobs to support their families may feel even more 

deterred from filing a complaint for fear of losing their jobs.350

 

346 Ibid., 21.

347 Ibid.; National Academies of Sciences, Engineering, and Medicine, Sexual harassment of women: Climate, 

culture, and consequences in academic sciences, engineering, and medicine, 2018, at 14-15, 44-45.

348 See e.g., Tomaskovic-Devey Statement, at 2; Metcalf Testimony Washington Briefing, p. 59; Rodriguez 

Testimony Washington Briefing, p. 117; Amanda Rossie, Jasmine Tucker, and Kayla Patrick, “Out of the Shadows,” 

National Women’s Law Center, 2018, https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wpcontent/uploads/2018/08/SexualHarassmentReport.pdf.

349 Tomaskovic-Devey Statement, at 2.

350 Rodriguez Testimony Washington Briefing, p. 117.
CHAPTER 1: INTRODUCTION AND BACKGROUND 71

In a survey regarding harassment in astronomy and the planetary science fields, Kathryn Clancy, 

associate professor at the University of Illinois, found that forty percent of women of color said 

that they felt unsafe in their current job as a result of harassment due to their gender or sex; and 28 

percent of women of color reported feeling unsafe as a result of their race.351 The survey also 

showed that women in the science fields, and especially women of color, often faced toxic work 

environments. For instance, Clancy found that almost 90 percent of the 474 participants reported 

witnessing sexist, racist, or other disparaging remarks while at work.352 Nearly 40 percent reported 

being verbally harassed and almost 1 in 10 had been physically harassed in their workplaces.353

Most nonwhite respondents stated that they had heard their colleagues make racist comments and 

22 percent said they heard such remarks from their supervisors.354 Lastly, 18 percent of women of 

color and 12 percent of white women reported declining to attend a professional event because 

they did not feel safe attending, due to a hostile environment, despite recognizing the significant 

loss of career opportunities.355 

At the Commission’s briefing, Jane Liu testified that data show that sexual harassment is also a 

significant problem for Asian American and Pacific Islander (AAPI) women for a multitude of 

reasons. For instance, stereotypes of AAPI women such as “the submissive geisha, the prostitute, 

and the mail order bride depict AAPI women as erotic and sensual, foreign and exotic, subservient, 

quiet, feminine, and passive. These stereotypes are racialized, and AAPI women often experience 

sexual harassment based on these generalizations.”356 Liu explains that harassment is about 

reinforcing cultural norms and exerting power; and in workplaces with power imbalances and 

racial inequities, this type of misbehavior is even more likely. She testified that “AAPI federal 

workers continue to face a glass ceiling at the Senior Executive Service level, resulting in underrepresentation at the top levels of government. Moreover, a 2012 EEOC report found that AAPI 

federal employees continue to face pervasive racial and national origin discrimination by managers 

and barriers to promotion.”357

 

351 Kathryn Clancy, Katharine Lee, Erica Rodgers, and Christina Richey, “Double Jeopardy in astronomy and 

planetary science: Women of color face greater risks of gendered and racial harassment,” Journal of Geophysical 

Research: Planets, vol. 122, no. 7, July 2017, 

https://agupubs.onlinelibrary.wiley.com/doi/full/10.1002/2017JE005256.

352 Ibid., 1614-15.

353 Ibid.

354 Ibid., 1617.

355 Ibid., 1618-19.

356 Liu Testimony Washington Briefing, p. 122.

357 Ibid., 122.
72 FEDERAL #METOO

Heather Metcalf testified as to how some industries may be more susceptible to issues of sexual 

harassment. In her research, she found that every Science, Technology, Engineering, and 

Mathematics (STEM) professional in the federal government that she surveyed reported having at 

least one experience of sexual harassment or other identity-based harassment experience.358

Metcalf explained that there is a subset of the #MeToo movement called the #MeTooSTEM 

movement because of how pervasive the issue of harassment is in these fields. Metcalf found that 

between 21 and 69 percent of women in the federal workforce have experienced gender or sexual 

harassment. In a survey of astronomers and employees in planetary sciences, women of color 

experienced the highest rates of race and gender-based harassment and assault at their workplace 

(28 percent and 40 percent, respectively).359

Further, the American Physical Society found that lesbian and bisexual women, gender nonconforming and transgender physicists experience harassment and exclusionary behavior at three, 

four, and five times the rate of gay and bisexual men physicists, respectively.360 In a survey 

conducted by the Association for Women in Science, researchers found that 37 percent of white 

women with disabilities, 73 percent of women of color with disabilities, and 100 percent of 

LGBTQ women of color with disabilities reported experiencing disability-related stigma, 

discrimination, and harassment at work.361

Another organizational factor that has been shown to increase the likelihood of sexual harassment 

occurring in workplaces is having an esteemed employee or “rainmaker” who supervises or 

mentors junior employees.362 Rainmakers are individuals who are well-recognized, renowned, and 

highly-respected in organizations, and their status can lead them to believe that they do not have 

to abide by rules set out by the organization.363 Further, if these individuals do engage in harassing 

behavior, due to their prominent status, the claim may be overlooked and the alleged victim 

 

358 Metcalf Testimony Washington Briefing, p. 59.

359 Ibid., 59.

360 Ibid.

361 Ibid.

362 See e.g., Elyse Shaw, Ariane Hegewisch, and Cynthia Hess, “Sexual Harassment and Assault at Work: 

Understanding the Costs,” Oct. 15, 2018, at 4, https://iwpr.org/wp-content/uploads/2018/10/IWPR-sexualharassment-brief_FINAL.pdf; Chai Feldblum and Victoria Lipnic, EEOC, Select Task Force on the Study of 

Harassment in the Workplace, Report of Co-Chairs Chai Feldblum & Victoria Lipnic, (2016), 

https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf; Hannah Hayes, “Is Time Really Up for Sexual 

Harassment in the Workplace? Companies and Law Firms Respond,” American Bar Association, Jan. 17, 2019, 

https://www.americanbar.org/groups/diversity/women/publications/perspectives/2018/december-january/is-timereally-for-sexual-harassment-the-workplace-companies-and-law-firms-respond/. 

363 Fran Sepler, President of Sepler & Associates, Written Testimony to U.S. Equal Employment Opportunity 

Commission, Meeting of Select Task Force on the Study of Harassment in the Workplace, Sept. 18, 2015, 

https://www.eeoc.gov/eeoc/task_force/harassment/9-18-15/sepler.cfm.
CHAPTER 1: INTRODUCTION AND BACKGROUND 73

silenced.364 Additionally, reporting may be even harder on the victim because the victim may be 

fearful of the rainmaker besmirching the victim’s reputation, blacklisting the victim, and/or 

depriving the victim of recommendations and networking opportunities.365 Heather Metcalf 

testified that the “reputational piece is part of the reason why cases go decades without someone 

coming forward. [I]t’s because people are waiting until they get to a position in their career where 

they have enough seniority to protect them[selves] from the potential ramifications of reputational 

harm.”366 Fran Sepler, a consultant, trainer, and investigator on the issues of workplace sexual 

harassment, testified before EEOC about a case that she worked on with the following fact pattern: 

[F]or decades an eminent professor had his exclusively Asian graduate students not only 

wash his feet daily, but on occasion, satisfy certain erotic desires. His Dean was aware of 

his abusive tendencies but took a hands-off approach. It took twenty-five years, the 

graduation of one of those students, and tenure for her own position at a different institution 

for her to find the courage to report it to senior institutional officials.367

Sepler argued that this unearned privilege in conjunction with lack of accountability by leadership 

is “the most pernicious underpinning of white-collar harassment.”368

Strategies to Address and Prevent Sexual Harassment

While there may be debates regarding the causes for sexual harassment, most agree that these types 

of behaviors are unacceptable; employers are also bound by civil rights law not to commit sexual 

harassment.

369 At the Commission’s briefing, Mona Charen, senior fellow at the Ethics & Public 

Policy Center testified that the #MeToo Movement has been a “necessary corrective to years of 

gross behavior by powerful men. Most of the men in politics, media, sports, and entertainment 

who’ve been identified as sexual predators have not even attempted to deny the accusations.”370

 

364 Chai Feldblum and Victoria Lipnic, EEOC, Select Task Force on the Study of Harassment in the Workplace, 

Report of Co-Chairs Chai Feldblum & Victoria Lipnic, (2016).

365 Ibid.

366 Metcalf Testimony Washington Briefing, p. 76. 

367 Fran Sepler, President of Sepler & Associates, Written Testimony to U.S. Equal Employment Opportunity 

Commission, Meeting of Select Task Force on the Study of Harassment in the Workplace, Sept. 18, 2015, 

https://www.eeoc.gov/eeoc/task_force/harassment/9-18-15/sepler.cfm.

368 Ibid.

369 See supra notes 118-136.

370 Mona Charen Testimony, Washington Briefing, p. 119.
74 FEDERAL #METOO

Similarly, researchers from the Center for Employment Equity argue that harassment should be 

“addressed proactively and affirmatively as managerial responsibilities, rather than leaving it to 

the targets of discrimination to pursue legal remedies as individuals.”371

Louise Fitzgerald stated to the Commission that organizations need to adopt strategies that focus 

on two main areas: gender integration (both horizontal and vertical) and creating a workplace 

environment that does not tolerate sexual harassment.372 She states that employers need to develop 

programs to “recruit, retain, and promote women” in combination with work and family policies 

that will allow women to more fully be integrated into an organization.373 Further, practices that 

have been shown to create an organizational climate that demonstrates to employees that sexual 

harassment is not tolerated include:

1) Taking a strong and visible leadership stance [against sexual harassment]

2) Raising the issue [of sexual harassment] proactively and repeatedly

3) Instituting clear policies and procedures

4) Following through with meaningful sanctions

5) Assessing progress with annual workplace audits and providing group level feedback to 

employees.374 

Fitzgerald maintains that these practices have proven to be successful in reducing harassment 

across multiple industries and in cross-cultural settings.375

Tamara Chrisler of the Leadership Conference testified that changing an agency’s culture, while 

difficult, can play a significant role to help prevent sexual harassment. She stated that: 

Changing the culture of an agency takes time, but it can be done through consistent 

messaging and consistent action that corresponds with that message. The first message 

must be that each agency component has its own anti-harassment policy that is periodically 

reviewed and updated and consistently distributed to all new hires. It is not enough that the 

component relies on the parent agency’s policy on anti-harassment. Having its own policies 

 

371 Carly McCann, Donald Tomaskovic-Devey, and M.V. Lee Badgett, “Employer’s Responses to Sexual 

Harassment,” Center for Employment Equity at the University of Massachusetts Amherst, Dec. 2018.

372 Fitzgerald Statement, at 5.

373 Ibid.

374 Ibid., 6.

375 Ibid., 5.
CHAPTER 1: INTRODUCTION AND BACKGROUND 75

directly condemning harassment sends the message that the head of the agency recognizes 

the severity of these claims, their impact on the workplace and the need to prevent the 

conduct that leads to such claims.376

Chrisler added that one way that agencies can do this is to implement policies and procedures that 

work to prevent or reduce inappropriate behavior before it rises to the level of creating a hostile 

work environment, such as having conversations with employees to refrain from making 

inappropriate jokes and comments.377

Another strategy discussed at the briefing was the use of climate surveys. Congresswoman Speier 

testified that climate surveys are already being utilized in the military in an effort to prevent sexual 

assaults and have found these surveys to be a “profound way to measure whether or not we’re 

making any improvement. We’ve just come out with the sexual assault review [of the military] 

and it shows that the numbers have actually increased.”378 She explained that climate surveys show 

that there are about 20,000 cases of sexual assault in the military a year, but only 5,000 are 

reported.379

As discussed previously, many victims are fearful of reporting incidents of harassment and assault, 

and Speier testified to this stating that “fear of retaliation [] is very serious and that’s why you have 

only 5,000 that report and of the 5,000 [alleged perpetrators], only about 500 go to court martial 

and only 250 are convicted. So, there’s a very strong message that goes out that why bother?”380

Thus, the Congresswoman suggests that implementing “climate surveys, [and] making them 

permanent, will have [] a very effective way of doing [] oversight... particularly in all of the 

departments where there are occupations where you have remote or isolated kinds of 

environments. You know that happens a lot in the Department of Interior, National Park Service, 

Fire Service, [and] Department of State.” 381

Similarly, Chrisler testified that requiring climate surveys to be conducted after a claim of 

harassment is filed is a way that agencies can build trust with their employees, stating that: 

“Harassment claims are not easy on the employees who bring them, those who are alleged as 

harassers, or staff who are involved in the claim. Trust is often diminished during this process. 

Employees feel deflated and there exists a question of how to move forward... A workplace 

 

376 Chrisler Testimony, Washington Briefing, p. 88.

377 Ibid.

378 Speier Testimony, Washington Briefing, p. 24.

379 Ibid., 29.

380 Ibid.

381 Ibid., 24-29.
76 FEDERAL #METOO

climate survey might be the tool to start that healing.”382 Chrisler further argued that building and 

maintaining trust between employees and managers is an essential part of changing the culture of 

an agency. She stated that there must be trust that individuals who engage in inappropriate behavior 

will be held accountable and agencies need to demonstrate that the systems in place, such as the 

EEO process, are capable of redressing and resolving harassing or discriminatory behavior.383 This 

accountability must be applied to all employees, including management officials and if individuals 

need to be removed then agencies need to take proper corrective actions.

384

Congresswoman Speier suggested that cases of sexual harassment and assault should be taken out 

of the chain of command and handled in “a separate office that would have the skills to do the 

investigations and the prosecutions and that would be independent, because there is an inherent 

conflict of interest that exists. Either the chain of command has the perpetrator in it, or is good 

friends with the perpetrator, or is concerned that it will reflect poorly on them for their next 

promotion if they have sexual assault cases under their command.”385 Further, she testified that 

agencies can create measures of accountability by adding transparency to the process. For instance, 

harassment investigations could focus on whose leadership the harassment occurred under and 

what kind of action took place and share this information among employees and the public.386

Other possible strategies that have been identified to address sexual harassment include instituting 

mandatory reporting requirements for managers and supervisors, increased transparency regarding 

the EEO process and its outcomes, creating systems of accountability for harassers, and providing 

institutional support for victims of harassment.387 For instance, in their written submission to the 

Commission, Kalpana Kotagal, partner and Stacy Cammarano, associate in the Civil Rights and 

Employment Group at Cohen Milstein Sellers & Toll PLLC asserted that organizations should 

provide resources such as counseling sessions, monetary stipends for wellness programs, and 

onsite professionals to help employees recover and heal from the trauma of sexual harassment.388 

 

382 Chrisler Testimony, Washington Briefing, p. 89.

383 Ibid., 88.

384 Ibid.

385 Speier Testimony, Washington Briefing, pp. 28-29.

386 Ibid., 29.

387 See e.g., Department of Justice, Gender Equality Network, Submission to U.S. Commission on Civil Rights for 

the #Federal Me Too Briefing, May 9, 2019; Amy Dahm, retired Foreign Service Officer, Submission to U.S. 

Commission on Civil Rights for the #Federal Me Too Briefing, May 9, 2019.

388 Kalpana Kotagal and Stacy Cammarano, Submission to U.S. Commission on Civil Rights for the #Federal Me 

Too Briefing, May 9, 2019, at 10.
CHAPTER 1: INTRODUCTION AND BACKGROUND 77

The Commission also received a submission from the Justice Department’s Gender Equality 

Network, a network of over 400 members—many of whom have been personally affected by 

sexual harassment— that included a list of recommendations on how to better address sexual 

harassment at that agency.389 Further, the group notes that in December 2017, it sent a public letter 

to the Deputy Attorney General’s office suggesting a number of reforms for implementation at the 

Justice Department that could be applied across the federal sector. 

For example, we urged the former DAG [Deputy Attorney General] to establish a 

Department-wide, uniform table of penalties to be used in disciplinary actions; to establish 

mandatory reporting requirements for managers that received sexual harassment and 

misconduct complaints; to ban serious perpetrators and those under investigation from 

receiving promotions and performance rewards; and to end the practice of responding to 

substantial findings of sexual harassment and misconduct by reassigning the perpetrator to 

another division.390

Inspired by the renewed activism of the #MeToo movement, Vicki Schultz Ford Foundation 

Professor of Law and Social Sciences at Yale Law School and nine other law professors argue that 

to address sexual harassment, the legal system must play an integral role in reforming the 

conditions that allow sexual harassment to flourish.391 As discussed previously, Schultz and her 

colleagues found that sexual harassment is most often not about sexual desire or attraction, but an 

issue of cultural and institutional sexism.392 One way to address this mischaracterization is to 

provide more empirical research and education on what harassment is and how it manifests, the 

underlying causes and what conditions sustain it, and how these behaviors are connected to broader 

patterns of discrimination and inequalities. Based on such research, Schultz and colleagues assert 

 

389 Department of Justice, Gender Equality Network, Submission to U.S. Commission on Civil Rights for the 

#Federal Me Too Briefing, May 9, 2019.

390 Ibid., 2.

391 Schultz, supra note 22, at 17-18. 392 See e.g., Heather McLaughlin, Christopher Uggen, and Amy Blackstone, “Sexual Harassment, Workplace 

Authority, and the Paradox of Power,” American Sociological Review, (2012), vol. 77, no. 4, at 636 (finding that 

female supervisors are more likely to be harassed than other women), 

https://journals.sagepub.com/doi/pdf/10.1177/0003122412451728; Chelsea R. Willness, Piers Steel, and Kibeom 

Lee, “A Meta-Analysis of the Antecedents and Consequences of Workplace Sexual Harassment,” Personnel 

Psychology, (Spring 2007), vol. 60, no.1, at 154 (citing studies showing that coworker harassment is more common 

than harassment by supervisors), https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1744-6570.2007.00067.x; Dana 

Kabat-Farr and Lilia M. Cortina, “Sex-Based Harassment in Employment: New Insights into Gender and Context,” 

Law and Human Behavior, 2014, vol. 38, no. 1, https://lsa.umich.edu/psych/lilia-cortina-lab/KabatFarr%20&%20Cortina%20(2014).pdf.
78 FEDERAL #METOO

that sexual harassment has been found to be explicitly linked to sex segregated workplaces and 

gender inequality.393

Experts have long cited that gender imbalances and sex segregation, where men hold the majority 

of the top positions and/or prized jobs in an organization, field, or industry and women hold lowerstatus positions are a major cause of sexual harassment.394 Schultz and colleagues state that 

addressing this concern requires that organizations and industries must actively recruit and 

promote women and men in equal numbers into every job at every level, especially in senior level 

positions.395 This also requires that leadership is held accountable for implementing nondiscrimination and equal inclusion strategies with measurable goals. The law professors also 

recommend that federal and state law enforcement agencies should bring litigation combining sex 

and gender-based harassment complaints with other discriminatory practices that contribute to sex 

segregation and inequality (e.g., discriminatory practices in hiring, promotions, and work 

assignments), to expose the connections between harassment and the broader issues of 

discrimination and sex and gender stereotyping.396 

Sexual harassment can also occur between members of the same-sex,397 and the EEOC has taken 

the position that the anti-sex discrimination provision of Title VII also applies to lesbian, gay, bisexual, and transgender (LGBT) applicants and employees.

398 Schultz and colleagues argue that 

the majority of conversations focus on men harassing women and do not address that men 

 

393 Schultz, supra note 22, at 20.

394 See e.g., Frank Dobbin & Alexandra Kalev, “Training Programs and Reporting Systems Won’t End Sexual 

Harassment. Promoting More Women Will,” Harvard Business Review, Nov. 15, 2017, 

https://hbr.org/2017/11/training-programs-and-reporting-systems-wont-end-sexual-harassment-promoting-morewomen-will; Vicki Schultz, “Reconceptualizing Sexual Harassment, Again,” The Yale Law Journal Forum, Jun. 18, 

2018, https://www.yalelawjournal.org/pdf/Schultz_k6kcog1p.pdf at 42-44 (highlighting the importance of 

eliminating sex segregation to end harassment), https://www.yalelawjournal.org/forum/reconceptualizing-sexualharassment-again; Time’s Up, https://www.timesupnow.com/.

395 Schultz, supra note 22, at 22; Frank Dobbin and Alexandra Kalev, “Training Programs and Reporting Systems 

Won’t End Sexual Harassment. Promoting More Women Will,” Harvard Business Review, Nov. 15, 2017, 

https://hbr.org/2017/11/training-programs-and-reporting-systems-wont-end-sexual-harassment-promoting-morewomen-will.

396 Schultz, supra note 22, at 25.

397 See Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998) (holding that same-sex harassment is sex 

discrimination under Title VII).

398 “What You Should Know About EEOC and the Enforcement Protections for LGBT Workers,” EEOC, 

https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm (accessed Oct. 30, 2019);

see also Schultz, supra note 8, at 25-26; see e.g., Complaint v. U.S. Postal Service, EEOC Appeal No. 0120133382 

(Feb. 11, 2015) (holding that hateful nature of the alleged comments calling Complainant “homo” and telling him he 

was “living in sin” and would be “going to hell” coupled with the alleged lack of adequate response on the part of 

management, was sufficiently severe to state a viable claim of harassment due to gender-based stereotyping that 

required further investigation and processing).
CHAPTER 1: INTRODUCTION AND BACKGROUND 79

sometimes harass other men through gender-based hostility and stereotyping. Women harassing 

other women, while potentially less visible than other forms, can occur especially in sexsegregated workplaces where women lack institutional power so they may ostracize, stigmatize, 

and harass other women.399 Further, harassment against LGBT workers is widespread, especially 

against transgender workers.400 “By attacking women, LGBTQ people, and heterosexual men who 

fail to conform to prescribed gender norms, harassers reinforce the masculine composition and 

character of their jobs and shore up their own sense of masculine identity.”401 One way to address 

these forms of harassment is to include anti-harassment policies and trainings that discuss topics 

such as sexual orientation, gender identity, sex/gender stereotyping. Reforms to federal and state 

laws should include that these forms of harassment are also prohibited forms of discrimination and 

covered under Title VII protections.402 

Scholars also cite a specific need to address the unique challenges that women of color face due to 

the intersection of race and sex/gender discrimination.403 As research has shown, women of color 

face the highest rates of sexual harassment in workplaces and this risk of harassment is linked to 

longstanding myths about their sexuality.404 Schultz and colleagues documented that this high rate 

of workplace sexual harassment can be tied to stereotypes of black women as “wanton and 

lascivious, Latinas as sexy and ‘spicy,’ Asian women as exotic and submissive, and Muslim 

women as meek and oppressed – images that invite unwanted sexual advances at work and 

elsewhere.”405 Black women are further faced with stereotypes of the “angry Black woman” and 

 

399 Schultz supra note 22, at 27.

400 See e.g., U.S. Commission on Civil Rights, Working For Inclusion: Time for Congress to Enact Federal 

Legislation to Address Workplace Discrimination Against Lesbian, Gay, Bisexual, and Transgender Americans, 

Nov. 2017, https://www.usccr.gov/pubs/docs/LGBT_Employment_Discrimination2017.pdf.

401 Schultz supra note 22, at 27; see also Bethany Coston and Michael Kimmel, “Seeing Privilege Where It Isn’t: 

Marginalized Masculinities and the Intersectionality of Privilege,” Journal of Social Issues (March 2012) vol. 68, 

no. 1, https://spssi.onlinelibrary.wiley.com/doi/full/10.1111/j.1540-4560.2011.01738.x

402 Schultz supra note 22, at 28.

403 Ibid., 28-29.

404 See e.g., Jennifer L. Berdahl and Celia Moore, “Workplace Harassment: Double Jeopardy for Minority Women,” 

Applied Psychology, 206, vol. 91, no. 2, (finding, based on a survey of employees in five organizations in a major 

North American metropolitan area, that harassment was more common for racial-ethnic minorities and “for those 

who reported working in groups dominated by an ethnicity that differed from their own”), at 432, 

https://pdfs.semanticscholar.org/c5cd/8934b5d10b331560b24bcc3d7dc3c4a4818d.pdf; Hart Research Associates, 

“Key Findings from a Survey of Women Fast Food Workers,” Oct. 5, 2016, https://hartresearch.com/wpcontent/uploads/2016/10/Fast-Food-Worker-Survey-Memo-10-5-16.pdf; Elyse Shaw, Ariane Hegewisch, and 

Cynthia Hess, “Sexual Harassment and Assault at Work: Understanding the Costs,” Institute for Women’s Policy 

Research, Oct. 15, 2018, https://iwpr.org/wp-content/uploads/2018/10/IWPR-sexual-harassment-brief_FINAL.pdf; 

Amanda Rossie, Jasmine Tucker, and Kayla Patrick, “Out of the Shadows,” National Women’s Law Center, 2018, 

https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2018/08/SexualHarassmentReport.pdf.

405 Schultz supra note 22, at 29-30. 
80 FEDERAL #METOO

being unqualified and incompetent on the job, all of which contributes to sex- and race-based 

harassment and discrimination.406 To address these forms of harassment, anti-harassment policies 

and trainings need to specifically cover race-based harassment and explicitly explain that 

harassment and discrimination are intersectional. Policies and anti-harassment programs need to 

be connected to broader reforms to end intersectional discrimination throughout an organization 

or agency; and equal opportunity measures need to ensure that people of color have equal 

representation and inclusion through all job levels and especially in top positions.407 

Other reforms include strengthening protections against retaliation for those who report 

harassment – for both victims and bystanders.408 For instance, in 2017, an employee with the 

Department of Homeland Security filed a complaint with EEOC against the agency on the basis 

of sexual harassment and retaliation.409 An Administrative Judge found in favor of the 

complainant, however, the agency appealed the decision asserting that the Judge did not properly 

apply the Supreme Court’s ruling in Vance and University of Texas Medical Center v. Nassar

regarding the agency’s liability.410 EEOC upheld the Administrative Judge’s decision and ordered 

the agency, among other things, to issue the complainant an “outstanding” performance evaluation, 

which had been withheld, $50,000 in financial compensation for damages, and approximately 

$41,000 attorneys’ fees.411 

 

406 Ibid., at 30.

407 Ibid., at 31.

408 Ibid., at 38.

409 Heidi B. v. Department of Homeland Security, EEOC, Appeal No. 0720140004 (Feb. 2, 2017), 

https://www.eeoc.gov/decisions/0720140004.txt. Following a hearing, the AJ found that the Agency subjected 

Complainant to sexual harassment and retaliation. The EEOC affirmed the AJ’s findings on appeal. 

Assuming, arguendo, that the Unit Leader (S1) was a co-worker rather than a supervisor, the [EEOC] found 

that the Agency was still liable for S1’s actions because it knew about S1’s conduct and did not take 

immediate and appropriate corrective action. Specifically, while the Agency took measures to stop the 

harassment, it did not take any action to correct its effects on Complainant or ensure that similar sexual 

harassment by another employee did not take place. 

The EEOC agreed with the AJ that although the Agency promptly removed S1 from the workplace, it did not take 

any action to prevent further retaliatory harassment. In addition, “the Agency did not communicate to or educate the 

rest of the staff that sexually harassing conduct was against Agency policy and would not be tolerated.” The EEOC

concluded that the AJ’s findings were supported by substantial evidence in the record. The EEOC rejected the 

Agency's assertion that the “but for” standard articulated in University of Texas Southwestern Medical Center v. 

Nassar, 133 S.Ct. 2517 (2013) applied to Complainant’s retaliation claim, stating that the EEOC has previously held 

that the standard does not apply to retaliation claims by federal sector employees. The Agency was ordered, among 

other things, to issue Complainant an “Outstanding” performance evaluation, and pay proven compensatory 

damages and attorneys’ fees. Id.

410 Id.

411 Id.
CHAPTER 1: INTRODUCTION AND BACKGROUND 81

To prevent harassment, senior leadership, supervisors, and managers must create organizational 

cultures that are built on respect for all employees. Schultz and colleagues argue that the legal 

system fails to provide enough protection against retaliation which contributes to a culture of 

silence and allows harassment to flourish.412 One way to address this is to broadly define retaliation 

to “include any adverse action an employee believes in good faith is detrimental. Courts should

[also] not second-guess employees, the people who are most familiar with and most affected by 

workplace power dynamics... [and] [l]awmakers, courts, and agencies should strengthen federal 

and state antidiscrimination laws to require organizations to offer these protections.”413 

Another possible strategy to possibly mitigate this unfair advantage could be to have an 

ombudsperson available to victims during the processing of harassment claims. Ombuds programs 

vary in their structure—some are organizational, whistleblower, or advocate-based, for 

example.414 Ombuds programs already exist at some federal agencies, and have demonstrated 

benefits.415 At the EEOC’s “Reconvening of the Select Task Force on the Study of Sexual 

Harassment” meeting, Lisa Gelobter, CEO and Founder of tEQuitable discussed that her company 

has developed a program “Organizational Ombuds” that seeks to proactively stop harassment 

through an alternative dispute resolution approach that includes using ombudspersons.

416 She cited 

the International Ombudsman Association description of the duties of Organizational Ombuds: 

“(1) to work with individuals and groups in an organization to explore and assist them in 

determining options to help resolve conflicts, problematic issues or concerns, and (2) to bring 

systemic concerns to the attention of the organization for resolution.”417

Other strategies include setting up separate offices within agencies to aid in addressing harassment. 

For instance, Congresswoman Speier testified that in the military for sexual assault cases, they 

have established a “special victims counsel” (SVC) who is available to the victim and can help 

guide them through the process. She asserts that “if we can provide SVCs in the military for the 

 

412 Schultz supra note 22, at 39.

413 Ibid., 41.

414 Carole Houk, Mary Rowe, Deborah Katz, Neil Katz, Lauren Marx, and Timothy Hedeen, “A Reappraisal – The 

Nature and Value of Ombudsmen in Federal Agencies,” Administrative Conference of the United States, Nov. 14, 

2016, 

https://www.acus.gov/sites/default/files/documents/PART%202_Research%20Final%20%2011.14.16%20%28ACU

S%29.pdf

415 Ibid. 

416 United States Equal Employment Opportunity Commission, Task Forces, Testimony of Liso Gelobter, 

tEQuitable, (June 11, 2019) https://www.eeoc.gov/eeoc/task_force/harassment/gelobter.cfm.

417 Ibid.
82 FEDERAL #METOO

1.3 million service members we have, we certainly could create an SVC program in the federal 

sector to provide counsel to those who are sexually harassed or assaulted.”418 

 

418 Speier Testimony, Washington Briefing, p. 23.
CHAPTER 1: INTRODUCTION AND BACKGROUND 83

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84 FEDERAL #METOO

CHAPTER 2: EQUAL EMPLOYMENT OPPORTUNITY 

PROTECTIONS IN THE FEDERAL WORKPLACE

To understand the background of federal employee protections, this chapter provides an overview 

of equal employment opportunity protections in the federal workplace. It begins by discussing the 

history of equal employment in the federal workplace, followed by outlining the federal sector 

EEO complaints process along with exploring criticisms of the process. This chapter also provides 

an introduction to federal agencies’ anti-harassment policies and programs. Finally, the chapter 

discusses how federal agencies discipline employees for harassment and the defense of any 

disciplinary action in front of the Merit Systems Protection Board.

History of Equal Employment Opportunity Protections in the Federal 

Workplace

The federal government has a long history of having policies of nondiscrimination in the 

workplace, starting in the 1940s with an executive order issued by President Truman.

419 The 

federal sector EEO process has never been restructured, and many of the procedures, once 

introduced, have remained.420 The Truman executive order required each agency head to design 

an internal process to assess department personnel actions, to receive discrimination complaints, 

and take corrective action.421 The Truman Administration also set up an external board (the Fair 

Employment Board in the Civil Service Commission) to advise department heads on fair 

employment, and make recommendations to agency heads on individual complaints.422 Prior to 

and following the passage of Title VII of the Civil Rights Act of 1964, subsequent U.S presidents, 

using superseding executive orders, expanded upon nondiscrimination policy in federal 

employment and the federal sector discrimination complaint process.423 

 

419 Executive Order No. 9980, 13 Fed. Reg. 4,311 (July 28, 1948) (signed by President Harry S. Truman and 

prohibited discrimination in federal employment based on race, color, religion, or national origin).

420 Federal Sector Equal Employment Opportunity, Advance Notice of Proposed Rulemaking, 80 Fed. Reg. 6669, 

6671 (Feb. 6, 2015) (seeking comments on all aspects of the federal sector EEO program).

421 Id.

422 Id. (The Fair Employment Board was authorized “to review decisions made by the head of any department which 

are appealed . . . or referred to the Board by the head of the department for advice, and to make recommendations to 

such head.”).

423 See infra notes 419-30; EEOC, Management Directive 110, Preamble, History of the Federal Sector Equal 

Employment Opportunity Complaint Process, https://www.eeoc.gov/federal/directives/md-110_preamble.cfm. 
CHAPTER 2: EQUAL EMPLOYMENT OPPORTUNITY PROTECTIONS 85

1964 marked the passage of Title VII of the Civil Rights Act 1964 which, among other things, 

prohibited discrimination in employment and established the Equal Employment Opportunity 

Commission (EEOC).

424 One year later, in 1965, EEOC went into operation.425 At the time, 

however, EEOC’s jurisdiction was much different from present day, and federal employees were 

not yet covered by Title VII.426

Still, throughout the 1960s, multiple executive orders provided for federal employees to have

greater protections in the workplace.427 For example, President Lyndon Johnson issued Executive 

Order 11375, in October 1967, which prohibited discrimination in federal employment on the basis 

of sex.

428 In 1969, President Richard Nixon, via Executive Order 11478, required department and 

agency heads to “establish and maintain an affirmative program of equal employment opportunity 

for all civilian employees and applicants for employment.”429 It was in this Order that the concept 

of EEO counseling for aggrieved employees was established and early resolution of informal 

complaints was encouraged. Most notably, the Order gave the Civil Service Commission the 

authority to review and evaluate agency EEO programs.430

In 1972, Congress passed the Equal Employment Opportunity Act of 1972 – a landmark piece of 

legislation for federal government employees as this law amended Title VII to extend its coverage 

to include federal as well as state and local government employees.431 While the new legislation 

cemented antidiscrimination rights under federal law for federal employees, legislators expressed 

concern over the federal sector complaint process. At the time, the federal sector EEO complaint 

process was still administered by the Civil Service Commission and was considered inefficient 

and full of conflict of interest concerns.432 Despite the fact that a number of Members of Congress 

 

424 Title VII of the Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241 (codified at 42 U.S.C. § 2000e-4). 

425 EEOC, Management Directive 110, Preamble.

426 Ibid. 

427 See infra notes 428-30; EEOC, Management Directive 110, Preamble.

428 Executive Order No. 11375 (Oct 13, 1967).

429 Executive Order No. 11478, 34 Fed. Reg. 12,985 (Aug. 12, 1969)

430 Id. Under this Order, the Civil Service Commission issued its initial regulations pertaining to complaint 

processing, 5 C.F.R. Part 1613 effective April 3, 1966. 5 C.F.R. Part 713 et seq. These regulations provided the 

timeframes for filing complaints, investigations, final agency decisions, and appeals to the Civil Service 

Commission’s review board. Later, the requirement for informal EEO counseling was added among other changes. 

431 Equal Employment Opportunity Act of 1972, Pub. L. 92-261, 86 Stat. 103 (codified at 42 U.S.C. § 2000e-16 and 

§ 2000e-16c). 

432 Staff of S. Comm. On Labor and Public Welfare, 92 Cong. Legislative History of the Equal Employment

Opportunity Act of 1972 (H.R. 1746, P.L. 92-261), amending title VII of the Civil rights act of 1964 (Comm. Print.
86 FEDERAL #METOO

pushed for an overhaul of the program, the process remained under the direction of Civil Service 

Commission for the majority of the 1970s.433

In 1979, under President Carter, the responsibility for the administration and enforcement of the 

equal opportunity in federal employment, including authority over the federal sector EEO 

complaint process, was transferred from the Civil Service Commission and the Department of 

Labor to the EEOC.434 EEOC adopted the Civil Service Commission’s complaint processing 

procedures, which consisted of counseling, filing of a complaint with the agency accused of 

discrimination, investigation of the complaint by that agency, a hearing at complainant’s request,

an agency final decision, and an optional appeal. Despite the transfer of authority, the federal sector 

EEO complaint process remained largely unchanged until 1989 when the EEOC proposed new 

rules.435 

In 1992, EEOC issued final rules modifying timeframes for the process but leaving the basic 

structure intact.436 The 1992 rule changed the initial timeframe in which employees are required 

to contact an EEO officer or lose their rights to file a claim from 30 to 45 days.437 In 1999, based 

on recommendations from a Federal Sector Workgroup, EEOC amended their regulations again.438

The 1999 rule, among other things, included a requirement that agencies establish an Alternative 

Dispute Resolution process and offer it to complainants.

439 The rule also required agencies to issue 

a “notice of final action” informing the complainant of the agency’s intent to fully implement an

 

1972). “Testimony reflected a general lack of confidence in the effectiveness of the complaint procedure on the part 

of Federal Employees. Complainants were skeptical of the Civil Service Commission’s record in obtaining just 

resolutions of complaints and adequate remedies. This discourages persons from filing complaints with the 

Commission for fear that it would only result in antagonizing their supervisors and impairing any hope of future 

advancement. Id. at 84.

433 EEOC, Management Directive 110, Preamble.

434 Pursuant to the Reorganization Plan No. 1 of 1978 and Executive Order 12106 (Dec. 28, 1978), the Civil Service 

Commission’s Title VII functions were transferred to the EEOC. Pursuant to Executive Order 12106, the EEOC was 

“made responsible for directing and furthering the implementation of the Policy of the Government of the United 

States to provide equal employment opportunity in Federal employment for all employees and applicants for 

employment * * * and prohibit discrimination in employment because of race, color, religion, sex, national origin, 

handicap or age.” EEOC’s regulations were codified at 29 C.F.R. part 1613. 57 Fed. Reg. 6670 (Feb. 6, 2015). 

435 EEOC Notice of Proposed Rulemaking, 54 Fed. Reg. 45747 (1989).

436 57 Fed. Reg. 12634 (1992). The EEOC final rule abolished 29 C.F.R. part 1613 and replaced it with 29 C.F.R. 

part 1614. 

437 Id.

438 64 Fed. Reg. 37,644 (July 12, 1999).

439 64 Fed. Reg. 37,644 (July 12, 1999) (codified at 29 C.F.R. § 1614.105).
CHAPTER 2: EQUAL EMPLOYMENT OPPORTUNITY PROTECTIONS 87

administrative judge’s decision, along with information about their right to appeal to EEOC, and 

rights to file a civil action in federal district court.440 

The Notification and Federal Anti-Discrimination and Retaliation Act of 2002 (No FEAR Act) 

intended to improve federal agencies’ accountability regarding anti-discrimination and 

whistleblower laws.441 This law mandates that in whistleblower or discrimination cases, federal 

agencies pay for settlements, awards, or judgments against them from their own agency’s budgets 

rather than from the general federal Judgment Fund.442 The law further requires that employees 

are notified about their rights under antidiscrimination laws and the Whistleblower Protection 

Act.443 Other provisions of the statute require that federal agencies provide training to employees 

every two years about the rights and remedies available under employment discrimination and 

whistleblower protection laws. Agencies must also submit annual reports to Congress, EEOC, the 

Justice Department, and the Office of Personnel Management that detail their efforts to improve 

compliance with these laws and regarding the status of the complaints brought against the agency 

under these laws. Lastly, agencies must also post summary statistical data on their public websites 

about EEO complaints filed with them.444 These data, which are discussed in-depth in the 

following chapter, show that every federal agency has problems with ongoing allegations of sexual 

harassment.445

In 2004, EEOC established a working group to further consider ways to improve the federal sector 

complaint process.446 At that time, there was no consensus for large scale revisions to the federal 

sector EEO complaint process.447 The resulting 2012 final rule made a number of changes, most 

notably, it gave the EEOC Chair the authority to issue letters of non-compliance to agencies after 

finding deficiencies in agency EEO programs448 and required an agency to notify a complainant 

 

440 64 Fed. Reg. 37,644 (July 12, 1999) (codified at 29 C.F.R. § 1614.110).

441 Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, Pub. L. 107-174, 116 Stat. 

566 (codified as amended in scattered sections of 5 U.S.C.) (hereinafter the “No FEAR Act”). 

442 No FEAR Act, § 201 (b) (codified as amended in scattered sections of 5 U.S.C.)

443 5 U.S.C. § 2302(c).

444 Equal Employment Opportunity Commission, “Questions and Answers: No FEAR Act,” 

https://www.eeoc.gov/eeoc/statistics/nofear/qanda.cfm (last accessed Mar. 13, 2020).

445 See Equal Employment Opportunity Commission, Form 462 and MD-715 Data Tables for FY 2017 and FY 

2018, https://www.eeoc.gov/federal/reports/tables.cfm (last accessed Mar. 13, 2020) .

446 77 Fed. Reg. 43,498 (July 25, 2012).

447 80 Fed. Reg. 6669, 6671.

448 77 Fed. Reg. 43,498 (July 25, 2012) (codified at 29 C.F.R. § 1614.102). 
88 FEDERAL #METOO

of an expired investigative period giving them the right to immediately request a hearing or file a 

civil action.449 

In its most recent effort to address the federal sector complaint process, in 2015, EEOC issued an 

advance notice of proposed rulemaking explicitly asking the public to respond to a list of roughly 

twenty-five questions about the process and provide feedback.450 The notice explained that many 

of the executive orders discussed above were issued when the “EEOC either did not exist or did 

not have oversight authority for the Federal sector.”451 EEOC received almost one hundred 

comments in response.452 The comments came from federal agencies, people who had utilized the 

federal sector EEO process, and lawyers who have represented complainants in the process.453

This effort to revise and update the EEO complaints process for federal employees has not 

proceeded any farther then the notification.

Other proposed efforts to address the concerns with the federal sector complaint process includes 

legislation to revise the No FEAR Act. At the Commission’s briefing, EEOC’s Dexter Brooks 

explained that if enacted, the Federal Employee Antidiscrimination Act of 2019 would extend 

protections for more categories of workers and revise the No FEAR Act.454 Brooks explained that 

the Federal Employee Antidiscrimination Act of 2019 broadens the scope of the No FEAR Act not 

only with regard to sexual harassment, but to cover all forms of prohibited discrimination and 

retaliation.455 This bill is meant to make the complaint process more transparent and create more 

accountability for an agency’s actions to address discrimination. “Because one of the statutory 

limitations we have at EEOC [is that] we can’t punish a management official. We can remedy the 

victim. We can provide [] whole relief to the victim, but we don’t [have the] punitive authority to 

say fire, terminate, [or] demote that [offending] employee.”456 Brooks testified that bringing 

greater accountability and transparency is critical, especially when dealing with concerns about 

retaliation. 

 

449 77 Fed. Reg. 43,498 (July 25, 2012) (codified at 29 C.F.R. § 1614.108).

450 80 Fed. Reg. 6669, at 6671 (Feb. 6, 2015), https://www.federalregister.gov/documents/2015/02/06/2015-

02330/federal-sector-equal-employment-opportunity.

451 Id.

452 https://www.regulations.gov/docketBrowser?rpp=50&so=DESC&sb=postedDate&po=0&dct=PS&D=EEOC2015-0005.

453 Ibid.

454 Federal Intern Protection Act of 2017, H.R. 653, 115th Cong. (2017-2018).

455 Brooks Testimony, Washington Briefing, p. 25.

456 Ibid. 
CHAPTER 2: EQUAL EMPLOYMENT OPPORTUNITY PROTECTIONS 89

Research and testimony received during the Commission’s briefing show that retaliation (or fear 

of retaliation) is one of the main reasons why employees chose not to report harassment.457 Brooks 

explained that: 

if a management official is not wary and worried about what the ramifications are, there’s 

no dissuasion from not repeating the [behavior] [] or enhancing it, and so that’s one of the 

critical things that’s missing in this equation. So, we were very pleased and happy with 

what the House was proposing in terms of revisions to the No FEAR Act.458

Further, Brooks testified that EEOC has been working with behavioral scientists to help agencies 

better understand the causes of discrimination and how to address these problems before they 

escalate into a legal issue.459 Additionally, he told the Commission that EEOC has been working 

with the Federal Management Association to help managers understand why retaliation, in addition 

to being unlawful, can be disruptive to the team and the organization as a whole. Brooks explains 

that retaliation is “not just illegal, but allowing it to happen is detrimental to your mission 

outcome.”460

Federal Sector Complaints Process

The EEOC’s regulations set out the time limits to file complaints, govern financial awards and 

benefits, and requirements to seek EEO counseling.461 In order to file an EEO complaint in the 

federal workplace, there are several steps that a complainant must take to file a claim (see chart 6

below for visual representation): 

1) Contact an EEO counselor at the home agency within 45 days from when the 

discrimination occurred. In many cases the EEO counselor will give the complainant the 

choice to participate in EEO counseling or enter into an alternative dispute resolution 

(ADR) program, which can result in mediation of the allegations

2) If the informal complaint has not been settled during counseling or ADR, the complainant 

can then file a formal discrimination complainant against the agency. This must be filed 

within 15 days of receipt of the notice from the EEO counselor about how to file.

 

457 See e.g., Speier Testimony, Washington Briefing, pp. 9, 29; Ben-Yehuda Testimony, Washington Briefing, p. 52; 

Rodriguez Testimony, Washington Briefing, p. 117; Chuzi Testimony, Washington Briefing, p. 46.

458 Brooks Testimony, Washington Briefing, pp. 25-26; see also supra notes 213-22 (discussing under-reporting due 

to fear of retaliation).

459 Ibid.

460 Ibid., 26.

461 29 C.F.R. Part 1614.
90 FEDERAL #METOO

3) Once a formal complaint has been filed, the agency conducts a review of the complaint and 

decides if the case should be dismissed for a procedural reason (e.g., the claim was filed 

past the 45-day deadline) or will begin an investigation into the claim. Agencies have 180 

days from the day the formal complaint to complete the investigation.

4) Once the investigation is completed, the agency will issue a notice to the complainant: The 

complainant may elect either request a hearing before an EEOC Administrative Judge or

the complainant may ask for the agency to issue a decision on whether discrimination 

occurred (known as a Final Agency Decision).

5) If the complainant opts for a Final Agency Decision and no discrimination was found or if 

the complainant disagrees with some part of the decision, the employee can then appeal the 

decision to the EEOC or pursue the issue in federal district court.

6) If the complainant elects an EEOC hearing, the employee has 30 days from the notification 

of the investigation’s completion (Step 4) to request a hearing before an EEOC 

Administrative Judge.

7) After the EEOC Administrative Judge issues a decision, the agency has 40 days to issue a 

“final order” which states that it either agrees or disagrees with the decision and if it will 

grant the relief ordered by the Administrative Judge.

8) The complainant may appeal the agency’s final order to the EEOC Office of Federal 

Operations. The appeal must be filed within 30 days upon receiving the final order. A 

complainant may also ask for a reconsideration no later than 30 days after receiving the 

EEOC Administrative Judge’s decision. 

9) If a complainant decides to file a lawsuit, the EEOC states that the employee must go 

through the full administrative process before pursuing this avenue. There are several 

different points during the process; however, when a complainant has the opportunity to 

quit the administrative process and file a lawsuit in court, including: after 180 days have 

passed from the day the complaint was filed, if the agency has not issued a decision and no 

appeal has been filed; within 90 days from the day the complainant receives the agency's 

decision, so long as no appeal has been filed; after the 180 days from the day the appeal 

was filed if the EEOC has not issued a decision; or within 90 days from the day the 

complainant receives the EEOC’s decision on appeal.462 

 

462 See U.S. Equal Employment Opportunity Commission, “Overview of Federal Sector EEO Complaint Process,” 

(last accessed June 12, 2019), https://www.eeoc.gov/federal/fed_employees/complaint_overview.cfm. (Note: in the 

private sector an EEOC sexual harassment claim is referred to as a “charge” and in the federal sector it is referred to 

as a “complaint.”). Ibid.
CHAPTER 2: EQUAL EMPLOYMENT OPPORTUNITY PROTECTIONS 91

Chart 6: Federal EEOC Process 

Note: ADR is 

available during any 

stage of the process.

A complaint can be 

withdrawn during any 

stage of the process.

Incident

Counseling

Notice of Right to File

Dismiss

Formal Complaint

Acceptance/Dismissal

Accept

Alternative 

Dispute 

Resolution

Investigation

Request 

Agency 

Decision

Request EEOC 

Hearing

EEOC Hearing 

Decision

Final Agency Decision

Appeal to EEOC

File Civil Action in 

U.S. District Court

45 Days

30-90 Days

15 Days

60 Days

45 Days

90 Days

180 Days

90 Days

90 Days

30 Days

180 Days
92 FEDERAL #METOO

Agency Self-Investigation

Practitioners who litigate sexual harassment complaints criticize the federal sector complaint 

procedure of requiring complainants to first file with the agency where the harm occurred, equating 

it with reporting to an offending supervisor, as the agency could take steps to dissuade the 

complainant or not thoroughly investigate the allegation.

463 Yet in responding to comments in 

1992, the EEOC stated that “[m]any agency commenters noted that counseling presented a very 

important opportunity to resolve complaints.”464

Initial 45 Days to File Informal Complaint

One of the most common critiques of the federal agency EEO process that the Commission heard 

was that the time required to file a complaint was too short.465 The Commission also heard 

testimony that the short time period was especially difficult considering the trauma that 

accompanies sexual harassment in the workplace.466 With some exceptions,467 under federal 

regulations, a federal employee or applicant who feels he or she has experienced sexual harassment 

must first contact an EEO counselor at the relevant federal agency within 45 days of the alleged 

harassment prior to filing a formal EEO complaint.468 Otherwise, the employee loses the right to 

file a complaint.469 When EEOC lengthened the period of time to contact an EEO counselor from 

30 days to 45 days in 1992470 many commenters suggested lengthening the period to 180 days.471

Some commenters suggested the then-30-day limit was sufficient because additional time “would 

introduce further delays, undermine quick resolution and result in faded memories, lost documents 

and unavailable witnesses.”472 In 1992, EEOC justified the 45 days (and rejected the comparison 

to the private sector) for the following four reasons:

We do not believe that the analogy between the private sector filing period and the federal 

sector counseling time limit is apt. [1] Private employees must actually file a complaint 

 

463 Chuzi Testimony, Washington Briefing, p. 39; see also infra notes 480-81 (testimony of Debra Katz).

464 57 Fed. Reg. 12634-01, 12635.

465 See infra notes 479-85. 

466 See infra notes 481-83.

467 See infra note 475 (discussing 4 regulatory exceptions to the 45-day rule).

468 29 C.F.R. § 1614.105(a)(1). 

469 Id.

470 Federal Sector Equal Employment Opportunity, 57 Fed. Reg. 12634-01, 12634 (Apr. 10, 1992).

471 Id.

472 Id.
CHAPTER 2: EQUAL EMPLOYMENT OPPORTUNITY PROTECTIONS 93

within 180 days, not just contact an EEOC office about doing so. [2] Private employees 

may have to travel many miles or use the mail to file a charge with EEOC while federal 

employees only have to contact a counselor by telephone or often merely visit a counselor 

who is located in the same workplace in order to comply with the time limit. [3] Moreover, 

a comparison of private sector charge filings and federal sector charge filings indicates that 

federal employees file complaints at a rate three times greater than private sector employees 

file a charge. [4] Further, the earliest possible contact with a counselor aids resolution of 

disputes because the positions on both sides have not yet hardened. Therefore, we believe 

a significant lengthening of the pre-complaint period is not justified.473

Per EEOC’s regulations, the agency “shall extend” the initial 45 day period under four 

circumstances when a complainant: 1) was not notified about the time frame, 2) did not know and 

reasonably should not have known that the discriminatory matter or personnel action occurred, 3) 

despite due diligence was prevented by circumstances beyond his or her control from contacting a 

counselor, or 4) “for other reasons considered sufficient by the agency or the [EEOC].”474 On 

appeal, EEOC has issued decisions reversing agencies and finding that contact with an EEO 

counselor was timely.475

In contrast to the 45-day deadline to contact an EEO counselor,476 non-federal employees typically 

have 180 days, which is nearly four times the length of time available to federal employees.

477 The 

private sector time frame can also be extended to 300 days – making it nearly seven times that 

afforded to federal employees—if a state or local agency enforces a law that prohibits employment 

discrimination on the same basis.478

 

473 57 FR 12634 (1992).

474 Id. at § 1614.105(a)(2).

475 See e.g., Bettyann B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019002089 (Apr. 24, 2019) (filing contact 

timely where complainant detailed numerous incidents of alleged harassment occurring within the 45 day period and 

agency dismissed based on one alleged incident being outside the time frame); Lionel J. v. U.S. Postal Service, 

EEOC Appeal No. 2019002925 (May 29, 2019) (reversing agency dismissal where agency told complainant that no 

one was available to take his complaint; the EEOC also noted that the agency has the burden of proving 

untimeliness); see Madalene A. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019002220 (Apr. 17, 2019) 

(finding that claimant had not shown that she was “so incapacitated [by depression] that she was unable to timely 

contact an EEO counselor.”).

476 29 C.F.R. § 1614.105(a)(1).

477 EEOC, “Time Limits For Filing A Charge,” https://www.eeoc.gov/employees/timeliness.cfm (last accessed Mar. 

13, 2020); Katz Testimony, Washington Briefing, p. 126.

478 EEOC, “Time Limits For Filing A Charge,” https://www.eeoc.gov/employees/timeliness.cfm (last accessed Mar. 

13, 2020). 
94 FEDERAL #METOO

At the Commission’s briefing, Sunu Chandy testified that the federal time limits for EEO 

complaints cause a significant civil rights concern, stating that: 

The federal government must be a model employer when it comes to eradicating sex 

harassment and indeed all forms of discrimination. At the outset, it must be noted that 

federal employees’ civil rights protections are far less favorable than in the private sector. 

This is particularly appalling, given that there are tremendous gaps in the protections facing 

employees in the private sector, too... [W]e must extend the current statute of limitations. 

As noted in the private sector, we have 300 days or 180 days which is still far too short. In 

light of that for federal workers to have 45 days and then if they engage in the formal 

process to have 15 days and otherwise they lose their claims is completely appalling.479

Debra Katz also testified to possible civil rights concerns, stating that many lawyers who are 

passionate about harassment law will not litigate federal sector cases because they are “too 

expensive [and] too cumbersome.”480 Time limits are a particularly significant impediment. Katz 

explained: 

People in the private sector have either 180 days or 300 days, depending on their state of 

residence, to file a complaint with EEOC. Forty-five days is just not enough time. During 

a 45-day period, you often find people so traumatized, so unable to even consider their 

options, so fearful, that they do not initiate EEO counseling. And forever they lose their 

claims. That is just outrageous. And once the EEO office completes the counseling, they 

have only 15 days to file a formal complaint with the agency, or again, they lose their right 

to pursue their claims. Who is that benefitting? If we care about eradicating sexual 

harassment in the federal workforce, we need to extend the statute of limitations.481

George Chuzi, another attorney who litigates sexual harassment cases, testified how these time 

limits play out in actual cases. In a case against the U.S. Postal Service, the agency issued a 

decision of no discrimination because the employees missed the time limit in filing their 

administrative sexual harassment complaints. However, EEOC exercised its discretion to forgive 

the time limit violations and sent the case back to the agency for adjudication. Chuzi argues though, 

while this was a good decision by EEOC, the concern is that “they were all rejected by the agency. 

 

479 Chandy Testimony, Washington Briefing, pp. 14-16.

480 Katz Testimony, Washington Briefing, p. 126.

481 Ibid.
CHAPTER 2: EQUAL EMPLOYMENT OPPORTUNITY PROTECTIONS 95

The only way they get to the EEOC is because the employee brings it to the EEOC. And to me, 

that’s a serious problem.”482

The BE HEARD in the Workplace Act proposes to respond to these criticisms by extending the 

time limits for filing EEO complaints in the federal sector to up to four years.483 This would apply 

to all EEO complaints, not just sexual harassment complaints, and it could be particularly 

impactful for federal workers experiencing trauma or other factors that make it difficult to file a 

complaint within 45 days. 

Sunu Chandy, Legal Director at the National Women’s Law Center and a former EEOC district 

office director, testified that not only are these processes complicated and the associated time limits 

too short, complainants also have to navigate parallel formal and informal structures that are also 

ambiguous. She explained that in federal agencies there are separate offices where workers may 

be unclear on where to report an incident. For instance, agencies have a human resources office in 

which they can file an informal harassment complaint or some agencies also have an additional 

ombuds process, both of which are separate from an agency’s EEO office, where employees can 

file a formal harassment complaint. Too often complainants are not aware of which office is the 

appropriate office with which to file a complaint, adding that:

There is a separate harassment office ... and it sounds like it was well intended to provide 

an alternative route that may be less time consuming and more informal. So, it sounds like 

a good idea. But if you go through that process, meanwhile your 45 days are ticking, 

ticking, gone and you’ve now lost your civil rights protections in the workplace because 

you were attempting to do what I think we all agree is a good thing, to resolve something 

in a timely way and in an informal way which is absolutely a benefit to federal agencies in 

terms of liability and everything else.484

 

482 Chuzi Testimony, Washington Briefing, p. 19; see also, Chuzi Written Statement at 1, citing Celine B. v. Postal 

Service, 2015 WL 9685624 (Dec. 9, 2015) (The complainant alleged that her employer made “repeated sexually 

suggestive comments to her and touched her inappropriately. Co-workers testified that they were sufficiently 

concerned they took steps to ensure the employee was not left alone with her supervisor after hours. Following the 

employee’s complaint, the Agency promptly investigated, but concluded the allegations were not substantiated. 

After the employee requested a hearing, the Administrative Judge awarded summary judgment to the Agency, 

finding that the Agency was entitled to the affirmative defense (Faragher and Ellerth) that it took prompt and 

effective corrective action. On appeal, for the first time, the EEOC held that agencies are not entitled to the defense 

unless the employee unreasonably failed to take advantage of opportunities to avoid harm. Because the employee 

promptly complained to the Agency, the affirmative defense was unavailable.”).

483 Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace 

Act, H.R. 2148, § 207, 116th Congress (2019-2020).

484 Chandy Testimony, Washington Briefing, p. 20.
96 FEDERAL #METOO

One strategy to alleviate some of these concerns could be to change the EEO process so that the 

formal complaint time limits are tolled while a complainant is pursuing informal processes, such 

as going through an alternative dispute resolution (ADR) or mediation. Chandy testified that “I 

think that kind of tolling is firmly within the rights of agencies to implement and it is to everyone’s 

benefit. If the actual complaint timeline is tolled, maybe more people would use the informal 

system which could lead to more timely resolutions whih is better for everyone.”485 

Federal Employees versus Contractors

The federal government is the largest employer in the United States. As a whole, it accounts for 

about 9 million individuals or about 6 percent of the total employment in the nation.486 This figure 

includes approximately 2.1 million civilian employees, 4.1 million contractors, 1.2 million grant 

employees, 1.3 million active duty military, and 500,000 postal service employees.487 By 

comparison, the next largest employer is Walmart, which employs about 1.5 million employees.488

While federal law protects employees from sexual harassment, many critics of current federal 

workplace protections point out that contractors may not have the same rights under federal law 

as employees.489 At the Commission’s briefing, Katz explained that these workers are “particularly 

vulnerable, because of the work that they do, to issues of sexual harassment in the workplace. And 

yet, for many of these people, they have zero legal protection[].”490

The definitions of employee versus contractor are important when looking at sexual harassment 

claims because as EEOC states, “in order to have standing to bring an action under the federal 

sector EEO complaint process, an individual must be a federal employee or applicant for 

employment.”491 Federal law defines a federal employee as an individual who is –

 

485 Chandy Testimony, Washington Briefing, p. 20.

486 Kristin Tate, “The sheer size of our government workforce is an alarming problem,” The Hill, April 14, 2019, 

https://thehill.com/opinion/finance/438242-the-federal-government-is-the-largest-employer-in-the-nation; Joe 

Davidson, “How big is the federal workforce? Much bigger than you think,” Washington Post, Oct. 3, 2017, 

https://www.washingtonpost.com/news/powerpost/wp/2017/10/03/how-big-is-the-federal-workforce-much-biggerthan-you-think/. 

487 Kristin Tate, “The sheer size of our government workforce is an alarming problem,” The Hill, April 14, 2019, 

https://thehill.com/opinion/finance/438242-the-federal-government-is-the-largest-employer-in-the-nation.

488 Valerie Bauman, “The Job Creators: Largest Employers in Every State Revealed – and Walmart Dominates in 

Nearly Half The Country,” Daily Mail, Mar. 22, 2019, https://www.dailymail.co.uk/news/article-6840017/The-jobcreators-Largest-employers-state-revealed-Walmart-dominates.html. 

489 Chandy Testimony, Washington Briefing, p. 22; Katz Testimony, Washington Briefing, p. 134.

490 Katz Testimony, Washington Briefing, p. 134.

491 Equal Employment Opportunity Commission, Preserving Access to the Legal System: Common Errors by 

Federal Agencies in Dismissing Complaints of Discrimination on Procedural Grounds, Sept. 15, 2014, 

https://www.eeoc.gov/federal/reports/dismissals.cfm#I_proper_standard.
CHAPTER 2: EQUAL EMPLOYMENT OPPORTUNITY PROTECTIONS 97

1) Appointed in the civil service by one of the following acting in an official capacity –

a. The President;

b. A Member or Members of Congress, or the Congress;

c. A member of a uniformed service;

d. An individual who is an employee under this section;

e. The head of a Government controlled corporation; or 

f. An adjutant general designated by the Secretary concerned under section 

7009(c) of title 32;

2) Engaged in the performance of a Federal function under authority of law or an 

Executive act; and

3) Subject to the supervision of an individual named by paragraph (1) of this subsection 

while engaged in the performance of the duties of his position.492

Many federal agencies also have contractors who are defined by Executive Order as: 

an individual who performs work for or on behalf of any agency under a contract and who, in order 

to perform the work specified under the contract, will require access to space, information, 

information technology systems, staff, or other assets of the Federal Government. Such contracts, 

include, but are not limited to: 

(i) Personal services contracts;

(ii) Contracts between any non-Federal entity and any agency; and

(iii) Sub-contracts between any non-Federal entity and another non-Federal entity to 

perform work related to the primary contract with the agency.493

EEOC has noted that many harassment complaints are dismissed because the complainant was 

found to be a contractor, rather than a federal employee, and thus, lack legal standing to file an 

 

492 Government Organization and Employees, Pub. L. 89-554, 80 Stat. 378 (codified at 5 U.S.C. § 2105).

493 Exec. Order No. 13,488, 74 Fed. Reg. 4111 (Jan. 11, 2009).
98 FEDERAL #METOO

EEO complaint against the federal agency.494 As a part of its oversight function, EEOC may review 

an agency’s final action or dismissal of a complaint, including a claim of harassment and also, may 

also review its own decisions on appeal.495 At times, the Office of Federal Operations, on behalf 

of the Commission has ruled in favor of the complainant to reconsider the claim, even if the agency 

(or previous commission decision) had classified them as a contractor.496 At the Commission’s 

briefing, Dexter Brooks, Associate Director of EEOC’s Office of Federal Operations, stated that 

the issue with independent contractors is a “really tricky area” when it comes to determining if 

they are permitted to file a federal EEO claim.497

EEOC has issued guidance explaining the circumstances under which a federal contractor may be 

considered a “joint employee” (i.e., an individual who is employed by both the federal agency and 

a contracting firm).498 To aid in determining the status of an individual, EEOC has also set out a 

15 factor test, known as the Ma factors, that was originally established in the case of Ma v. 

Department of Health and Human Services.

499 EEOC investigators use this test when they are 

examining a federal sector discrimination or harassment claim:500

1) The employer has the right to control when, where, and how the worker performs the job.

 

494 42 U.S.C. § 2000e-16; 29 C.F.R. § 1614.103; Equal Employment Opportunity Commission, Preserving Access to 

the Legal System: Common Errors by Federal Agencies in Dismissing Complaints of Discrimination on Procedural 

Grounds, Sept. 15, 2014, https://www.eeoc.gov/federal/reports/dismissals.cfm#I_proper_standard.

495 29 C.F.R. § 1614.401 (appeals to the Commission); 29 C.F.R. § 1614.405 (decisions on appeals).

496 See e.g., Complainant v. Department of State, EEOC Request No. 0520110069 (April 26, 2012) (the fact that 

complainant worked under a blanket purchase agreement for the agency was not as relevant as the fact that the 

nature of the working relationship was such that the Agency retained a considerable degree of control over 

Complainant's job performance, establishing a de facto employer-employee relationship).

497 Brooks Testimony, Washington Briefing, pp. 21-22.

498 See Equal Employment Opportunity Commission, Enforcement Guidance: Application of EEO Laws to 

Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, EEOC Notice No. 

915.002, December 3, 1997, https://www.eeoc.gov/policy/docs/conting.html; See also Equal Employment 

Opportunity Commission, Preserving Access to the Legal System (noting: “...a determination of joint employment 

requires an assessment of the comparative amount and type of control the "staffing firm" and the Agency each 

maintain over Complainant's work. Thus, a federal Agency will qualify as a joint employer of an individual if it has 

the requisite means and manner of control over the individual's work under the Ma criteria, whether or not the 

individual is on the federal payroll. See generally, Complainant v. Department of the Army, EEOC Appeal No. 

01A45313 (March 16, 2006). It should be noted that the same type of analysis is used for other work relationships 

with agencies. See e.g., Complainant v. Department of the Army, EEOC Appeal No. 0120101877 (September 21, 

2010) (agency found to be employer for the purposes of standing to bring a Part 1614 EEO complaint by a student 

volunteer).

499 Ma v. Department of Health and Human Services, Appeal Nos. 01962390, 01962390, Agency Nos. OEO-174-95, 

OEO-175-95, (May 29, 1998); see also Serita B v. Department of the Army, EEOC Appeal No. 0120150846 

(November 10, 2016).

500 EEOC, EEOC Compliance Manual, No. 915.003, Section 2: Threshold Issues, 

https://www.eeoc.gov/policy/docs/threshold.html.
CHAPTER 2: EQUAL EMPLOYMENT OPPORTUNITY PROTECTIONS 99

2) The work does not require a high level of skill or expertise.

3) The employer furnishes the tools, materials, and equipment.

4) The work is performed on the employer’s premises.

5) There is a continuing relationship between the worker and the employer.

6) The employer has the right to assign additional projects to the worker.

7) The employer sets the hours of work and the duration of the job.

8) The worker is paid by the hour, week, or month rather than the agreed cost of performing 

a particular job.

9) The worker does not hire and pay assistants.

10) The work performed by the worker is part of the regular business of the employer.

11) The worker is not engaged in his/her own distinct occupation or business.

12) The employer provides the worker with benefits such as insurance, leave, or workers’ 

compensation.

13) The worker is considered an employee of the employer for tax purposes (i.e., the employer 

withholds federal, state, and Social Security taxes).

14) The employer can discharge the worker.

15) The worker and the employer believe that they are creating an employer-employee 

relationship.501

Generally, these factors determine the relationship between workers with an employer, which 

“depends on whether the employer controls the means and manner of the worker’s work.”502

 

501 Ibid; the factors presented in Ma v. Department of Health and Human Services and the EEOC Compliance 

Manual, No. 915.003 are taken from Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992). 

“In Darden, the Court adopted the ‘common law test’ for determining who qualifies as an ‘employee’ under the 

Employee Retirement Income Security Act of 1974 (ERISA). The Darden rationale applies under the EEO statutes 

because the ERISA definition of ‘employee’ is identical to that in Title VII, the ADEA, and the ADA. This test is 

used to determine whether an individual is an independent contractor or an employee, and whether an individual is 

employed by a particular entity.” Ibid., note 71.

502 Ibid., Part 2-III, Covered Parties.
100 FEDERAL #METOO

Attorney George Chuzi testified during the Commission’s briefing that while joint employees may 

not be paid by the federal agency, if the agency is providing equipment, managing the workload 

and tasks, and access to resources, then under the Ma factor test these employees, despite being 

categorized as contractors, should be regarded as joint employees and should be permitted to file 

EEO complaints.503 Elizabeth Tippett, Associate Professor, University of Oregon School of Law, 

testified at the EEOC’s “Reconvening of the Select Task Force on the Study of Sexual 

Harassment” that one strategy to protect these workers could be to change “the applicable tests for 

employment status in a way that would encompass gig workers” and “extend[] protections to 

workers regardless of their status as employees or independent contractors.”504 

Civil rights advocates worry that federal agencies may also misclassify workers as contractors, 

thus depriving them of the civil rights protections offered to federal employees.505 Chuzi testified 

that in his over 40 years of experience practicing in anti-harassment and discrimination law, “I 

have not yet found an agency that would come to that conclusion [that a contractor was an 

employee] on its own. They will instead classify the employee as a contractor and only on appeal 

will the EEOC say no, they’re actually an employee.”506 For instance, in Complainant v. Dept. of 

Air Force, the complainant brought sexual harassment claims against the Air Force, but the 

agency’s EEO office initially dismissed her case stating that the complainant was not an employee 

and that the claims did not rise to the level to create a hostile work environment.507 However, upon 

appeal, the Director of EEOC’s Office of Federal Operations found that 9 of the 15 Ma factors 

showed that the Air Force was the complainant’s joint employer.508 The EEOC therefore reversed 

the dismissal,509 and required the agency to continue the administrative proceedings regarding the 

sexual harassment complaint.510 In her written statement to the Commission, the National 

 

503 Chuzi Testimony, Washington Briefing, p. 23. 

504 Equal Employment Opportunity Commission, Task Forces, Testimony of Elizabeth C. Tippett, University of 

Oregon School of Law (June 11, 2019) https://www.eeoc.gov/eeoc/task_force/harassment/tippett.cfm.

505 Sunu Chandy, Legal Director, National Women’s Law Center, Written Statement for Federal Me Too: 

Examining Sexual Harassment in Government Workplaces Briefing before the U.S. Commission on Civil Rights, 

May 9, 2019, at 14 (hereinafter Chandy Statement).

506 Chuzi Testimony, Washington Briefing, p. 23.

507 See Complainant v. Department of the Air Force, Appeal No. 012014207 (2015), 

https://www.eeoc.gov/decisions/0120142407.txt. 

508 Id. at Issue 4 (“Factors 1 - 5, 7, 9 - 11, and 14 Indicate that the Agency Jointly Employed Complainant”).

509 Developments at the EEOC: EEOC Overturns Dismissal in Passman & Kaplan Case, Passman & Kaplan P.C., 

Feb. 13, 2015, https://www.passmanandkaplan.com/blog/2015/02/developments-at-the-eeoc-eeoc-overturnsdismissal-in-passman-kaplan-case.shtml; see also, Chandy Statement, at 14. 

510 Order, Complainant v. Department of the Air Force, Appeal No. 012014207 (E.E.O.C., Jan. 28, 2015), 

https://www.eeoc.gov/decisions/0120142407.txt.
CHAPTER 2: EQUAL EMPLOYMENT OPPORTUNITY PROTECTIONS 101

Women’s Law Center’s Sunu Chandy stated that cases like these demonstrate the importance of 

EEOC monitoring the ways federal agencies classify employees to ensure that contractors and 

subcontractors who are working for the federal government are properly having their civil rights 

protections upheld.511

Debra Katz testified at EEOC’s “Reconvening of the Select Task Force on the Study of Sexual 

Harassment” that a number of measures that need to be taken in order to safeguard workers’ rights: 

First, the existing criteria for categorizing employees should be properly enforced, ensuring 

that the current protections under Title VII reach all eligible workers. Looking beyond 

enforcement priorities, which are subject to drastic changes under different 

administrations, federal law must be amended to redefine “employees” to include all 

workers whose conduct is within the economic control of an employer. Without 

fundamental redefinition of employment protections, non-traditional workers will remain 

doubly vulnerable to harassment—more exposed to harm, and less empowered to secure 

any meaningful relief.512

Paid versus Unpaid Interns 

At the Commission’s briefing, EEOC’s Dexter Brooks explained that interns are also vulnerable 

to harassment and may not have the same protections as employees due to their employment 

status.513 Paid and unpaid interns are treated differently under the law.

514 Unpaid interns, may or 

may not be considered employees and, therefore, their rights to bring a claim under Title VII may 

be limited.515 In O’Connor v. Davis, a college student filed suit alleging that she was sexually 

harassed during her internship, but the Second Circuit held that O’Connor was not an employee 

based on her lack of compensation; and thus, did not have protections under Title VII.516 The court 

ruled that compensation “is an essential condition to the existence of an employer-employee 

 

511 Chandy Statement, at 14-15.

512 EEOC, Task Forces, Testimony of Debra S. Katz, Partner at Katz, Marshall & Banks LLP and Hannah 

Alejandro, Senior Counsel at Katz, Marshall & Banks LLP (June 11, 2019) 

https://www.eeoc.gov/eeoc/task_force/harassment/katz.cfm.

513 Brooks Testimony, Washington Briefing, p. 22.

514 EEOC Office of Legal Counsel letter to the public, Federal EEO Laws: When Interns May Be Employees, Dec. 

8, 2011, https://www.eeoc.gov/eeoc/foia/letters/2011/eeo_laws_when_interns_may_be_employees.html.

515 Ibid; Jen Fifield, “Why Statehouse interns are especially vulnerable to sexual harassment,” USA Today, Feb. 24, 

2018, https://www.usatoday.com/story/news/2018/02/24/why-statehouse-interns-especially-vulnerable-sexualharassment/363507002/.

516 O’Connor v. Davis, 126 F.3d 112 (2nd Cir. 1997).
102 FEDERAL #METOO

relationship.”517 Without direct or indirect remuneration from the employer, the court held that 

O’Connor’s Title VII claim failed.518 

Following O’Connor, the EEOC issued a guidance letter differentiating between paid and unpaid 

interns, and states that for unpaid or volunteer interns, coverage as an employee under EEOCenforced laws depends on whether the individual receives some type of “significant 

remuneration.”519 To potentially qualify as an employee, the remuneration does not have to come 

from the employer (in this case, the federal agency) and may come from a third party.520 For 

example, the EEOC found in favor of a complainant, who was a paid intern, when she filed against 

the Department of Defense despite the agency’s stance on her employment status.521 On the other 

hand, the guidance letter explains that “an intern who receives only some small benefit that is an 

‘inconsequential incident of an otherwise gratuitous relationship’ will not be an employee.”522

According to EEOC spokesperson Joseph Olivares, “at least with respect to the federal law that 

we enforce, an unpaid intern would not be legally protected by our laws prohibiting sexual 

harassment.”523 Moreover, the severity of the issue is unclear, because the EEOC does not track 

data on how many interns are sexually harassed at work.524 According to news reports, the lack of 

legal protections for unpaid interns is particularly troubling since interns rely upon 

recommendations and the networking opportunities that the internship provides them.525

 

517 Id. at 115-16 (quoting Graves v. Women’s Prof’l Rodeo Ass’n, 907 F.2d 71, 73 (8th Cir. 1990)) (further stating 

that: “This ‘essential condition’ of remuneration has been recognized in this Circuit as well. Tadros v. Coleman, 898 

F.2d 10, 11 (2nd Cir. 1990).”).

518 Id. at 119.

519 EEOC Office of Legal Counsel letter to the public. 

520 Ibid; see also EEOC, EEOC Compliance Manual, No. 915.003, part 2-III.A.1.c. Volunteers (discussing 

volunteers stating “[v]olunteers usually are not protected "employees.” However, an individual may be considered 

an employee of a particular entity if, as a result of volunteer service, s/he receives benefits such as a pension, group 

life insurance, workers' compensation, and access to professional certification, even if the benefits are provided by a 

third party. The benefits constitute “significant remuneration” rather than merely the “inconsequential incidents of 

an otherwise gratuitous relationship.”).

521 Brooks Testimony, Washington Briefing, p. 22.

522 EEOC Office of Legal Counsel, letter to the public.

523 Blair Hickman and Christie Thompson, “How Unpaid Interns Aren’t Protected Against Sexual Harassment,” 

ProPublica, Aug. 9, 2013, https://www.propublica.org/article/how-unpaid-interns-arent-protected-against-sexualharassment. 

524 Ibid.

525 See e.g., Blair Hickman and Christie Thompson, “How Unpaid Interns Aren’t Protected Against Sexual 

Harassment,” ProPublica, Aug. 9, 2013, https://www.propublica.org/article/how-unpaid-interns-arent-protectedagainst-sexual-harassment; Vikki Ortiz Healy, “Sexually harassed interns often feel they have nowhere to turn,” 

Chicago Tribune, Nov. 25, 2011, https://www.chicagotribune.com/news/ct-xpm-2011-11-25-ct-met-intern-
CHAPTER 2: EQUAL EMPLOYMENT OPPORTUNITY PROTECTIONS 103

While unpaid interns may not be protected under federal civil rights laws, some private companies 

and state or local laws have started to extend workplace protections to them. For instance, in June 

2013, Oregon became the first state to expand laws to protect both paid and unpaid interns from 

discrimination and harassment.526 The bill prohibits harassment and discrimination on the basis of 

race, religion, gender, disability, and sexual orientation and offers retaliation protections against 

wrongful termination tied to discrimination.527 According to Oregon Labor Commissioner Brad 

Avakian, “these principles of protecting people in the workplace have been in place for a long 

time, but they’ve never been applied to interns. It really left them with few options.”528

The late Representative Elijah Cummings introduced the Federal Employee Antidiscrimination 

Act of 2019, which included language that would not only extend reporting requirements for 

federal agencies, but also would extend protections to unpaid interns who worked at federal 

agencies and guarantee them the same protections as those given to federal employees.529

Cummings stated that: 

I want to be clear that this bill responds to very real instances of interns being victimized 

within the federal government. Without this bill, victims would be forced to continue to 

rely on the discretion and integrity of the managers to prevent this behavior. I still say we 

can do better than that.

530

Representative Virginia Foxx, a supporter of the bill, stated “discrimination disadvantages eagerto-work interns, but discrimination also disadvantages federal agencies by interfering with the 

selection of the best intern candidates.”531As of November 2019, the bill has been combined with 

the National Defense Authorization Act of 2020, which passed the House and Senate and is having 

its differences resolved in a conference committee.

532 There is an equally compelling rationale to 

ensure that both paid and unpaid interns work and begin their careers and formative professional 

experiences in harassment free environments.

 

harassment-20111125-story.html; Jen Fifield, “Why Statehouse interns are especially vulnerable to sexual 

harassment,” USA Today, Feb. 24, 2018, https://www.usatoday.com/story/news/2018/02/24/why-statehouse-internsespecially-vulnerable-sexual-harassment/363507002/. 

526 Or. Rev. State. § 259A.350 (2017), https://www.oregonlaws.org/ors/659A.350.

527 Id.

528 Hickman and Thompson, “How Unpaid Interns Aren’t Protected Against Sexual Harassment.” 

529 Federal Employee Antidiscrimination Act of 2019, H.R. 135, 116th Cong. (2019-2020).

530 Katherine Tully-McManus, “House moves to protect federal interns from harassment and discrimination,” Roll 

Call, Jan. 15, 2019, https://www.rollcall.com/news/congress/house-moves-protect-federal-interns-harassmentdiscrimination.

531 Ibid.

532 Federal Employee Antidiscrimination Act of 2019, H.R. 135, 116th Cong. (2019-2020).
104 FEDERAL #METOO

Anti-Harassment Policies

In FY 2003, in an attempt to establish consistency among federal agencies, the EEOC developed 

guidelines for what a model EEO program should look like. Part of that guidance (EEO 

Management Directive 715) established that agencies should have the following components in 

order to have an effective anti-harassment program:

• Demonstrated commitment from agency leadership;

• Integration of EEO into the agency’s strategic mission;

• Management and program accountability;

• Proactive prevention of unlawful discrimination;

• Efficiency; and,

• Responsiveness and legal compliance.533

While federal agencies are responsible for establishing their own anti-harassment policies and 

maintaining their EEO offices, EEOC states that the EEO process is “designed to make individuals 

whole for discrimination that already has occurred through damage awards and equitable relief 

paid by the agency and to prevent the recurrence of the unlawful discriminatory conduct.”534

According to the EEOC model, anti-harassment programs established within federal agencies are 

intended to take “immediate and appropriate corrective action, including the use of disciplinary 

actions, to eliminate harassing conduct regardless of whether the conduct violated the law.”535 This 

is in part because EEOC does not have the ability to discipline a federal employee who is found to 

have committed discrimination nor does it have the ability to require an agency to discipline its 

employees for violation of anti-harassment policies.536 Thus, the purpose of an agency establishing 

 

533 EEOC, Instructions to Federal Agencies for EEO MD-715, Section I, The Model EEO Program, 

https://www.eeoc.gov/federal/directives/715instruct/section1.html (last modified July 20, 2004).

534 EEOC, Model EEO Programs Must Have An Effective Anti-Harassment Program,

https://www.eeoc.gov/federal/model_eeo_programs.cfm# (last accessed Mar. 13, 2020); see also Albemarle Paper 

Co. v. Moody, 422 U.S. 405 (1975); Clarke v. Department of Justice, EEOC Appeal No. 01922561 (1992).

535 EEOC, Model EEO Programs Must Have An Effective Anti-Harassment Program.

536 Ibid., note 10 (“InWest v. Gibson, 527 U.S. 212, 222 (1999), the Supreme Court concluded that EEOC may 

award compensatory damages to complainants in the administrative EEO process. It found that although waivers of 

sovereign immunity must be interpreted narrowly, the federal government waived its immunity from suits for 

compensatory damages in discrimination claims in 1991 amendments to Title VII. Title VII makes no reference to 

allowing courts or the EEOC to order discipline for its employees, or similar corrective action. The EEO process 
CHAPTER 2: EQUAL EMPLOYMENT OPPORTUNITY PROTECTIONS 105

a clear and appropriate anti-harassment program is to prevent harassing conduct before it rises to 

the level of becoming “severe or pervasive.”537

At the Commission’s briefing, Dexter Brooks testified that from 2014-2016 the EEOC undertook 

a concerted effort to review anti-harassment programs of each federal agency under the EEOC 

jurisdiction to determine if the programs were effective. EEOC found that a vast majority of federal 

agencies still had ineffective anti-harassment programs, predominately due to missing “essential 

components” in their programs, not adequately implementing policies, or clear communication 

with employees.538 He stated that during the past two years EEOC received an increase in its 

budget, which allowed it to spend more time focusing on anti-harassment programs with federal 

agencies over the last few years.539 As Sunu Chandy testified, this increase is seen as positive by 

many in the civil rights community, because “it is only through increased staffing that EEOC can 

properly fulfill its mission.”540

Disciplinary Actions and Role of the Merit Systems Protection Board

A federal agency may want to address harassing conduct by taking disciplinary action against an 

employee. By statute, an agency may take an adverse (or disciplinary) action against an employee 

in advance of “the efficiency of the service.”541 An agency must provide notice to an employee of 

the behavior that is the cause for the action, provide the opportunity for the employee to respond, 

and then provide a written decision with specific reasons for the action taken.542 For disciplinary 

actions under this section, the agency’s actions must be supported by a preponderance of the 

evidence, meaning that the evidence reflects a likelihood more likely than not that the agency’s 

findings are supported.543 In determining the appropriate disciplinary action, the agency should 

consider the nature and seriousness of the offense, the employee’s job level, past disciplinary 

record, past work record, effect on the employee’s ability to perform the job, consistency of the 

 

may not be capable of providing the same corrective action that an agency could impose upon its own employees 

through an internal anti-harassment policy.”).

537 Ibid.

538 Brooks Testimony, Washington Briefing, p. 13.

539 Brooks Testimony, Washington Briefing, p. 28. 

540 Chandy Testimony, Washington Briefing, p. 15.

541 5 U.S.C. § 7513.

542 Id.

543 5 U.S.C. § 7701(c)(1)(B). Preponderance of the evidence means “[t]he degree of relevant evidence that a 

reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more 

likely to be true than untrue.” 5 C.F.R. § 1201.4(q).
106 FEDERAL #METOO

penalty, notoriety of the offense, warning about the conduct, potential for rehabilitation, and any 

mitigating circumstances.544

If the employee disagrees with the agency’s disciplinary action, and it falls within the Merit 

Systems Protection Board’s jurisdiction, the employee may appeal the decision to the Board. The 

Board has jurisdiction over adverse actions – removals, suspensions of more than 14 days, 

reductions in grade or pay, and furloughs of 30 days or less.545 The Board does not have 

jurisdiction over a decision to reassign an employee, assuming the reassignment was to a job with 

the same series and grade, because such a reassignment is not considered an adverse action.546 

When setting out the specific reasons for the action being taken, an agency is not required to label 

the charge of misconduct. But, if an agency does provide a label for the conduct taken by the 

employee, then the agency has to prove that element. Proving elements can become complex if an 

agency uses a label that has a specific meaning in a statute or is defined in more than one place. 

For example, if an agency labels conduct as “sexual harassment,” this term may be defined in 

agency policy as well as by EEOC policy. This can result in a situation where an agency that uses 

the term “sexual harassment” in a charge may be required to prove that the conduct meets a formal 

definition, regardless of whether that was the charging official’s intent. In Booker v. Department 

of Veterans Affairs, neither the notice of proposed action nor notice of the decision defined the 

phrase “sexual harassment.”547 As a result, the agency was required to prove the Title VII 

definition because the agency’s policy referenced Title VII, meaning the agency had to prove that 

the conduct was “unwelcome, severe or pervasive” and apply the objective reasonable person test, 

and that the misconduct was so “hostile” that it adversely affected the conditions of employment 

of another employee. 

On the other hand, if the agency uses a more generic charge, such as “engaging in inappropriate 

conduct of a sexual nature” or “inappropriate conduct,” then there are no specific elements for 

the agency to prove. For example, the National Aeronautics and Space Administration asserted 

that the employee had loaded and displayed sexually explicit material onto a government 

 

544 Douglas v. Veterans Administration, 5 M.S.P.B. 313, 330-332 (1981), 

https://www.mspb.gov/MSPBSEARCH/viewdocs.aspx?docnumber=253434&version=253721&application=ACRO

BAT.

545 5 C.F.R. § 1201.3 (MSPB has appellate jurisdiction over adverse actions, which includes terminations, reductions 

in grade or pay, suspensions for more than 14 days, or furloughs for 30 days or less for cause that promotes the 

efficiency of the service); see also U.S. Merit Systems Protection Board, Jurisdiction, 

https://www.mspb.gov/About/jurisdiction.htm (last accessed Mar. 13, 2020).

546 Maddox v. Merit Systems Protection Bd., 759 F.2d 9 (Fed. Cir. 1985) (holding that when a reassignment does not 

reduce federal employee’s grade or pay, the Merit Systems Protection Board lacks jurisdiction to hear appeal).

547 Booker v. Veterans Administration, 110 M.S.P.R. 72 (2008).
CHAPTER 2: EQUAL EMPLOYMENT OPPORTUNITY PROTECTIONS 107

computer and exposed other employees to that material in violation of agency policy.548 The 

Board upheld the 35-day suspension.549

 

548 National Aeronautics and Space Administration, 65 M.S.P.R. 352, 357-58 (1994). See also e.g., Brim v. U.S. 

Postal Service, 49 M.S.P.R. 494, 496-99 (1991) (Agency charged employee with sexual harassment and conduct 

unbecoming a Postal Service employee based on the same behavior. The Board found that the Postal Service had no 

proved all the elements of sexual harassment, but had proven that the unbecoming conduct – sexually explicit 

comments within earshot of other employees -- was unacceptable in the workplace and that the 30-day suspension 

was reasonable.); Cisneros v. Department of Defense, 83 M.S.P.R. 390, ¶¶ 5-7, 17-20 (1999) (holding that the 

agency proved its charge of “conduct unbecoming a federal employee” when it described the employee’s physical 

acts and statements that had a sexual component), aff’d 243 F.3d 562 (Fed. Cir. 2000); Uske v. U.S. Postal Service, 

60 M.S.P.R. 544, 561-63 (1994) (sustaining the agency’s decision to remove an employee for “conduct prejudicial 

to the Postal Service” when the employee hired a prostitute to pose nude in the workplace, arranged for the 

photographs to be published in a magazine, and informed others in the workplace of what he had done), aff’d 56 

F.3d 1376 (Fed. Cir. 1995).

549 National Aeronautics and Space Administration, 65 M.S.P.R. 352, 357-58 (1994).
108 FEDERAL #METOO

CHAPTER 3: EEOC’S ROLES IN ENFORCING 

PROTECTIONS AGAINST SEXUAL HARASSMENT IN 

THE FEDERAL SECTOR 

This chapter discusses the role of EEOC in the federal sector regarding the issue of sexual 

harassment. EEOC serves several critical roles in the federal sector, through its oversight, issuance 

of guidance, and adjudication of EEO complaints. EEOC provides oversight to federal agencies 

regarding their role as employers by providing guidance about their complaint procedures and 

agency anti-discrimination policies, and identifying best practices that “cultivate model work 

environments.”550 In addition, although federal agencies must have their own internal complaint 

procedures,551 EEOC may adjudicate a formal complaint if a complainant requests an EEOC 

hearing. Additionally, EEOC’s decisions also help set the legal standards.552 EEOC also has an 

important role in collecting data, and this chapter begins with a summary of the data that the 

Commission received and analyzed, then evaluates EEOC’s other federal roles.

Federal Sector Data and Trends

As discussed in Chapter 2, the No FEAR Act of 2002 requires each federal agency to annually 

track and post summary statistical data regarding complaints of employment discrimination that 

have been filed by employees, former employees, and applicants for employment.553 These data 

must be submitted annually to Congress, the Department of Justice, the Office of Management and 

Budget, as well as EEOC.554 Data that must be reported annually include the number of complaints, 

number of individuals filing them, the various bases of alleged discrimination, time for resolution, 

number of complaints dismissed, and the number of final actions that included findings of 

discrimination.555 Each agency must also post online (on their webpage) comparative data showing 

 

550 See e.g., EEOC, “Best Practices for Employers and Human Resources/EEO Professionals,” 

https://www.eeoc.gov/eeoc/initiatives/e-race/bestpractices-employers.cfm; Brooks Testimony, Washington Briefing, 

p. 18.

551 29 C.F.R. § 1614.104.

552 See 29 C.F.R. § 1614.109; Brooks, testimony, Washington Briefing, p. 18.

553 See No FEAR Act, Pub. L. 107-174, 116 Stat. 566 (codified as amended 5 U.S.C. §301); see also 29 C.F.R. 

Subpart G §§1614.701 – 1614.707.

554 See e.g., 29 C.F.R. § 1614.704 et. seq.

555 29 C.F.R. § 1614.704.
CHAPTER 3: EEOC’S ROLES IN ENFORCING PROTECTIONS 109

trends over the preceding five fiscal years,556 and EEOC must post data about the number of 

hearings, Administrative Judge decisions, appeals, and findings of discrimination.557 (For further 

information on the complaint adjudication process, see Chapter 2, Chart 6).

At the Commission’s briefing, EEOC’s Dexter Brooks testified that with additional funds EEOC

could increase its “ability to manage data and help agencies track trends” in “real time.”558 A 

majority of the matters currently addressed by EEOC focus on “bad actions” that have already 

happened, but EEOC would like to “have access to data and trends” in order to identify problem 

areas or “hot spots.”559 Brooks testified that EEOC does not have the capability to identify and 

isolate a potential issue to review with their current resources.560

EEOC has posted on their website the total aggregated federal data on sexual harassment starting 

from 2002.561 At the Commission’s November 2018 briefing, Are Rights a Reality? Evaluating 

Federal Civil Rights Enforcement, Carol Miaskoff, Associate Legal Counsel at EEOC, testified 

that federal charges alleging sexual harassment increased by approximately 13 to 14 percent in 

2018 compared to 2017.562 EEOC further noted that according to data submitted by federal 

agencies, from fiscal year 2015 to fiscal year 2018, there was a 36 percent increase in reported 

sexual harassment complaints (502 to 685).563

Across all federal agencies, EEOC reports that in fiscal year 2018 there were a total of 7,733 nonsexual harassment complaints and 685 sexual harassment complaints, which increased from the 

previous year (from 6,975 and 585, respectively).564 As discussed previously, hostile work 

environment claims can be understood as a type of sexual harassment, but the conduct is not 

overtly sexual in nature.565 Breaking the EEOC numbers down by gender show that women filed 

 

556 29 C.F.R. § 1614.705.

557 29 C.F.R. § 1614.707.

558 Brooks Testimony, Washington Briefing, p. 27. 

559 Ibid.

560 Ibid., 28.

561 See Equal Employment Opportunity Commission, “Equal Employment Opportunity Data Posted Pursuant to the 

No Fear Act,” https://www.eeoc.gov/eeoc/statistics/nofear/index.cfm (last accessed, Mar. 13, 2020).

562 Carol Miaskoff, Associate Legal Counsel, EEOC, testimony before U.S. Commission on Civil Rights, “Are 

Rights a Reality? Evaluating Federal Civil Rights Enforcement,” Nov. 2, 2018, Briefing Transcript, p. 34. 

563 Equal Employment Opportunity Commission, EEOC Responses to U.S. Commission on Civil Rights 

Interrogatories, Sept. 6, 2019, at 15.

564 See Equal Employment Opportunity Commission, Form 462 Complaints Tables, Federal Sector Reports, 

https://www.eeoc.gov/federal/reports/tables.cfm; see also, Chart 1 in Chapter 1 for trend data. 

565 29 C.F.R. §1604.11(a)(3); and see Equal Employment Opportunity Commission, “Sexual Harassment,”

https://www.eeoc.gov/laws/types/sexual_harassment.cfm.
110 FEDERAL #METOO

far more harassment complaints both sexual and non-sexual than men. In 2018, women filed 2,232 

non-sexual harassment complaints and 508 sexual harassment complaints; comparatively men 

filed 886 non-sexual and 118 sexual harassment complaints.566 Similar to previous research, EEO 

data show that non-sexual harassment complaints compared to sexual harassment complaints 

accounted for more harassment claims every year since 2003 (see chart 7).

Chart 7: Federal Sector Harassment Complaints (2003-2018)

Source: EEOC, Federal Sector Reports, https://www.eeoc.gov/federal/reports/index.cfm

As of September 30, 2018 (most current data available), data on complaints by issue showed that 

sexual harassment complaints accounted for about 7.1 percent of complaints by issue for that 

year.567 For the majority of the other years since 2003, non-sexual harassment complaints have 

accounted for over a quarter to a half of complaints every year (see chart 8). Nonetheless, Louise 

Fitzgerald testified that even with these numbers being reported to EEOC, it is difficult to discern 

the scope of the problem since individuals who report harassment are “by definition, kind of 

 

566 See Equal Employment Opportunity Commission, Form 462 Complaints Tables, B-8 FY 2018, Federal Sector 

Reports, https://www.eeoc.gov/federal/reports/tables.cfm.

567 EEOC breaks data down by “complaints by basis” and “complaints by issue.” These data are reporting the EEO 

“complaints by issue” numbers. EEOC’s No FEAR Act reporting does not disaggregate the data by basis and issue 

together (e.g., does not report demographic information on the complainants who file complaints). 

0

1000

2000

3000

4000

5000

6000

7000

8000

9000

2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018

Harassment Complaints

Non-Sexual Sexual
CHAPTER 3: EEOC’S ROLES IN ENFORCING PROTECTIONS 111

outliers.”568 As discussed previously, while sexual harassment may be prevalent in many 

workplaces, very few individuals report incidents.569 

Chart 8: Federal Sector Harassment Complaints (percentages)

Source: EEOC, Federal Sector Reports, https://www.eeoc.gov/federal/reports/index.cfm 

After a complainant files a formal EEO complaint, the agency has 180 days to investigate the 

alleged harassment.570 Once the agency’s investigation has completed, a complainant has two 

choices: either request the agency to issue a final agency decision (FAD) as to whether it found 

that discrimination has occurred or request a hearing before an EEOC Administrative Judge.571 If 

the agency issues a FAD finding no discrimination or if a complainant disagrees with some part 

of the decision, the individual maintains the right to appeal the decision to the EEOC or challenge 

the decision in federal district court.572

 

568 Fitzgerald Testimony, Washington Briefing, p. 106

569 See e.g., Carly McCann, Donald Tomaskovic-Devey, and M.V. Lee Badgett, “Employer’s Responses to Sexual 

Harassment,” Center for Employment Equity at the University of Massachusetts Amherst, Dec. 2018, 

https://www.umass.edu/employmentequity/employers-responses-sexual-harassment.

570 EEOC, Overview of Federal Sector EEO Complaint Process, 

https://www.eeoc.gov/federal/fed_employees/complaint_overview.cfm (last accessed Mar. 13, 2020).

571 Ibid.

572 Ibid.

0%

5%

10%

15%

20%

25%

30%

35%

40%

45%

50%

2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018

Harassment Complaints (percentages)
112 FEDERAL #METOO

According to EEOC data for this investigation’s timeframe, across the federal government, there 

were a total of 7 final agency decisions released that showed findings of discrimination in sexual 

harassment cases in FY 2018.573 This was an increase of findings from FADs in FY 2017, but a 

decrease from 2016 (6 and 10, respectively).574 In terms of non-sexual harassment cases, a similar 

trend emerged. In fiscal year 2018, there were 14 findings of discrimination from FADs, which 

was an increase from FY 2017, but a decrease from FY 2016 (16 and 22, respectively).575

Alternatively, if a complainant elects an EEOC hearing, then the individual must request a hearing 

within 30 days from receiving notice from the agency.576 Upon the request, an EEOC 

Administrative Judge is assigned to the case and will conduct a hearing, make a decision, and order 

relief if discrimination is found. Once the Administrative Judge has issued a decision, the agency 

has 40 days to issue a decision (final order), where it states to the complainant whether it agrees 

with the decision and whether it will grant the relief.577 The agency also maintains the right to 

appeal the Administrative Judge’s decision to the EEOC. At this stage, the complainant has the 

right to appeal the final order, which includes a final order that dismisses the case, to the EEOC’s 

Office of Federal Operations. The appeal must be filed within 30 days upon the receipt of the 

decision.578

The No FEAR Act also requires EEOC to post government-wide statistical summary data 

regarding complainants’ hearing requests and appeals that are filed with EEOC.579 According to 

EEOC, these data are intended to assist Congress, federal agencies, and the public to assess if 

agencies are living up to their EEO responsibilities.

580

Analyzing hearing data from 2010 through October 1, 2019 (most current available data) indicates

that harassment claims (specifically non-sexual complaints) accounted for a majority of hearing 

requests for most years during that time frame. Specifically, examining the years since 2010, data 

show that the number of requested hearings has increased each year (see chart 9).

 

573 Equal Employment Opportunity Commission, EEOC Responses to U.S. Commission on Civil Rights 

Interrogatories, Sept. 6, 2019, Interrogatory 14, p. 16.

574 Ibid.

575 Ibid.

576 EEOC, Overview of Federal Sector EEO Complaint Process.

577 Ibid.

578 Ibid.

579 29 C.F.R. § 1614.707.

580 Id.
CHAPTER 3: EEOC’S ROLES IN ENFORCING PROTECTIONS 113

Chart 9: EEOC Hearings (FY 2010-FY 2019 Q4)

*The Commission recognizes that number of harassment hearings for 2019 (Q4) accounts for 

more than the total number of harassment hearings, but these data are recreated from the 

EEOC’s data charts. 

Source: EEOC No FEAR Act Reporting, https://www.eeoc.gov/eeoc/statistics/nofear/index.cfm

Data also show that harassment hearings account for almost 50 percent or more of the number of 

EEOC hearing requests (see chart 10). Further, comparing harassment hearings to other issues 

(e.g., evaluation/appraisal, pay/overtime, termination), thus far in 2019, harassment hearings are 

the most common issue for which complainants have requested a hearing before the EEOC. 

Chart 10: Harassment Hearings (FY 2010-FY 2019 Q2)

Source: EEOC No FEAR Act Reporting, https://www.eeoc.gov/eeoc/statistics/nofear/index.cfm

0

2000

4000

6000

8000

10000

12000

2010 2011 2012 2013 2014 2015 2016 2017 2018 2019

(Q4)*

EEOC Hearings

Number of Hearings Number of Harassment Hearings

0%

20%

40%

60%

80%

100%

120%

2010 2011 2012 2013 2014 2015 2016 2017 2018 2019

(Q2)

EEOC Hearings (percent)
114 FEDERAL #METOO

In sexual harassment cases in particular, EEOC data show that a finding of discrimination is more 

likely to be issued when the complainant chooses a hearing. EEOC codes harassment data 

according to different categories than the definitional categories of sexual harassment found in 

Chapter 1 of this report. EEOC breaks out these data as follows: (1) first, EEOC data isolates 

sexual harassment cases to only those that are sexual in nature, i.e., those involving sexual 

coercion, quid pro quo, and sexual advances; and (2) second, EEOC also collects data on hostile 

work environment cases and puts them in another category called “non-sexual” (see table 4).581

Table 4: Administrative Judge Rulings in Sexual Harassment Hearings (2010-2019)

2010 2011 2012 2013 2014 2015 2016 2017 2018

2019 

(Q4)

Total Harassment 

Hearings: Sexual* 344 412 161 295 185 232 239 200 246 599

Total Harassment 

Findings of 

Discrimination: Sexual*

4 4 0 8 3 0 1 1 2 4

Total Harassment 

Hearings: “Non-sexual”** 5331 5880 3263 6467 3695 3706 4092 4135 4292 9815

Total Harassment 

Findings of 

Discrimination: “NonSexual”

27 34 14 23 10 9 7 7 5 16

Source: EEOC, https://www.eeoc.gov/eeoc/statistics/nofear/hearings.cfm

*Sexual: any harassment with sexual connotation

**Non-sexual: harassment on any of the protected bases except those actions with a sexual connotation; hostile work 

environment claims

Although “non-sexual” (hostile environment) harassment complaints accounted for a large 

percentage of EEOC hearing requests, few cases ended in a finding of discrimination. For example, 

only .17 percent of “non-sexual” (hostile environment) hearings resulted in findings of 

discrimination in fiscal years 2016 and 2017, and this decreased to .11 percent in fiscal year 2018. 

Comparatively, a relatively higher percent of “sexual” cases resulted in findings of discrimination 

across all three years (.42, .50, and .41 percent, respectively). But notably, in some of the prior 

years, there were zero findings of discrimination in the “sexual” cases.

While EEOC posts these data in accordance with the No FEAR Act, it does not offer justifications 

on the rulings. At the Commission’s briefing, Dexter Brooks, the Associate Director of EEOC’s 

 

581 See EEOC, Annual Federal Equal Employment Opportunity Statistical Report of Discrimination Complaints 

User’s Instruction Manual, Fiscal Year 2016 Report, at 225.
CHAPTER 3: EEOC’S ROLES IN ENFORCING PROTECTIONS 115

Office of Federal Operations, offered some explanation. He testified that when analyzing cases in 

which there was a finding of discrimination, four common general trends emerge:

1. Isolated work environments are vulnerable to bad behavior;

2. One gender-dominated workplaces have increased vulnerability;

3. Ineffective anti-harassment programs increase risk of repeated harassment and 

organizational liability; and

4. Organizations fail to take the adequate personnel actions to address the conduct that is 

underlying the harassing behavior.582

Isolating just sexual harassment complaints for the investigation’s timeframe shows that 

settlements with benefits were the most common resolution reported, which can include monetary 

(e.g., compensatory damages, attorneys’ fees) or non-monetary benefits (e.g., promotion, 

apologies, training, restoration of leave, reassignment) (see table 5).

Table 5: Resolutions of Sexual Harassment Hearings (FY 2016-2018)

2016 2017 2018 Total

Withdrawals with Benefits 4 1 2 7

Settlements with Benefits 86 83 87 256

No Discrimination Finding Issued through Summary Judgement 15 22 38 75

Discrimination Finding Issued through Summary Judgement 1 2 0 3

No Discrimination Finding Issued through Hearing 0 0 1 1

Discrimination Finding Issued through Hearing 3 8 6 17

Total Sexual Harassment Hearings Resolutions 109 116 134 359

Source: Equal Employment Opportunity Commission, EEOC Responses to U.S. Commission on Civil Rights 

Interrogatories, Sept. 6, 2019, at 27.

During this investigation’s time frame (fiscal year 2016-2018), EEOC’s Office of Federal 

Operations received 75 appeals from alleged sexual harassment complaints that were dismissed by 

federal agencies at the accept/dismiss stage.

583 Of these appeals, the Office of Federal Operations

reversed 44 agency dismissals regarding sexual harassment complaints and remanded the EEO 

 

582 Brooks Testimony, Washington Briefing, p. 12.

583 Equal Employment Opportunity Commission, EEOC Responses to U.S. Commission on Civil Rights 

Interrogatories, Sept. 6, 2019, at 25.
116 FEDERAL #METOO

complaint for further processing.584 According to the EEOC, these reversals were primarily due to 

the agency misapplying the criteria for dismissal. For instance, the Office of Federal Operations

found that “in 20 of the reversals the agencies erred in dismissing for failure to state a claim, and 

in 15 of the reversals the agencies erred in finding untimely counselor contact.”585 Of these 

reversed agency dismissals in this time frame, the Office of Federal Operations issued five 

decisions applying the Ma factors to sexual harassment cases and finding contractors could 

proceed.

586 

EEOC states that in federal sector appeals, in fiscal year 2018, awards in sexual harassment cases 

increased by more than 180 percent for total monetary relief of $443,066.587 By comparison, in 

fiscal year 2017, EEOC issued only two findings of discrimination on the issue of sexual 

harassment with a total monetary relief of $156,925 for that year.588 This amount was a decrease 

from the previous year, where EEOC issued six findings of discrimination on the issue of sexual 

harassment and due to the increased findings, the total monetary relief was $489,256 for fiscal year 

2016.589

 

584 Ibid.

585 Ibid.

586 Equal Employment Opportunity Commission, EEOC Responses to U.S. Commission on Civil Rights 

Interrogatories, Sept. 6, 2019, at 25; see infra notes 172 – 184 for the discussion on the Ma factors.

587 Equal Employment Opportunity Commission, “What You Should Know: EEOC Leads the Way in Preventing 

Workplace Harassment,” https://www.eeoc.gov/eeoc/newsroom/wysk/preventing-workplace-harassment.cfm

588 Email correspondence with Commission staff and EEOC, Sept. 27, 2019. The EEOC further explains that:

Broadly speaking, the amount of monetary relief is roughly tied to the number of findings of sexual harassment 

discrimination issued by the EEOC in findings of sexual harassment discrimination for these years. However, it is 

important to note that a number of factors play into the relief available after each finding of sexual harassment 

discrimination, including: the nature and severity of the harm; whether the conduct was ongoing; whether the agency 

took steps to correct its actions; whether the employee mitigated the harm (by getting another job, for example); and 

the extent to which the discrimination impacted the complainant’s career and life -- such as whether the employee 

suffered pain and suffering and whether the complainant is entitled to back pay, front pay, or retroactive 

promotion. The EEOC weighs all of these factors when making awards of relief.

The figures above also reveal how the total relief obtained can be affected by how complainants pursue their claims 

– those represented by an attorney may be entitled to reasonable fees, which will vary depending on the expertise of 

the attorney and complexity of the case, while those who represent themselves or choose a union steward or nonattorney representative will not be entitled to such fees. Ibid.

589 Ibid.
CHAPTER 3: EEOC’S ROLES IN ENFORCING PROTECTIONS 117

EEOC reported that it also awarded other benefits to the victims of sexual harassment, such as 

restored pay, job referrals, compensatory damages, or fringe benefits. These totals also increased 

from $10,025,380 in fiscal year 2016 to $17,009,571 in fiscal year 2018.590

Caps on Monetary Damages and Lack of Legal Counsel

Another criticism of the federal process regarding sexual harassment stems from financial caps on 

damages and the lack of punitive damages that can be awarded if harassment is found to have in 

fact occurred.591 Federal law sets limits on the amount of combined compensatory and punitive 

damages available in intentional employment discrimination lawsuits based on the size of the 

employer: for employers with 15-100 employees, the limit is $50,000; for employers with 101-

200 employees, the limit is $100,000; for employers with 201-500 employees, the limit is 

$200,000; for employers with more than 500 employees, the limit is $300,000.592 Critics of these 

caps further argue that they are problematic as they have not been adjusted since they were first 

passed in 1991, despite the fact that attorneys’ cost have substantially increased over this 30-year 

period.593 Though available to private employees, punitive damages are barred entirely for federal 

workers.594

Katz explained that for attorneys, “most of our work is done with statutory fees or on a contingency 

fee basis. [And] the reality is most individuals cannot afford legal fees.”595 In fact, the TIME’S UP 

Legal Defense Fund, which provides legal assistance and funds for sexual harassment victims, 

reported that federal sector workers make up one of the top five groups who seek assistance from 

the Fund.596 Further, Katz explains that in federal sexual harassment cases “you’re looking at the 

fact that the caps are low, there are no punitive damages, the delays are enormous, the process is 

 

590 Equal Employment Opportunity Commission, EEOC Responses to U.S. Commission on Civil Rights 

Interrogatories, Sept. 6, 2019, at 28-30.

591 42 U.S.C. 1981a (b).

592 Id. at (b)(3). Note, that “intentional discrimination” in this context means disparate treatment. It does not imply 

that there is a standard of proof to determine intentionality. Id. Note: Since the federal government is considered 

one employer, so in federal sector cases the $300,000 cap will always apply.

593 See e.g., Bureau of Labor Statistics, “Lawyers,” Occupational Outlook Handbook,” 

https://www.bls.gov/ooh/legal/lawyers.htm#tab-1; National Association for Law Placement, Inc., “What Do New 

Law Graduates Who Go into Private Sector Practice Earn? A 25-Year Retrospective,” NALP Bulletin, Oct. 2018, 

https://www.nalp.org/1018research; EEOC, Enforcement Guidance: Compensatory and Punitive Damages, July 14,

1992, https://www.eeoc.gov/policy/docs/damages.html; Civil Rights Act of 1991, S.1745, 102nd Congress (1991-

1992), https://www.congress.gov/bill/102nd-congress/senate-bill/1745. 

594 42 U.S. Code § 2000e–16b; Katz Statement at 16. 

595 Katz Testimony, Washington Briefing, p. 126-27.

596 TIME’S UP Legal Defense Fund Factsheet, March 1, 2019, https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wpcontent/uploads/2018/10/2019.03.04-Final_nwlc_TimesUpOneSheet.pdf; see also, Chandy Statement at 4. 
118 FEDERAL #METOO

Byzantine, the results are really often quite uncertain, these are cases that most plaintiff’s lawyers 

do not take. And it makes access to legal counsel very, very difficult.”597 Similarly, Chuzi testified 

to the hardships that both client and the firm have to take on in some federal sector cases. He stated 

that at his firm, he has had to “carry” federal worker’s attorneys’ fees, which he considers 

“extraordinary,” and added “who’s got the resources for a ten-year legal battle against the United 

States of America essentially?598

This issue is another significant hurdle for complainants because it may limit their options to seek 

legal counsel. Katz argued that the lack of resources and the lack of proper counsel is a grave 

concern because “[l]egal representation is central to the vindication of civil rights. And in the 

context of sexual harassment specifically, barriers to access can seriously erode protections of 

workers who already face unique personal and professional harms.”599

The lack of legal counsel not only forces complainants to navigate the complicated system and 

laws on their own, but it also deprives them of an advocate during the EEO process, whereas the 

accused federal employer may have representation as the agency is a party to the proceedings.600

The lack of a victim advocate throughout the process can take a significant toll on the complainant, 

especially since the offices that are likely to be involved in these claims (e.g., Office of the General 

Counsel, Human Resources office) will be advocating on behalf of the agency. At the 

Commission’s briefing, Congresswoman Jackie Speier testified that in federal sector cases the 

harasser has an “unfair advantage” over the harassed “because typically – certainly it was the case 

in Congress – the House counsel represented the office of the member and the victim was on their 

own.”601 Sunu Chandy testified that in federal sector cases there is an inherent “conflict of 

interest,” because the EEO process “does not seem to be set up in a way that the employee has an 

advocate... maybe if the individual has an attorney, that would be different, but to have to navigate 

[] all of these [] systems alone – that’s the issue that came up again and again when I spoke to 

attorneys who represent federal workers.”602

 

597 Katz Testimony, Washington Briefing, pp. 126-27.

598 Chuzi Testimony, Washington Briefing, p. 40

599 Katz Testimony, Washington Briefing, p. 127.

600 See e.g., 29 C.F.R. §§ 1614.109 (hearings before administrative judge; agency is party); 1614.110 (final action by 

agencies includes notifying complainant as to whether the agency will fully implement the administrative judge’s 

decision; agency has duty to notify the complainant as to right to appeal to the EEOC or to file a civil action in 

federal court); 5 U.S.C. § 7702(a)(2)(EEOC procedures involving federal agencies); see also 5 U.S.C. § 

7702(a)(2)(EEOC procedures involving federal agencies) deals with the Merit Systems Protection Board which 

sometimes has jurisdiction over personnel actions related to a discrimination claim. 

601 Speier Testimony, Washington Briefing, p. 23.

602 Chandy Testimony, Washington Briefing, p. 20.
CHAPTER 3: EEOC’S ROLES IN ENFORCING PROTECTIONS 119

Similarly, the Association of Women in Science’s Heather Metcalf also testified to these 

seemingly unequal procedures stating that: 

In talking with people across all the sectors and in the [Science, Technology, Engineering, 

and Mathematics] STEM disciplines, there’s this desire to believe that there’s justice in 

this situation, and a lot of time the decision ends up coming down to [] resources...Whether 

that’s emotional resources because this takes a toll, health resources, financial resources, 

other kinds of support that are there. So, having an advocate who is genuinely on the side 

of a person who’s experiencing this is really important. A lot of people also expect that HR 

would have that role, and then find that HR is there to protect the institution. So that’s one 

more situation that they find themselves in, where they’re disappointed and this is not really 

the way things work. Justice isn’t really a thing that exists in this process. It comes down 

to who can hire the best attorney, and then I have to decide whether I’m going to walk

away.603

EEOC’s Technical Assistance and EEO Complaint Processing Guidance 

EEOC’s role is to provide leadership and guidance to agencies regarding internal agency EEO 

programs and ensure that agencies are complying with EEOC regulations.604 EEOC also provides 

technical assistance to federal agencies regarding the agencies’ EEO programs, conducts training,

provides guidance and assistance to Administrative Judges who conduct hearings on EEO 

complaints, and adjudicates appeals from administrative decisions made by federal agencies on 

EEO complaints.605

Through its Commission Management Directives (a form of agency guidance),

606 EEOC sets the 

parameters for agency policies regarding counseling, investigations, and EEO structure.607

 

603 Metcalf Testimony, Washington Briefing pp. 73-74.

604 See Executive Order 12,067, 43 FR 19807 (1978).

605 Id.; Equal Employment Opportunity Commission, Federal Sector, https://www.eeoc.gov/federal/index.cfm.

606 Guidance fits in the hierarchy of the federal legal system as follows: At the top level are statutes, in which 

Congress provides authority to agencies; statutes are legally binding. Next, federal regulations implement statutes 

and are legally enforceable. Third, agency guidance “may explain how regulations are implemented,” but guidance 

is not legally binding. U.S. Gov’t Accountability Office, Statement of Michelle A. Sager, Director, Strategic Issues, 

Testimony Before the Subcommittee on Regulatory Affairs and Federal Management, Committee on Homeland 

Security and Governmental Affairs, U.S. Senate, Regulatory Guidance Processes: Agencies Could Benefit from 

Stronger Internal Control Processes, GAO-15-834-T, p. 6, Figure 1: Hierarchy of Statutory and Regulatory 

Authority (Sept. 23, 2015), https://www.gao.gov/assets/680/672687.pdf.

607 See EEOC, Management Directive 715; EEOC, Management Directive 110. 
120 FEDERAL #METOO

EEOC’s enforcement powers include issuing rules and regulations,608 approving national and 

regional equal employment opportunity plans, and taking some steps to ensure compliance with 

rules and regulations.609 In the private, state, and local sectors, EEOC’s authority includes

investigation and conciliation of charges brought by workers or by an EEOC Commissioner 

alleging discrimination, as well as the litigation authority to bring individual, class, and systemic 

pattern or practice cases in federal court.610 During the fiscal years studied, the EEOC has actively 

filed lawsuits challenging sexual harassment in the private sector. For example, of seven 

harassment lawsuits EEOC filed one week in August 2018, five involved allegations of sexual 

harassment.611

EEOC has oversight responsibilities with the authority to review, approve, and evaluate federal 

agencies’ equal opportunity plans and affirmative action programs, and to review and evaluate the 

operation of all federal sector EEO programs.612 At the Commission’s briefing, the EEOC’s Dexter 

Brooks testified that the agency has authority to audit or conduct a program evaluation of federal 

agencies’ EEO programs. “We have an audit function, where we go in and we do a more aggressive 

type of IG [Inspector General] look where we make recommendations and we put them on a 

compliance plan and monitor what they’re doing. We can’t force them to do it, but we can stay on 

their cases.”613 According to EEOC’s responses to the Commission’s interrogatories, the Office of 

Federal Operations typically conducts two in-depth agency-specific program evaluations every 

year on selected federal EEO programs.614 

 

608 Executive Order 12,067, 43 FR 19807 (1978); Michelle A. Sager, Director, Strategic Issues, Testimony Before 

the Subcommittee on Regulatory Affairs and Federal Management, Committee on Homeland Security and 

Governmental Affairs, U.S. Senate, Regulatory Guidance Processes: Agencies Could Benefit from Stronger Internal 

Control Processes, GAO-15-834-T, p. 6, Figure 1: Hierarchy of Statutory and Regulatory Authority (Sept. 23, 

2015), https://www.gao.gov/assets/680/672687.pdf.

609 Executive Order 12,067, 43 FR 19807 (1978); Equal Employment Opportunity Commission, EEOC Responses to 

U.S. Commission on Civil Rights Interrogatories, Sept. 6, 2019, at 1-4.

610 29 C.F.R. Part 1601, Subpart B, §§ 1601.6 – 1601.29; see also Equal Employment Opportunity Commission, 

EEOC Responses to U.S. Commission on Civil Rights Interrogatories, Sept. 6, 2019, at 2.

611 See Press Release, EEOC Files Seven More Suits Against Harassment: Agency Charges Harassment and 

Retaliation Across the Country, Aug. 9, 2018, https://www.eeoc.gov/eeoc/newsroom/release/8-9-18h.cfm. 

612 Executive Order 12,067, 43 FR 19807 (1978); Equal Employment Opportunity Commission, EEOC Responses to 

U.S. Commission on Civil Rights Interrogatories, Sept. 6, 2019, at 4.

613 Brooks Testimony, Washington Briefing, p. 36. We note that during the time of this study’s investigation and the 

writing of the report, the EEOC reviewed the Commission’s EEO program and made a number of recommendations 

to the agency. The Commission is actively implementing the recommendations by the EEOC.

614 Equal Employment Opportunity Commission, EEOC Responses to U.S. Commission on Civil Rights 

Interrogatories, Sept. 6, 2019, at 17. 
CHAPTER 3: EEOC’S ROLES IN ENFORCING PROTECTIONS 121

In addition, EEOC requires agencies to annually report information regarding activities taken in 

enforcing their equal employment opportunity programs under Title VII on EEOC Form 715.

615

This information includes a description of the specific agency’s Title VII program measured up 

against the model programs identified by EEOC, description of self-assessment activities, and 

identification of barriers to ensuring equal employment opportunities.616 EEOC requires each 

agency to evaluate internal policies, procedures, and practices to determine if the agency’s 

leadership can do more to demonstrate a commitment to equal employment opportunity. If the 

agency identifies barriers to equal opportunity (e.g., identifies prejudice or discrimination in 

personnel practices or policies), the agency must take steps to eliminate the barrier and work to 

demonstrate the agency’s commitment to equal participation in the workforce.

617 EEOC is then 

responsible for analyzing the data and identifying gaps or programmatic deficiencies and 

conducting site visits every three years on average.618

While the EEOC does not directly report when an agency’s EEO program is deficient to Congress,

the agency does issue an annual report to Congress that identifies select deficiencies within federal 

agencies, such as timeliness of processing EEO matters.619 EEOC staff also have periodic meetings 

with Congressional committees and the Government Accountability Office (GAO) to provide 

detailed information regarding deficiencies within particular federal agencies.

620

Under Executive Order 12,067, EEOC is also responsible for coordinating the federal 

government’s efforts to prevent and reduce discrimination in the workplace.621 Specifically, EEOC 

is required to review regulations and other EEO policy-related documents before they are issued 

to ensure consistency in the Federal government's effort to combat workplace discrimination.622

The agency states that while federal laws concerning workplace discrimination are enforced by 

different federal agencies, it is important that the government has laws and policies that are 

 

615 See EEOC, Management Directive 715 at Part C; Brooks Testimony, Washington Briefing, p. 11-12. 

616 EEOC, Management Directive 715 at Part C (IV).

617 EEOC, Management Directive 715 at Part A(IV). 

618 Brooks Testimony, Washington Briefing, pp. 35-36. 

619 Equal Employment Opportunity Commission, EEOC Responses to U.S. Commission on Civil Rights 

Interrogatories, Sept. 6, 2019, at 18.

620 Ibid.

621 Executive Order 12,067, 43 FR 19807 (1978), https://www.eeoc.gov/federal/eo-12067.cfm.

622 Id. at § 1-303; see also “EEOC Coordination of Federal Government Equal Employment Opportunity,” Equal 

Employment Opportunity Commission https://www.eeoc.gov/federal/coordination.cfm (accessed Aug. 21, 2019).
122 FEDERAL #METOO

consistent among all of its agencies to ensure that workers know their rights and how to protect 

themselves if discrimination does occur.623

EEOC’s Sexual Harassment Guidance

EEOC’s 1990 Policy Guidance on Current Issues of Sexual Harassment was issued four years

after the Supreme Court’s decision in Meritor v. Vinson, and states that [u]nwelcome sexual 

advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature 

constitute sexual harassment when such conduct impacts the employment of an individual.624 This 

Guidance is still in force. The agency drafted an updated guidance on unlawful harassment and 

submitted it to the Office of Management and Budget (OMB) on January 10, 2017, but OMB has 

not yet finalized it, and therefore, it has not been issued as a final agency guidance.

625 As drafted, 

the guidance would include explanations of protections based on sexual orientation and gender 

identity.626

While relying on federal case law distinguishing criteria for proving quid pro quo or hostile work 

environment harassment, the EEOC guidance also states that investigations into allegations of 

sexual harassment should not be limited and should consider all evidence and testimony.627 The 

1990 Guidance spends some time discussing the issue of whether behavior was welcome. When 

determining whether an act was welcome, EEOC looks “at the record as a whole and at the totality 

 

623 Equal Employment Opportunity Commission, EEOC Coordination of Federal Government Equal Employment 

Opportunity,” https://www.eeoc.gov/federal/coordination.cfm (last accessed Mar. 13, 2020).

624 EEOC, Policy Guidance on Current Issues of Sexual Harassment, 1990, 

https://www.eeoc.gov/policy/docs/currentissues.html (hereafter cited as EEOC, Policy Guidance Sexual 

Harassment).

625 See EEOC, Proposed Enforcement Guidance on Unlawful Harassment, Jan. 10, 2017, 

https://www.regulations.gov/document?D=EEOC-2016-0009-0001; Chris Opfer, “White House Leaves Harassment 

Guidance in Limbo,” Bloomberg Law, June 13, 2018, https://news.bloomberglaw.com/daily-labor-report/whitehouse-leaves-harassment-guidance-in-limbo. 

626 See EEOC, Proposed Enforcement Guidance on Unlawful Harassment, Jan. 10, 2017, 

https://www.regulations.gov/document?D=EEOC-2016-0009-0001.

627 EEOC, Policy Guidance Sexual Harassment, at A. To note, experts in the field talk about “gender-based 

harassment” which while not formally recognized as a “type” of sexual harassment by the EEOC, behaviors that 

would constitute this type of harassment would most often fall under the category of hostile work environment. See 

e.g., Metcalf Testimony Washington Briefing, p. 59; Louise F. Fitzgerald, Sandra Shullman, Nancy Bailey, Margaret 

Richards, Janice Swecker, Yael Gold, Mimi Ormerod, & Lauren Weitzman, “The Incidence and Dimensions of 

Sexual Harassment in Academia and the Workplace,” Journal of Vocational Behavior, vol. 32, no. 2, (1988), 152–

175, (describing gender-based harassment); Emily Leskinen, Lilia Cortina, & Dana Kabat, “Gender harassment: 

Broadening Our Understanding of Sex-Based Harassment at Work,” Law and Human Behavior, vol. 35, no. 1, 

(2011), at 32.
CHAPTER 3: EEOC’S ROLES IN ENFORCING PROTECTIONS 123

of circumstances.”628 Specific to sexual harassment, EEOC “recognizes that victims may fear 

repercussions from complaining about the harassment and that such fear may explain a delay in 

opposing the conduct.”629 Citing federal regulations, the guidance states that if the complainant 

delayed in complaining about the harassment, the investigation must determine the reason for the 

delay, and the relevance of whether the complainant reported will vary depending on the nature of 

the sexual advances.630 EEOC provides the following example:

Charging Party (CP) alleges that her supervisor subjected her to unwelcome sexual 

advances that created a hostile work environment. The investigation into her charge

discloses that her supervisor began making intermittent sexual advances to her in June, 

1987, but she did not complain to management about the harassment. After the harassment 

continued and worsened, she filed a charge with EEOC in June, 1988. There is no

evidence CP welcomed the advances. CP states that she feared that complaining about the 

harassment would cause her to lose her job. She also states that she initially believed she 

could resolve the situation herself, but as the harassment became more frequent and severe, 

she said she realized that intervention by EEOC was necessary. The investigator 

determines CP is credible and concludes that the delay in complaining does not 

undercut CP's claim.631

In evaluating evidence of harassment, in the 1990 Guidance, EEOC acknowledges harassing 

sexual conduct may appear consensual or may occur in private or be unacknowledged.

632 But it 

also states that in the Meritor v. Vinson case, although “the Court said the gravamen of a sexual 

harassment claim is that the alleged sexual advances were “unwelcome,’”633 “the Supreme Court 

made clear that voluntary submission to sexual conduct will not necessarily defeat a claim of 

sexual harassment. The correct inquiry ‘is whether [the employee] by her conduct indicated that 

the alleged sexual advances were unwelcome, not whether her actual participation in sexual 

intercourse was voluntary.’”634 EEOC advises investigators to “question the charging party and 

the alleged harasser in detail, to interview other relevant parties, to make appropriate credibility 

 

628 See 29 C.F.R. § 1604.11(b); EEOC, Policy Guidance Sexual Harassment at A. 

629 EEOC, Policy Guidance Sexual Harassment, at A.

630 Id., citing 29 C.F.R. § 1604.11(b).

631 Id.

632 EEOC, Policy Guidance Sexual Harassment, at A.

633 Id., citing Meritor v. Vinson, 477 U.S. 57, 68 (1986). 

634 Id., citing Meritor, 477 U.S. at 68 and “See also Commission Decision No. 84-1 (‘acquiescence in sexual conduct 

at the workplace may not mean that the conduct is welcome to the individual’)”).
124 FEDERAL #METOO

assessments, and to search for corroborating evidence of parties’ claims.”635 Among other relevant 

individuals, testimony may be obtained from anyone who observed the complainant’s demeanor 

immediately after the alleged harassment and those with whom the complainant discussed the 

incident.636

In determining whether the unwelcome sexual conduct creates a hostile environment, EEOC notes 

that a key question is whether the alleged conduct unreasonably interferes with the complainant’s 

work performance or creates “an intimidating, hostile, or offensive working environment.”637

EEOC utilizes the “reasonable person” standard to evaluate harassment claims, and advises that 

investigators should give consideration to the context surrounding the alleged harassment.

638 The

reasonable person standard is an objective standard that also considers the victim’s perspective 

and is not based on assumed standards of behavior. In 1990, EEOC noted in its guidance that “a 

workplace in which sexual slurs, displays of ‘girlie’ pictures, and other offensive conduct abound 

can constitute a hostile work environment even if many people deem it to be harmless or 

insignificant;”639 however, the agency maintains that in 2019, particularly given the heightened 

attention to sexual harassment over the recent years, most people would no longer consider these 

behaviors as harmless or insignificant.640

EEOC has clarified that, in contrast to a “quid pro quo” case, which may involve a single sexual 

advance tied to the granting or denial of employment benefits, a “hostile environment” case usually 

requires more than a single sexual incident. If the single incident is unusually severe, such as 

intentional touching of a complainant’s intimate body areas, the EEOC identifies less need to 

demonstrate repeated acts of harm.641 If the sexual harassment is verbal in nature, an EEOC 

investigation will seek to understand the “nature, frequency, context, and intended target of the 

remarks.”642 EEOC believes that a woman “does not assume the risk of harassment by voluntarily 

entering an abusive, anti-female environment.”643

 

635 EEOC, Policy Guidance Sexual Harassment, at B.

636 Id. 

637 29 C.F.R. § 1604.11(a)(3). 

638 EEOC, Policy Guidance Sexual Harassment, at C.

639 Id. at C(1). 

640 EEOC, Affected Agency Review Responses to the Commission on draft report, Nov. 14, 2019 [on file].

641 EEOC, Policy Guidance Sexual Harassment, at C(2). 

642 Id. at C(3). 

643 Id. 
CHAPTER 3: EEOC’S ROLES IN ENFORCING PROTECTIONS 125

The 1990 EEOC Guidance encourages employers to conduct sexual harassment prevention by 

taking steps “such as affirmatively raising the subject, expressing strong disapproval, developing 

appropriate sanctions, informing employees of their right to raise and how to raise the issue of 

harassment under [T]itle VII, and developing methods to sensitize all concerned.”644 The guidance 

also states that, among other things, the policy should be clear and communicated often with staff, 

encourage complainants to come forward, and not require complainants to first complain to an 

offending supervisor.645

EEOC Best Practices to Reduce Sexual Harassment 

As the EEO enforcer and oversight agency for the federal government, the EEOC recommends 

several “best practices” that federal agencies should follow to help prevent and address sexual 

harassment in their workplaces. Some of these practices include:

• Employees who are responsible for receiving sexual harassment complaints should take 

employee complaints seriously.

• Managers and supervisors should have easy-to-understand and realistic methods for 

dealing with harassment or harassing conduct that they observe, that is reported to them, 

or of which they have knowledge or information. Including practical suggestions on how 

to respond to different levels and different types of offensive behavior, and clear 

instructions on how to report harassing behavior up the chain of command. 

• Internal reporting systems should provide timely responses and investigations.

• The EEO system should provide a supportive environment where employees feel safe to 

express their views and do not experience retribution.

• Investigators should be well-trained, objective, and neutral, especially where investigators 

are internal employees.

• The privacy of both the accuser and the accused be protected to the greatest extent possible, 

consistent with legal obligations and conducting a thorough, effective investigation.

• Investigators document all steps taken from the point of first contact, prepare a written 

report using guidelines to weigh credibility, and communicate the determination to all 

relevant parties. 

• Employers should remain alert for any possibility of retaliation against an employee who 

reports harassment and take steps to ensure that such retaliation does not occur. 

• Agencies’ harassment policies should include a statement assuring employees that 

individuals who make complaints or provide information related to complaints, witnesses, 

 

644 Id. at E(1) (citing 29 C.F.R. § 1604.11(f)).

645 Id.
126 FEDERAL #METOO

and others who participate in the investigation of sexual harassment will be protected 

against retaliation. 

• Agencies should ensure that their internal complaint system is easy to navigate and is a 

positive experience, since employees will be reluctant to report internally if an employee 

has had a negative experience.646

Addressing and preventing sexual harassment in workplaces is the responsibility of many 

individuals and each component has to be dedicated to ending the improper and negative behavior. 

In addition to the best practices outlined above, EEOC states that it is imperative that supervisors 

and managers are held responsible for monitoring and stopping harassment by employees who are 

under their supervision.647 Accountability is another essential component that senior leadership is 

responsible for managing to ensure that employees feel supported to report harassment. EEOC 

emphasizes that if a supervisor fails to respond to a report of harassment or fails to protect an 

employee from retaliation, then that supervisor needs to be held accountable. Further, if individuals 

who are responsible for investigating harassment complaints do not engage in a thorough and fair 

investigation or commence or conclude an investigation promptly, those individuals need to be 

held accountable. Similarly, if those individuals who are responsible for issuing corrective actions 

fail to take appropriate action when offending conduct is found, they should also be held 

accountable.648

At the Commission’s briefing, panelists also offered several suggestions of best practices for the 

EEOC. For instance, Sunu Chandy, posited that sexual harassment claims should be “fast-tracked” 

or “triaged” in order to resolve these complaints faster, specifically agencies should “prioritize 

systemic or egregious matters for more prompt review.”649 As discussed previously, sexual 

harassment complaints often take a significant time to reach a resolution; thus, she testified that 

“the EEOC could tell agencies that they are allowed to triage complaints, so at least the more 

egregious ones can be addressed in a more timely fashion.”650 Chandy asserts that agencies take 

in complaints on a “first come, first serve [basis], which can seem fair, but actually these 

complaints run the gamut.”651 She maintains that this would make the federal sector process similar 

 

646 Equal Employment Opportunity Commission, EEOC Responses to U.S. Commission on Civil Rights 

Interrogatories, Sept. 6, 2019, at 11.

647 Ibid.

648 Ibid.

649 Chandy testimony, Washington Briefing, p. 40.

650 Ibid., 45.

651 Ibid.
CHAPTER 3: EEOC’S ROLES IN ENFORCING PROTECTIONS 127

to the private sector that allows for triaging and handling of the more serious claims more 

immediately.652 

Conversely, EEOC stated that it does not believe that sexual harassment complaints should be 

“fast-tracked” or “triaged” and argues that “expediting sexual harassment claims over other types 

of discrimination claims may suggest that such claims are more important than other types of 

discrimination claims, generally, and specifically, other types of harassment.”653 The agency also 

told the Commission that victims of sexual harassment in the federal sector already have access to

other expedited processes, such as internal anti-harassment programs that the EEOC requires all 

federal agencies to maintain.654

Role of EEOC in the Federal Complaint Process

EEOC encourages federal employers, when they are made aware of sexual harassment, to take 

necessary action to end the harassment, attempt to make the complainant whole, and prevent the 

harassment from recurring.

655 EEOC’s guidance reminds federal employers that the law (Title VII) 

requires the investigation of complaints or allegations of sexual harassment “promptly and 

thoroughly,”656 and that discipline against an offending supervisor or employee may range from a 

reprimand to discharge, and that the corrective action should match the harm of the conduct.657

EEOC may also be involved in their adjudication of the complaints filed by federal employees, 

through the hearings and appeals processes. 

In the federal sector, EEOC handles, assesses, and makes determinations on claims based on 

federal law, the Code of Federal Regulations, Management Directives, and other guidance 

documents.658 As discussed in Chapter 2, whether a worker is eligible to file an EEO complaint in 

 

652 Ibid., 40.

653 Equal Employment Opportunity Commission, EEOC Responses to U.S. Commission on Civil Rights 

Interrogatories, Sept. 6, 2019, at 12.

654 Ibid.

655 EEOC, Policy Guidance Sexual Harassment at E(1).

656 EEOC, Policy Guidance Sexual Harassment at E(2).

657 Ibid.; Waltman v. International Paper Co., 875 F.2d at 479 (appropriateness of remedial action will depend on 

the severity and persistence of the harassment and the effectiveness of any initial remedial steps). Dornhecker v. 

Malibu Grand Prix Corp., 828 F.2d 307, 309-10, 44 EPD ¶ 37,557 (5th Cir. 1987) (the employer's remedy may be 

“assessed proportionately to the seriousness of the offense").

658 See 29 C.F.R. Chapter XIV, Part 1614; EEOC; EEOC, Management Directive 715; EEOC, Management 

Directive 110; EEOC, Federal Sector Quality Practices for Effective Hearings, Appeals and Oversight,

https://www.eeoc.gov/federal/quality-practices.cfm#_ftnref3 (accessed July, 31 2019). 
128 FEDERAL #METOO

the federal sector depends on whether the person is an employee or contractor.659 According to 

testimony from EEOC, the control test is applied to determine if the individual is eligible to have 

a complaint adjudicated; specifically, the control test looks for evidence “where the agency 

exercised exceeding control over their working conditions.”660 An EEOC informal discussion 

letter states that interns may or may not be covered and distinguishes between unpaid or volunteer 

interns and paid interns.661 Unpaid or volunteer interns may be covered if they receive “significant 

remuneration” of some form (e.g., pension, insurance, workers’ compensation, or access to 

professional certifications).662 Paid interns would be covered employees if the agency controlled 

the means and manner of their work.663 Testimony shared at the briefing alleged that many 

contractors are not protected because agency EEO offices do not apply all the factors of the control 

test and look only to who pays the paycheck; therefore, the complainant may not be protected

unless the complainant appeals to the EEOC and seek the agency’s oversight and determination as 

to whether the complainant is covered under federal law.

664 As also discussed above, at the 

Commission’s briefing, Sunu Chandy suggested that statutory protections should be expanded to 

include federal contractors and interns, while federal EEO practice should also be expanded to 

ensure all factors of the control test are applied.665 EEOC notes, however, that charges against 

federal contractors can be filed with EEOC using its charge filing procedures for the private 

sector.666 

 

659 See supra notes Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary 

Employment Agencies and Other Staffing Firms, EEOC Notice No. 915.002 (December 3, 1997), 

https://www.eeoc.gov/policy/docs/conting.html; Ma v. Department of Health and Human Services, Appeal Nos. 

01962390, 01962390, Agency Nos. OEO-174-95, OEO-175-95, May 29, 1998, 

https://www.eeoc.gov/decisions/01962389.txt; see also, Brooks Testimony, Washington Briefing, p. 21; EEOC 

Compliance Manual, No. 915.003, Section 2: Threshold Issues, https://www.eeoc.gov/policy/docs/threshold.html.

660 Brooks Testimony, Washington Briefing, pp. 21-22. 

661 Equal Employment Opportunity Commission, “Federal EEO Laws: When Interns May Be Employees,” Dec. 8, 

2011, https://www.eeoc.gov/eeoc/foia/letters/2011/eeo_laws_when_interns_may_be_employees.html.

662 Id. (noting that even if volunteer or unpaid interns do not receive significant remuneration, they may be covered 

employees if their work is required for regular employment, or regularly leads to paid employment with that 

employer). Equal Employment Opportunity Commission, “Federal EEO Laws: When Interns May Be Employees,” 

Dec. 8, 2011, https://www.eeoc.gov/eeoc/foia/letters/2011/eeo_laws_when_interns_may_be_employees.html.

663 Id. (noting that other factors may also apply, such as whether the primary role of the paid intern was as a student);

see also EEOC, Compliance Manual, Section 2: Threshold Issues 2-III.A.1, 

http://www.eeoc.gov/policy/docs/threshold.html (last modified Aug. 6, 2009) (listing relevant factors).

664 Chandy Testimony, Washington Briefing, pp. 16-17.

665 Ibid. See also supra notes 164-66 (discussing other factors of the control test such as Ma).

666 See EEOC, Affected Agency Review Responses to Commission on draft report, Nov. 14, 2019 [on file].
CHAPTER 3: EEOC’S ROLES IN ENFORCING PROTECTIONS 129

EEOC is one of few federal agencies that address intersectional discrimination claims –

discrimination because of the combination of two or more protected bases.

667 EEOC advises

agencies to prevent the fragmentation of EEO claims to avoid related claims and materials from 

being processed separately. Agencies are advised to instead identify the overarching unlawful

employment practice or policy by separating the claim from the evidence.668 For example: 

A female employee complains to the EEO Counselor that she is being subjected to a hostile 

work environment due to the ongoing sexual harassment by her male co-workers. This is 

the complainant’s legal claim. In support of this claim, the complainant tells the EEO 

Counselor of specific incidents of a sexual advance, a sexual joke and a comment of a 

sexual nature. These individual incidents are evidence in support of the complainant's claim 

and should not be considered as separate claims in and of themselves.669

Remedies and Enforcement Tools

This section discusses tools of federal agencies and the EEOC, all of which are influenced by EEO 

policy and decisions. According to federal regulations, when discrimination against an employee 

or applicant is found, the agency should provide full relief.670 Specific to an employee, agency 

relief should include but is not limited to, one or more of the following remedies:

(1) Nondiscriminatory placement, with back pay computed in the manner prescribed by 5 

CFR 550.805, unless clear and convincing evidence contained in the record demonstrates 

that the personnel action would have been taken even absent the discrimination. Interest on 

back pay shall be included in the back-pay computation where sovereign immunity has 

 

667 See e.g., Sauer v. Belfor USA Group, Inc., 205 F. Supp. 3d 209, 215 (D. Mass. 2016) (discussing aggregation of 

discrimination claims in the First Circuit).

668 EEOC, Management Directive 110, at Chapter 5, https://www.eeoc.gov/federal/directives/md110_chapter_5.cfm. 

669 Ibid. 

670 29 C.F.R. § 1614.501 (a)(1)-(5) (“(1)Notification to all employees of the agency in the affected facility of their 

right to be free of unlawful discrimination and assurance that the particular types of discrimination found will not 

recur;(2) Commitment that corrective, curative or preventive action will be taken, or measures adopted, to ensure 

that violations of the law similar to those found will not recur; (3) An unconditional offer to each identified victim of 

discrimination of placement in the position the person would have occupied but for the discrimination suffered by 

that person, or a substantially equivalent position;(4) Payment to each identified victim of discrimination on a make 

whole basis for any loss of earnings the person may have suffered as a result of the discrimination; and 

(5) Commitment that the agency shall cease from engaging in the specific unlawful employment practice found in 

the case.”).
130 FEDERAL #METOO

been waived. The back-pay liability under title VII or the Rehabilitation Act is limited to 

two years prior to the date the discrimination complaint was filed.

(2) If clear and convincing evidence indicates that, although discrimination existed at the 

time the personnel action was taken, the personnel action would have been taken even 

absent discrimination, the agency shall nevertheless eliminate any discriminatory practice 

and ensure it does not recur.

(3) Cancellation of an unwarranted personnel action and restoration of the employee.

(4) Expunction from the agency’s records of any adverse materials relating to the 

discriminatory employment practice.

(5) Full opportunity to participate in the employee benefit denied (e.g., training, 

preferential work assignments, overtime scheduling).671

Although this language is broad, there are some limits. As discussed herein, under federal law, any 

monetary restoration of the aggrieved employee is limited to compensatory or actual damages.672

Under EEOC’s regulations, the duty to “eliminate any discriminatory practice and ensure it does 

not recur” falls on the agency and not on EEOC.673 As discussed in Chapter 2, when agencies do 

take disciplinary action, the agency is also concerned about whether MSPB will uphold the action. 

According to Dexter Brooks, EEOC cannot order discipline of a manager who failed to act to 

eradicate harassment, but EEOC can order training, and the “whole management team to try to 

provide some remedy for the employee.”674 EEOC decisions have ordered training and held 

agencies in contempt in egregious sexual harassment situations that evidence contempt or 

disrespect for the EEO process, including when a supervisor instructed the EEO manager to not 

investigate a complaint675 and when an Agency’s Office of General Counsel interfered with the 

investigation.676 EEOC sometimes also recommends that an agency consider taking disciplinary 

 

671 29 C.F.R. § 1614.501(c)(1)-(5).

672 See supra notes 218-219.

673 29 C.F.R. § 1614.501(c)(2).

674 Brooks Testimony, Washington Briefing, pp. 34-35.

675 Taryn S. v. Dep’t of Veteran Affairs, EEOC Appeal No. 0120162172 (Sept. 14, 2018) (Director of office 

instructed EEO Manager to not investigate sexual harassment allegations by a medical support assistant against a 

doctor).

676 Complainant v. Dep’t of Defense, EEOC Appeal No. 0120084008 (June 6, 2014) (The General Counsel’s Office, 

which is responsible for defending the agency, “acted with gross impropriety” by interviewing witnesses before the 

EEO investigator, appearing to represent the employee responsible for harassing Complainant, and threatening to 

cancel Complainant’s pre-approved leave in order to schedule a deposition).
CHAPTER 3: EEOC’S ROLES IN ENFORCING PROTECTIONS 131

action against a harasser.677 Brooks also stated that EEOC recommends that remedies be

proportionate to the harm because the complainant might not come forward if the discipline is too 

drastic; the complainant might just want the harassment to stop and nothing more.

678 National 

Women’s Law Center’s Legal Director Sunu Chandy agreed that the response should match the 

conduct at issue, but suggested that attention must be paid to the “transferring [of] harassers from 

agency to agency, location to location, as a common way of addressing the problem,” claiming 

that this action continues to support the harm by transferring it to a new workplace.679 Additionally, 

Sunu Chandy asserts there should be a record of conversations, warnings, and actions taken by the 

agency, and agencies should pay attention to multiple factors including race when responding to 

complaints. Chandy testified that considering these factors is important because

[w]ho is going to be more likely to be disciplined or not disciplined often has racial

implications. All of these pieces must be looked at holistically in coming up with a system

to address complaints based on the seriousness, based on [] repeated complaints? Based on

[if] there [are] multiple people who have come forward []? So all of these elements must

be considered together, we cannot have an easy answer of save people’s jobs or fire

everyone. [It] is important to be nuanced and to consider all the equities. But at the end of

the day, the workplace must know that the issues will be taken seriously and the employee

who brought the complaint must be informed about what happened.680

An agency, Administrative Judge, or the EEOC may determine that the complainant is entitled to 

attorney’s fees or costs.681 If so, the complainant’s attorney must then submit a verified statement 

of attorney’s fees and the agency or Administrative Judge will determine the amount of fees due 

to the complainant based in part on that statement.682 The decision will provide a notice of a right 

to appeal if the amount awarded is not deemed adequate by the complainant.683 However, as

previously discussed, statutory limits on attorneys’ fees in federal EEOC cases make it difficult 

for victims of sexual harassment to access counsel.684

 

677 See e.g., Blanca B. v. Dep’t of State, EEOC Appeal No. 0120151876 (July 7, 2016) (recommending the Stat 

Department consider disciplinary actions after finding discrimination and sexual harassment based on sexual jokes 

and other workplace conduct).

678 Brooks Testimony, Washington Briefing, p. 33. 

679 Chandy Testimony, Washington Briefing, p. 31.

680 Ibid.

681 29 C.F.R. § 1614.501(e)(2)(i).

682 29 C.F.R. § 1614.501(e)(2)(ii).

683 29 C.F.R. § 1614.501(e)(2)(ii)(A).

684 See supra notes 591-98.
132 FEDERAL #METOO

Compliance with EEOC orders is mandatory and the ordered relief should be provided within 120 

days of receiving the final decision.685 Complainants are able to seek enforcement of an EEOC 

order by providing the Office of Federal Operations (OFO) with evidence of the agency’s 

noncompliance with the decision. In response to a request for enforcement or on its own accord, 

OFO may issue a clarification for a prior decision, which does not change the original decision, 

but further explains the “meaning or intent” of the earlier decision.686 If OFO is not satisfied, the 

OFO Director will submit recommendations to the EEOC, or if directed by the EEOC submit the 

matter to the appropriate agency.687 EEOC is authorized to submit a notice to the head of any 

Federal agency that has not complied with the ordered relief to provide an explanation for the lack 

of compliance.688 In another limiting provision of its legal authority, EEOC may recommend 

discipline, but does not have the authority to order discipline, and must refer the matter out to the 

Office of Special Counsel for enforcement action.689 A “Memorandum of Understanding Between 

U.S. Office of Special Counsel and Equal Employment Opportunity Commission,” (MOU) is 

currently used to facilitate compliance with EEOC orders.690 Proposed revisions to the No FEAR 

Act which passed the U.S. House in February 2019 and await action in the U.S. Senate include a 

provision requiring every finding of discrimination to be automatically referred to the Special 

Counsel, expanding the reach of the current efforts under the MOU.691

If an agency continues to not comply with EEOC orders and EEOC has exhausted all 

administrative efforts to enforce agency compliance, EEOC will notify the complainant of the 

completion of administrative efforts and the right to file a civil action for enforcement.692 EEOC 

may also order compliance with a settlement agreement, if it determines that the noncompliance 

is not due to the actions of the complainant.693 EEOC mandates that each agency utilize specific 

 

685 See 29 C.F.R. § 1614.502(a); EEOC, Management Directive 110, at Chapter 9 (IX)(A). 

686 29 C.F.R. § 1614.503(c).

687 29 C.F.R. § 1614.503(d). 

688 29 C.F.R. §1614.503(e). 

689 See 29 C.F.R. §1614.503(f); Brooks Testimony, Washington Briefing, p. 34.

690 EEOC, Memorandum of Understanding Between U.S. Office of Special Counsel And Equal Employment 

Opportunity Commission, https://www.eeoc.gov/laws/mous/eeoc_osc.cfm (last accessed August, 12 2019).

691 See Brooks Testimony, Washington Briefing, p. 33; H.R. 135, Federal Employee Antidiscrimination Act of 2019, 

https://www.congress.gov/bill/116th-congress/house-bill/135/text.

692 29 C.F.R. §1614.503(g). 

693 29 C.F.R. §1614.504(c).
CHAPTER 3: EEOC’S ROLES IN ENFORCING PROTECTIONS 133

language to notify the complainant of the right to file civil action in every final action or 

decision.694

In the private and public sector, when sexual harassment claims are resolved by settlement 

agreement, some employers may require victims to sign some form of nondisclosure agreement 

(NDA).695 This type of NDA creates a binding legal obligation on the victim to refrain from 

discussing the settlement – or even the harassment that gave rise to the complaint – with anyone 

not a party to the NDA.696 According to a Harvard Business Review article, these agreements can 

have a problematic effect on workplace anti-harassment efforts because employers can write 

NDAs using broad or ambiguous language that can leave victims confused about what they can 

and cannot say and fearful of being sued.697 By silencing victims, NDAs can work to shield serial 

harassers from reputational harm and leave future potential victims without any forewarning, thus 

enabling continued abuse.698

NDAs run the risk of interfering with the federal government’s ability to investigate and prosecute 

cases of sexual harassment, by deterring victims from assisting authorities in future cases.699 The 

First Circuit acknowledged this risk in a 1996 decision when it held an NDA provision contained 

in a sexual harassment settlement agreement created a chilling effect for victims that improperly 

 

694 EEOC, Management Directive 110, at Chapter 10, Part III(A) (“within 90 days of receipt of this final action or 

final decision (as appropriate) if no appeal has been filed, or within 90 days after receipt of the EEOC’s final 

decision on appeal, or after 180 days from the date of filing an appeal with the Commission if there has been no final 

decision by the Commission.”)

695 Elizabeth Harris, “Despite #MeToo Glare, Efforts to Ban Secret Settlements Stop Short,” New York Times, June 

14, 2019, https://www.nytimes.com/2019/06/14/arts/metoo-movement-nda.html.

696 Daniel Hemel, “How Nondisclosure Agreements Protect Sexual Predators,” Vox (updated Oct. 13, 2017)., 

https://www.vox.com/the-big-idea/2017/10/9/16447118/confidentiality-agreement-weinstein-sexual-harassmentnda.

697 Orly Lobel, “NDAs Are Out of Control. Here’s What Needs to Change,” Harvard Business Review, Business 

Law (Jan. 30, 2018), https://hbr.org/2018/01/ndas-are-out-of-control-heres-what-needs-tochange?utm_campaign=hbr&utm_source=twitter&utm_medium=social.

698 Stacy Perman, “#MeToo law restricts use of nondisclosure agreements in sexual misconduct cases,” Los Angeles 

Times, Dec. 31, 2018, https://www.latimes.com/business/hollywood/la-fi-ct-nda-hollywood-20181231-story.html.

699 Equal Empl. Opportunity Comm’n v. Astra U.S.A., Inc., 94 F.3d 738 (1st Cir. 1996); see also Public comment 

submission to Commission (correspondence with State Department employees who were hesitant to assist with the 

Commission’s investigation) [on file].
134 FEDERAL #METOO

interfered with an EEOC investigation.700 That is why EEOC has a policy against the use of NDAs 

in settlements of EEOC claims.701 EEOC’s Regional Attorney’s Litigation Manual states that:

[N]o individual can be required as a condition of obtaining relief on a Commission claim 

to agree to refrain from seeking future employment with the defendant or to keep the terms 

of his or her recovery confidential. As with the waiver of separate claims, a represented 

claimant can agree to such conditions, but his or her right to relief on the Commission's 

claims cannot be conditioned on such an agreement.702

EEOC also requires public release of all settlement terms, stating that this is because “one of the 

principal purposes of enforcement actions under the antidiscrimination statutes is to deter 

violations by the party being sued and other entities subject to the laws. Other entities cannot be 

deterred by the relief obtained in particular case unless they learn what the relief was.”703 While 

the EEOC and the First Circuit have limited the use of NDAs because of their chilling effect in 

settlement agreements, there is nothing that prevents private sector employers or federal agencies 

from continuing to utilize them. In fact, the Commission received public comment correspondence 

from State Department employees expressing hesitation about participating in the Commission’s

investigation because they were bound by NDA agreements.704

As of 2019, twelve states have passed legislation restricting or outright prohibiting the use of 

NDAs in instances of sexual harassment and assault.705 Though no similar measures have been 

taken at the federal level, Senators Kamala Harris (D-CA) and Lisa Murkowski (R-AK), and 

Representative Lois Frankel (D-FL) and several Republican House Members have introduced 

bipartisan legislation that would prohibit the use of NDAs in sexual harassment cases.706

 

700 Id.

701 See EEOC, About EEOC, Litigation, Regional Attorney’s Manual, A. Settlement Standards and Procedures, § 

8(d) and (e), https://www.eeoc.gov/eeoc/litigation/manual/3-4-a_settlement_standards.cfm#section2e (accessed 

Nov. 25, 2019).

702 Id. at § 8 (d) (emphasis added).

703 Id. at § 8(e).

704 Equal Empl. Opportunity Comm’n v. Astra U.S.A., Inc., 94 F.3d 738 (1st Cir. 1996); see also Public comment

submission to Commission (correspondence with State Department employees who were hesitant to assist with

the Commission’sinvestigation) [on file].

705 Elizabeth Harris, “Despite #MeToo Glare, Efforts to Ban Secret Settlements Stop Short,” New York Times, June 

14, 2019, https://www.nytimes.com/2019/06/14/arts/metoo-movement-nda.html.

706 S.575, EMPOWER Act, 116th Cong. (2019-2020), § 4, Prohibiting Nondisparagement and Nondisclosure Clauses 

that Cover Workplace Harassment, Including Sexual Harassment, https://www.congress.gov/bill/116thcongress/senate-bill/575/text; H.R. 1521, EMPOWER Act (companion bill), Co-sponsors, 
CHAPTER 3: EEOC’S ROLES IN ENFORCING PROTECTIONS 135

Training and Other Tools

According to testimony, since the creation of EEOC, employer education about ways to eliminate 

harassment in the workplace has been an integral part of its charge. As a part of this mission EEOC 

offers no-cost outreach programs to federal agencies (as well as private companies) that provides 

general information about the agency, the laws it enforces, and the charge or complaint process.707

The agency also provides more in-depth training for a fee for federal government employees 

through the EEOC Training Institute.708 See table 6 below for an example of EEOC’s 2019 

available training courses. The EEOC states that its training is tailored for supervisors, EEO

counselors and investigators, and agency representatives and attorneys.709 These training courses 

are meant to give EEO practitioners the knowledge and skills to understand EEO laws, how to 

meet federal training requirements for counselors, investigators, special emphasis program 

managers, and attorneys.710 Lastly, EEOC has also developed other courses that were implemented 

for federal managers and anti-harassment program coordinators, in addition to EEO practitioners 

who are responsible for analyzing EEO barriers and drafting final agency decisions and letters of 

acceptance and dismissal.711

Table 6: EEOC Training Institute Courses (2019)

EEOC Training for New Counselors Washington, D.C. 4.5 days $1,100 per participant

EEOC Training for New Investigators Washington, D.C. 4.5 days $1,100 per participant

Drafting Acceptance and Dismissal 

Decisions Washington, D.C. 2 days $625 per participant

Drafting Final Agency Decisions Washington, D.C. 3 days $925 per participant

Source: EEOC Training Institute, 

https://eeotraining.eeoc.gov/profile/web/index.cfm?PKwebID=0x2585d350&varPage=activity

While EEOC training courses are a positive tool to help address harassment, unfortunately they 

also may be cost prohibitive for smaller federal agencies due not only to registration costs but also 

travel expenses if the agency is not located in the city where the training is being held. See table 7

 

https://www.congress.gov/bill/116th-congress/house-bill/1521/cosponsors (including Representatives Kayto (RNY), Fitzpatrick (R-PA), Stefanik (R-NY), Gonzalez-Colon (R-PR), and 64 Democrats) (accessed Nov. 25, 2019).

707 “No-Cost Outreach Programs,” EEOC, https://www.eeoc.gov/eeoc/outreach/nocost.cfm (accessed Oct. 30, 2019).

708 Equal Employment Opportunity Commission, EEOC Training Institute, 

https://eeotraining.eeoc.gov/profile/web/index.cfm?PKWebId=0x2547b105.

709 Ibid.; see also EEOC Training Institute, “Federal Programs,” 

https://eeotraining.eeoc.gov/profile/web/index.cfm?PKwebID=0x2547d970&varPage=agenda.

710 “No-Cost Outreach Programs,” EEOC, https://www.eeoc.gov/eeoc/outreach/nocost.cfm (accessed Oct. 30, 2019).

711 EEOC Training Institute, “Federal Programs,” 

https://eeotraining.eeoc.gov/profile/web/index.cfm?PKwebID=0x2547d970&varPage=agenda.
136 FEDERAL #METOO

below for an example of EEOC’s fee-based training and no cost outreach over this investigation’s

timeframe. For each of the years studied, agencies have taken advantage of both programs and 

participation has increased; however, the data provided by EEOC shows that it hosted one fewer

free event in 2018 compared to 2017, but 4 more fee-based trainings. 

Table 7: EEOC Training and Outreach

2016 2017 2018

Fee-based 

Training

Events 128 137 141

Number of Participants 3840 4110 5330

Cost to agencies $789,000 $948,250 $969,700

No-Cost 

Outreach

Events 18 28 27

Number of Participants 2040 3110 3360

Source: Equal Employment Opportunity Commission, EEOC Responses to U.S. Commission on 

Civil Rights Interrogatories, Sept. 6, 2019, Document Request 4.

EEOC’s employer education efforts have included relevant parts of the launch of the Select Task 

Force on the Study of Harassment in the Workplace in 2015, culminating in the release of a report 

in 2016.712 Further, in response to increased cultural awareness surrounding sexual harassment, 

EEOC has developed a “What to do if you believe you have been harassed at work” webpage to 

explain the various options that may be utilized by an individual who believes he or she may have 

experienced harassment.

713 EEOC states these efforts are intended to increase its role as an 

“enforcer, educator, and leader,” and that they continue to remain a top priority.714

The Co-Chairs of the Select Task Force on the Study of Harassment in the Workplace released a 

report of its findings and recommendations in June 2016.715 The report focused on prevention of 

workplace harassment, identifying both the current efforts and areas for growth. The report 

 

712 Equal Employment Opportunity Commission, What You Should Know: EEOC Leads the Way in Preventing 

Workplace Harassment, https://www.eeoc.gov/eeoc/newsroom/wysk/preventing-workplace-harassment.cfm

(hereafter cited as EEOC, Preventing Workplace Harassment).

713 EEOC, Preventing Workplace Harassment; Equal Employment Opportunity Commission, What You Should 

Know: What to Do if You Believe You have Been Harassed at Work, 

https://www.eeoc.gov/eeoc/newsroom/wysk/harassed_at_work.cfm. 

714 EEOC, Preventing Workplace Harassment; Equal Employment Opportunity Commission, What You Should 

Know: What to Do if You Believe You have Been Harassed at Work, 

https://www.eeoc.gov/eeoc/newsroom/wysk/harassed_at_work.cfm.

715 U.S. Equal Employment Opportunity Commission, Select Task Force on the Study of Harassment in the 

Workplace, Report of Co-Chairs Chai R. Feldblum & Victoria Lipnic, Executive Summary and Recommendations, 

June 2016, 2, https://www.eeoc.gov/eeoc/task_force/harassment/upload/report_summary.pdf (hereafter cited as 

EEOC, Select Task Force on the Study of Harassment in the Workplace).
CHAPTER 3: EEOC’S ROLES IN ENFORCING PROTECTIONS 137

identified five fundamental principles that have been effective in preventing and addressing 

harassment:

• Committed and engaged leadership;

• Consistent and demonstrated accountability;

• Strong and comprehensive harassment policies;

• Trusted and accessible complaint procedures; and

• Regular, interactive training tailored to the audience and the organization.716

EEOC believes that these principles may enhance employers’ compliance efforts.717

Among all the tools, the EEOC Task Force emphasized the important role of employer leadership 

as follows:

The importance of leadership cannot be overstated-effective harassment prevention efforts,

and workplace culture in which harassment is not tolerated, must start with and involve the

highest level of management of the company. But a commitment (even from the top) to a

diverse, inclusive, and respectful workplace is not enough. Rather, at all levels, across all

positions, an organization must have systems in place that hold employees accountable for

this expectation.718 

In an effort to continue the conversation, EEOC reconvened the Select Task Force on the Study of 

Harassment in the Workplace in 2018 for a public meeting focused on finding ways to prevent 

 

716 EEOC, “Promising Practices for Preventing Harassment,” (citing Chai Feldblum and Victoria Lipnic, EEOC, 

Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs Chai Feldblum & Victoria 

Lipnic, (2016)), https://www.eeoc.gov/eeoc/publications/promising-practices.cfm.

717 The EEOC notes that while it cannot require employers to follow these practices, that “refraining from taking 

certain actions recommended here as promising practices may increase an employer's liability risk in certain 

circumstances. For example, failing to develop and implement an adequate anti-harassment policy and complaint 

procedure may preclude an employer from establishing an affirmative defense to a supervisory harassment 

complaint, or a defense to a coworker harassment complaint.” See EEOC, Promising Practices for Preventing 

Harassment, (accessed Aug. 21, 2019), https://www.eeoc.gov/eeoc/publications/promising-practices.cfm#.

718 EEOC, “Promising Practices for Preventing Harassment,” (citing Chai Feldblum and Victoria Lipnic, EEOC, 

Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs Chai Feldblum & Victoria 

Lipnic, (2016), at 7). 
138 FEDERAL #METOO

harassment in the workplace, discussing various reporting options and the role technology can play 

in increasing access to resources.719

In 2018, EEOC also released a “Promising Practices for Preventing Harassment” fact sheet. This 

fact sheet recommended that employers adopt several proactive measures to prevent sexual 

harassment in workplaces, including, among other things, establishing “strong and comprehensive 

harassment policies” that are clearly and regularly communicated to all employees. The agency 

states that a robust sexual harassment policy that is supported and encouraged by leadership is an 

essential element of an effective harassment prevention strategy.720 Some of these 

recommendations include:

• Having a harassment complaint system that is fully resourced, is accessible to all 

employees, has multiple avenues for making a complaint, if possible, and is regularly 

communicated to all employees;

• Regularly and effectively train all employees about the harassment policy and complaint 

system;

• Regularly and effectively train supervisors and managers about how to prevent, recognize, 

and respond to objectionable conduct that, if left unchecked, may rise to the level of 

prohibited harassment; 

• Acknowledge employees, supervisors, and managers, as appropriate, for creating and 

maintaining a culture in which harassment is not tolerated and promptly reporting, 

investigating, and resolving harassment complaints;

• Impose discipline that is prompt, consistent, and proportionate to the severity of the 

harassment and/or related conduct, such as retaliation, when it determines that such 

conduct has occurred.

• Periodically evaluating the effectiveness of the organization's strategies to prevent and 

address harassment, including reviewing and discussing preventative measures, complaint 

data, and corrective action with appropriate personnel;

 

719 EEOC, “A Reconvening of the Select Task Force on the Study of Harassment in the Workplace,” June 11, 2018, 

https://www.eeoc.gov/eeoc/task_force/harassment/6-11-18.cfm. 

720 See Equal Employment Opportunity Commission, “Promising Practices for Preventing Harassment,” 

https://www.eeoc.gov/eeoc/publications/promising-practices.cfm.
CHAPTER 3: EEOC’S ROLES IN ENFORCING PROTECTIONS 139

• Directing staff to periodically, and in different ways, test the complaint system to determine 

if complaints are received and addressed promptly and appropriately; and

• Ensuring that any necessary changes to the harassment policy, complaint system, training, 

or related policies, practices, and procedures are implemented and communicated to 

employees.721

In October 2017, EEOC Training Institute released two new trainings focused on eliminating 

harassment in the workplace. The first “Leading for Respect” focused on supervisors’ roles in 

preventing harassment; the second, “Respect in the Workplace” was created for all employees.722

Both trainings discuss the value of bystanders being willing to report discrimination, and 

emphasize the importance of not “[] dwelling on legal standards and what NOT to do,” but to focus 

on “the words and actions that promote respect and fairness, and participants’ responsibility for 

contributing to respect in the workplace.”723 While there are no prominent studies evaluating 

bystander training efficacy in the federal sector, the utilization of the bystander methodology by 

EEOC is supported by numerous studies and best practice within the violence prevention 

industry.724

Further, EEOC wrote in response to the Commission’s interrogatory requests that while the agency 

supports bystander training, it offers the caveat that “it should be voluntary and may not be very 

useful in workplaces with pre-existing severe harassment problems.”725 At the Commission’s 

 

721 Ibid.

722 Equal Employment Opportunity Commission Training Institute, Harassment Prevention and Respectful 

Workplaces Training, 2017, 

https://eeotraining.eeoc.gov/profile/web/index.cfm?PKwebID=0x25479b9f&varPage=attendee (hereafter cited as 

EEOC, Respectful Workplaces Training). 

723 Equal Employment Opportunity Commission Training Institute, Resect in the Workplace: Creating A Respectful 

Environment For All Employees, 2017, 

https://eeotraining.eeoc.gov/accounts/register123/eeoc/events/website/Outline_All_Employees_Respect_in_the_Wo

rkplace.pdf. 

724 Ann Coker, Heather Bush, Patricia Cook-Craig, Sarah DeGue, Emily Clear, Candace Brancato, Bonnie Fisher, 

Eileen Recktenwald, “RCT Testing Bystander Effectiveness to Reduce Violence,” American Journal of Preventive 

Medicine, vol. 52, no. 5 (May 2017), p. 566-578 (“Implementation of Green Dot in Kentucky high schools 

significantly decreased not only sexual violence perpetration but also other forms of interpersonal violence 

perpetration and victimization”); Claire Cain Miller, “Sexual Harassment Training Doesn’t Work. But Some Things 

Do.,” New York Times, Dec. 11, 2017, https://www.nytimes.com/2017/12/11/upshot/sexual-harassment-workplaceprevention-effective.html; Mark Diamond, “SDDC employees encouraged to become active bystanders,” U.S. 

Army, Nov. 21, 2013, 

https://www.army.mil/article/115485/sddc_employees_encouraged_to_become_active_bystanders. 

725 Equal Employment Opportunity Commission, EEOC Responses to U.S. Commission on Civil Rights 

Interrogatories, Sept. 6, 2019, at 8.
140 FEDERAL #METOO

briefing, Debra Katz testified that she believed that bystander training is a critical part of 

addressing sexual harassment. She stated that:

Often, people are uncomfortable with the discrimination and sexual harassment they see in 

the workplace and they don’t have the words to interrupt it. And people, not just the victim 

of harassment, but coworkers, feel very disempowered because they don’t know how to 

step forward and they fear retaliation. And I think bystander training is a very vital part of 

this whole thing.726 

Current trends in violence prevention focus on continuing technical trainings, but emphasize that 

in order to prevent harassment, a cultural shift to one of respect and equality must occur within the 

organization.727 The shift in the training techniques was reinforced by another hearing panelist. 

Sunu Chandy testified:

And the last thing I will just say in terms of making the system better is bystander training

which goesto the larger point of changing the culture. [I]f you’re going to bring a complaint

to HR in the private or public sector, most people do not feel like this is someone who will

be on my side, but rather feels like this is someone here to defend the employer. [C]reating

a massive culture change where these complaints are welcomed, and everyone is on the

same team of having a safe and effective workplace, [] still needs to be done.728

EEOC has also developed internal training protocols on how to properly investigate harassment 

charges and interview sexual harassment complainants. Further, the EEOC’s external training 

programs address concerns such as implicit bias and cultural considerations “with some reference 

to stereotypes as a general matter, social messaging, and how that relates to implicit bias.” 729 For 

instance, EEOC’s Respectful Workplace and Leading for Respect trainings specifically mention 

that there are pervasive stereotypes and pejorative societal notions about gender that have many 

associated implicit biases, which may contribute to harassment.730

EEOC reported to the Commission that in fiscal year 2018, it conducted 35 training sessions on 

“Leading for Respect” and “Respectful Workplaces” for 1,400 federal supervisors and non-

 

726 Katz Testimony, Washington Briefing, p. 136.

727 Claire Cain Miller, “Sexual Harassment Training Doesn’t Work. But Some Things Do.,” New York Times, Dec. 

11, 2017, https://www.nytimes.com/2017/12/11/upshot/sexual-harassment-workplace-prevention-effective.html.

728 Chandy Testimony, Washington Briefing, pp. 40-41.

729 Equal Employment Opportunity Commission, EEOC Responses to U.S. Commission on Civil Rights 

Interrogatories, Sept. 6, 2019, at 23.

730 Ibid.
CHAPTER 3: EEOC’S ROLES IN ENFORCING PROTECTIONS 141

supervisory employees.

731 EEOC states that the Respectful Workplaces training “teaches skills 

that promote and contribute to respect in the workplace, including how to step in when problematic 

behavior happens to others.”732

In June 2018, EEOC reconvened the Select Task Force for a public meeting in order to examine 

legal issues, barriers to reporting, and innovative strategies on how to better protect all workers 

from harassment.733 Several of the witnesses discussed concerns with harassment training 

practices. Elizabeth C. Tippett, Associate Professor, University of Oregon School of Law testified 

that these practices may not be as effective as commonly assumed: 

In my own research, I reviewed training materials for several dozen harassment training 

programs in a number of formats. The trainings tended to conform to a genre, consisting 

of an authority figure presenting large quantities of legal information interspersed with 

examples of prohibited conduct. They tended to overemphasize sexual harassment and 

sexual misconduct, at the expense of gender-based harassment, and harassment on the basis 

of other protected categories. They did so to an extent that was out of step with EEOC 

statistics about the frequency with which claims are filed. The trainings also tended to 

overlook the relationship between harassment and discrimination, and thus failed to remind 

participants that inclusion of underrepresented groups is equally as important as the 

prohibition on harassment when those groups are included.

734

Therefore, Tippett advocated for the creation of training and prevention measures that “encourage 

the kind of innovation, diversity approaches, and rigorous measurement that is currently lacking 

in the market today.”735

Similarly, Debra Katz asserted that “specific, clear, and accessible” mandatory training programs 

targeting every level of employee are necessary to prevent harassment in the work place. Katz

 

731 Equal Employment Opportunity Commission, EEOC Responses to U.S. Commission on Civil Rights 

Interrogatories, Sept. 6, 2019, at 9.

732 Equal Employment Opportunity Commission, “What You Should Know: EEOC Leads the Way in Preventing 

Workplace Harassment,” (accessed, Aug. 21, 2019), https://www.eeoc.gov/eeoc/newsroom/wysk/preventingworkplace-harassment.cfm.

733 Equal Employment Opportunity Commission, “A Reconvening of the Select Task Force on the Study of 

Harassment in the Workplace (June 11, 2018), https://www.eeoc.gov/eeoc/task_force/harassment/6-11-18.cfm.

734 United States Equal Employment Opportunity Commission, Task Forces, Testimony of Elizabeth C. Tippett, 

University of Oregon School of Law (June 11, 2018), https://www.eeoc.gov/eeoc/task_force/harassment/tippett.cfm

(internal citations omitted).

735 Ibid. 
142 FEDERAL #METOO

cited the fact that many victims testified that they endured prolonged harassment often because 

they did not know their rights or to whom to report such abuse.736

In 2018, witnesses at EEOC’s “Reconvening of the Select Task Force” also discussed proposed 

state legislation on preventing and redressing sexual harassment of state government employees, 

many of which included a strong training component. For instance, Program Director in the 

Employment, Labor & Retirement program at the National Conference of State Legislatures 

(NCSL) Suzanne Hultin testified that NCSL found in 2018 that at least 20 states introduced new 

legislation to combat sexual harassment in the workplace.737 Hultin reported that:

Over 125 pieces of legislation have been introduced this year in 32 states. The response 

has varied from state to state. Some legislatures have conducted reviews of their internal 

sexual harassment policies and updated them in response to the renewed interest in the 

subject. Other states have made more sweeping changes. Notably, Illinois requires all state 

offices to have a written sexual harassment policy, to conduct mandatory sexual harassment 

training and require all lobbyists to attend training and to have a written sexual harassment 

policy in place at the time of registration. 

Indiana passed legislation that mandates sexual harassment training for legislators and Virginia 

passed legislation mandating training for legislators and legislative employees and Maryland’s 

new policy extends that training to all state employees and all registered lobbyists. In addition to 

passing direct legislation, numerous chambers created committees to examine their internal 

policies and procedures. California, Connecticut, Louisiana, Maryland, Minnesota and 

Washington, just to name a few, created committees and commissions to review their practices 

and update them when necessary. Finally, two legislators have been expelled by their chamber due 

to sexual harassment allegations and 15 more have resigned.738

While initiatives to train workers are positive, some researchers remain skeptical of whether 

training actually works to prevent and adequately address sexual harassment. At the Commission’s 

 

736 United States Equal Employment Opportunity Commission, Task Forces, Testimony of Debra S. Katz, Partner at 

Katz, Marshall & Banks LLP and Hannah Alejandro, Senior Counsel at Katz, Marshall & Banks LLP (June 11, 

2018), https://www.eeoc.gov/eeoc/task_force/harassment/katz.cfm.

737 United States Equal Employment Opportunity Commission, Task Forces, Testimony of Suzanne Hultin, National 

Conference of State Legislatures, (June 11, 2018), https://www.eeoc.gov/eeoc/task_force/harassment/hultin.cfm.

738 United States Equal Employment Opportunity Commission, Task Forces, Testimony of Suzanne Hultin, National 

Conference of State Legislatures, June 11, 2018, https://www.eeoc.gov/eeoc/task_force/harassment/hultin.cfm.

According to updated National Conference of State Legislatures numbers, in 2019, 29 states have introduced over 

100 pieces of legislation. See National Conference of State Legislatures, “Legislation on Sexual Harassment in the 

Legislature,” Feb. 11, 2019, http://www.ncsl.org/research/about-state-legislatures/2018-legislative-sexualharassment-legislation.aspx.
CHAPTER 3: EEOC’S ROLES IN ENFORCING PROTECTIONS 143

briefing, Louise Fitzgerald testified that training can be unproductive because most trainings are 

conducted in a broad and general manner.739 She asserts that you cannot have workers “50 at a 

time and have them sit in a room and look at a slideshow and have a discussion by lawyers. It 

doesn’t work. And sometimes it’s counterproductive. It needs to be done in small groups; it needs 

to be interactive.”740 Similarly, Director of the Center for Employment Equity and professor of 

Sociology at University of Massachusetts, Donald Tomaskovic-Devey also testified that he is 

skeptical of training. He stated that much of the research on anti-bias training show that it does not 

work and that is in part 

because it’s trying to change, kind of deep-seated cultural stuff. It’s a hard thing to change, 

especially in a couple of hours. Any of you have sat through it, painfully, probably know 

what I’m saying. Legal training is even worse. Legal training tends to produce 

backlash...Now that doesn’t mean there is no training that could work. [][T]he kinds of 

things that [can work, such as] accountability, transparency, and [] formalization... these 

are things that decision makers and managers and workers can be trained about. But if you 

try to just eradicate the bias or threaten them with legal consequences, training is unlikely 

to work.741

Similarly, Frank Dobbin, professor of sociology at Harvard University and Alexandra Kalev, 

associate professor of sociology at Tel Aviv University posit that while training can be a 

mechanism to begin addressing workplace harassment, the actual solution is relatively clear: “hire 

and promote more women.”742 As discussed previously, “harassment flourishes in workplaces 

where men dominate in management and women have little power.”743 In terms of training, Dobbin 

and Kalev argue that at the organizational level, research shows that anti-harassment training for 

managers is correlated to an increase of women in both management and non-managerial roles.744

Training can help teach managers how to identify harassment, and what actions are necessary to 

take when they see it, which will help reduce those behaviors and retain employees. At the 

individual level, however, findings are more mixed. The researchers find that while some workers 

who undergo anti-harassment training are more able to define, recognize, and intervene if they see 

harassment, these results do not hold for all employees. They find that in some cases training can 

 

739 Fitzgerald Testimony, Washington Briefing, p. 113.

740 Ibid.

741 Tomaskovic-Devey Testimony, Washington Briefing, p. 113-14.

742 Frank Dobbin and Alexandra Kalev, “Training Programs and Reporting Systems Won’t End Sexual Harassment. 

Promoting More Women Will,” Harvard Business Review, Nov. 15, 2017, https://hbr.org/2017/11/trainingprograms-and-reporting-systems-wont-end-sexual-harassment-promoting-more-women-will.

743 Ibid.

744 Ibid.
144 FEDERAL #METOO

exacerbate the problem and result in significantly worse attitudes about harassment (e.g., believing 

that it is not a big deal). The researchers suggest that since institutional change to promote more 

women into management and “core” jobs takes considerable time and effort, employers in the 

meantime can fix their complaints and grievance process to ensure that those employees who do 

report are not punished.745

At the Commission’s briefing, both Louise Fitzgerald and Tamara Chrisler maintained that some 

forms of training such as “civility training” and developing respectful workplaces can be 

productive because these forms focus on changing the overall culture of an organization.746

Therefore, many of the experts who testified at the Commission briefing agree that the focus should 

not necessarily be on how often employees are being trained, but rather on the content of the 

training. Lastly, Chrisler maintains that “putting some thought into what type of training for the 

particular agency is important. But having that training, sending that message and holding 

employees and managers accountable, is essential to eradicating harassment in the workplace.”747

 

745 Ibid.

746 Fitzgerald Testimony, Washington Briefing, p. 114; Chrisler Testimony, Washington Briefing, p. 114. 

747 Chrisler Testimony, Washington Briefing, pp.114-15.
CHAPTER 3: EEOC’S ROLES IN ENFORCING PROTECTIONS 145

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146 FEDERAL #METOO

CHAPTER 4: INVESTIGATION OF TWO FEDERAL 

AGENCIES

The Commission investigated two federal agencies to determine what practices and policies each 

have in place to address and prevent workplace sexual harassment. Through independent research 

and examination of EEOC’s data, preliminary fact-finding regarding the processing of sexual 

harassment complaints, and trends in academic research, the Commission selected the U.S. 

Department of State (State) and the National Aeronautics and Space Administration (NASA) for 

investigation. 

The Commission chose these agencies for a focused investigation based upon multiple criteria, 

such as each agency’s number of sexual harassment complaints, demographics of their workforce, 

and the different structures of the agencies (i.e., highly structured and regimented versus teamoriented and collegial). According to EEOC data in 2016, among the ten large federal agencies 

(10,000-74,999 employees),748 the State Department ranks fifth in the number of sexual 

harassment complaints and NASA ranks tenth in the total number of sexual harassment complaints 

for that fiscal year (see table 8 below).

749

Table 8: Number of Sexual Harassment Complaints in Large Federal Agencies in FY 2016

Large Federal Agencies

Sexual Harassment 

Complaints

Social Security Administration 518

Department of Interior 348

Department of Transportation 294

Department of Commerce 256

Department of State 180

Department of Labor 139

General Services Administration 95

Department of Energy 94

Environmental Protection Agency 86

National Aeronautics and Space Administration 52

Source: EEOC Data Charts, Total Sexual Harassment Complaints, Fiscal Year 2016

 

748 Based among the criteria set by the Office of Personnel Management (OPM), the 10 large federal agencies are: 

Department of State, Interior, Social Security Administration, Transportation, Commerce, National Aeronautics and 

Space Administration, Labor, Environmental Protection Agency, Energy, and the General Services Administration, 

https://www.opm.gov/fevs/. 

749 EEOC Data Charts, Total Sexual Harassment Complaints, Fiscal Year 2016.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 147

Conversely, when examining the total number of sexual harassment complaints as the percentage 

total of complaints for that fiscal year, NASA ranks eighth and State ranks ninth among large 

federal agencies (1.92 percent, 1.67 percent, respectively).750 As discussed previously, reported 

incidents do not necessarily encompass the total number of incidents that are occurring in a 

workplace.751 Moreover, agencies with higher reported incidents could actually indicate a positive 

environment, where workers feel safe to report if incidents do occur, which will be discussed 

further below.752

While neither of these agencies ranked the highest in sexual harassment complaints among large 

federal agencies, these agencies both have characteristics recent EEOC data and longstanding 

research identify as increased risk factors for perpetration of workplace sexual harassment, 

including workforces with gender disparities that consist of multiple “types” of workers, such as 

full-time employees, contractors, grant recipients, and interns, and isolated or decentralized 

workplaces. The goal of this agency assessment is to evaluate their contemporary policies and 

practices and to determine what is effective at addressing the issues as well as where more attention 

and reforms may be needed to prevent, detect and correct sexual harassment in federal workplaces. 

Like many federal agencies and institutions, both NASA and State have a history of discrimination 

because of sex. For example, at NASA, after women were excluded based on gender stereotypes, 

Sallie Ride became the first U.S. woman to serve as an astronaut in 1983, and Eileen Collins was 

the first woman to pilot the Space Shuttle in 1995.753 Similarly, at the State Department, EEO 

litigation by Alicia Palmer in 1968 challenged structural barriers to women at the agency—for 

example, married women could not be posted overseas and therefore could not become 

Ambassadors—and after her victory in 1971 she brought a class-action lawsuit on behalf of all 

women at the U.S. Foreign Service in 1976, which was not settled until 2010.754

The chapter begins with an analysis of the information the Commission received from NASA 

regarding its strategies and policies to address sexual harassment among its workforce. The chapter 

then moves to an analysis of the agency-level data and policies at the State Department. The 

evaluation of both of these agencies comes from information provided at the Commission’s 

briefing and public comments, data provided by the agencies in response to the Commission’s 

 

750 Ibid.

751 See e.g., supra notes 59; 213-222; 245; 250; 350.

752 See infra note 765 (regarding NASA) and infra notes 1092-1095 (State),

753 See e.g., NASA, Women in Space, General Facts, https://history.nasa.gov/women.html (last accessed Mar. 13, 

2020); Claire Boothe Luce, “The U.S. Team is Still Warming Up the Bench,” Life Magazine, June 28, 1963, at pp. 

32-33, https://books.google.com/books?id=00sEAAAAMBAJ&pg=PA32#v=onepage&q&f=false (discussing 

women who had passed all tests to become astronauts but were excluded).

754 See e.g., Andrea Strano, “Foreign Service Women Today: The Palmer Case and Beyond,” The Foreign Service 

Journal, American Foreign Service Association, March 2016, http://www.afsa.org/foreign-service-women-todaypalmer-case-and-beyond. 
148 FEDERAL #METOO

interrogatories and document requests, and publicly available data. Both agencies testified at the 

briefing, and provided responses to the Commission’s interrogatories and document requests.

National Aeronautics and Space Administration (NASA)

As discussed in Chapter 1, all job sectors and occupations struggle to prevent and address sexual 

harassment among their workforces and the science fields are no exception. In light of the attention 

that the #MeToo movement brought onto the entertainment industry, other job sectors have also 

begun their own hashtags using the #MeToo to call attention to sexual harassment and assault in a 

variety of professions. According to the #MeToo STEM movement, women in the STEM fields 

have the highest rate of sexual harassment outside of the military.755 Regarding NASA specifically, 

according to the Merit Systems Protection Board’s 2016 survey, 9.5 percent of NASA’s workforce 

reported experiencing sexual harassment.756 Of these, about 13 percent of women reported 

experiencing sexual harassment compared to about 6 percent of men.

Concern about women in the STEM fields has led Congress to propose legislation to try and 

address and prevent sexual harassment. For example, in January 2019, Representative Eddie 

Bernice Johnson, Chairwoman of the House Committee on Science, Space, and Technology 

proposed implementing further steps to combat sexual harassment in the STEMs and for grantgiving federal agencies. The Combatting Sexual Harassment in Science Act would (if enacted) 

force federal, research grant-giving agencies to formulate better policies for removing grant 

funding from researchers who are guilty of sexual harassment. Specifically, the bill would direct 

the National Science Foundation to award grants to institutions of higher education or nonprofit 

organizations to: 

• expand research into sexual harassment in the STEM workforce, including students and 

trainees; and

• examine interventions for reducing the incidence and negative consequences of such 

harassment.757

 

755 #MeToo Stem, https://metoostem.com/.

756 U.S. Merit Systems Protection Board, “Update on Sexual Harassment in the Federal Workplace,” March 2018, at 

5; see also Eric Katz, “The Federal Agencies With the Most (and Least) Sexual Harassment,” Government 

Executive, June 4, 2018, https://www.govexec.com/management/2018/06/federal-agencies-most-and-least-sexualharassment/148673/.

757 Combating Sexual Harassment in Science Act of 2019, 116th Congress (2019-2020), 

https://www.congress.gov/bill/116th-congress/house-bill/36/text.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 149

At the Commission’s briefing, Stephen Shih, Associate Administrator of Diversity and Equal 

Opportunity at NASA, testified that due to the increased attention to harassment over the past 

several years, NASA has worked to proactively address concerns and focus on enhancing its 

policies on diversity and inclusion among its workforce.758 Shih stated that this emphasis on 

empowering employees has been positively reflected in annual federal surveys where NASA has 

been “ranked by the Partnership for Public Service as the best place to work among large federal 

agencies for seven consecutive years.”759 As discussed below, NASA has seen an increase in the 

number of complaints through their anti-harassment program, but in terms of formal EEOC 

complaints, NASA had the lowest complaint rate in the federal government.

760

Shih explained that NASA’s goal in addressing and preventing workplace harassment is two-fold: 

first, to enhance the safety and effectiveness of its workforce, and second, to enhance the safety 

and effectiveness of its mission.761 Shih testified to this point as follows: “At NASA . . . we 

embrace a saying, if we take care of our workforce, they’ll take care of the mission.”762 The antiharassment campaign that NASA launched in 2018 also consists of two strategies: (1) the 

campaign aims to proactively prevent harassment through leadership setting official antiharassment policies, conducting agency-wide trainings with employees, and conducting briefings 

with senior officials, executives, and managers; and (2) its policy focuses on promptly addressing 

and correcting harassing behavior when it occurs.

763

From 2016-2018 NASA reported no formal incidents of sexual harassment (filed pursuant to the 

agency’s EEO complaint process) to EEOC.764 The agency has seen a rise in harassment claims 

through its internal anti-harassment program during this timeframe, however, which could reflect 

several factors.

765 For example, it is possible that these increases are the result of employees’

confidence in reporting incidents and their access to better information about how to file a 

complaint, or that they result from employees being more aware of what behaviors constitute 

harassment. Alternatively, there could be an increase in these behaviors, or some combination of 

these factors, or some other explanation. 

 

758 Shih Testimony, Washington Briefing, pp. 53-54.

759 Ibid., 54.

760 See National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 

2019, at 571; Brooks Testimony, Washington Briefing, p. 13. 

761 Ibid., 55.

762 Shih Testimony, Washington Briefing, p. 53.

763 Ibid., 55.

764 NASA Interrog. Resp. to U.S. Comm’n Civil Rights, July 15, 2019, at 573.

765 NASA Interrog. Resp. to U.S. Comm’n Civil Rights, July 15, 2019, at 571.
150 FEDERAL #METOO

This section offers an analysis of the Commission’s investigation into the work that NASA 

undertook from 2016-2018. It is broken down into several sub-sections, starting with an overview 

of the demographic makeup of the agency’s workforce, and then moves to a discussion of NASA’s 

sexual harassment policy for employees and non-employees (i.e., contractors and grant recipients), 

followed by an examination of training procedures, an analysis of the data regarding prevalence

and processing times, and finally an examination of outcomes of investigations and the ways in 

which the agency addresses allegations of sexual harassment among its workforce. It should be 

noted that the Commission is not positing that these actions represent the only steps an agency can 

take, nor are these actions necessarily examples of best practices. The examination of these 

agencies represents an analysis of the practices that each are undertaking to end sexual harassment 

in their respective workforces. 

Overview of Agency and Workforce

According to NASA’s fiscal year 2017 equal opportunity annual report to EEOC, its total 

workforce consists of 17,515 employees.766 NASA employees are located across the country in 10 

field centers and its headquarters in Washington, D.C.767 Breaking NASA’s employees down by 

demographic characteristics shows that the majority of the workforce are white (12,553) and men 

(11,520).768

Table 9: NASA’s Number of employees by job location

Total number of employees 17,515 Kennedy Space Center 1,981

Ames Research Center 1,180 Langley Research Center 1,821

Armstrong Flight Research Center 566 Marshall Space Flight Center 2,322

Glenn Research Center 1,590 Stennis Space Center 300

Goddard Space Flight Center 3,230 NASA Shared Services Center 142

NASA Headquarters 1,281 Johnson Space Center 3,112

Source: NASA, “Where We Work,” https://www.nasa.gov/careers/where-we-work; see also NASA responses to 

Affected Agency Review to Commission on Draft Report, Nov. 13, 2019 [on file].

 

766 NASA Equal Employment Opportunity Strategic Plan: FY 2017-19, FY 2017 Annual Report and Update, 

https://www.nasa.gov/sites/default/files/atoms/files/fy_2018_nasa_md-715_report_508.pdf, at 5.

767 NASA Center Assignments by State, 

https://www.nasa.gov/pdf/313552main_NASA_Center_Assignments_by_State.pdf.

768 NASA Equal Employment Opportunity Strategic Plan: FY 2017-19, FY 2017 Annual Report and Update, 

https://www.nasa.gov/sites/default/files/atoms/files/fy_2018_nasa_md-715_report_508.pdf, at 5.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 151

As a component to the annual EEOC report, under federal regulations, agencies are expected to 

determine which demographics are underrepresented in an agency’s workforce.769 EEOC does not 

define “underrepresentation” in terms of statistical significance for federal agencies; rather, it 

leaves it to agencies to define the term.

770 EEOC, however, instructs federal agencies that 

underrepresentation by any demographic group within an organization should be considered a 

“trigger” – or a potential possibility that there are barriers to equal employment opportunities.

771

EEOC also explains that underrepresentation can also exist within an agency, in terms of a group 

not represented in particular roles, receiving promotions, and awards. While a trigger does not 

necessarily mean there is a barrier to equal opportunity, it can indicate that a federal agency needs 

to monitor and analyze to ensure that a barrier does not exist.772 According to NASA, it considers 

a “difference of 2 percentage points or more to be an area of potential concern, regardless of 

statistical significance.”773 Table 10 illustrates demographics of NASA’s workforce and which 

disparities are statistically significant. To be clear, the 2 percent or more differential that would 

trigger monitoring is a differential between total workforce and opportunity for advancement. For 

example, in the table below, data shows that although women represent 34.2 percent of the total 

NASA workforce, they are only 28.1 percent of Senior Executive Service Employees (a 4 percent

differential), and therefore that more than 2 percent differential would trigger internal monitoring 

at NASA. 

 

769 29 C.F.R. § 1614.102(b)(3).

770 EEOC, Instructions to Federal Agencies for EEO MD-715, “Section II: Barrier Identification and Elimination,” 

https://www.eeoc.gov/federal/directives/md715/section2.cfm.

771 EEOC defines a “trigger” as “a trend, disparity, or anomaly that suggest the need for further inquiry into a 

particular policy, practice, procedure, or condition.” See EEOC, Instructions to Federal Agencies for EEO MD-715, 

“Section II: Barrier Identification and Elimination,” https://www.eeoc.gov/federal/directives/md715/section2.cfm.

772 Ibid.

773 NASA Equal Employment Opportunity Strategic Plan: FY 2017-19, FY 2017 Annual Report and Update, 

https://www.nasa.gov/sites/default/files/atoms/files/fy_2018_nasa_md-715_report_508.pdf, at 3.
152 FEDERAL #METOO

Table 10: Total NASA Workforce 

AAPI Black Latinx

Multiracial AIAN White Male Female IWD IWTD

TOTAL 

(n=17,515) 7.5% 11.6% 7.8% 0.3% 1.1% 71.7% 65.8% 34.2% 6.8% 1.2%

Senior 

Executive 

Service (SES) 

(n=395)

4.8% 9.6% 4.6% 0.3% 1.0% 79.7% 71.9% 28.1% 4.8% 0.0%

Supervisory 

(n=2,052) 5.8% 11.7% 5.5% 0.2% 1.0% 75.6% 67.2% 32.8% 5.8% 0.5%

Senior Level 

(SL) & Senior 

Scientific (ST) 

(n=161)

7.5% 1.3% 3.8% 0.0% 1.3% 86.3% 83.9% 16.1% 6.9% 1.3%

GS-14 & 15 

(n=9,028) 7.5% 8.6% 6.3% 0.2% 0.9% 76.4% 71.7% 28.3% 5.8% 0.7%

Science & 

Engineering 

(n=11,171)

8.9% 6.2% 7.2% 0.2% 0.8% 76.6% 77.0% 23.0% 5.5% 0.8%

Professional 

Administrative 

(n=5,268)

5.0% 22.0% 8.4% 0.7% 1.5% 62.3% 42.7% 57.3% 12.1% 1.8%

Comparison Populations

Federal STEM 

workforce 

(n=301,384)

9.7% 10.1% 5.8% 1.6% 0.9% 71.9% 71.5% 28.5% -- --

U.S. Population, 

18+ 5.8% 12.1% 15.7% 1.5% 0.7% 64.3% 48.7% 51.3% 15.0% --

Source: https://www.nasa.gov/sites/default/files/atoms/files/fy_2018_nasa_md-715_report_508.pdf at 4.

*Numbers in red represent “triggers” identified by NASA. 

The demographic breakdown among employees in terms of race and gender among several of the 

highest level of employees at NASA shows some striking disparities. In terms of gender 

demographics, women represent about 34 percent of the total NASA workforce; yet, women 

account for only 16 percent of employees in Senior Scientific and Professional (ST) and Senior 

Level (SL) positions and 23 percent of those in Science and Engineering (S&E) positions. Further, 

women account for 28 percent in GS-14, 15, and Senior Executive Service (SES) positions, which 

represent the highest paid and most senior employees at an agency. Among all women employed 

at NASA, 43 percent are in S&E positions and about half are in Professional Administrative (PA) 

positions (see Table 3). Further, comparing NASA’s employees in fiscal year 2018 to the relevant 

civilian labor force illustrates that women employed at NASA are underrepresented in the Physical 
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 153

Sciences positions at the agency (27 percent of the Physical Sciences positions at NASA compared 

to 37 percent of the Physical Science positions in the relevant civilian labor force).774

Black employees account for 11.6 percent of the total NASA workforce, but only 1.3 percent of 

SL and ST positions, 8.6 percent of those in grades GS-14 and GS-15, and 9.6 percent of the SES. 

Further, while black employees account for 10 percent of the federal STEM workforce, they are 

only 6 percent of NASA’s S&E workforce. Among black employees at NASA, 57 percent are in 

PA positions and 34 percent are in S&E positions.775

Breaking down other groups in NASA’s workforce shows that Asian and Pacific Islander (AAPI)

employees make up 7.5 percent of the total workforce, yet account for only 5 percent of SES 

employees and PA employees (see Table 3). Among all of NASA’s AAPI employees, 76 percent 

are in S&E occupations and 20 percent are in PA jobs.776

Latinx employees account for almost 8 percent of the total NASA workforce. These employees 

account for 7 percent of S&E employees, which is slightly higher than their overall representation 

in the federal STEM workforce. Yet, Latinx employees only account for 3.8 percent of SL and ST 

employees, 4.6 percent in SES roles, and 5.5 percent of NASA’s supervisors. Among all of 

NASA’s Latinx employees, 59 percent are in S&E occupations and one-third in PA occupations 

(see Table 3).777

Native American and Alaska Native (AIAN) employees at NASA account for only 1.1 percent of 

NASA’s total workforce (186 employees). These employees represent fewer than 1 percent of 

those in GS-14 and GS-15 positions, and 1 percent in SES and Supervisory roles (see Table 3).778

Individuals with disabilities (IWD) account for about 7 percent of the total NASA workforce, but

not quite 5 percent of those in SES. Further, individuals with targeted disabilities (IWTD)779

 

774 NASA Interrog. Resp. to U.S. Comm’n Civil Rights, July 15, 2019, at 12.

775 NASA Equal Employment Opportunity Strategic Plan: FY 2017-19, FY 2017 Annual Report and Update, 

https://www.nasa.gov/sites/default/files/atoms/files/fy_2018_nasa_md-715_report_508.pdf, at 3.

776 Ibid.

777 Ibid.

778 Ibid.

779 The IWTD label is a subgroup of the larger IWD category. The EEOC states that the federal government has 

“recognized that qualified individuals with certain disabilities, particularly manifest disabilities, face significant 

barriers to employment, above and beyond the barriers faced by people with the broader range of disabilities. These 

barriers are often due to myths, fears, and stereotypes about such disabilities. The federal government calls these 

‘targeted disabilities.’ They are: 

• developmental disabilities, for example, cerebral palsy or autism spectrum disorder;

• traumatic brain injuries;
154 FEDERAL #METOO

account for 1.2 percent of the total NASA workforce. There are no individuals with targeted 

disabilities in the SES and individuals with targeted disabilities represent few of those in SL, ST, 

GS-14, and GS-15 positions. Among all IWD, 44 percent are in S&E positions and 46 percent are 

in PA positions (see Table 3).780

These numbers show that while NASA is working to diversify its workforce, there are still many 

workers who are underrepresented in the most senior and highest paid positions in the agency such 

as in Senior Executive Service (SES) positions. For example, women, individuals with disabilities, 

Latinx employees, black employees, and Asian and Pacific Islander employees are all 

underrepresented in the SES. As the table above illustrates, many of these same groups are 

underrepresented in other senior level and supervisory positions, yet overrepresented in 

administrative positions. 

Sexual Harassment Policies

Federal agencies are expected to establish their own internal anti-harassment programs that are 

separate from the formal EEO process to address sexual harassment.

781 NASA first instituted its

Anti-Harassment Program in 2009. The NASA program was developed as a complement to the 

formal EEO process under which the agency can address inappropriate employee conduct that may

violate its internal policies, but not Title VII.782 Stephen Shih explained that the program was 

developed to help “assure safety and workplace and mission success ... and involves a highly 

collaborative and well-coordinated community of practice, including EEO offices, anti-harassment 

 

• deafness or serious difficulty hearing, benefiting from, for example, American Sign Language;

• blindness or serious difficulty seeing even when wearing glasses;

• missing extremities (arm, leg, hand and/or foot);

• significant mobility impairments, benefitting from the utilization of a wheelchair, scooter, walker, leg 

brace(s) and/or other supports;

• partial or complete paralysis (any cause);

• epilepsy and other seizure disorders;

• intellectual disabilities (formerly described as mental retardation);

• significant psychiatric disorders, for example, bipolar disorder, schizophrenia, PTSD, or major depression;

• dwarfism; and

• significant disfigurement, for example, disfigurements caused by burns, wounds, accidents, or congenital 

disorders.

See, Questions and Answers: The EEOC's Final Rule on Affirmative Action for People with Disabilities in Federal 

Employment, https://www.eeoc.gov/laws/regulations/qanda-ada-disabilities-final-rule.cfm.

780 Ibid., 4.

781 See e.g., EEOC, “Model EEO Programs Must Have An Effective Anti-Harassment Program,” 

https://www.eeoc.gov/federal/model_eeo_programs.cfm.

782 National Aeronautics and Space Administration, “Policy Statement on Anti-Harassment,” Interrog. Resp. to U.S. 

Comm’n Civil Rights, May 23, 2019, at 30.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 155

coordinators, Office of General Counsel, Office of Chief Counsel, NASA’s Office of the Chief 

Human Capital Officer, and senior NASA leaders.”783

NASA defines harassment in its general anti-harassment policy, which includes sexual harassment 

as: 

any unwelcome verbal or physical conduct, based on an individual’s race, color, gender, 

national origin, religion, age, disability, genetic information, sexual orientation, status as 

parent, or gender identity, which can reasonably be considered to adversely affect the work 

environment or an employment decision affecting the employee based upon the employee’s 

acceptance or rejection of such conduct.784

NASA’s internal definition of harassment is more broadly written than the legal definition of the 

term, which requires that discrimination be “because of” sex or another characteristic, and further, 

the Supreme Court has held that it must be “severe or pervasive.”785 The last phrase of NASA’s 

definition, however, alludes to the harassment having to be either part of a hostile environment or 

quid pro quo.

NASA representatives told the Commission that its policy aims to address harassment before it 

reaches the legal standard of discrimination, because NASA’s policy is “designed to prevent or 

address harassment at the earliest possible opportunity, before it causes greater harm to the 

individual and potential legal liability for the agency.”786 The agency states that where behavior is 

in violation of the policy, management officials can take preemptive measures (e.g., verbal 

counseling, supervisory coaching, and training) to keep the behavior from escalating.787 

NASA’s sexual harassment policy states that employees should immediately notify a management 

official or supervisor, the Center Anti-Harassment Coordinator, or any other official(s) as 

designated by the Center Director if an incident of harassment occurs. It explains that upon 

receiving the allegation, the appropriate official will investigate the incident and take “appropriate 

corrective or disciplinary action, up to and including removal, to ensure that no further harassing 

 

783 Shih Testimony, Washington Briefing, p. 56.

784 National Aeronautics and Space Administration, “Policy Statement on Anti-Harassment,” Interrog. Resp. to U.S. 

Comm’n Civil Rights, May 23, 2019, at 30.

785 42 U.S.C. § 2000e-2(a); See also supra notes 50-53 (discussing the Meritor case).

786 Memo from NASA Associate Administrator for Diversity and Equal Opportunity to Officials-in-Charge of 

Headquarters Offices and Directors, NASA Centers, re Anti-Harassment Program Report for FY 2018 and 

Comparisons FYs 10-18, dated Mar. 28, 2019, at 2; see also National Aeronautics and Space Administration, 

Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at 10.

787 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at 

10.
156 FEDERAL #METOO

conduct occurs.”788 If management officials do not adequately address the allegation, they too can 

be subject to disciplinary action.789 NASA states that its anti-harassment policy is separate and 

distinct from the formal EEO complaint process and reminds employees that if they want to file a 

formal complaint, they must do so within 45 days.790

According to NASA, since the anti-harassment policy’s inception in 2009, it has been re-issued 

annually. The policy is posted on several NASA websites and information regarding the agency’s 

Anti-Harassment Program is also included for employees, such as frequently asked questions and 

a flowchart detailing the complaint process.791 NASA officials also stated that each field center 

and headquarters also distributes anti-harassment messages annually that are typically signed by 

the Center Director.792 For example, one recent anti-harassment brochure offered employees an 

overview on NASA’s anti-harassment policy and procedures, examples of harassing conduct, an 

overview of how to report harassment to the Anti-Harassment Program, a statement on harassment 

between contractors and employees, the differences between the informal program and the formal 

EEO process, and resources for employees who want additional information.793 

Sexual Harassment Policy for Contractors and Grant Recipients NASA’s Anti-Harassment Policy

does not make explicit distinctions between employees and contractors, and the agency utilizes the 

same anti-harassment program for both types of workers.

794 According to responses provided to 

the Commission, however, its EEO policies appear to only apply to employees.795 Notably, NASA 

states that it does not have the power “to address contractor-on-contractor issues pertaining to 

harassment; however, it is expected that all contract employees on NASA facilities will refrain 

 

788 Ibid. at 30.

789 Ibid.

790 National Aeronautics and Space Administration, “Policy Statement on Anti-Harassment,” Interrog. Resp. to U.S. 

Comm’n Civil Rights, May 23, 2019, at 30.

791 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019 at 

6.

792 Ibid.

793 National Aeronautics and Space Administration, “NASA Anti-Harassment Policy and Procedures,” 

https://www.nasa.gov/sites/default/files/atoms/files/anti-harassment_brochure-final.pdf.

794 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019 at

2.

795 Ibid.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 157

from engaging in harassing conduct.”796 NASA also explained that it does not have the authority 

to compel contract employees to participate in investigations conducted under this program.797

While NASA’s anti-harassment policy does not explicitly cover grantees who receive federal 

money, grantees (or those working with grantees) can file allegations of discrimination or 

harassment directly to its Office of Diversity and Equal Opportunity.798 The agency issues a 

specific “Federally Assisted Programs” brochure that pertains to its fellowship programs.799 In this 

brochure, NASA provides information to its approximately 600 grantee institutions (also known 

as federally assisted programs because they receive financial assistance from NASA typically in 

the form of grants) on how to file allegations with the agency; and the agency also provides 

information on how grantees can file a claim on its reporting page.800 NASA’s policy states that: 

As authorized by Federal laws and NASA civil rights regulations and policies, we 

are...fully committed to helping...partner organizations...that participate in NASAconducted programs or receive funding from NASA...adhere to all applicable civil rights 

authorities, and refrain from discrimination on the bases of race, color, and national origin, 

sex (including sexual harassment), disability, and age.

[These] institutions are required under Federal civil rights laws to designate an 

administrative official responsible for administering antidiscrimination policies and 

programs... including providing an internal administrative grievance process for filing 

complaints of discrimination or harassment. 

Additionally, beneficiaries who believe they have been subjected to discrimination or 

harassment based upon race, color, national origin (including Limited English 

Proficiency), sex (including pregnancy, sexual harassment, sex stereotyping, sexual 

 

796 Ibid. at 12. 

797 NASA, Affected Agency Review Responses to Commission on draft report, Nov. 14, 2019 [on file].

798 See National Aeronautics and Space Administration, NASA Interrog. Resp. to U.S. Comm’n Civil Rights 

Interrogatories, May 23, 2019 at 2; see also, National Aeronautics and Space Administration, NASA Diversity & 

Equal Opportunity, https://www.nasa.gov/offices/odeo/title-IX-compliance-program; see also NASA, “Federally 

Assisted Programs” brochure, https://www.nasa.gov/sites/default/files/atoms/files/2016_tvitix_et_al_brochure_508_tagged.pdf.

799 Ibid.

800 NASA, Affected Agency Review Responses to Commission on draft report, Nov. 14, 2019 [on file].
158 FEDERAL #METOO

orientation, or gender identity), disability, or age may file a complaint directly with 

NASA.801

Despite this policy, NASA claims its only role in ensuring that these institutions are providing a 

safe work space for their employees is to (1) assess the grantees in regard to previously filed 

discrimination complaints and (2) assess these grantees’ compliance with civil rights laws on a 

regular basis.802 NASA also has to perform two Title IX compliance reviews per year, pursuant to 

NASA’s Authorization Act of 2005.803 In September 2018, the head of NASA issued a statement 

to NASA grantee institutions that reaffirmed the agency’s commitment to aid NASA-funded 

programs and activities to adhere to civil rights laws and refrain from discrimination.804

Recently, multiple articles were published that discuss the culture of sexual harassment and 

misogyny in grant-receiving research institutions and its effect on women and minorities in 

science. NASA notes that in recent years there has been increased attention to the gender inequities 

in the STEM fields, where men still heavily outnumber women and women’s participation remains 

relatively low especially in fields such as physics, aerospace, electrical engineering, and computer 

science.805 Women from a variety of STEM industries have described how a pervasive culture of 

gender bias against women can deter individuals from entering the aerospace community.806

Though white men are only a third of the entire United States population, they are half of the 

engineering and science workforce. For example, “[t]here were 250,000 college-educated women 

in the U.S. with engineering jobs in 2015, compared with 1.5 million men. Computer science jobs 

that year employed 700,000 college-educated women and 2.1 million men.”807 Furthermore, there 

is evidence that a pervasive culture of sexism including sexual harassment persists in STEM 

industries, and that this culture likely contributes to the high attrition rate of female engineers.808

 

801 National Aeronautics and Space Administration, Office of the Administrator, NASA Policy Statement on 

Antidiscrimination in NASA Conducted or Funded Programs, Activities, and Institutions (Sept. 2018) at 1, 

https://missionstem.nasa.gov/docs/Bridenstine_Title_IX_Policy_Statement_TAGGED.pdf.

802 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at 

3-4. 

803 Ibid. at 4.

804 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at

8.

805 National Aeronautics and Space Administration, NASA Diversity & Equal Opportunity, 

https://www.nasa.gov/offices/odeo/title-IX-compliance-program.

806 Tom Risen, “U.S. students, executives discuss diversity in tech sector,” Aerospace America (Mar. 16, 2018), 

https://aerospaceamerica.aiaa.org/u-s-students-executives-discuss-diversity-in-tech-sector/. 

807 Ibid.

808 See e.g., Peter Meiksins, Peggy Layne, Kacey Beddoes, Marc Lewis, Adam S. Masters, and Jessica Deters,

“Women in Engineering: A Review of the 2018 Literature,” April 9, 2019, 
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 159

Moreover, many women do not enter the fields or leave their profession due to the seeming lack 

of accountability when an incident of harassment does occur. For instance, Aki Roberge, a research 

astrophysicist at NASA’s Goddard Space Flight Center, stated that there are “very famous” 

professors who are allowed to remain in their positions despite multiple reports of sexual 

harassment. She asserted that “you can’t really leave this [enforcement] in the hands of 

universities.”809 Similarly, Heather Metcalf recounted the many incidents of sexual and gender 

harassment she and her colleagues experienced during their years in graduate school and the 

inaction of university leadership.810 As such, advocates propose “tougher enforcement” of the antidiscrimination and anti-harassment laws that protect individuals in federally funded institutions 

under Title IX.811

In contrast, for its direct employees, NASA has a number of anti-harassment programs, including 

an anti-harassment policy statement, anti-harassment procedures and requirements, an antiharassment implementation guide, and anti-harassment brochures and FAQs.812 It also has a 

complaint process with a strong policy statement and a policy directive.

813 Its more comprehensive

anti-harassment policy is designed to 

ensure that immediate and appropriate action is taken in response to allegations of 

harassing conduct, including the use of disciplinary action, and to eliminate harassing 

conduct regardless of whether the conduct violated the law. The overarching goal of the 

policy and procedures is to address harassing conduct at the earliest possible stage, before 

it can become severe or pervasive, e.g., behavior that is widespread, common, or 

repeated.814

 

https://alltogether.swe.org/2019/04/women-in-engineering-a-review-of-the-2018-literature/; Kathleen N. Smith and 

Joy Gaston Gayles, “‘Girl Power’: Gendered Academic and Workplace Experiences of College Women in 

Engineering,” Social Sciences, 2018, vol. 7, no. 11; National Research Council, Women Scientists and Engineers 

Employed in Industry, Why So Few? National Academies Press, 1994, https://www.nap.edu/read/2264/chapter/1; 

Paula Johnson, Shelia Widnall, and Frazier Benya, eds., Sexual harassment of women: Climate, culture, and 

consequences in academic sciences, engineering, and medicine, National Academies of Sciences, Engineering, and 

Medicine, 2018, https://www.linguisticsociety.org/sites/default/files/24994.pdf.

809 Tom Risen, “U.S. students, executives discuss diversity in tech sector,” Aerospace America (Mar. 16, 2018), 

https://aerospaceamerica.aiaa.org/u-s-students-executives-discuss-diversity-in-tech-sector/. 

810 Metcalf Testimony, Washington Briefing, p. 58.

811 Tom Risen, “U.S. students, executives discuss diversity in tech sector,” Aerospace America (Mar. 16, 2018), 

https://aerospaceamerica.aiaa.org/u-s-students-executives-discuss-diversity-in-tech-sector/. 

812 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at 

2-3. 

813 Ibid., 3. 

814 Ibid., 6.
160 FEDERAL #METOO

These policies aimed at addressing harassing conduct “at the earliest possible stage” are limited to 

direct employees, which may leave other workers such as interns at NASA unprotected.815 As 

mentioned above, NASA’s anti-harassment policy does include both civil servants and 

contractors.816 The agency stated that in sexual harassment cases in which one of the affected 

parties is a contractor, it will engage in procedural requirements to address the conduct under its 

anti-harassment program, but it may need to rely on procurement offices to work in connection 

with contract employers to aid in the investigation. However, in cases involving harassment 

allegations where both parties are contractors, NASA stated that it does not have the legal authority 

to compel either of the parties to participate in investigations under its Anti-Harassment 

Program.817 

In early 2018, the House Committee on Science, Space, and Technology wrote to the Government

Accountability Office (GAO) asking them to investigate the sexual harassment policies and

practices of federal science agencies.818 The letter asks for federal agencies, such as the National 

Science Foundation, National Institutes of Health, Department of Agriculture, Department of 

Energy, and NASA to report on the number of sexual harassment or assault cases that have been 

investigated at their agencies, what steps they take when they receive complaints about a grantee, 

and whether they require grantees to inform them of allegations of sexual harassment or gender 

discrimination.819

In the subsequent months following the initial request to the GAO, a number of independent reports

and substantiated allegations of sexual misconduct emerged within the broader scientific

community.820 As such, the House Committee on Science, Space, and Technology sent another

 

815 Ibid.

816 See National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019 

at 2.

817 Email Correspondence with NASA and USCCR regarding Affected Agency Review on Draft Report, Nov. 13, 

2019 [on file]. 

818 Azeen Ghorayshi, “Congress is Demanding Answers About Why Grants Are Given To Sexual Harassers in

Science,” Buzzfeed News (Jan. 18, 2018), https://www.buzzfeednews.com/article/azeenghorayshi/lamar-smithinvestigates-sexual-harassment.

819 Ibid.

820 Committee on Science, Space, & Technology, Press Release: House Science Committee Report and

Recommendations to Curb Sexual Misconduct in the Scientific Community (Sept, 18, 2018), https://republicansscience.house.gov/news/press-releases/house-science-committee-report-and-recommendations-curb-sexualmisconduct; See also Committee on Science, Space, & Technology, Letter: Smith, Comstock letter to GAO re:

sexual misconduct within the scientific community (Sep. 19, 2018), https://republicansscience.house.gov/sites/republicans.science.house.gov/files/documents/09_19_2018%20CLS%20Comstock%20-

%20GAO%20re%20Sexual%20Misconduct.pdf.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 161

letter to the GAO, which included the following four recommendations to be applied to U.S.

government science agencies and their grantees:

1. Consistent and effective training across the concerned communities to reduce sexual 

misconduct. 

2. Clear, accessible structures to make reporting sexual misconduct easier. 

3. Reconsidering the academic model of having a single advisor responsible for overseeing a 

student or trainee. This dynamic, and the resulting fear of reprisal, discourages reporting 

of sexual misconduct. 

4. Implementing and enforcing effective consequences, including the cancelation of federal 

grants.821

In response to the Committee, NASA officials explained that a large majority of its grantees are in 

academia and the agency has “ensured strong lines of communication” with the institutions to 

provide ongoing anti-harassment information.822 According to NASA, the agency conducts two 

Title IX compliance reviews of academic institutions that it provides grants to each year and has 

implemented reporting methods between employees and other individuals who are working with 

the agency. The Committee stated that it had no reason “to doubt the effectiveness of NASA’s 

initiatives.”823

Training

NASA testified to the Commission that all supervisors and employees should receive training 

when they are initially hired and at least on an annual basis thereafter. The agency testified that at 

its Centers and at headquarters, EEO training is provided to new employees (both supervisory and 

non-supervisory); and if an employee is promoted to a supervisory position the promoted employee

receives EEO training at the time of appointment.824 However, NASA testified that contractors 

and other individuals who may work at NASA are able to take the online anti-harassment training, 

 

821 Committee on Science, Space, & Technology, Press Release: House Science Committee Report and

Recommendations to Curb Sexual Misconduct in the Scientific Community (Sept, 18, 2018), https://republicansscience.house.gov/news/press-releases/house-science-committee-report-and-recommendations-curb-sexualmisconduct.

822 Committee on Science, Space, & Technology, Letter: Smith, Comstock letter to GAO re: sexual misconduct

within the scientific community (Sep. 19, 2018), at 7.

823 Ibid.

824 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at

12.
162 FEDERAL #METOO

but are not typically offered the opportunity to take the classroom-based training programs.825 And 

while the agency stated that it continues to support further employee training and its online training 

system SATERN (System for Administration, Training, and Educational Resources for NASA)

sends reminders and alerts to an employee and the employee’s manager when a mandatory training 

is expiring or has expired, there are not formal repercussions if training is not completed.826

The agency utilizes anti-harassment training modules that have been offered since 2017: classroom 

trainings for executive leadership and one for managers and supervisors, and a virtual training 

solution for the entire workforce. The first module is broad in scope and discusses legal issues and 

social science topics regarding harassment, and is being used by the NASA Centers for training 

for the entire workforce.827 The second training module is focused on how to address a report of 

harassment under NASA’s Anti-Harassment Policy and is meant to aid supervisors on how to 

receive and handle reports of harassment.828 The third type of training focuses on bystander 

intervention through scenario-based simulation,829 because bystander training has proven to be an 

effective way to reduce incidents of sexual harassment.

830

In fiscal year 2018, NASA conducted a mandatory training for supervisors and managers regarding 

the agency’s Alternative Dispute Resolution (ADR) process, which they are required to take every 

other year thereafter. The agency also stated that it meets the required training mandate to provide 

No FEAR Act training to its employees on a biennial basis.831 The agency told the Commission 

that beyond the mandated EEO training, NASA also conducts training on specific topics related to 

 

825 Ibid., 13.

826 Ibid., 15.

827 Ibid., 13.

828 Ibid., 13.

829 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at 

16.

830 See e.g., Ann Coker, Heather Bush, Patricia Cook-Craig, Sarah DeGue, Emily Clear, Candace Brancato, Bonnie 

Fisher, Eileen Recktenwald, “RCT Testing Bystander Effectiveness to Reduce Violence.” American Journal of

Preventive Medicine, vol. 52, no. 5 (May 2017), 566-578 (“Implementation of Green Dot in Kentucky high schools 

significantly decreased not only sexual violence perpetration but also other forms of interpersonal violence 

perpetration and victimization”); Claire Cain Miller, “Sexual Harassment Training Doesn’t Work. But Some Things 

Do.,” New York Times, Dec. 11, 2017, https://www.nytimes.com/2017/12/11/upshot/sexual-harassment-workplaceprevention-effective.html; Mark Diamond, “SDDC employees encouraged to become active bystanders,” U.S. 

Army, Nov. 21, 2013, 

https://www.army.mil/article/115485/sddc_employees_encouraged_to_become_active_bystanders. 

831 Ibid., 12.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 163

EEO concerns, such as: diversity and inclusion, implicit bias and sexual harassment, and the ADR 

process through voluntary online and face-to-face trainings that are offered on a regular basis.832

Regarding the efficacy of training, NASA advised the Commission that it uses course evaluations 

and also incorporated agency-specific questions into the 2019 Federal Employee Viewpoint 

Survey (FEVS) that asked: “[Do] NASA leaders take proactive steps to prevent harassment in the 

workplaces (for example, senior leadership, messages to the workforce, use of posters and other 

communication materials, training, dialogues, or similar activities)”?833

As discussed previously, studies have suggested that vertical and horizontal integration of women 

into management and supervisory positions is a mechanism to help reduce incidents of sexual 

harassment.834 NASA recognizes that women’s representation in certain positions and occupations 

among its workforce lags behind the broader civilian workforce, and that women at NASA may 

face barriers to enter those positions and in receiving promotions.835 For instance, women make 

up 48.2 percent of the national civilian labor force, but 34 percent of the NASA workforce. Latinx 

employees account for 7.6 percent of NASA’s workforce, but 10 percent of the national civilian 

labor force.836 Further, among the highest ranking employees at the Senior Executive Service 

(SES) level, AAPI, Latinx, women, and individuals with disabilities make up a lower percentage 

of these employees compared to their overall representation of the NASA workforce. For instance, 

AAPI employees account for 8 percent of NASA’s workforce, yet 5 percent of those in SES 

positions.837

In response to the Commission’s interrogatory requests, NASA stated that its Office of Diversity 

and Equal Opportunity (ODEO), Center EO offices, and employee resource groups conduct a 

variety of briefings, trainings, and presentations that encourage vertical and horizontal integration 

 

832 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at

13.

833 Ibid., 15.

834 See Frank Dobbin and Alexandra Kalev, “Training Programs and Reporting Systems Won’t End Sexual 

Harassment. Promoting More Women Will,” Harvard Business Review, Nov. 15, 2017, 

https://hbr.org/2017/11/training-programs-and-reporting-systems-wont-end-sexual-harassment-promoting-morewomen-will; Fitzgerald Statement, at 5; Vicki Schultz, “Open Statement on Sexual Harassment from Employment 

Discrimination Law Scholars,” 71 Stan. L. Rev., June 2018, https://digitalcommons.law.yale.edu/fss_papers/5301.

835 NASA Interrog. Resp. to U.S. Comm’n Civil Rights, July 15, 2019, at 12.

836 National Aeronautics and Space Administration, MD -715, Part E.3, Interrog. Resp. to U.S. Comm’n Civil 

Rights, May 23, 2019, at 178.

837 Ibid.
164 FEDERAL #METOO

of women and minorities into the agency’s workforce.838 The agency told the Commission that its 

EO offices “proactively engaged HR offices in discussion regarding potential barriers to increasing 

representation of women, minorities, and individuals with disabilities in both non-technical and 

technical work roles.”839 According the Office of Personnel Management in its annual Federal 

Employment Viewpoint Survey (FEVS),

840 there are new measures for employees to rate the level 

of inclusion at their federal agency. The FEVS uses measures of inclusion in its “New IQ” scores, 

which includes questions about how employees would rank their agency in fairness, openness, 

cooperative, supporting, and empowering which is then combined into a New IQ total score. 841 In 

2018, NASA’s scores showed an overall New IQ score of 78%, with 66% Fair, 81% Open, 77% 

Cooperative, 89% Supporting, and 79% Empowering (with 82 percent of NASA workforce 

reporting)842(see table 11); and these numbers have remained relatively constant from 2016-18.

Across each of the five new IQ measures, NASA percentages were higher than averages 

government-wide and other large agencies (with 10,000-79,000 employees). 

It is important to note, however, that surveys such as the FEVS do not fully capture the viewpoints 

of all federal employees because they exclude political appointees from participating in the survey. 

Implementing other surveys alongside the FEVS, such as issuing annual climate surveys, could be 

an additional mechanism to measure the opinions of all federal employees and perhaps also other 

workers such as contractors at an agency.843 

 

838 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at

11.

839 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at

11.

840 The Federal Employee Viewpoint Survey is an annual survey that is issued by the Office of Personnel 

Management (OPM) to all federal employees. The FEVS measures employees' perceptions of whether, and to what 

extent, conditions characteristic of successful organizations are present in their agencies. The FEVS serves as a tool 

for employees to share their perceptions in many critical areas including their work experiences, their agency, and 

leadership. The FEVS provides results at lower levels allowing managers to see where improvements within their 

work unit are necessary. The results provide agency leaders insight into areas where improvements have been made, 

as well as areas where improvements are needed. See https://www.opm.gov/fevs/about/.

841 The New IQ results were “built on the concept that individual behaviors, repeated over time, form the habits that 

create the essential building blocks of an inclusive environment. These behaviors can be learned, practiced, and 

developed into habits of inclusiveness and subsequently improve the inclusive intelligence of organizational 

members. The New IQ consists of 20 items that are related to inclusive environments. These 20 items are grouped 

into “5 Habits of Inclusion”: Fair, Open, Cooperative, Supportive, and Empowering.” See Office of Personnel 

Management, Federal Employee Viewpoint Survey, https://www.opm.gov/fevs/reports/data-reports.

842 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at

391, 409.

843 Chrisler Testimony, Washington Briefing, p. 89; Speier Testimony, Washington Briefing, pp. 24-29.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 165

Table 11: NASA New IQ Results (2018)

Fair Open

CooperativeSupportingEmpowering Overall

Government Wide 48% 60% 58% 78% 60% 61%

Large Agencies (10k79,9k employees) 51% 62% 61% 81% 62% 64%

NASA (overall) 66% 81% 77% 89% 79% 78%

Source: Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at 391, 409, see also 

https://www.opm.gov/fevs/reports/data-reports.

Prevalence

NASA claims that the recent attention to workplace sexual harassment and the #MeToo movement 

has not impacted the number or type of sexual harassment claims among its workforce.844 It also

stated the informal and formal EEO complaints process has not been affected.

845 There has been a 

spike of harassment claims under the Anti-Harassment Program, however, which is a part of 

NASA’s Anti-Harassment Campaign that was launched in February 2018 to specifically address 

the types of issues that the #MeToo movement is drawing attention to in workplaces and 

educational institutions.846 

Between 2016 and 2018, NASA conducted 209 anti-harassment inquiries or fact-finding 

investigations.847 In fiscal year 2018, NASA completed 94 percent of its investigations in a timely

manner,

848 which is an increase from 86 percent in 2017, and exceeds the government-wide 

average of 73 percent in 2018.

849

 

844 Ibid., 17

845 Ibid.

846 Ibid., 5

847 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at

7.

848 The EEOC states that federal agencies should complete all investigations timely, that is within 180 or 270 

calendar days, as pursuant to 29 CFR §1614.108 (Part H-4).

849 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at

180.
166 FEDERAL #METOO

Table 12: Anti-Harassment Program Cases – Time in Inventory

2016 2017 2018

Greater than 120 days 7 2 8

60 days to 120 days 10 12 19

30 days to 60 days 20 17 12

Less than 30 days 21 24 38

Less than 14 days 9 13 23

Average number of days in inventory 52 42 51

Source: National Aeronautics and Space Administration, Interrog. Resp. to U.S. 

Comm’n Civil Rights, May 23, 2019, at 7.

In fiscal year 2018, 95 employees reported incidents of harassment to the Anti-Harassment 

Program, which was a 73 percent increase from the previous year. This is a significant increase 

from previous years where reports have not risen above 65 cases (in 2014). Specifically isolating 

sexual harassment, there were 24 cases (representing about 25%) compared to 9 of 55 cases (16%) 

in fiscal year 2017. Including non-sexual harassment incidents, in 2018 there were 68 reported

incidents, compared to 46 in 2017 (see table 13).

Table 13: NASA Anti-Harassment Program Reports of Harassment (2014-2018)

Type of 

Harassment 

Reported 2014 2015 2016 2017 2018

Non-Sexual 52 45 50 46 71

Sexual 13 19 9 9 24

Total 65 64 59 55 95

Source: National Aeronautics and Space Administration, Interrog. Resp. 

to U.S. Comm’n Civil Rights, May 23, 2019, at 571850

NASA asserts that this increase is due to the success of the Anti-Harassment Campaign, as it 

associates the “spike in reports of harassment” with “the Agency’s Anti-Harassment Campaign 

that was launched to address the kinds of issues that MeToo is striving to tackle in workplaces and 

 

850 The source states 92 cases, however, Commission staff reached out to NASA to verify the correct number of 

cases and agency staff stated that it was a total of 95 cases, because 3 complaints were filed late in the year after the 

report was developed.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 167

educational programs nationwide.”851 The agency stated that this campaign is working to advance 

a culture of safety that supports reporting incidents of harassment.852 

In 2018, the highest percentage of harassment reports at NASA did not involve an EEO basis 

protected by law.853 Allegations falling into this category (“Other/Unknown”) comprised 27 of the 

95 reports filed (28 percent). Sexual harassment (which includes gender-based harassment, e.g., 

hostile work environment) claims accounted for 25 percent of all 2018 harassment complaints by 

basis. Another prevalent category was “bullying” that was also raised in 25 percent of the cases.

854

NASA’s tracking of complaints about bullying is significant, because many scholars argue that 

sexual harassment can be a form of bullying, especially when it is used to intimidate.855 While 

these categories are not the same, they may reflect overlapping behaviors and these statistics may 

suggest there are larger issues affecting NASA’s workforce than analyzing them individually

would reveal.

856 Donald Tomaskovic-Devey testified that employers need to also consider lowlevel harassing behaviors, such as bullying, because it can set the tone for what is considered 

 

851 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at

17.

852 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at

8.

853 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at

123. EEO protected bases include: race, color, national origin, religion, age, sex (gender), sexual orientation, 

physical or mental disability, and reprisal. Reprisal is defined as Unlawful restraint, coercion or discrimination 

against complainants, their representatives, witnesses, EEO Counselors, investigators, and other agency officials 

with responsibility for processing EEO complaints. See NASA, Goddard Space Flight Center, Equal Opportunity 

Programs Office, https://eeo.gsfc.nasa.gov/introduction/eopo-terminology, (last accessed, Aug. 21, 2019).

854 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at 

123.

855 Ellery Miller Jr., and Eric Mondschein, “Sexual Harassment and Bullying: Similar, but not the Same. What 

School Officials Need to Know,” The Clearing House: A Journal of Educational Strategies, Issues, and Ideas, vol. 

90, no. 5-6, 2017, https://www.tandfonline.com/doi/abs/10.1080/00098655.2017.1366799; Christina Richey, “AntiHarassment Policy: The Workplace & DPS,” NASA Postdoctoral Program Fellow, Goddard Space Flight Center, 

http://epsc.wustl.edu/~ksinger/DPSWomen2012-Anti-Harrassment.pdf; Amanda B. Nickerson, Ariel M. Aloe, 

Jennifer A. Livingston, and Thomas Hugh Feeley, “Measurement of the bystander intervention model for bullying 

and sexual harassment,” Journal of Adolescence, vol. 37 (2014), 

http://isiarticles.com/bundles/Article/pre/pdf/36787.pdf; Gary Namie, “Workplace Bullying: Escalated Incivility,” 

Ivey Business Journal, Nov/Dec. 2003, http://www.workplacebullying.org/multi/pdf/N-N-2003A.pdf.

856 See e.g.,, Christina Richey, “Anti-Harassment Policy: The Workplace & DPS,” NASA Postdoctoral Program 

Fellow, Goddard Space Flight Center, http://epsc.wustl.edu/~ksinger/DPSWomen2012-Anti-Harrassment.pdf; 

Amanda B. Nickerson, Ariel M. Aloe, Jennifer A. Livingston, and Thomas Hugh Feeley, “Measurement of the 

bystander intervention model for bullying and sexual harassment,” Journal of Adolescence, vol. 37 (2014), 

http://isiarticles.com/bundles/Article/pre/pdf/36787.pdf; Gary Namie, “Workplace Bullying: Escalated Incivility,” 

Ivey Business Journal, Nov/Dec. 2003, http://www.workplacebullying.org/multi/pdf/N-N-2003A.pdf.
168 FEDERAL #METOO

acceptable behavior in a workplace.857 Tomaskovic-Devey asserts that identifying and stopping 

these behaviors is important, because most incidents of harassment do not necessarily rise to the 

legal level or hit the severe or pervasive standard to violate Title VII.858 NASA recognizes that 

bullying and harassment may be correlated and stated that it “accepts such reports for processing 

under the anti-harassment program to address workplace conflict at the earliest opportunity and to 

ensure that the behavior does not adversely affect the workplace.”859

In 2018, reports of alleged harassing behaviors were the most common among similarly defined 

employees (i.e., civil servant to civil servant) (62 percent), followed by civil servant to contractor 

(20 percent), contractor to civil servant (10%), civil servant to intern (6 percent), and contractor to 

civil servant (2 percent) (see chart 11 below). This trend of harassment between similarly defined 

coworkers (i.e., civil servant to civil servant) accounting for the highest number of incidents has 

been consistently the highest since 2013.860 The data does not, however, indicate whether the 

relationship was between two lateral employees or if the perpetrator was in a supervisory or 

management position. 

Chart 11: Relationship between Parties (2018)

Source: NASA Interrogatory Responses

 

857 Tomaskovic-Devey Testimony, Washington Briefing, p. 93.

858 Ibid.

859 National Aeronautics and Space Administration, Letter from Associate Administrator for Diversity and Equal 

Opportunity, Mr. Shih, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at 123.

860 2013 was the earliest data the agency provided. Ibid., 129-30.

Harassment Activity

Civil Servant - Contractor

Contractor - Contractor

Civil Servant - Intern

Civil Servant - Civil Servant

Contractor - Civil Servant
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 169

This trend is similar to other years, where most alleged incidents of harassment occurred between 

civil servant employees, during the years of analysis (see table 14).

Table 14: Relationship between Parties (2016-2018)

2016 2017 2018

Civil Servant – Contractor 19 11 19

Contractor – Civil Servant 0 1 2

Civil Servant- Civil Servant 30 35 58

Contractor – Contractor 10 8 9

Civil Servant – Intern -- -- 6

Source: National Aeronautics and Space Administration, Interrog. Resp. to 

U.S. Comm’n Civil Rights, May 23, 2019

The above data represent the number of harassment claims across the entire NASA workforce, but 

examining specific space centers and facilities861 shows that some centers may have more issues 

with harassment than others. During the study’s time frame, the Goddard Space Flight Center

(Goddard) has consistently had the highest number of harassment reports (in both anti-harassment

reporting and formal EEO No FEAR Act reporting) among all of NASA’s space centers.862 For 

example, in fiscal year 2018 there were 13 claims of harassment (non-sexual), which accounted

for almost half of the entire agency’s reports of harassment for that year.863 The employee 

demographic breakdown at Goddard generally reflects the makeup of NASA’s workforce overall 

(see table 15 below), and the particular cause(s) for these increased reports are unknown, but are 

important to note. 

Table 15: Employee Demographics at Goddard and NASA

Goddard

NASA 

(overall)

Sex

Male 63% 65.8%

Female 37% 34.2%

Race/Ethnicity

 

861 NASA has 10 field centers and a Headquarters. NASA Center Assignments by State, 

https://www.nasa.gov/pdf/313552main_NASA_Center_Assignments_by_State.pdf.

862 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at

134, 150, 163.

863 NASA Equal Employment Opportunity Data Posted Pursuant to the No Fear Act: Goddard Space Flight Center, 

(last accessed, Aug. 21, 2019), https://www.nasa.gov/sites/default/files/atoms/files/gsfc_2nd_quarter_tagged.pdf).
170 FEDERAL #METOO

AAPI 9% 7.5%

Black 16% 11.6%

Latinx 7% 7.8%

AIAN <1% 1.1%

White 67% 71.7%

Disability

IWD/IWTD 10% 8%

Source: National Aeronautics and Space 

Administration, Interrog. Resp. to U.S. Comm’n 

Civil Rights, May 23, 2019

NASA also stated that it may take several measures to help mitigate a complainant’s concern while 

it is conducting a harassment investigation. The agency stated that these interim measures include: 

• Requiring a temporary transfer of the alleged harasser to a position that requires the same 

general skills, with retention of all compensation and benefit levels;

• Making a scheduling change for the alleged harasser to prevent further contact between 

the parties, e.g., telework;

• Reassigning the alleged harasser to a different building, floor, or department, or to a 

special project that can be completed either at home or in a different work area;

• Placing the alleged harasser on non-disciplinary (administrative) leave with pay, pending 

the conclusion of the Fact-Finding (this should be a last resort);

• Having the alleged harassee report to a different supervisor (in case the actual supervisor 

is the alleged harasser); and

• If parties have to be separated, then the separation should not burden the employee who 

has reported the harassing conduct. Any impact to a term, condition, or benefit of 

employment for the alleged harassee could constitute unlawful retaliation.864

NASA’s EEO Complaint Process

As a part of EEOC’s oversight responsibility, in May 2014, EEOC conducted a technical assistance 

visit to NASA. The EEOC review found that NASA had several areas of non-compliance, which 

included issues regarding its EEO policies, pre-complaint process, processing times, and decisionmaking. For instance, the EEOC found that managers and supervisors are not required to 

 

864 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at

7.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 171

participate in ADR after the complainant has elected to participate in the process; the EEOC also 

reversed more than 50 percent of NASA’s dismissal decisions during 2014-2016 (100% in FY 

2014, 71% in FY 2015, and 50% in FY 2016); and all FADs based on merits had not been timely 

issued between 2014 and 2016 (9% in FY 2014, 18% in FY 2015, and 20% in FY 2016).865

In 2018, NASA reported to the EEOC in its annual report on its workforce866 that there were 74 

incidents of harassment across all protected EEOC bases (i.e., protected groups) which was the 

highest number of complaints (29) filed for that year. In terms of employee demographics black 

employees filed the greatest number of alleged discrimination complaints across all issues (21 

reported), followed by individuals with physical disabilities (16 reported), women (17 reported), 

age (17 reported), individuals with mental disabilities (9 reported), men (10 reported), color (10

reported), “other” national origin employees (5 reports), Asian employees (3 reports), Latinx

employees (2 reports), and religion (2 reports).867 

In fiscal year 2017, NASA updated its policies on the ADR process to make it a requirement that 

ADR be offered to the aggrieved and/or complainant in all cases unless there is a legitimate reason 

why ADR is not appropriate for that particular case.868 Pursuant to this updated policy, NASA 

established an ADR Management Team at each Center and established a “cadre of mediators for 

immediate, quality, and cost-effective response to solutions to ADR needs Agency wide.”869 In the 

informal process in fiscal year 2017, ADR was offered in 86 percent of cases, which is an increase 

from the previous year (50 percent), but lower than the government-wide rate of 88 percent.870 The 

 

865 Ibid., 1235.

866 The Office of Federal Operations at the EEOC produces an Annual Report on the Federal Workforce that 

includes, among other data, information on federal equal employment opportunity complaints and ADR activities. 

These data are collected from each agency in the Annual Federal Equal Employment Opportunity Statistical Report 

of Discrimination Complaints (EEOC Form 462). See Equal Employment Opportunity Commission, 462 Data 

Collection Resources, (last accessed Aug. 21, 2019), https://www.eeoc.gov/federal/form462/index.cfm.

867 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at 

1252-55. 

868 National Aeronautics and Space Administration, “Equal Employment Opportunity Strategic Plan: FY 2017-19,”

FY 2017 Annual Report and Update, https://www.nasa.gov/sites/default/files/atoms/files/fy_2018_nasa_md715_report_508.pdf, at 15.

869 Ibid.

870 Ibid. Note: NASA stated to the Commission that in order ensure that it was accurately capturing the ADR status 

agency-wide, it took the total number of new informal and formal complaints within the reporting period instead of 

only measuring the closed cases. Therefore, the agency recalculated its ADR numbers based on the total of new 

informal and formal complaints, how many of those were offered ADR, and out of those who were offered, how 

many accepted and participated in ADR. So based on this measurement, in 2017, in the informal process NASA 

offered ADR to 86 percent of complaints which is lower than the government wide average of 87 percent; with a 

participation rate of 65 percent that is higher than the government average of 53 percent. In the formal process, 

NASA offered ADR to 53 percent which is higher than the government-wide average of 18 percent; and a 
172 FEDERAL #METOO

participation rate for ADR at the informal stage also increased from fiscal year 2016 to 2017 (51 

percent, 65 percent, respectively) and exceeded the government-wide rate of 53 percent. During 

the formal stage in fiscal year 2017, the offer of ADR was 53 percent, compared to 40 percent in 

fiscal year 2016. The participation rate of ADR was 75 percent, compared to 72 percent the 

previous year and much higher than the government-wide rate of 9 percent in the formal stage.871

In fiscal year 2018, NASA reported to the EEOC that it conducted 85 counseling sessions during 

the informal pre-complaint process.

872 There were 66 reports of ADR being offered by NASA to 

59 individuals, 31 of these individuals rejected the ADR process. Of those employees who went 

into the ADR process, mediation was the technique most utilized in counseling. In total, NASA 

closed cases with 29 individuals through ADR counseling. Of these, 7 settled with benefits (either 

monetary or non-monetary) and 3 did not file a formal complaint. Of the closed ADR cases where 

a complaint was filed, 15 were closed with no resolution and 6 had no ADR attempt.

873 Conversely, 

in the cases where an accuser filed a formal complaint, the agency offered ADR in 12 cases with 

11 complainants and all accepted to the ADR process. Mediation was again the most common 

technique used in this process. There were 8 cases settled with monetary and non-monetary 

benefits. While the EEOC report does not track settlements by issue (e.g., harassment, reasonable 

accommodation, promotion, time and attendance, etc.), NASA paid out $89,653.40 across the 8 

settlement cases. There were 7 complaints that were settled with non-monetary benefits and these 

ranged from a reassignment, accommodations, to having leave restored or a performance 

evaluation modified.874

Regarding resolutions of complaints, NASA’s records show that there was a significant increase 

in the rate of offers, participation, settlements, and withdrawals for both the informal and formal 

ADR process from fiscal year 2015 to fiscal year 2016.875 For the formal stage in fiscal year 2016, 

NASA’s offer rate was 48 percent, which was above the government-wide rate of 20 percent. Of 

the cases where ADR was offered, participation was at 68 percent, which was the highest rate for 

NASA in this study’s timeframe and above the government-wide rate of 9 percent. At the informal 

stage in fiscal year 2016, NASA had the largest increase of ADR offers at 66 percent compared to 

other years, but was below the government-wide rate of 88 percent. Of these cases where ADR 

 

participation rate of 75 percent which is also higher than the government average of 9 percent. See Email 

Correspondence with Commission Staff and NASA, Nov. 20, 2019 [on file]. 

871 Ibid., 15. 

872 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at

1250.

873 Ibid., 1267.

874 Ibid., 1268.

875 Ibid., 1379.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 173

was offered, the participation rate was 54 percent, which is on par to the government-wide rate at 

53 percent.876

The EEOC report shows that in 2018, NASA had 32 closures that took a total of 14,230 days and 

an average of 444.69 days. There were two withdrawals that were both non-ADR withdrawals that 

took 231 days and an average of 115.50 days. There were 11 settlements that spanned 4,527 days 

and an average of 411.55 days, which were 3 non-ADR and 8 ADR settlements. NASA issued 19 

final agency decisions (FAD) that took a total of 9,472 days and an average of 498.53 days. Of the 

FADS, 15 did not involve an EEOC Administrative Judge. Of these, 9 cases were dismissed, there 

were 6 findings of no discrimination, and zero findings of discrimination. Of the 4 FADs with an 

Administrative Judge, there were 3 findings of no discrimination and 1 finding of discrimination, 

but the Judge’s decision was not fully implemented and NASA appealed both the finding and the 

remedy.

877

Comparatively, in terms of the findings in the cases that went through the anti-harassment 

program, in 2018, NASA shows that it closed 73 cases, and 13 were closed with a finding of

harassment and 36 cases were closed with no finding, however the agency still took action in an 

effort to reduce the potential for future harassing behavior (see table 16). NASA stated that of the 

concluded cases in fiscal year 2018, “corrective action, such as verbal counseling and mandatory 

EEO training, was taken to resolve 28 (36%) even in the absence of a finding of a policy 

violation.”878

Table 16: Anti-Harassment Program – Cases and Findings

2016 2017 2018

Total Cases (Reported) 59 55 95

Findings of Sexual Harassment 2 5 8

Findings of Non-Sexual Harassment 2 2 5

Total Cases Closed 58 52 77

Total Cases Closed with Finding 4 7 13

Total Cases Closed with No Finding but Action Taken 16 19 36

Average Processing Time (Calendar Days) 52 days 42 days 56 days

Source: National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, at 572.

 

876 Ibid., 1379. 877 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at

1264.

878 Ibid., 123.
174 FEDERAL #METOO

Moreover, comparing the cases that went through the internal anti-harassment program to those 

that went through the formal EEO complaint process shows that from 2013 to 2018, there were 

zero findings of discrimination for each of those years (see table 17).

Table 17: NASA EEO Harassment Complaints

Type of Harassment 2013 2014 2015 2016 2017 2018

Non-Sexual 13 20 21 27 24 30

Sexual 2 1 2 0 0 0

Total 15 21 23 27 24 30

Findings of Discrimination 0 0 0 0 0 0

Source: National Aeronautics and Space Administration, Interrog. Resp. to U.S. 

Comm’n Civil Rights at 573.

Since the implementation of the anti-harassment program, employees have sought to address their 

harassment claims through the internal program rather than pursuing a formal EEO complaint (see 

chart 8). This trend is not divergent from the literature that shows that many employees want to 

settle the workplace issue as quickly and efficiently as possible, and thus may not want to go 

through the complex and timely formal EEO process.879 

 

879 The anti-harassment program is an internal NASA administrative process that is separate to the EEO complaints 

process. The agency states that this program was created to provide an additional avenue for managers and 

supervisors to handle allegations of harassment as “promptly and effectively as possible.” According to NASA, the 

EEO complaints process is driven by statute and regulation and is designed to redress legally impermissible 

harassment. The anti-harassment program, by comparison, is designed to address harassment at the earliest possible 

level, before it becomes legally impermissible. The agency also notes that the legal standard of “severe or pervasive” 

that is applicable in EEO cases for establishing a case of hostile work environment harassment is a higher bar to 

meet than the standard in NASA anti-harassment policy (i.e., conduct that “can reasonably be considered to 

adversely affect the work environment”). See National Aeronautics and Space Administration, “NASA AntiHarassment Policy and Procedures,” Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at 48.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 175

Chart 12: Anti-Harassment Program vs. Formal EEO Complaints (2010-2018)

Source: National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights

Since 2016, some employees have chosen to report incidents of harassment both through the antiharassment program and the informal and formal EEO complaint process (see Table 18). However, 

the majority of complainants did not. 

Table 18: Harassment Reports

2016 2017 2018

Total anti-harassment program complaints 59 55 95

Total anti-harassment program, where 

complainant also filed formal EEO complaint 8 7 4

Total anti-harassment program, where 

complainant also filed informal EEO complaint 6 8 3

Source: National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n 

Civil Rights at 128.

In fiscal year 2016, during the informal stage of the EEO process, 79 EEO counseling activities 

that involved 69 complainants were completed, which is similar to its fiscal year 2015 number of 

0

10

20

30

40

50

60

70

80

90

100

2010 2011 2012 2013 2014 2015 2016 2017 2018

Harassment Complaints

Harassment Allegations addressed through AHP Formal EEO Harassment Complaints
176 FEDERAL #METOO

74 completed counseling activities with 65 complainants.880 In fiscal year 2018, NASA established 

a “cadre of counselors” in order to facilitate timely and effective counseling during the informal 

EEO process. In 2018, 75 percent (64 of 85) of NASA’s counseling activities were completed in 

a timely manner,881 which was a small decrease from 2017 at 76 percent (41 of 54), but a significant 

improvement from 2016 at 66 percent.882

In fiscal year 2016, there were 52 formal complaints filed by the 43 employees, compared to 46 

complaints filed by 41 employees the previous year. The three leading bases for complaints filed 

during 2016 were reprisal (cited in 36 complaints), disability, and race (both cited in 27 

complaints). The leading issues were non-sexual harassment (cited in 23 complaints), followed by 

evaluation/appraisal (cited in 19 complaints).883 In fiscal year 2017, formal complaints decreased 

even further, to an all-time low at 30, and the percentage of employees filing complaints declined 

from 0.25 percent in fiscal year 2016 to 0.16 percent. Yet, despite this decrease, harassment (nonsexual) continues to be the most prevalent claim.884

In fiscal year 2016, NASA’s Office of Diversity and Equal Opportunity completed 73 percent of 

its formal complaint investigations in a timely manner, which was an improvement from the 

previous year at 61 percent. The average processing time for each investigation that year was 230 

days.885 In fiscal year 2018, NASA decreased the amount of time it takes for investigations, where 

it completed investigations in 94 percent of cases, compared to 86 percent in fiscal year 2017. This 

time is faster than the government-wide average of 73 percent timeliness in EEO investigations 

and an increase from 2016 where the agency had an average of 73 percent. In fiscal year 2017, 

 

880 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at 

1377.

881 Ensure all counseling is completed timely within 30 or 90 calendar days, pursuant to 29 CFR §1614.108 (Part 

H3).

882 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at 

211.

883 Ibid., 1377.

884 National Aeronautics and Space Administration, “Equal Employment Opportunity Strategic Plan: FY 2017-19,” 

FY 2017 Annual Report and Update, https://www.nasa.gov/sites/default/files/atoms/files/fy_2018_nasa_md715_report_508.pdf, at 14.

885 According to EEOC regulation C.F.R. §1614.106(e)(2) requires agencies to conduct an investigation and issue a 

report to the complainant within 180 days of the filing of a complaint unless: 1) the parties agreed to an extension of 

no more than 90 days (may not exceed 270 days); or 2) the complaint was amended or consolidated, which can add 

another 180 days to the period but may not exceed a total of 360 days. See National Aeronautics and Space 

Administration, “Equal Employment Opportunity Strategic Plan: FY 2017-19,” FY 2017 Annual Report and 

Update, https://www.nasa.gov/sites/default/files/atoms/files/fy_2018_nasa_md-715_report_508.pdf; National 

Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at 1377. 
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 177

NASA’s average time to complete investigations increased to 254 days (29 cases) from 230 days 

(33 cases) in fiscal year 2016.886

NASA stated to the Commission this increase in case processing time is due to additional steps 

taken to improve the quality of investigations such as increased training and mentoring of 

employees who are responsible for reviewing cases, drafting acceptance notices, tracking, 

establishing a more streamlined and standardized process, and soliciting feedback from 

stakeholders (i.e., Center EEO staff and Agency legal staff) and external customers (i.e., 

complainants).887

Processing Times

NASA’s average processing time for Anti-Harassment Program complaints (i.e., the time from 

when an allegation is raised to when the case is closed) was 51 days in fiscal year 2018, which was 

an increase from 42 days in 2017. As discussed, the Anti-Harassment Program is separate and 

distinct from the EEO process. If a complainant elects to file in the anti-harassment program and 

does not simultaneously file an EEO complaint, the timeframe to file (i.e., 45 days) may expire 

before the complaint is settled in the anti-harassment program, thus leaving the complainant 

without recourse or the option to file an EEO complaint. 

Over the two years the Commission reviewed, the agency’s average processing time for sexual 

harassment allegations through its anti-harassment program was 48.33 days.888 In the nine years 

of the program to date, NASA’s average processing times have ranged between 42 and 61 days.889

These times are much lower than the agency’s EEO average processing time (average of 503 days) 

and its ADR process (average of 74 days).890

 

886 National Aeronautics and Space Administration, “Equal Employment Opportunity Strategic Plan: FY 2017-19,” 

FY 2017 Annual Report and Update, https://www.nasa.gov/sites/default/files/atoms/files/fy_2018_nasa_md715_report_508.pdf, at 14.

887 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019 at 

210. 

888 Ibid., at 18. While the underlying document shows the average time of 34.87 days, Commission staff 

corresponded with NASA staff to verify that the correct number is 48.33 days. According to the Interrogatory 

responses to the Commission, it shows that the average case processing times were 2016 (52), 2017 (42), and 2018 

(51). See National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, at 127.

889 National Aeronautics and Space Administration, “Letter from Associate Administrator for Diversity and Equal 

Opportunity, Mr. Shih,” Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at 123.

890 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019 at 

133.
178 FEDERAL #METOO

Chart 13: Overall Average Processing Times for Anti-Harassment Program Complaints 

(2016-2018)

Source: National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, at 133.

Claims Processing Efficacy 

NASA has a broad anti-discrimination policy and a complaint processing procedure for its NASA 

workforce governed by an EEO policy statement that proclaims:

It is NASA’s policy to provide equal employment opportunity (EEO) for all employees and 

applicants for employment regardless of race, color, national origin, sex (including pregnancy, 

sexual harassment, sex stereotyping, sexual orientation, gender identity, and caregiving 

responsibilities), religion, age, disability, genetic information (including family medical history), 

or status as a parent. Pursuant to this policy, NASA prohibits discrimination on these bases in the 

workplace and the Agency's employment practices. NASA strives to provide and maintain a work 

environment that is free of all forms of discrimination, including discriminatory harassment, as 

well as reprisal or retaliation for engaging in protected EEO activity. NASA also seeks to address 

harassing conduct at the earliest possible stage, before it can become severe or pervasive.891

 

891 National Aeronautics and Space Administration, NASA Policy Directive: Federal EEO Program of NASA (Feb. 

2016) at 1, https://www.nasa.gov/sites/default/files/atoms/files/n_pd_3713_002j_main.pdf.

0

100

200

300

400

500

600

2016 2017 2018

Processing Times

EEO ADR AHP
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 179

NASA delegates authority to the Associate Administrator for Diversity and Equal Opportunity

(the AA) to establish policy in regards to complaint processing.892 There are a number of others, 

including the Director of the Complaints Management Division and the Deputy General Counsel 

(serving as the Dispute Resolution Specialist), who regulate and supervise the implementation of 

the AA’s complaint processing policy.893 The AA has the authority to “ensure that the EEO 

complaint resolution process, including ADR, is prompt, fair, and impartial,”894 “receive formal 

individual and class complaints of employment discrimination and accepting or dismissing formal 

individual complaints,”895 “issue final orders implementing or appealing decisions of an EEOC 

Administrative Judge, in regard to the certification of class complaints,”896 “conduct necessary 

investigations and inquiries, delegating EEO Investigators authority to administer oaths or obtain 

notarized statements and requiring statements of witnesses to be under oath or affirmation,”897 and 

“render final Agency decisions (FADs) on the merits of complaints,”898 among other powers. 

NASA also has case processing manuals, the NASA EEO Counselor’s Guide and NASA 

Contingent Worker Guidance, which are used to determine the merits of an alleged sexual 

harassment claim.899

For the formal EEO process, NASA stated that it has struggled to meet the regulatory timelines 

established by the EEOC for multiple parts of the complaint process.

900 For instance, investigations 

and adjudications have not met guidelines and issuing final agency decisions (FADs) continues to

be the most challenging area in complaints processing at the agency. In fiscal years 2017 and 2018, 

NASA was only able to timely issue 17 percent (1 of 6 in fiscal year 2018) of its FADs.901 In order 

to decrease this time, in fiscal year 2018, NASA entered into an agreement with another federal 

 

892 National Aeronautics and Space Administration, NASA Policy Directive: Delegation of Authority to Act in 

Matters Pertaining to Discrimination Complaints (Mar. 2018) at 1, 

https://www.nasa.gov/sites/default/files/atoms/files/n_pd_3713_006q_main.pdf.

893 Ibid. at 2. 

894 Ibid. at 3. 

895 Ibid.

896 Ibid. 

897 Ibid.

898 Ibid.

899 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at 

797, 925.

900 National Aeronautics and Space Administration, “Equal Employment Opportunity Strategic Plan: FY 2017-19,” 

FY 2017 Annual Report and Update, at 14, https://www.nasa.gov/sites/default/files/atoms/files/fy_2018_nasa_md715_report_508.pdf.

901 Ensure all FADs are issued within 60 calendar days, pursuant to 29 CFR §1614.110(b) (Part H-5).
180 FEDERAL #METOO

agency and acquired two detailees who have extensive knowledge in the drafting and reviewing 

of FADs to help alleviate the backlog.902

In order to protect complainants while a complaint is being processed, NASA has adopted a 

number of procedures.

903 For instance, the agency first counsels and offers advice to complainants 

about their rights and NASA’s sexual harassment policy.904 Supervisors and responsible 

management official (RMOs) are also informed of their reporting and investigatory obligations 

and are reminded about the regulations against retaliation.905 However, NASA stated that while an 

investigation is underway, NASA does not reassign complainants or RMOs unless “it is necessary 

to separate the parties, and management believes that a transfer is warranted.”906 In such a case, 

“the harasser will be transferred (unless the complainant specifically requests a move).”907 In no 

previous case has either the complainant or the RMO been reassigned or transferred.

908

As discussed in Chapter 2, advocates argue that some sexual harassment allegations, especially 

those that are systemic or particularly egregious should be fast-tracked or triaged over other types 

of discrimination claims.909 NASA stated that it had not considered fast-tracking or triaging sexual 

harassment complaints.

910 The agency wrote:

In the Anti-Harassment Program, the Agency seeks to resolve all reports, sexual and 

otherwise, promptly. Where allegations of sexual harassment have been concerned, 

especially inappropriate touching or visual matter, the Agency is keenly aware of the need 

to take any necessary interim measures to alleviate the situation and to move as quickly 

and efficiently as possible to case conclusion.911

NASA’s Stephen Shih testified that the way the Anti-Harassment Program has achieved its 

relatively short case processing time is because NASA has ensured that it is “not asset poor because 

 

902 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at 

209.

903 Ibid., 17. 

904 Ibid. 

905 Ibid.

906 Ibid., 17.

907 Ibid. 

908 Ibid. 

909 Chandy Testimony, Washington Briefing, p. 40.

910 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at 

18.

911 Ibid.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 181

it involves a collaboration of all of the organizations across the agency with equities and 

responsibilities that address this, and that includes the Offices of General Counsel, it includes HR, 

it includes senior leadership.”912

Outcomes of Investigations

As stated above, there were zero findings of sexual harassment through NASA’s formal EEO 

complaint process from fiscal year 2016 to fiscal year 2018.913 Under the anti-harassment program, 

NASA found 15 incidents of sexual harassment that were considered inconsistent with NASA’s 

anti-harassment policy (2 in 2016, 5 in 2017, and 8 in 2018).914 In these cases, sanctions have 

ranged from written counseling and memoranda in personnel files to required training to 

reassignment and suspensions for up to 30 days (see table 19).

915 

 

912 Shih Testimony, Washington Briefing, p. 77 

913 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at 

573.

914 Ibid., 21.

915 Ibid.
182 FEDERAL #METOO

Table 19: Disciplinary Actions after Internal Investigations

Actions Taken

Number of 

Incidents

Reassignment 3

Removal from Supervisory Position 1

One-Day Suspension 1

Five-Day Suspension 1

30-Day Suspension 1

Letter of Counseling 1

Letter of Reprimand 1

Verbal Reprimand 3

Training 5

Source: National Aeronautics and Space Administration, 

Interrog. Resp. to U.S. Comm’n Civil Rights, at 22.

NASA also stated that during the period of investigation (fiscal year 2016-2018), one contract 

employee had been terminated in a joint decision between NASA and the contracting agency.916

While more reporting and participation is a good step in preventing sexual harassment, women 

are still underrepresented at NASA, which can create barriers and potentially a culture that is 

permissive of harassment.917 For instance, Julie Rathbun, Senior Scientist at the Planetary Science 

Institute, argues that participation of women in spacecraft science teams can be particularly 

difficult.

918 Rathbun explains that working on a spacecraft science team is an especially desired 

employment opportunity for planetary scientists, as the job often offers unique data, a sense of 

wonderment, and financial security.919 Through her research, she found that “[t]he pre-2000 

average is 5.7% women on spacecraft teams. Since 2000, the percentage of women has remained 

flat at 15.8%.”920 Further, she notes that “while the percentage of women in planetary science 

appears to be increasing, their representation on spacecraft science teams has not been 

 

916 National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at

21.

917 See Ibid., 12 (underrepresentation of NASA’s workforce); see e.g., Dana Kabat-Farr and Lilia M. Cortina, “SexBased Harassment in Employment: New Insights into Gender and Context,” Law and Human Behavior, 2014, vol. 

38, no. 1, https://lsa.umich.edu/psych/lilia-cortina-lab/Kabat-Farr%20&%20Cortina%20(2014).pdf (discussion of 

underrepresentation of women can have correlations to higher risks of harassment).

918 Julie Rathbun, “Participation of women in spacecraft science teams,” Nature Astronomy 1 (2017).

919 Ibid., 1.

920 Ibid., 2.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 183

commensurate, demonstrating that the planetary science community is not benefiting from the 

expertise of many qualified women scientists.”921

This lack of representation was highlighted in March 2019 when NASA was set to have the first 

all-female spacewalk, but it had to be canceled due to “spacesuit availability” because NASA did 

not have two spacesuits available for the women astronauts.922 This is not the first time the 

availability of spacesuits for women has been an issue for NASA. In 2006, NPR reported that 

women’s opportunities to spacewalk have been limited due to the fact that suits only came in 

medium, large, and extra-large sizes.923 And while they previously were manufactured in small,

that size has not been available since the 1990s. Therefore, anyone who needed a smaller suit

would not be able to make a spacewalk.924 As of 2006, more than 150 male astronauts had

spacewalked, but only 7 women had gone outside.925 When the agency first investigated the issue 

in 2003, it found that about a third of its female astronauts could not fit into the existing suits.926

But the lack of spacesuits for women astronauts is far from the only issue. As discussed in Chapter 

1, harassment is more likely to occur in isolating environments, and Vice has reported that space 

can increase risk factors for sexual harassment and abuse.927 Vice News Editor Daniel Oberhaus

argues that “[i]n space, mission crews will not have recourse to their terrestrial mission control 

when problems...arise, which can be especially troubling when these instances of sexual violence 

or harassment are carried out by the leader of the mission.”928 Oberhaus cites a case that occurred 

in 1999, where Canadian astronaut candidate Judith Lapierre was sexually assaulted by a Russian 

mission commander. After the mission was completed the Russian scientific coordinator, Valery 

 

921 Ibid.

922 Matthew Schwartz, “NASA Scraps First All-Female Spacewalk For Want of a Medium Spacesuit,” NPR, March 

26, 2019, https://www.npr.org/2019/03/26/706779637/nasa-scraps-first-all-female-spacewalk-for-want-of-amedium-sized-spacesuit.

923 Ibid.

924 Nell Greenfieldboyce, “When It Comes to the Spacewalk, Size Matters,” NPR, Dec. 15, 2006, 

https://www.npr.org/templates/story/story.php?storyId=6627320; Matthew Schwartz, “NASA Scraps First AllFemale Spacewalk For Want of a Medium Spacesuit,” NPR, March 26, 2019, 

https://www.npr.org/2019/03/26/706779637/nasa-scraps-first-all-female-spacewalk-for-want-of-a-medium-sizedspacesuit.

925 Nell Greenfieldboyce, “When It Comes to the Spacewalk, Size Matters,” NPR, Dec. 15, 2006, 

https://www.npr.org/templates/story/story.php?storyId=6627320.

926 Ibid.

927 Daniel Oberhaus, “Sexism in Space,” Vice, Apr. 2, 2015, https://www.vice.com/en_us/article/539498/sexism-inspace. 

928 Ibid. 
184 FEDERAL #METOO

Gushchin claimed that Lapierre had “ruined the mission [and] the atmosphere, by refusing to be 

kissed.”929

Oberhaus also describes how the culture of the aerospace industry can be harmful: 

One factor that’s contributed to strained social dynamics between astronauts is the cultural 

image of the astronaut and the machismo attitude that swirls around it. Astronauts, 

particularly males, have known that their job description—not unlike that of the test pilots 

that paved the way to space, or fighter pilots—affords them a certain desirability among 

the opposite sex, something which can lead to an arrogance in sexual matters.930

And while NASA stated that it is increasing its recruitment and outreach efforts to encourage more 

women to apply, Joan Kuhl, writer for Forbes, argues that early education in the STEM fields and 

recruitment is only half the issue.931 Kuhl states that:

We must place a more urgent effort around disrupting a gender biased system that derails 

the few women who make it past the education and professional hurdles in STEM to 

actually get jobs in tech and science companies. The covert and overt sexism that women 

in STEM jobs face on a daily basis shows up in every aspect of the business. We can't 

underestimate the issues that could arise when representation of half our global population 

does not have a seat at the table where key decisions are made and ideas are proposed.932

 

929 Ibid.

930 Ibid.

931 Joan Kuhl, “NASA Decision Ignites Dialogue Around Gender Barriers in STEM Carriers,” Forbes, Mar. 27, 2019,

https://www.forbes.com/sites/joankuhl/2019/03/27/nasa-decision-reinforces-gender-barriers-in-stemcareers/#43c2780a36f8.

932 Ibid.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 185

Department of State (State)

As discussed, the Commission decided to evaluate sexual harassment at the State Department 

based on a variety of factors, including studies showing that geographic isolation in a maledominated field can correlate with higher risks of sexual harassment.933 As with EEOC and NASA, 

the Commission invited the agency’s testimony and sent formal interrogatories and document 

requests. The Commission also conducted a review of publicly available data and analyzed the 

public comments it received from current and former employees.934

At the Commission’s briefing, Gregory Smith, Director of the Office of Civil Rights and Chief 

Diversity Officer at the State Department, stated that the agency has a “zero tolerance” policy 

towards harassment, and while there is still work to be done, it is actively pursuing bringing an 

end to harassment among its workforce.935 He stated that this effort involves at least three 

components. First, the effort involves establishing a clear policy that “fairly and objectively 

investigate[s] harassment allegations.”936 Second, the effort involves raising awareness through 

training of employees that not only focuses on preventing harassment, but also reminds employees 

of their rights and protections.937 Third, the agency recognizes that managers, supervisors, and 

senior leadership must be aware of their responsibilities and engaged in ending harassment at the 

State Department.938 State therefore instituted a policy that all management officials must report

if they “observe, reasonably suspect or become aware [of a behavior] that may be considered 

discriminatory or sexual harassment.”939 Smith asserted that the mandatory reporting requirement 

 

933 See e.g., Carly McCann, Donald Tomaskovic-Devey, and M.V. Lee Badgett, “Employer’s Responses to Sexual 

Harassment,” Center for Employment Equity at University of Massachusetts Amherst, Dec. 2018, 

https://www.umass.edu/employmentequity/employers-responses-sexual-harassment; Heather McLaughlin, 

Christopher Uggen, and Amy Blackstone, “Sexual Harassment, Workplace Authority, and the Paradox of Power,” 

American Sociological Review, vol. 77, no. 4, 2012, 

https://journals.sagepub.com/doi/pdf/10.1177/0003122412451728; Elyse Shaw, Ariane Hegewisch, Cynthia Hess, 

“Sexual Harassment and Assault at Work: Understanding the Costs,” Oct. 15, 2018, https://iwpr.org/wpcontent/uploads/2018/10/IWPR-sexual-harassment-brief_FINAL.pdf; EEOC, Select Task Force on the Study of 

Harassment in the Workplace, June 2016, https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm; Marina

Koren, “When Scientists Are Sexually Harassed in the Field,” The Atlantic, Oct. 11, 2017,

https://www.theatlantic.com/science/archive/2017/10/sexual-harassment-fieldwork-science/542559/ (for research 

breaking down these criteria and finding correlation with increased sexual harassment).

934 See e.g., Leila Johnson Testimony, Washington Briefing, pp. 149-51; Alissa Redmond Testimony, Washington 

Briefing, pp. 156-58.

935 Smith Testimony, Washington Briefing, p. 48.

936 Ibid.

937 Ibid., 48.

938 Ibid.

939 Ibid., 49.
186 FEDERAL #METOO

sets State apart from other agencies, and perhaps more importantly, that half of the allegations 

coming into his office are from supervisors who are complying with this requirement.940 The 

Commission notes that other agencies, such as NASA, have somewhat similar mandatory reporting 

policies and that all federal employers do have some duties to report harassment; however, as 

discussed herein, State has emphasized this reporting obligation in their recent policies issued to 

combat sexual harassment.941

As discussed herein, preventing and addressing sexual harassment at the State Department also 

poses particular challenges, because, unlike most other federal agencies that have exclusively

domestically-stationed workers, State has employees who are located in embassies and consulates 

in 200 countries around the world.

942 This international reach is significant because studies have 

shown that isolated work environments correlate with higher risks of sexual harassment.943

Gregory Smith testified that the State Department ensures, and advertises to its staff, that due to 

the agency’s global workforce, in an effort to ensure that employees feel supported worldwide, 

individuals can report incidents 24 hours a day, 7 days a week due to the agency’s global presence. 

Smith further pointed to then-Secretary of State Rex Tillerson’s 2018 agency-wide speech to 

address and prevent misconduct and harassment as an indication that senior leadership is dedicated 

to fostering a workplace culture of respect.944 This speech mandated that all employees, locally 

employed staff, and contractors be re-trained on anti-harassment policies within 90 days and State 

asserted that it achieved a 97 percent participation rate for over 77,000+ employees around the 

world.945

In addition to geographic issues, the fact of serving in the national security field in general may 

also impact incidence of sexual harassment among State employees. For instance, in November 

2017, 223 women, including former Ambassadors and high-ranking officials from the Department 

of Defense wrote in a public letter that their field has been male-dominated, and their prime 

example was that even though women enter the State Department as Foreign Service officers at 

the same rate as men, they are under-represented in senior positions.946 They also assert that in 

 

940 Smith Statement, p. 2.

941 See NASA Anti-Harassment Policies and Procedures, Implementation Guide, 2nd Edition, Dec. 2016, at § 3.5.1, 

citing EEOC Vicarious Liability Guidance, § V.C.1.d (“Inaction by the supervisor in such circumstances could lead 

to Agency liability and possible disciplinary action against the supervisor.”).

942 Smith Testimony, Washington Briefing, p. 48.

943 See supra notes 27; 179; 246.

944 Smith Testimony, Washington Briefing, p. 49.

945 Ibid.

946 #MeTooNatSec, Open Letter to the National Security Community, Nov. 28, 2017, https://time.com/5039104/wetoo-are-survivors-223-women-in-national-security-sign-open-letter-on-sexual-harassment/.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 187

national security agencies “many women are held back or driven from this field by men who use 

their power to assault at one end of the spectrum and perpetuate—sometimes unconsciously—

environments that silence, demean, belittle or neglect women at the other.”947 Given the 

importance of serving in these posts and representing the values of American democracy, they call 

for change at State and other agencies.948 The data the Commission reviewed also show a pattern 

of increasing sexual harassment complaints at the agency,949 as well as some challenges in the 

timely resolution of complaints,950 and a complex system that can be difficult for employees to 

navigate.951 These data and the relevant harassment and discrimination policies at the State 

Department are analyzed herein.

Overview of Agency and Workforce

As of June 2019, the State Department employed 77,012 people.952 Of these, 13,814 were Foreign 

Service employees, 10,024 were Civil Service employees, and 9,371 employees total from both of 

these categories were stationed overseas.953 Breaking this population down by demographic 

characteristics shows that the majority of State’s workforce were white (71.0 percent) and male 

(56.2 percent) (see Table 20).954

 

947 Ibid.

948 Ibid.

949 See infra notes 1090-93.

950 See infra notes 1168-79.

951 See infra notes 1014-26.

952 Department of State, HR Fact Sheet, June 30, 2019, https://www.state.gov/wp-content/uploads/2019/07/HumanResources-Fact-Sheet-as-of-032019.pdf.

953 Ibid.

954 Department of State Diversity Statistics: Department of State, Full-time Permanent Workforce by ERGD, June 

30, 2019, (accessed, Oct. 16, 2019), https://www.state.gov/wp-content/uploads/2019/07/Department-of-State-

%E2%80%93-Diversity-Statistics-Full-time-Permanent-Workforce.pdf. To note, the State Department disaggregates 

the demographic data race and ethnicity, so there may be some overlap between racial and ethnic categories. In other 

documents, however, the State Department reports the categories together (see Chart 1 at https://2009-

2017.state.gov/documents/organization/254251.pdf) When Hispanic was counted as a race in 2011 (see chart at 5), 

the overall data did not change significantly (Ibid). This seems to indicate that at State, Latinx employees do not 

over-identify as white, as is sometimes the case. See e.g., Ana Gonzalez-Barrera and Mark Hugo Lopez, “Is being 

Hispanic a matter of race, ethnicity, or both?” Pew Research Center, June 15, 2015, 

https://www.pewresearch.org/fact-tank/2015/06/15/is-being-hispanic-a-matter-of-race-ethnicity-or-both/ (for 

relevant data trends on how Latinx identify). 
188 FEDERAL #METOO

Table 20: Department of State, Demographic Breakdown, FY 2017 (percentages) NH/PI AIAN Asian Black Latinx White Multi- Race Unsp* Female Male

IWD

IWTD

Civil Service 0.1 0.4 6.6 24.4 6.7 60.7 4.8 2.5 54.1 45.8 14.7 2.7

Foreign Service 

Generalist 0.0 0.3 6.7 5.3 6.2 81.2 4.2 1.8 41.2 58.7 6.5 1.0

Foreign Service 

Specialist 0.1 0.5 5.9 8.8 10.0 74.8 5.9 3.6 29.1 70.8 8.4 0.6

Senior Executive 

Service (SES) 0.0 0.0 4.4 3.1 4.4 89.7 1.3 1.3 39.7 60.2 5.8 1.3

Senior Foreign 

Service (SFS) 0.0 0.2 3.2 3.0 4.9 89.1 1.9 2.4 31.7 68.2 14.3 0.5

Total 0.1 0.4 6.5 14.2 7.3 71.0 4.9 2.6 43.7 56.2 10.4 1.6

*Unsp=Unspecified or employee did not self-identify or disclose their race or ethnicity

**Senior Executive Service and Senior Foreign Service percentages are included within the Foreign Generalist & 

Specialist and Civil Service percentages

Source: Department of State Diversity Statistics: https://www.state.gov/wp-content/uploads/2019/07/Departmentof-State-%E2%80%93-Diversity-Statistics-Full-time-Permanent-Workforce.pdf.

The demographic breakdown of some of the highest level of employees at State shows some 

striking disparities. The majority of both Senior Executive Service and Senior Foreign Service 

positions are held by white, male employees. The data in Table 12 show that many people of color, 

women, and persons with disabilities are underrepresented in these upper-management and 

leadership positions. In its response to the Commission’s interrogatories, the agency also 

identified another potential EEO trigger in fiscal year 2018, specifically concerning two job series

in the Bureau of Diplomatic Security.955 State relayed that in these job series there was a 

statistically significant difference in the attrition rate for all women and all non-white employees, 

which could pose a potential EEO barrier.956 

In its Management Directive (MD) 715 fiscal year 2017 report, State explains that it has been 

increasing its diversity efforts at all levels and “any analysis of senior leadership ... must take into 

account that any gains we have made in forging a more diverse and inclusive Foreign Service at 

the entry and mid-levels are not necessarily reflected at senior leadership levels, which typically 

 

955 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Addenda, Oct. 17, 2019, at 120.

956 Ibid.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 189

take 20 years to achieve.”957 The report further asserts that the gender gap in the Foreign Service 

Specialist position can be “largely attributed to the gender make-up of the Foreign Service 

Specialist personnel category,”958 clarifying that the majority of FS Specialists work in either 

security or IT, both which are male-dominated fields.959

The report also states that in FY 17, the agency “[t]rained an employee... to fulfill the Federal 

Women’s Program Manager (FWPM) duties. The FWPM has developed guidance on how 

embassies and consulates around the world can support the employment and career advancement 

of women and established a SharePoint site to register all appointed Federal Women’s Program 

Coordinators. This site also functions as a resource that connects FWPCs and allows them to 

exchange best practices and engage in dialogue about issues of concern at multiple locations.”960

According to the FY 2018 MD-715, however, State noted that there are still vacancies remaining 

in the Federal Women’s Program.961 

State’s Office of Civil Rights (S/OCR) also noted that the office works closely with employee 

affinity groups, such as the Executive Women@State group to better identify possible barriers to 

advancement and retention of women at the agency.962 Specifically, these endeavors have focused 

on encouraging women to apply for senior positions within the agency, to serve on promotion 

panels, and to “capitalize on opportunities to communicate directly with Department leadership” 

through attending events such as the Deputy Secretary’s quarterly Diversity Forum.963 Other 

efforts that State reported to EEOC as activities designed to encourage the advancement of women 

in the agency have included providing more work-life balance opportunities such as teleworking, 

creating lactation spaces in every State building and at posts overseas, developing training courses 

such as a course entitled: “Mitigating Unconscious Bias,” and funding a third-party study on the 

barriers that women and other underrepresented groups at the State Department face for entry into 

the Senior Foreign Service.964

 

957 U.S. Department of State, Equal Employment Opportunity Commission Management Directive 715 EEO 

Program Status Report, Fiscal Year 2017, p. 11 (hereinafter U.S. Department of State, MD 715 Report FY 2017).

958 Ibid.

959 Ibid.

960 Department of State, MD 715 Report FY 2017, p. 39.

961 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Addenda, Oct. 17, 2019, at 83.

962 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Oct. 17, 2019, at 37.

963 Ibid.

964 Ibid., 37-38. State notes that this study is set to be completed in Q1 of FY 2020 and the findings will be used to 

develop strategies on diversity and inclusion and in State’s 2020 Diversity and Inclusion Strategic Plan. Ibid.
190 FEDERAL #METOO

The agency also reported that it continues to have an underrepresentation in Latinx workers and 

highlights that issue as a potential trigger in its Civil Service professions.965 Moreover, the agency 

recognizes that since fiscal year 2013, it has lacked a Hispanic Employment Program Manager 

who would work with the Office of Civil Rights’ Diversity Management and Outreach (DMO) 

section.966

Further, State’s number of individuals with disabilities (IWD) and individuals with targeted 

disabilities (IWTD) may both be a trigger for purposes of categories EEOC directs agencies to 

report,

967 specifically when it comes to new hires to the permanent workforce.968 However, State’s 

largest workforce representational growth during fiscal year 2017 was from employees who selfidentified as individuals with disabilities in both its Civil and Foreign Service (51.4 percent, 10.8 

percent, respectively).969 This growth was despite the fact that State reported a decrease in the 

number of employees in both the Civil and Foreign Service in FY17 due to the federal hiring 

freeze.970 Some of these losses came from a decrease in the percentage of black employees that 

year in the Civil Service (-2.06 percent). In the Foreign Service, there was also a negative percent 

growth for both Asian employees (-1.05 percent) and Native Hawaiian and Native American 

employees (-5.56 percent).971

 

965 U.S. Department of State, Equal Employment Opportunity Commission Management Directive 715 EEO 

Program Status Report, Fiscal Year 2017, at 9, https://www.state.gov/wp-content/uploads/2019/01/ManagementDirective-715-Report.pdf

966 U.S. Department of State, Equal Employment Opportunity Commission Management Directive 715 EEO 

Program Status Report, Fiscal Year 2017, at 38, https://www.state.gov/wp-content/uploads/2019/01/ManagementDirective-715-Report.pdf; see also, Executive Order 13781, Office of Management and Budget memoranda. March 

16, 2017, https://www.federalregister.gov/documents/2017/03/16/2017-05399/comprehensive-plan-forreorganizing-the-executive-branch.

967 EEOC defines a “trigger” as “a trend, disparity, or anomaly that suggest the need for further inquiry into a 

particular policy, practice, procedure, or condition.” See EEOC, Instructions to Federal Agencies for EEO MD-715, 

“Section II: Barrier Identification and Elimination,” https://www.eeoc.gov/federal/directives/md715/section2.cfm.

968 U.S. Department of State, Equal Employment Opportunity Commission Management Directive 715 EEO 

Program Status Report, Fiscal Year 2017, at 59, https://www.state.gov/wp-content/uploads/2019/01/ManagementDirective-715-Report.pdf. Note: State said due to the hiring freeze at the beginning of 2017, it could not produce a 

full analysis of new hires for FY17.

969 U.S. Department of State, Equal Employment Opportunity Commission Management Directive 715 EEO 

Program Status Report, Fiscal Year 2017, at 8, https://www.state.gov/wp-content/uploads/2019/01/ManagementDirective-715-Report.pdf.

970 Ibid.

971 Ibid. 
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 191

Sexual Harassment Policies

State explains that the Department’s anti-harassment policies have been in place for more than a 

decade, when they were codified in the Foreign Affairs Manual at 3 FAM 1525-26.972 According 

to the agency, the policies “emphasize the Department’s commitment to providing a workplace 

free from discriminatory, including sexual, harassment and to taking prompt and appropriate 

corrective action as necessary. The policies [also] set expectations for professionalism in the 

workplace and outline what options, rights, and responsibilities individuals have in addressing and 

reporting harassment.”973 

At the Commission’s briefing, Gregory Smith explained that in 2013, the Department sent out a 

notice to employees that it would not tolerate sexual misconduct and harassment, and the S/OCR

office began tracking data about sexual harassment reports and administrative inquiries in FY 

2014.974 The official policy of the State Department is that it is “committed to providing a 

workplace that is free from sexual harassment. Sexual harassment in the workplace is against the 

law and will not be tolerated. When the Department determines that an allegation of sexual 

harassment is credible, it will take prompt and appropriate corrective action.”975 The State 

Department’s current policy, first published in 2013, reviewed annually, and recertified in January 

2019 defines sexual harassment as follows: 

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a 

sexual nature constitute sexual harassment when: 

1. An employment decision affecting that individual is made because the individual 

submitted to or rejected the unwelcome conduct; or

2. The unwelcome conduct unreasonably interferes with an individual’s work 

performance or creates an intimidating, hostile, or abusive work environment.976

State’s policy lists several examples of what constitutes sexual harassment: 

• Sexual pranks, or repeated sexual teasing, jokes, or innuendo, in person or via e-mail;

• Verbal abuse of a sexual nature;

 

972 State Department, Affected Agency Review Responses to the Commission, Nov. 6, 2019 [on file].

973 Ibid.

974 Smith Statement at 5-6.

975 U.S. Department of State, Sexual Harassment Policy, Jan. 29, 2019, (accessed Oct. 15, 2019), 

https://www.state.gov/key-topics-office-of-civil-rights/sexual-harassment-policy/.

976 Ibid.
192 FEDERAL #METOO

• Touching or grabbing of a sexual nature;

• Repeatedly standing too close to or brushing up against a person;

• Repeatedly asking a person to socialize during off-duty hours when the person has said no 

or has indicated he or she is not interested (supervisors in particular should be careful not 

to pressure their employees to socialize);

• Giving gifts or leaving objects that are sexually suggestive;

• Repeatedly making sexually suggestive gestures;

• Making or posting sexually demeaning or offensive pictures, cartoons or other materials in 

the workplace;

• Off-duty, unwelcome conduct of a sexual nature that affects the work environment. 

A victim of sexual harassment can be a man or a woman. The victim can be of the same sex as the 

harasser. The harasser can be a supervisor, co-worker, other Department employee, or a nonemployee who has a business relationship with the Department.977

The policy also notes that if State receives an allegation of sexual harassment – or has reason to 

believe sexual harassment is occurring—it will promptly investigate the claim. If the Department 

determines that an allegation is credible, then it will “take immediate and effective measures to 

end the unwelcome behavior.”978 The agency states that it prohibits any “unprofessional or 

inappropriate conduct” regardless if it meets or rises to the legal definition of sexual harassment.979

Further, the policy states that State is committed to act if it has reason to believe sexual harassment 

is occurring, regardless of whether the complainant chooses to file a formal EEO complaint.

980

Unlike NASA, the Department of State’s definition of sexual harassment seems limited to the EEO 

definition.981 State clarified, however, that misconduct does not have to rise to this level to be 

 

977 Ibid.

978 Ibid.

979 See Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Oct. 17, 2019, at 35.

980 U.S. Department of State, Sexual Harassment Policy, Jan. 29, 2019 (accessed Oct. 15, 2019), 

https://www.state.gov/key-topics-office-of-civil-rights/sexual-harassment-policy/.

981 See supra note 784 (discussing NASA policy, defining sexual harassment as: “any unwelcome verbal or physical 

conduct, based on an individual’s race, color, gender, national origin, religion, age, disability, genetic information, 

sexual orientation, status as parent, or gender identity, which can reasonably be considered to adversely affect the 

work environment or an employment decision affecting the employee based upon the employee’s acceptance or 

rejection of such conduct”).
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 193

actionable.982 Although State recognizes that victims of sexual harassment can be of the same sex, 

State does not explicitly state that the policy applies to persons harassed based on their gender 

identity, and does not explicitly reach “any” unwelcome conduct “which can reasonably be 

considered to adversely affect the work environment or an employment decision.”983

Internal investigations into allegations of sexual harassment are handled by the Office of Civil 

Rights (S/OCR), which has the responsibility for investigating and overseeing all investigations of 

sexual harassment allegations. Gregory Smith of S/OCR stated that S/OCR does not have authority 

to decide on the outcome of allegations it investigates; instead S/OCR has investigative authority 

only and refers the case to the State Department’s Conduct, Suitability, and Discipline Division in 

the Bureau of Human Resources’ Office of Employee Relations (HR/ER/CSD) for possible 

disciplinary actions.984 The HR office is thus responsible for determining whether and how much 

to discipline staff if investigations confirm the existence of sexual harassment.985 These actions 

can range from a letter of reprimand, to suspensions without pay, to separation for cause or 

removal.986

Smith added that the Office of Civil Rights’ “aim is to ensure that potential victims are relieved of 

the harassing behavior as immediately as possible, and that at the conclusion of a thorough 

investigation, the alleged harasser is promptly disciplined if it so warranted.”987 However, Smith 

also testified that: “I am not familiar with [the] HR process” at State.988 Therefore, without the 

ability to determine the outcome of an investigation, S/OCR not only lacks ability to achieve the 

aim Smith described but also Smith confirmed his lack of familiarity with the process that does 

have responsibility to deliver that result.989 However, State explained that:

by delegating disciplinary authority to HR (and other relevant authorities), S/OCR can 

maintain neutrality throughout the investigation, which facilitates candor from victims, 

witnesses, and those accused. Further, since HR has delegated authority to discipline all 

forms of misconduct—harassment, bullying, issues of waste, fraud, and/or abuse, security 

 

982 State Department, Affected Agency Review Responses to Commission on draft report, Nov. 6, 2019 [on file].

983 Ibid. and Cf. U.S. Department of State, Sexual Harassment Policy, Jan. 29, 2019, https://www.state.gov/keytopics-office-of-civil-rights/sexual-harassment-policy/ (accessed Oct. 15, 2019).

984 See Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Oct. 17, 2019, at 5.

985 Smith Testimony, Washington Briefing, pp. 63; 64-65.

986 See Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Oct. 17, 2019, at 18.

987 Smith Testimony, Washington Briefing, p. 48.

988 Ibid., 79.

989 Ibid., 48.
194 FEDERAL #METOO

violations, etc.—then this helps ensure that each matter can be addressed holistically, more 

efficiently, by discipline subject-matter-experts, and consistency throughout the agency.990

The policy states that supervisors and other State officials must report any suspected incidents to 

S/OCR and failure to do so will be in violation of the policy and may result in disciplinary action.991

Smith said that this policy sets State apart from other agencies.992 Commission research shows that 

NASA has a similar policy, which is based on the following section of EEOC Guidance: “While 

it may seem reasonable to let the employee determine whether to pursue a complaint, the employer 

must discharge its duty to prevent and correct harassment.”993

The policy further states that supervisors are responsible to take necessary measures to ensure that 

no further harassing behaviors take place during the investigation process.994 Under the Foreign 

Affairs Manual, any allegation of sexual harassment must be reported to S/OCR, which is 

mandated to conduct an administrative inquiry into the allegations that may lead to disciplinary 

actions if the allegation is found to be credible.995 In cases of sexual harassment, S/OCR serves as 

a “neutral, independent fact-finder.”996

The policy states that once an investigation is complete, employees who have been found to have 

committed sexual harassment – “whether the behavior meets the legal definition of sexual 

harassment or not”—will be subject to discipline or other action deemed appropriate by 

 

990 State Department, Affected Agency Review Responses to Commission on draft report, Nov. 6, 2019 [on file].

991 U.S. Department of State, Sexual Harassment Policy, Jan. 29, 2019, https://www.state.gov/key-topics-office-ofcivil-rights/sexual-harassment-policy/ (accessed Oct. 30, 2019).

992 Smith Statement at 2.

993 NASA Anti-Harassment Policies and Procedures, Implementation Guide, 2nd Edition, Dec. 2016, at § 3.5.1, 

citing EEOC Vicarious Liability Guidance, § V.C.1.d (“Inaction by the supervisor in such circumstances could lead 

to Agency liability and possible disciplinary action against the supervisor.”).

994 U.S. Department of State, Sexual Harassment Policy, Jan. 29, 2019, https://www.state.gov/key-topics-office-ofcivil-rights/sexual-harassment-policy/ (accessed Oct. 30, 2019).

995 U.S. Department of State, Foreign Affairs Manual, 3 FAM 1750 Sexual Assaults Involving Department 

Personnel and Facilities in the United States (accessed Aug. 21, 2019), 

https://fam.state.gov/searchapps/viewer?format=html&query=sexual%20harassment&links=SEXUAL,HARASS&u

rl=/FAM/03FAM/03FAM1750.html#. 

996 Ibid at 3 FAM 1756.2-3.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 195

management.997 Disciplinary actions can range from a verbal or written admonishment, a 

reprimand letter, to suspensions without pay, or loss of one’s job.

998 State explained that:

Employees have the option to respond in writing, orally, or both, to a proposal for 

disciplinary action before the Deciding Official, who is in most cases a Deputy Assistant 

Secretary for Human Resources, [and] makes a final discipline decision. Employees may 

be represented by a union representative or an attorney during these proceedings. The 

Deciding Official may choose to sustain or mitigate the proposed disciplinary action. In 

making the final discipline determination, the Deciding Official will also consider the 

“Douglas Factors,” or the factors codified in 3 FAM 4375, factors established by federal 

precedent, that may have a mitigating or aggravating impact on the penalty imposed.999

State’s policy also notes that a complainant has several avenues to resolve the complaint. These 

options include mediation, which is an informal process where a trained mediator facilitates 

communication between the complainant and the alleged harasser. If a resolution is not reached, 

the complainant may choose to pursue another option. The policy reminds all employees – both 

domestic and international— that it is their right to pursue a formal EEO complaint and reminds 

employees of the statutory timeframes (45 days from the incident) associated with this process in 

which they must contact an EEO counselor.1000 These procedures mirror federal EEO 

regulations.1001

According to interviews with current and former State employees conducted by investigative 

journalists with Foreign Policy, due to systemic challenges at the agency, including pressure from 

colleagues and even from HR officials not to bring sexual harassment complaints, some impacted 

employees elect not to go through the EEO process.1002 For example:

one woman, who complained that a male colleague was playing with his genitals while 

talking to her, was told by a colleague that several men at post did that “to help them think” 

— that is, that this was not an offense worth reporting. Another woman who says she was 

grabbed and groped twice by the consul general at her post says she was told by the human 

 

997 U.S. Department of State, Sexual Harassment Policy, Jan. 29, 2019, https://www.state.gov/key-topics-office-ofcivil-rights/sexual-harassment-policy/ (accessed Aug. 21, 2019).

998 Ibid.

999 Department of State, Affected Agency Review responses to the Commission, Nov. 6, 2019 [on file].

1000 Ibid.

1001 See 29 C.F.R. §§ 1614.101 – 1614.110.

1002 Emily Tamkin and Robbie Gramer, “Will State Miss Its #MeToo Moment?” Foreign Policy, March 5, 2018, 

https://foreignpolicy.com/2018/03/05/for-us-diplomats-metoo-faces-hurdles-state-department-sexual-harassment/.
196 FEDERAL #METOO

resources unit that there was no need to report what happened, and that she would only 

create problems for herself were she to do so.1003

Although State Department supervisors clearly have a duty to report sexual harassment,1004

supervisors themselves can be the problem. In addition, it is also not clear whether the policy is 

routinely followed. One attorney dealing with sexual harassment cases reportedly stated that she 

has not found State’s mandatory reporting policy to be a great deterrent, as “the good managers do 

it, and the bad managers don’t.”1005 This reality may be even more complicated for foreign 

nationals, whose complaints are handled “at post” and may be more reluctant to speak out.1006

State notes that the agency has attempted to offer certain safeguards to address the concern for 

foreign nationals. For instance, besides its mandatory reporting requirements, it has also 

established a Locally Employed Staff Liaison program that “empowers locally employed staff to 

communicate with fellow foreign nationals, who coordinates with S/OCR, and both employees 

have full retaliation protections.”1007

Another woman interviewed by Foreign Policy relayed that delay can also be a problem: a State 

Department employee reportedly stated that her sexual harassment and retaliation complaint sat 

for 16 months before an EEO Administrative Judge and State lawyer were assigned to the case.1008

After interviewing more than a dozen current and former State Department employees, the article

also discussed that procedures vary from post to post, and while claims are pending, personnel 

may be moved from post to post, making the investigation more complicated.1009 As discussed 

herein, there have been some case processing delays: in FY 2017, a final agency decision was 

issued on time (within 60 days) in 86 percent of State Department harassment cases.1010

 

1003 Ibid.

1004 See supra note 991.

1005 Emily Tamkin and Robbie Gramer, “Will State Miss Its #MeToo Moment?” Foreign Policy, March 5, 2018, 

https://foreignpolicy.com/2018/03/05/for-us-diplomats-metoo-faces-hurdles-state-department-sexual-harassment/

(quoting Lynne Bernabei, a partner at Bernabei & Kabat, PLLC).

1006 U.S. Department of State, Sexual Harassment Policy, Jan. 29, 2019, https://www.state.gov/key-topics-office-ofcivil-rights/sexual-harassment-policy/ (accessed Oct. 15, 2019).

1007 State Department, Affected Agency Responses to Commission on draft report, Nov. 6, 2019 [on file].

1008 Emily Tamkin and Robbie Gramer, “Will State Miss Its #MeToo Moment?” Foreign Policy, March 5, 2018, 

https://foreignpolicy.com/2018/03/05/for-us-diplomats-metoo-faces-hurdles-state-department-sexual-harassment/.

1009 Ibid.

1010 See infra note 1168. State notes that in FY 2018, it has significantly increased its timeliness for issuing FADs. 

See State Department, Affected Agency Review responses to Commission on draft report, Nov. 6, 2019 [on file]. 
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 197

Similar to NASA’s sexual harassment policy,1011 the State Department told the Commission that 

it extends direct access to S/OCR without going through an intermediary, to Locally Employed 

(LE) staff, interns, contractors (including those stationed overseas), Eligible Family Members, and 

Members of Household.1012 But State also reported that its policy requires that issues raised by LE 

staff and Third Country Nationals (TCNs) are handled at post if the incident occurred abroad; and 

contractors are encouraged to first contact their own company’s HR or EEO office, but may speak 

to an EEO counselor or LE Liaison at post.1013 

Therefore, State Department employees can lodge an informal complaint to the S/OCR office, and 

they can also file a formal EEO complaint (as can contractors and others, who may or may not be 

covered).1014 The EEO process is a separate and distinct process from the informal S/OCR process, 

and does not require an employee to inform the employee’s supervisor before filing a 

complaint.1015 However, to file an EEO complaint, under federal regulations, they must consult an 

agency EEO Counselor within 45 days to start the formal process.1016 State’s January 2019 policy, 

however, does not explicitly remind employees that if they do seek resolution through the informal 

process that process will count against their 45-day time limit.1017 The Commission received 

testimony that this could lead to confusion and ambiguity for a complainant who does not realize 

that his or her time in which to file a formal EEO complaint has started and could run out before a 

decision is made in the informal process.1018 At the Commission’s briefing, several panelists and 

members of the public testified that this ambiguity is problematic and that sexual harassment 

policies should make clear to employees what their rights are.1019 For instance, Stacey Young, 

senior litigator at the Department of Justice, testified that federal agencies should “supplement 

training requirements with regular reminders about the ways employees can report allegations and 

education those new to the department about their rights. It’s critical that employees understand 

how they can report complaints to the EEO, and that unlike the private sector, they only have 45 

 

1011 See supra notes 794-797 (discussing NASA’s policy of including contractors).

1012 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Oct. 17, 2019, at 6.

1013 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Addenda, Oct. 17, 2019, at 28.

1014 See supra notes 138-149; 159-162 (in Chapter 1, regarding contractors, interns and federal other workers).

1015 EEOC, “Alternative Dispute Resolution for EEO Matters,” Chapter 3, MD 110, 

https://www.eeoc.gov/federal/directives/md-110_chapter_3.cfm.

1016 29 C.F.R. § 1614.105(a)(1).

1017 U.S. Department of State, Sexual Harassment Policy, Jan. 29, 2019, https://www.state.gov/key-topics-office-ofcivil-rights/sexual-harassment-policy/) (accessed Oct. 15, 2019).

1018 Chandy Testimony, Washington Briefing, p. 20; Katz Testimony, Washington Briefing, pp. 125-26 (regarding 

the 45-day timeframe).

1019 Chandy Testimony, Washington Briefing, p. 20; Katz Testimony, Washington Briefing, p. 126; Young 

Testimony, Washington Briefing, p. 155.
198 FEDERAL #METOO

days to do so.”1020 State, however, explains that it highlights the 45-day limit in all of its briefings 

and training courses.1021 

State employees may encounter another potentially complicated process to navigate if they choose 

to file a sexual harassment complaint under the agency’s negotiated grievance procedures.1022 The 

Foreign Service Manual defines a negotiated grievance procedure as “negotiated by a labor union 

and the Department, must be the exclusive procedure available to bargaining unit employees for 

resolving grievances, and fall within its coverage.”1023 Employees who are not covered under a 

negotiated grievance procedure or collective bargaining unit cannot this procedure cannot bring a 

grievance on EEO matters. For those Civil Service employees who are covered under this 

procedure, they can “only file a grievance alleging sexual harassment or other EEO matters if 

permitted by the governing collective bargaining agreement.”1024 Further, employees in the 

Foreign Service can file grievances on EEO matters for adjudication by the Federal Service 

Grievance Board, but EEO regulations require them to choose to either file a grievance or an EEO 

complaint.1025 If the employee elects to file a grievance, the incident is investigated and 

recommendations for resolution are made to the Deputy Assistant Secretary responsible for 

rending the agency’s decisions on grievances.1026 According to the Foreign Affairs Manual, the 

grievance procedure is designed for swift resolution through open communication, while at the 

same time providing for representation of the employee by the employee union, and adjudication 

“without fear of interference, coercion, or reprisal.”1027

In fiscal year 2014, State received 14 reported grievances alleging discrimination.1028 These reports 

have decreased in the subsequent years, and in fiscal year 2018 there were three grievances 

reported by Foreign Service employees alleging discrimination. Of these, two grievances alleged 

 

1020 Young Testimony, Washington Briefing, p. 155

1021 State Department, Affected Agency Review Responses to Commission on draft report, Nov. 6, 2019 [on file].

1022 U.S. Department of State, Sexual Harassment Policy, Jan. 29, 2019, https://www.state.gov/key-topics-office-ofcivil-rights/sexual-harassment-policy/ (accessed Oct. 30, 2019).

1023 3 FAM 4715, U.S. Department of State, Foreign Affairs Manual, 

https://fam.state.gov/FAM/03FAM/03FAM4420.html (accessed Oct. 30, 2019).

1024 U.S. Department of State, Sexual Harassment Policy, Jan. 29, 2019, https://www.state.gov/key-topics-office-ofcivil-rights/sexual-harassment-policy/ (accessed Oct. 30, 2019).

1025 3 FAM 4428, U.S. Department of State, Foreign Affairs Manual, 

https://fam.state.gov/FAM/03FAM/03FAM4420.html (accessed Oct. 30, 2019).

1026 U.S. Department of State, Sexual Harassment Policy, Jan. 29, 2019, https://www.state.gov/key-topics-office-ofcivil-rights/sexual-harassment-policy/ (accessed Oct. 30, 2019).

1027 See 3 FAM 4714, U.S. Department of State, Foreign Affairs Manual, 

https://fam.state.gov/FAM/03FAM/03FAM4420.html (accessed Oct. 30, 2019).

1028 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Addenda, Oct. 17, 2019, at 157.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 199

discrimination based on sex and one based on disability; none resulted in findings of 

discrimination, but one is active on appeal with the Foreign Service Grievance Board.1029

A current State Department employee submitted a written statement to the Commission that 

described the grievance process as one that is not intended to offer redress to the complainant. She 

stated that: 

HR has drafted an informal policy specially intended to make life miserable for those 

grievants who are denied tenure and placed on interim relief by the Foreign Service 

Grievance Board. By default, their overseas assignments are broken and they are sent back 

to Washington. When I was sent back, I was also denied all normal benefits afforded to 

Washington-based Foreign Service Officers.1030

According to the person who submitted the comment, this matter is now pending in a federal 

appellate court.

1031

Moreover, locally employed (LE) staff at U.S. embassies and consulates abroad do not have access 

to the grievance board process, and their colleagues have and they are often times also outranked 

by their diplomatic colleagues.1032 The Commission received a written submission from a current 

Foreign Service Officer that further explained this concern. The officer wrote that: 

LE staff are uniquely vulnerable to sexual harassment at Missions. As a Foreign Service 

Officer who also served as an Equal Employment Opportunity (EEO) Counselor in 

previous assignments, I was dismayed to discover there are limited remedies under the 

current EEO system for LE Staff to pursue. They are precluded from filing formal 

complaints, and must instead engage in mediation sessions. There is very little incentive to 

come forward, and these (often, but not always) women feel they have everything to 

lose. While retaliation is prohibited, the onus is on victims to bring forward another 

 

1029 Ibid.

1030 Foreign Service Officer at the State Department who wishes not to be named in the report, submitted for Federal 

Me Too: Examining Sexual Harassment in Government Workplaces Briefing before the U.S. Commission on Civil 

Rights, May 9, 2019. While the officer did not specify which benefits the officer was referring to, according to the 

State Department’s website, these benefits include annual leave, child care, family leave, health and life insurance, 

long term care insurance, access to credit unions and fitness facilities, to name a few. See U.S. Department of State, 

Foreign Service Officer Benefits, https://careers.state.gov/work/benefits/fso/.

1031 Ibid. 

1032 Laura Koran and Elise Labott, “#StateToo: Retired ambassador calls out ‘persistent’ sexual harassment at State 

Dept,” CNN, March 1, 2018, https://www.cnn.com/2018/03/01/politics/sexual-harassment-statedepartment/index.html.
200 FEDERAL #METOO

complaint alleging retaliation. Furthermore, many LEs face cultural stigmas and are often 

afraid that they will be subject to office gossip and loss of reputation.1033

Similarly, a former EEO counselor at the State Department stated that “while [harassment] cases 

involving locally employed staff are not commonplace, they are unique because of the lack of 

formal recourse, and because victims can face additional cultural stigmas that sometimes lead to 

self-censorship.”1034 President and CEO at the Truman National Security Project Jenna BenYehuda also testified that locally employed staff in foreign countries are by definition not 

American citizens and are citizens of the host country. Therefore, “[t]hese are the most vulnerable 

people at a given post...People have a lot of pride in working for our government overseas. So that 

means also that they’re least in the position to be able to come forward.”1035 

As discussed above, for Foreign Service Nationals (FSNs) or Locally Employed Staff, if an 

incident occurs at one of these posts, it is handled at post.1036 This policy has raised some concerns 

since incidents of sexual harassment have occurred at these international posts and critics have 

argued that they have not been addressed adequately. For example, a 2011 State Department 

Inspector General’s audit found that the German embassy and consulates were not “attentive” or 

“proactive” in handling harassment claims.1037 The report shows that the most common type of 

harassment was on the basis of gender or sexual orientation, and seemed to be more prevalent at 

the U.S. embassy in Berlin.1038 The audit also found that “some allegations of racial and sexual 

harassment within the mission have not been addressed effectively.”1039 Additionally, harassment 

policies were not publicly posted anywhere in the embassy’s three office buildings or on the 

mission’s private website.1040 

 

1033 Anonymous submission by Foreign Service Officer at the State Department, submitted for Federal Me Too: 

Examining Sexual Harassment in Government Workplaces Briefing before the U.S. Commission on Civil Rights, 

May 9, 2019.

1034 Laura Koran and Elise Labott, “#StateToo: Retired ambassador calls out ‘persistent’ sexual harassment at State 

Dept,” CNN, March 1, 2018, https://www.cnn.com/2018/03/01/politics/sexual-harassment-statedepartment/index.html.

1035 Ben-Yehuda Testimony, Washington Briefing, p. 68.

1036 See U.S. Department of State, Sexual Harassment Policy, Jan. 29, 2019, https://www.state.gov/key-topicsoffice-of-civil-rights/sexual-harassment-policy/ (last accessed Aug. 21, 2019).

1037 Kathrine Landergan, “Audit: Under Murphy, U.S. Embassy in Germany wasn’t ‘proactive’ with harassment 

claims,” Politico, Oct. 15, 2018, https://www.politico.com/states/new-jersey/story/2018/10/15/us-embassy-ingermany-was-not-proactive-with-harassment-claims-2011-audit-found-649828.

1038 Ibid.

1039 Ibid. 

1040 Ibid.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 201

State explains that while LE staff do not have access to the formal EEO process, the agency does 

allow them to have full access to EEO counseling and are not precluded from the same internal 

harassment inquiry process as other State workers.1041 State further mentions that LE staff, while 

not protected by the EEO process since they are not American citizens, they are protected by local 

labor laws, which are not available to American citizens working overseas.1042 

A subsequent Office of Inspector General (OIG) report in November 2014 found that one of the 

issues in addressing sexual harassment (and other forms of discrimination) at the State Department 

is a “complex and somewhat disjointed” agency disciplinary system for which the process “can 

involve a half dozen department offices and non-department agencies, department and nondepartment appeals entities and investigative entities, private attorneys, unions and professional 

associations, and the charged employee.”1043 The report noted that despite that the agency was 

making efforts to address the issue of harassment, the lack of consistent tracking and reporting 

across disciplinary systems could result in wide variation in resolution times and inconsistent 

statements of agency decisions.1044

Moreover, when instituting disciplinary actions, the report noted there was no policy requiring 

recusal of personnel in that process who had an existing relationship with the employee being 

disciplined, thereby unfair and inconsistent results were alleged. This absence of a recusal 

requirement can jeopardize the independence of a disciplinary decision and permit a conflict of 

interest.1045 Lastly, the OIG report pointed out that timeliness remained one of the central 

challenges for the Conduct, Suitability, and Discipline Division in the Bureau of Human 

Resources’ Office of Employee Relations offices to address complaints. For example, analyzing 

891 discipline cases from 2010 to May 2014, showed that the average time from case receipt to 

decision letter was 114 days, which is much longer than the target of 30 days from receipt to 

resolution.1046 In a subsequent June 2015 OIG report, investigators noted that senior department 

officials must “emphasize the need for action offices to process cases in a timely manner and hold 

individuals accountable for their inappropriate actions.”1047 Current and former State employees 

remarked that these issues laid out in the OIG report are just some of the challenges that the agency 

 

1041 State Department Affected Agency Review Responses to Commission on draft report, Nov. 6, 2019 [on file].

1042 Ibid.

1043 U.S. Department of State, Office of the Inspector General, Review of the Department of State Disciplinary 

Process, Nov. 2014, https://www.stateoig.gov/system/files/isp-i-15-04_1.pdf, at 21.

1044 Ibid., 16, 21.

1045 Ibid., 20.

1046 Ibid., 21.

1047 U.S. Department of State, Office of the Inspector General, Inspection of The Office of Civil Rights, June 2015, 

https://www.stateoig.gov/system/files/isp-i-15-26.pdf, at 9.
202 FEDERAL #METOO

faces when trying to curb sexual harassment among its workforce. In an American Foreign Service 

Association journal article, Leslie Bassett, retired Senior Foreign Service officer, former U.S. 

Ambassador to Paraguay, and deputy chief of mission in Seoul, Manila, Mexico City, and 

Gaborone, argued that “the combination of complex processes, inadequate accountability at senior 

levels, a lack of training and other issues means that repeat offenders can continue to abuse.”1048

To address some of these concerns, the #MeTooNatSec letter signed by 223 women in the national 

security field calls for the following reforms in State and other national security agencies:

• Clear leadership from the very top that these behaviors are unacceptable;

• Creating multiple, clear, private channels to report abuse without fear of retribution;

• External, independent mechanisms to collect data on claims and publish them

anonymously;

• Mandatory, regular training for all employees;

• Mandatory exit interviews for all women leaving Federal service.1049

State’s current policies meet some, but not all, of these criteria. Strong statements from leadership 

have been made. For instance, in March 2018, Heather Nauert, a State Department’s spokeswoman 

released a statement to Foreign Policy reporting that: 

Sexual harassment will not be tolerated at the Department of State... This has been made 

clear to Department employees — both domestic and international — and our senior-most 

officials have taken the lead in efforts to staunch unacceptable workplace behavior.

Nauert asserted that a town hall that then-Secretary of State Rex Tillerson hosted in 2018 in 

conjunction with a panel discussion hosted by Deputy Secretary of State John Sullivan regarding 

sexual harassment demonstrated State’s dedication to addressing the issue. In her statement, she 

wrote: 

 

1048 Leslie Bassett, “#StateToo: Ending Harassment at the State Department,” https://www.afsa.org/statetoo-endingharassment-state-department. State notes that the November 2014 OIG report and the accompanying testimonials 

predate the implementation of its 2013-14 anti-harassment policies and procedures. However, it does not have an 

update on the changes HR/ER/CSD has implemented after the report was released or the impact of any changes. See 

State Department, Affected Agency Review responses to Commission, Nov. 6, 2019 [on file]. 

1049 U.S. Department of State, Office of the Inspector General, Inspection of The Office of Civil Rights, June 2015, at 

2.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 203

Addressing sexual harassment is one of Secretary Tillerson’s priorities and he has been 

hands on in this effort, drawing a clear line in the sand regarding behaviors that will not be 

tolerated at the State Department.

1050

Despite these statements, full protection of women from sexual harassment at the Department of 

State may still be lacking. According to the State Department’s written testimony to the 

Commission, data regarding sexual harassment as reported under the anti-harassment policies has 

only been collected since fiscal year 2014.1051 Further, while there may be multiple channels for 

complaints or reports, these processes lag in processing times.1052 Moreover, there does not seem 

to be an external method to collect and publish data about sexual harassment anonymously;1053

and although retaliation is legally prohibited, the Commission received multiple stories of 

impacted women that include fear of retribution.1054

In response to the #MeTooNatSec letter, in January 2018, Senators Ben Cardin and Jeanne 

Shaheen of the Senate Foreign Relations Committee sent a letter to then-Secretary of State Rex 

Tillerson and USAID Administrator Mark Green regarding the sexual harassment and abuse 

allegations at their respective agencies noting: 

This letter speaks to what we believe remains a critical issue that too many of our national 

security institutions have been too slow to address: sexual assault and harassment and its 

effects on the professionalism and effective functioning of those institutions. These 

incidents and the pervasive culture that all too frequently excuses these behaviors and 

actions have had serious and detrimental consequences for the careers and lives of those 

affected - and by depriving the United States of the service of some of our best and 

brightest, a deep and negative effect on our national security.1055

Senator Shaheen specifically called on the Foreign Relations Committee and the Trump 

Administration to address “this longstanding cultural problem at these federal agencies” and 

 

1050 Emily Tamkin and Robbie Gramer, “Will State Miss Its #MeToo Moment?” Foreign Policy, March 5, 2018, 

https://foreignpolicy.com/2018/03/05/for-us-diplomats-metoo-faces-hurdles-state-department-sexual-harassment/.

1051 Smith Statement at 5; see also State Department, Affected Agency Review responses to Commission on draft 

report, Nov. 6, 2019 [on file].

1052 See infra notes 1168, 1174-84.

1053 Cf. supra note 843, regarding the Federal Employee Viewpoint Survey, which does not specifically address 

sexual harassment.

1054 See e.g., infra notes 1129; 1148-51.

1055 U.S. Senate Committee on Foreign Relations, “Cardin, Shaheen Lead SFRC Democrats in asking Tillerson, 

Green for Information on Addressing Sexual Harassment, Abuse at State Department, USAID,” Jan. 17, 2018, 

https://www.foreign.senate.gov/press/ranking/release/cardin-shaheen-lead-sfrc-democrats-in-asking-tillerson-greenfor-information-on-addressing-sexual-harassment-abuse-at-state-department-usaid.
204 FEDERAL #METOO

“ensure [that] women are treated equally and represented at all levels” in “an environment that 

rewards their achievements and is free from harassment and intimidation.”1056

In response to the senators’ letter, in February 2018, then-Secretary of State Rex Tillerson gave a 

speech to the embassy staff in Cairo stating that all employees at the State Department will be 

required to take mandatory sexual harassment training that was to be completed by June 1 of that 

year. Tillerson also discussed the importance of bystanders intervening if they witness misconduct. 

He stated that “there is no form of disrespect for the individual that I can identify, anything more 

demeaning than for someone to suffer this kind of treatment. It’s not okay if you’re seeing it happen 

and just look away. You must do something. You must notify someone. You must step in and 

intervene.”1057 At the Commission’s briefing, Gregory Smith stated that in this speech Tillerson 

had 

on the spot, [] designated or required us to do mandatory training for the [State] Department 

department-wide, and that’s 75,000 employees, which we did. I’m proud to say that we 

did. It was a heavy lift, but we did it...everything that we’ve done in the Office of Civil 

Rights has been supported by our leadership both visibly and vocally, and I think that is 

key in terms of the type of environment or work culture that you want to create.1058 

While Tillerson’s statement is a positive step that demonstrates that State leadership is taking the 

issue of sexual harassment seriously, others remain critical, questioning whether the work is 

actually being done to help prevent harassment and hold violators of the policy accountable. 

Retired Foreign Service Officer Leslie Bassett asserts that the first thing the agency needs to do is 

adopt and implement a “no tolerance” policy for sexual harassment, abuse, and assault. Bassett 

suggests that State should create a special committee that includes individuals from various hiring 

categories, ranks and bureaus within the agency in order to ensure that all forms of sexual 

harassment are properly investigated from which this committee can create specific 

recommendations for structural reform to be instituted in a reasonable timeframe.1059 Retired 

Foreign Service Officer Bassett offers a detailed list of suggested institutional remedies which 

include: 

• Fully implementing the policies on sexual harassment and sexual assault.

 

1056 Ibid.

1057 Reuters Staff, “Top U.S. diplomat urges action on harassment as issue roils White House,” Reuters, Feb. 12, 

2018, https://www.reuters.com/article/us-usa-misconduct-statedept/top-u-s-diplomat-urges-action-on-harassment-asissue-roils-white-house-idUSKBN1FW1BN.

1058 Smith Testimony, Washington Briefing, p. 49.

1059 Leslie Bassett, “#StateToo: Ending Harassment at the State Department,” The Foreign Service Journal, Mar. 

2018, https://www.afsa.org/statetoo-ending-harassment-state-department.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 205

• Updating employee handbooks.

• Requiring mandatory, ongoing sexual harassment training.

• Holding supervisors accountable for maintaining respectful workplaces.

• Ensuring prompt processing of harassment/assault complaints by responsible offices.

• Establishing a recusal policy for HR, DS, the Bureau of Medical Services and OIG when 

asked to investigate harassment or assault by their own employees.

• Improving resources and support for employees, family members, locally employed staff 

and contractors who face sexual harassment or assault.

• Creating a separate, confidential and responsive channel for victims to report sexual assault 

and receive physical and mental support.

• Imposing transparent penalties against perpetrators that factor in the severity and frequency 

of the harassment, including penalties such as suspension, criminal charges, revocation of 

security clearance and separation.

• Providing statistical information on complaints and outcomes.

• Conducting vigorous and timely investigations of sexual assault reports and provide 

accurate statistical reporting of cases/timelines/outcomes.

• Reinvigorating the Federal Women’s Program at all State Department facilities.1060

Training

State maintains that its training program is “robust, collaborative, and inclusive [and its] goal is to

provide effective training not just ‘check the box’ training.”1061 The Director of State Department 

Office of Civil Rights Gregory Smith testified before the Commission that the agency conducts 

“proactive” and “awareness” training for all of its employees with the intention of trying to prevent 

harassment from occurring.1062 Smith also testified that every employee is mandated to undergo 

training, both domestically and internationally; and the agency also has specific training for 

 

1060 Ibid.

1061 State Department, Affected Agency Review Responses to the Commission on draft report, Nov. 6, 2019 [on 

file].

1062 Smith Testimony, Washington Briefing, p. 48.
206 FEDERAL #METOO

interns.1063 In its response to the Commission’s interrogatories, State noted that the “average 

employee will receive EEO/anti-harassment training approximately every two to three years, 

though many receive training more often.”1064 For managers and supervisors, there is a mandatory 

EEO Diversity and Awareness training that they must complete within one year of acquiring their 

first managerial or supervisory position; and following, they are required to take a subsequent 

training course every five years thereafter.1065 One of the successive courses, entitled Leading a 

Diverse Workforce, focuses on EEO concerns, while the other four course choices such as The 

Ambassadorial Seminar, Fundamentals of Supervision, and The Deputy Chiefs of Mission 

Seminar “incorporate an EEO/diversity module.”1066

The State Department has developed training in conjunction with the Foreign Service Institute, 

which is responsible for all training at the agency.1067 Training programs includes modules for new 

civil service employees, interns, new Foreign Service officers, Ambassadors, and Human Resource 

officers that are going out on a post regarding issues related to foreign languages, security threats 

preparation, and public diplomacy.1068 According to the Foreign Service Institute’s website, it 

conducts trainings for new EEO counselors and also offers a “refresher” course for EEO 

counselors.1069

In addition to new employee orientation training, Smith also explained that training is conducted 

upon request, both domestically and internationally at embassies and consulates. “[F]or example, 

for an embassy, [the training] may be anywhere from two to five days, and we’re trying to train 

the whole post, not only our direct hire American employees, but also locally employed staff.”1070

Smith testified that State’s training not only helps employees know their legal rights, but also 

explains the responsibility that supervisors and senior leadership have to address harassment.1071

Further, State reported to EEOC that in fiscal year 2018, the agency piloted a program for bureaus 

 

1063 Ibid., 49.

1064 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Oct. 17, 2019, at 23.

1065 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Addenda, Oct. 17, 2019, at 52.

1066 Ibid. 

1067 Smith Testimony, Washington Briefing, p. 67.

1068 Ibid., 66; Foreign Service Institute Training, https://fsitraining.state.gov/.

1069 Foreign Service Institute Training, https://fsitraining.state.gov/.

1070 Smith Testimony, Washington Briefing, p. 67.

1071 Ibid.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 207

called “Mitigating Unconscious Bias,” to aid in addressing unconscious bias that may make the 

bidding process for Foreign Service positions unfair and possibly discriminatory.1072 

Smith testified that “leadership participation and support is key at all levels, and also consistent 

follow-up on both the [anti-harassment] policy and [] awareness [on how to address 

harassment].”1073 He further mentioned that supervisors have specific anti-harassment training to 

ensure they know their responsibilities, which Smith reasons is “key to what we’re trying to 

accomplish in terms of the culture that we would like to create.”1074

While these trainings are important to inform employees about sexual harassment and what 

behaviors are prohibited under the State Department’s anti-harassment policy, reports have shown 

that these may not be sufficient in addressing the agency’s issues. The State Department OIG’s 

November 2014 report noted that the agency needed to have more effective means “to 

communicate that addressing misconduct is a priority” and to support supervisors in dealing with 

issues of harassment and discrimination.1075 For instance, while there appeared to be trainings 

related to dealing with misconduct, such as ethics, personnel management, supervision, and 

leadership courses that were well attended (40,380 enrollments completed between 2010 and 

2014), many of the courses that addressed misconduct specifically, were not heavily attended. 

During the same time period, only 20 enrollments were recorded in the “Documenting Discipline” 

online course and the “Workplace Harassment for Supervisors and Managers” course had only 26 

enrollments.1076 The OIG report states that while State has taken steps to inform employees of 

policies regarding proper conduct, it has also “missed opportunities” to inform employees on the 

expectations of behavior, how to report and address misconduct, and how harassment can have 

real-life consequences.1077

A current State female employee who identified herself as a survivor of sexual assault by her male 

supervisor submitted an anonymous comment to the Commission stating that the Human Resource 

 

1072 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Addenda, Oct. 17, 2019, at 72. State reports 

that the training course is an eight-hour, in-person course and an online version is expected to be released later in 

2019 and will be accessible to all agency employees, both domestically and abroad. See Department of State 

Interrog. Resp. to U.S. Comm’n Civil Rights, Oct. 17, 2019, at 52. 

1073 Smith Testimony, Washington Briefing, p. 48.

1074 Ibid., 49.

1075 U.S. Department of State, Office of the Inspector General, Review of the Department of State Disciplinary 

Process, Nov. 2014, https://www.stateoig.gov/system/files/isp-i-15-04_1.pdf, at 6.

1076 Ibid., 6-7.

1077 Ibid., 1.
208 FEDERAL #METOO

office and the Office of Civil Rights refuse to enforce or train employees on EEO laws and 

policies.1078 She further stated that: 

when I reported an EEO violation, [the] Bureau’s HR said that my supervisors weren’t 

aware they had to follow EEO laws (even though they attended numerous EEO trainings), 

and asked me to teach my supervisors the EEO laws. [And] [d]espite leading numerous 

EEO training sessions, OCR did not have the authority to force supervisors to follow EEO 

law.1079

Jenna Ben-Yehuda President and CEO at the Truman National Security Project also argued that 

there were several deficiencies in the State Department’s training procedures during her tenure at 

the State Department. She stated that not only are locally employed staff not regularly trained, but 

contractors for State are also not being trained at FSI since it is not mandatory. Further, many of 

the contract companies themselves are also not going through training, depending on the size of 

their workforce.

1080 She explained that the Department already has a training continuum in place, 

but she recommends that the training can be improved and conducted on a more regular basis. And 

specifically, Ben-Yehuda argues that “sexual harassment and assault training and prevention 

efforts should be integrated as a part of that regular training continuum” because currently it is 

not.1081

The women who wrote the #MeTooNatSec letter state also that training can be “erratic” and 

“irregular” and policies are often ignored by staff.1082 State employees told investigative journalists 

at Foreign Policy that “there’s a photo floating around of a person reading during the required 

harassment seminar. They brought a book. They had it open. That gives you a sense of how 

important people think it is.”1083

According to the State Department’s fiscal year 2017’s MD 715 report, not all employees are 

encouraged to use Alternative Dispute Resolution, and the agency does not require that all 

 

1078 Anonymous submission by Foreign Service Officer at the State Department, submitted for Federal Me Too: 

Examining Sexual Harassment in Government Workplaces Briefing before the U.S. Commission on Civil Rights, 

May 9, 2019.

1079 Ibid.

1080 Ben-Yehuda Testimony, Washington Briefing, p. 68.

1081 Ibid., 69.

1082 Maya Rhodan, “‘We, Too, Are Survivors,’ 223 Women in National Security Sign Open Letter on Sexual 

Harassment,” Time, Dec. 1, 2017, https://time.com/5039104/we-too-are-survivors-223-women-in-national-securitysign-open-letter-on-sexual-harassment/.

1083 Emily Tamkin and Robbie Gramer, “Will State Miss Its #MeToo Moment?” Foreign Policy, March 5, 2018, 

https://foreignpolicy.com/2018/03/05/for-us-diplomats-metoo-faces-hurdles-state-department-sexual-harassment/.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 209

managers and supervisors receive Alternative Dispute Resolution training.1084 Specifically, State 

notes that: “We present information on the ADR process in our EEO training, but not all managers 

and supervisors receive the training.”1085 Perhaps relatedly, EEOC found that the Alternative 

Dispute Resolution participation rate during the pre-complaint stage declined from 25 percent in 

fiscal year 2013 to 23 percent in fiscal year 2016, which is below EEOC’s goal of 50 percent 

participation.1086 In response, State told EEOC that it had a target date of June 29, 2018 to 

determine what the perceived barriers are for employees to participate in the ADR process.1087

According to State’s FY 2018 462 data, of the 387 individuals in the pre-complaint process, the 

agency offered ADR to each of the 387 individuals.

1088 Of these, 310 individuals rejected the offer 

and 77 accepted.1089

Prevalence

According to the State Department’s Office of Civil Rights data from fiscal year 2014, a high 

percent of complaints involved allegations of sex discrimination and harassment: 38 percent of 

formal EEO complaints alleged incidents of reprisal and sex discrimination and 43 percent alleged 

harassment, promotion/non-selection, and appointment/hire as issues for complaints.1090 In his 

written testimony to the Commission, Gregory Smith regarding State’s internal anti-harassment 

program reporting, he stated that:

In FY 2014 we recorded 236 reports [of harassment], in FY2015, there were 320, in 

FY2016, 365, in FY2017, 483 and in FY2018, 731. Since the Department has a mandatory 

reporting requirement, some of the reports are duplicate and not all are, in fact, 

harassment.1091 

According to the State Department’s Office of Inspector General June 2015 report, Office of Civil 

Rights data shows that harassment cases almost tripled from fiscal year 2011 (88 cases) to fiscal 

 

1084 U.S. Department of State, Equal Employment Opportunity Commission Management Directive 715 EEO 

Program Status Report, Fiscal Year 2017, at 25, https://www.state.gov/wp-content/uploads/2019/01/ManagementDirective-715-Report.pdf.

1085 U.S. Department of State, Equal Employment Opportunity Commission Management Directive 715 EEO 

Program Status Report, Fiscal Year 2017, at 28.

1086 Ibid., 40.

1087 Ibid.

1088 See Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Oct. 17, 2019, at 150.

1089 Ibid.

1090 U.S. Department of State, Office of the Inspector General, Inspection of The Office of Civil Rights, June 2015, 

https://www.stateoig.gov/system/files/isp-i-15-26.pdf.

1091 Smith Statement at note 2.
210 FEDERAL #METOO

year 2014 (248 cases).1092 Since 2016, the Office of Civil Rights has investigated over 850 

allegations of harassment since 2016.1093 The Office notes that these investigations have continued 

to increase each year since 2014, and asserts that this increase is due to measures such as employees 

being more familiar and aware of reporting practices, victims and bystanders being more 

comfortable reporting allegations, and management and supervisors fulfilling their duty as 

mandatory reporters.1094 Like information received from NASA, Gregory Smith’s testimony and 

State’s responses to the Commission’s interrogatories emphasized that increasing awareness, 

training, as well as the #MeToo movement help explain the increase in complaints or reports of 

sexual harassment.1095 State told the Commission that it has witnessed a 50 percent increase of 

harassment reports since 2014, despite that the fact that the number of investigations to the number 

of workers covered under the anti-harassment policy have remained the same since 2016.1096

Further, since 2016, there have been 41 total informal sexual harassment complaints out of the 

total 1160 informal complaints, accounting for about 3.5 percent of the total agency complaints.1097

Of these 41 informal complaints, 15 resulted in formal complaints being filed.1098

According to State Department data, complaints have continued to increase since 2014, besides a 

slight decrease in 2017 compared to 2016 complaint levels.1099 A reported 181 official EEO 

complaints were filed in 2016, which decreased to 174 in 2017, but then increased to its highest 

number of 217 complaints in 2018. Further, harassment claims accounted for almost a majority of 

each year’s claims (see table 21). For instance, in 2017, the total number of harassment claims 

accounted for over 60 percent of the total number of complaints for that year. State reports that 

among all formal complaints, harassment was the most frequently alleged issue, and specifically, 

 

1092 U.S. Department of State, Office of the Inspector General, Inspection of The Office of Civil Rights, June 2015, 

https://www.stateoig.gov/system/files/isp-i-15-26.pdf.

1093 See Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Oct. 17, 2019, at 30. This number 

includes all forms of alleged harassment (i.e., discriminatory and sexual harassment) and some allegations of 

bullying and other forms of misconduct that were initially reported as harassment. Ibid. 

1094 Ibid., 30-31.

1095 Smith Statement at 5; Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Oct. 17, 2019, at 31, 

55; National Aeronautics and Space Administration, Interrog. Resp. to U.S. Comm’n Civil Rights, May 23, 2019, at

17.

1096 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Oct. 17, 2019, at 56.

1097 Ibid., 67.

1098 Ibid., 68.

1099 Equal Employment Opportunity Data Posted pursuant to the No Fear Act, 3rd Quarter 2019 to June 20, 2019, 

https://www.state.gov/wp-content/uploads/2019/08/nofear-3rd-Quarter-Ending-June-30-2019.pdf.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 211

sex and disability discrimination increased while race, color, and religious-based discrimination 

complaints decreased.1100

Table 21: Federal EEO Harassment Complaints (2014 through June 30, 2019)

2014 2015 2016 2017 2018

2019 

(thru 06-30)

Number of 

Complaints 130 164 181 174 217 97

Harassment

Non-sexual 42 70 72 103 119 67

Sexual 4 8 3 6 6 2

Source: EEOC, No Fear Act Data, https://www.state.gov/wp-content/uploads/2019/08/nofear-3rd-Quarter-EndingJune-30-2019.pdf

Regarding sexual harassment specifically, State employees formally reported 6 complaints in 

fiscal year 2018, which remained stable from the previous year, but an increase from 2016.1101

Formal sexual harassment complaints accounted for 2.78 percent of the agency’s total formal 

complaints that year, which was lower than the government-wide average of 4.17 percent.1102 

In 2018, State reported to EEOC that there were 241 reported incidents of harassment (6 sexual 

and 115 non-sexual) across all protected EEOC bases (i.e., protected groups) which was the highest 

number of complaints (121) filed for that year.

1103 In terms of employee demographics women 

filed the highest number of alleged discrimination complaints across all issues (58 reports), 

followed by individuals with physical disabilities (49 reports), black employees (35 reports), 

“other” national origin employees (25 reports), individuals with mental disabilities (22 reports), 

men (21 reports), color (19 reports), religion (9 reports), Latinx (8 reports), white employees (7 

reports), LGBT employees (5 reports), Asian employees (3 reports), employees of two or more 

races (2 reports), and Native Hawaiian or Pacific Islander employees (1 report).1104 Moreover, 

women filing formal discrimination claims reached its highest number in FY18 across this 

investigation’s timeframe (50 reports in 2016, 31 reports in 2017), while several other groups 

witnessed a decreased number of reported incidents. 

 

1100 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Addenda, Oct. 17, 2019, at 156.

1101 Ibid., 2.

1102 Ibid.

1103 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Addenda, Oct. 17, 2019, at 135.

1104 Ibid., 135-38. 
212 FEDERAL #METOO

State notes that in fiscal year 2018, 2.8 percent of the agency’s formal EEO complaints alleged 

sexual harassment, which is lower than the government-wide average of 4.1 percent and other 

Cabinet-level agencies at 4.2 percent.1105 Additionally, less than 1 percent (0.28 percent) of its 

workforce filed a formal EEO complaint in FY 2018, compared to other Cabinet-level agencies 

and the government-wide average of 0.52 percent.

While these numbers suggest that some employees are willing to report incidents of discrimination, 

as discussed in Chapter 1, the number of reported sexual harassment complaints may be 

underrepresenting the severity of the issue due to many issues, such as the fear of retaliation.1106

Further, according to the Merit Systems Protection Board 2016 survey, 15.3 percent of the 

employees at the State Department reported experiencing sexual harassment.1107 According to 

State’s reported numbers, since 2016 in the formal complaint process, there have been 8 retaliation 

claims stemming from sexual harassment complaints.1108 Moreover, in fiscal year 2018 annual 

EEOC status report, the agency declared that it had not been able to successfully ensure that its 

workplace was free from all forms of discrimination, which includes harassment and 

retaliation.1109 

In 2017, the #MeTooNatSec specifically called attention to the problem of sexual harassment in 

the national security field. The writers of the letter state that: 

This is not just a problem in Hollywood, Silicon Valley, newsrooms or Congress. It is 

everywhere. These abuses are born of imbalances of power and environments that permit 

such practices while silencing and shaming their survivors. Indeed, in our field, women 

 

1105 Department of State, Affected Agency Review responses to Commission on draft report, Nov. 6, 2019 [on file].

1106 See e.g., Carly McCann, Donald Tomaskovic-Devey, and M.V. Lee Badgett, “Employer’s Responses to Sexual 

Harassment,” Center for Employment Equity at the University of Massachusetts Amherst, Dec. 2018, 

https://www.umass.edu/employmentequity/employers-responses-sexual-harassment; EEOC, Select Task Force on 

the Study of Harassment in the Workplace, June 2016, 

https://www.eeoc.gov/eeoc/task_force/harassment/upload/report_summary.pdf; PBS NewsHour, Mar. 1, 2018, 

https://www.pbs.org/newshour/nation/they-reported-sexual-harassment-then-the-retaliation-began.

1107 U.S. Merit Systems Protection Board, “Update on Sexual Harassment in the Federal Government,” March 2018, 

at 5, 

https://www.mspb.gov/MSPBSEARCH/viewdocs.aspx?docnumber=1500639&version=1506232&application=ACR

OBAT; see also Eric Katz, “The Federal Agencies With the Most (and Least) Sexual Harassment, Government 

Executive, June 4, 2018, https://www.govexec.com/management/2018/06/federal-agencies-most-and-least-sexualharassment/148673/. 

1108 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Oct. 17, 2019, at 65.

1109 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Addenda, Oct. 17, 2019, at 89.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 213

comprise a small fraction of the senior leadership roles—30% or fewer in most federal 

agencies.1110

Retired Ambassador Nina Hachigian, one of the co-authors of the letter stated that much of the 

research on sexual harassment has been focused on low-paying, blue collar jobs, but assault and 

harassment are just as prevalent for diplomats.

1111 The letter states that women and men enter the 

Foreign Service at the same rates, yet “with each subsequent promotion, the numbers of foreign 

service women decline, especially at senior levels.”1112 Furthermore: 

Assault is the progression of the same behaviors that permit us to be denigrated, 

interrupted, shut out, and shut up. These behaviors incubate a permissive environment 

where sexual harassment and assault take hold. Assault is the progression of the same 

behaviors that permit us to be denigrated, interrupted, shut out, and shut up. These 

behaviors incubate a permissive environment where sexual harassment and assault take 

hold.1113

The letter states that the national security community needs to address the gender imbalances in 

senior leadership positions because of the correlation between male-dominated teams and sexual 

harassment and abuses, which is consistent with the research on sexual harassment and where it is 

more likely to occur.1114 For example, several ambassadors stated that it was extremely common 

for them to be at a meeting where they were only woman or were in the minority in the room. 

Ambassador Jennifer Zimdahl Galt described that throughout her career, she has been 

the only woman or one of the only women in the room at virtually every meeting. Some of 

this may have to do with the fact that I’ve served much of my career in the Bureau of East 

Asia and Pacific Affairs, where societies continue to be male-dominated. But the same has 

been true of country teams at posts where I’ve served. The largest number of women I’ve 

 

1110 #MeTooNatSec, Open Letter to the National Security Community, Nov. 28, 2017, at 1.

1111 Maya Rhodan, “‘We, Too, Are Survivors,’ 223 Women in National Security Sign Open Letter on Sexual 

Harassment,” Time, Dec. 1, 2017, https://time.com/5039104/we-too-are-survivors-223-women-in-national-securitysign-open-letter-on-sexual-harassment/.

1112 #MeTooNatSec, Open Letter to the National Security Community, Nov. 28, 2017, at 1.

1113 Ibid., at 1.

1114 #MeTooNatSec, Open Letter to the National Security Community, Nov. 28, 2017; Carly McCann, Donald 

Tomaskovic-Devey, and M.V. Lee Badgett, “Employer’s Responses to Sexual Harassment,” Center for Employment 

Equity at University of Massachusetts Amherst, Dec. 2018, https://www.umass.edu/employmentequity/employersresponses-sexual-harassment; Fitzgerald Statement at 2-3.
214 FEDERAL #METOO

ever had on a country team was three out of 12. I’ve never served with a female principal 

officer or ambassador.1115

Similarly, Ambassador Gina Abercrombie-Winstanley explained that: 

In most meetings over the years, I was the only minority at the table and that continues to 

be the case. I am often one of only two or three women. After 30 years, it is still not easy. 

I have to fight my own insecurity, as well as any unspoken, even unconscious, bias against 

the value of my contributions. The recognition of my performance and potential that came 

from reaching my goal of being an ambassador, however, has given me the space to feel 

like I don’t always have to know the answer. I have brilliant staff to help me get it right.1116

The Ambassador discussed further how she has to navigate these spaces as a woman, but also a 

woman of color. She stated that “I have found low expectations of me as a minority to be a bigger 

obstacle than low expectations of me as a woman, though they both remain in good supply in the 

State Department.”1117 Similar to other job sectors, women of color not only have to deal with 

harassment based on their gender, but also based on their race.1118 Data reviewed by the 

Commission indicates that incidents of sexual harassment are generally higher among women of 

color.1119

Leslie Bassett wrote that she tried to ignore being sexually harassed, make jokes, or avoid 

harassers, but ultimately, she never filed a formal complaint. The former Foreign Service Officer 

maintains that “in an institution where ‘corridor reputation’ drives assignments and opportunity, 

the cost of being a troublemaker is high, and the professional consequence grave.”1120 Similarly, 

at the Commission’s briefing, former State employee and the Truman National Security Project’s 

Jenna Ben-Yehuda explained that some women described their experiences as becoming a 

“problem child” after reporting harassment; and “there’s a real kind of ‘put up or shut up’ 

culture”1121 that “certainly doesn’t create an environment that was conducive to coming 

 

1115 Leslie Bassett, “Making It Work: Conversations with Female Ambassadors,” The Foreign Service Journal, 

July/Aug. 2017, https://www.afsa.org/making-it-work-conversations-female-ambassadors

1116 Ibid.

1117 Ibid.

1118 Ibid.

1119 See e.g., supra notes 403-406.

1120 Leslie Bassett, “#StateToo: Ending Harassment at the State Department,” The Foreign Service Journal, Mar. 

2018, https://www.afsa.org/statetoo-ending-harassment-state-department.

1121 Emily Tamkin and Robbie Gramer, “Will State Miss Its #MeToo Moment?” Foreign Policy, March 5, 2018, 

https://foreignpolicy.com/2018/03/05/for-us-diplomats-metoo-faces-hurdles-state-department-sexual-harassment/.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 215

forward.”1122 Another retired Foreign Service Officer, Amy Dahm, explained that “the largest 

threats are two-fold: the harasser will write a damaging Employee Evaluation Report (EER) and/or 

poison the employee’s corridor reputation.”1123

Ben-Yehuda testified that the “corridor reputation” was “one of the first terms [she] learned when 

[she] entered into the [State] Department.”1124 She explained that since Foreign Service officers 

are changing positions and vying for new ones every one to three years, this “corridor reputation” 

becomes a major factor in selection and for promotion.1125 More than a dozen women who are 

current or former State employees told investigative journalists with Foreign Policy that the 

agency has a culture in which “patriotism and pursuit of the diplomatic mission meant ignoring or 

downplaying complaints of harassment.”1126 One woman explained that when someone does try 

and report an incident the person is treated as “unpatriotic” by colleagues and she stated that the 

attitude from co-workers is: “you’re distracting from the mission of defending America – you need 

to step it up and stop complaining.”1127 Another ex-employee reported that the promotion and 

placement process rely heavily upon reputation and informal recommendations and “from the third 

tour one, it’s an internal lobbying process, very driven by who you know. I could see where people 

would feel disincentivized to come forward. You have no privacy in these environments.”1128 

In written testimony provided to the Commission, Dahm explained that due to the structure of the 

Foreign Service, harassment victims are quite hesitant to come forward because they fear it will 

“blemish” their careers; and since the Foreign Service is extremely competitive 

no one wants to be known as ‘difficult.’ In the Foreign Service, the onus for maintaining a 

good relationship with the superiors falls on the subordinate, not the manager. A 

harassment claim is viewed as a reflection on the victim as having poor interpersonal skills 

 

1122 Maya Rhodan, “‘We, Too, Are Survivors,’ 223 Women in National Security Sign Open Letter on Sexual 

Harassment,” Time, Dec. 1, 2017, https://time.com/5039104/we-too-are-survivors-223-women-in-national-securitysign-open-letter-on-sexual-harassment/.

1123 Amy Dahm, retired Foreign Service Officer, U.S. State Department, submitted for Federal Me Too: Examining 

Sexual Harassment in Government Workplaces, May 9, 2019, at 2.

1124 Ben-Yehuda Testimony, Washington Briefing, p. 75.

1125 Ibid.

1126 Emily Tamkin and Robbie Gramer, “Will State Miss Its #MeToo Moment?” Foreign Policy, March 5, 2018, 

https://foreignpolicy.com/2018/03/05/for-us-diplomats-metoo-faces-hurdles-state-department-sexual-harassment/.

1127 Ibid.

1128 Ibid.
216 FEDERAL #METOO

(the kiss of death in the Foreign Service); the perception is that she is somehow not 

managing her relationship with her superiors correctly.1129

This sentiment mirrors what many women in other fields have also said when it comes to reporting 

harassment and misconduct that they do not want to be seen as the woman who cannot handle 

something that is supposedly “just a joke” or they have to carefully manage their male colleague’s 

egos.1130 For instance, former Ambassador Gina Abercrombie-Winstanley explained that she has 

been subjected to sexual harassment in her career, and had to learn to be “careful of male egos 

(and power).”1131 And if harassment did occur, she often was forced to do the “usual and laugh it 

off, avoid[] the person where I could or made excuses to reject the advances.”1132 But recalling an 

incident where she tried to stand up for herself, the Ambassador explained that “there was one 

occasion in the department when a boss touched me and I told him if he did it again, I’d knock the 

s*** out of him. He did not repeat it, but he did try to get me to curtail from the position.”1133

State Department employees also reportedly described a culture where rank and reputation were 

privileged over the well-being of workers. The Foreign Service Journal recounted incidents of 

sexual harassment, assault, bullying, and rape of women inside the State Department, which has 

long been dominated by men.1134 The women described the inability to report incidents because 

they were afraid going public could hinder their careers; and in most cases, the accused went 

unpunished and the accuser’s career suffered.1135 For instance, one woman described incidents 

where she was grabbed and groped twice by the consul general at her post, yet she was told by 

 

1129 Amy Dahm, retired Foreign Service Officer, U.S. State Department, submitted for Federal Me Too: Examining 

Sexual Harassment in Government Workplaces, May 9, 2019, at 4. 

1130 Jana Pershing, “Why Women Don’t Report Sexual Harassment: A Case Study of an Elite Military Institution,” 

Gender Issues, (Fall 2003); L. Camille Hebert, “Why Don’t ‘Reasonable Women’ Complain About Sexual 

Harassment,” Indiana Law Journal, vol. 82, no. 3, 2007; Louise Fitzgerald, Suzanne Swan, and Karla Fischer, “Why 

Didn’t She Just Report Him? The Psychological and Legal Implications of Women’s Responses to Sexual 

Harassment,” Journal of Social Issues, vol. 51, no. 1, 1995; Susan Hinze, “‘Am I being over-sensitive?’ Women’s 

experience of sexual harassment during medical training,” Health: An Interdisciplinary Journal for the Social Study 

of Health, Illness and Medicine, vol. 8, no. 1, 2004. 

1131 Lulu Garcia-Navarro, “Sexual Harassment In National Security,” NPR, Dec. 3, 2017, 

https://www.npr.org/2017/12/03/568133013/sexual-harassment-in-national-security.

1132 Ibid.

1133 Leslie Bassett, “Making It Work: Conversations with Female Ambassadors,” The Foreign Service Journal, 

July/Aug. 2017, https://www.afsa.org/making-it-work-conversations-female-ambassadors.

1134 Ibid.

1135 Ibid.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 217

human resources that not only was there no reason to report, and that it would negatively affect 

her career if she chose to report.1136

In a civil rights complaint filed in federal court, the former Director of the Office of Public 

Diplomacy in the Bureau of European and Eurasian Affairs, alleges that she told her thensupervisor, who was at the time a Deputy Assistant Secretary of State, that there were issues of 

male supervisors bullying female employees.1137 She alleges that her supervisor attempted to block 

her attempts to bring these issues to light and he told her that she was “paranoid and believed 

everyone was against her” and while she was a capable Foreign Service Officer, she was “too 

emotional and personal in her outlook.”1138 She also alleges that her supervisor later tried to 

sabotage her promotion to Deputy Chief of Mission.1139

Another concern about reporting stems from employees not being sure of whom they can report 

to. For instance, one former State Department official stated that reporting an incident “becomes 

even more complicated when the person in charge of security is the problem.”1140 In her public 

comment to the Commission, former officer Amy Dahm also explained her experience and 

confusion regarding whom at the State Department she could turn to after she had to endure several 

incidents of harassment during her tenure at State. She wrote that:

When I went to report my harassment and its aftermath, several mentors and peers that I 

reached out to actively dissuaded and advised me, “Don’t fight it.” Not sure where to go, I 

confided in my former Deputy Chief of Mission (DCM) a mandatory reporter, who did 

nothing and admitted as much. When I reported the series of incidents to a representative 

in EUR/HR, the officer squeezed her eyes shut, plugged her ears, and said to me, ‘No 

names!’ It was her JOB to listen and investigate, and even she did not want to hear it.1141

Further, sometimes an alleged harasser may be moved to a different post during the investigation, 

but other times, the alleged harasser remains at post and the complainant is forced to work 

alongside his or her assailant. This may cause a stressful or tense work environment for both parties 

 

1136 Ibid.

1137 See Complaint ¶ 2, Ruppe v. Tillerson, Case 1:17-cv-02823 (D.D.C., Dec. 28, 2017), http://src.bna.com/vjW. As 

of the writing of this report, settlement negotiations failed, discovery is underway, and a status conference is 

scheduled for February 2020. Since Tillerson was replaced as Secretary of State, the case is now filed as: Ruppe v. 

Pompeo.

1138 Id. at ¶ 106.

1139 Id. at ¶ 95.

1140 Ibid.

1141 Amy Dahm, retired Foreign Service Officer, U.S. State Department, submitted for Federal Me Too: Examining 

Sexual Harassment in Government Workplaces, May 9, 2019, at 5.
218 FEDERAL #METOO

involved. Moreover, this failure to separate can be particularly problematic at some posts that are 

staffed by a small workforce, since a victim may not be able to distance themselves from an alleged 

harasser.

1142

The reporting process is further complicated due to multiple posts (there are 276 posts, as of June 

30, 2019)1143 and the leadership of a particular post can play a significant role – as either supportive 

or a barrier— which speaks to a high level of inconsistency across the agency.1144 While current 

and former State officials spoke well of some supervisors, the turnover at different posts can make 

the complaint process more difficult. For example, Jenna Ben-Yehuda testified that “you have in 

the system a large percentage of the workforce that turns over every two years. The reality is that 

few managers are in roles for longer than two years, [but you have a] system in which these kinds 

of issues take many more years to resolve.”1145 So even when a manager wants to investigate a 

complaint and try and hold an employee accountable for the employee’s actions, Ben-Yehuda 

argues that the solution sometimes becomes, “‘John did a bad thing. We’ll just have John do a 

rotation somewhere else.’”1146

After the #MeTooNatSec letter was released a State Department official told reporters that it 

reviews its anti-harassment policies and the recent scandals have given the agency “an opportunity 

to assess its anti-harassment program and determine that additional resources are necessary to 

ensure that each report and allegation receives attention.”1147 

Following the attention to the State Department from the #MeTooNatSec letter and the calls from 

Members of Congress to address sexual harassment at the agency, in February 2018, the State 

Department’s Office of the Inspector General stated that it was going to conduct a follow-up 

 

1142 Emily Tamkin and Robbie Gramer, “Will State Miss Its #MeToo Moment?” Foreign Policy, March 5, 2018, 

https://foreignpolicy.com/2018/03/05/for-us-diplomats-metoo-faces-hurdles-state-department-sexual-harassment/.

1143 Department of State, HR Fact Sheet, June 30, 2019 (accessed, Aug. 21, 2019), https://www.state.gov/wpcontent/uploads/2019/07/Human-Resources-Fact-Sheet-as-of-032019.pdf.

1144 Emily Tamkin and Robbie Gramer, “Will State Miss Its #MeToo Moment?” Foreign Policy, March 5, 2018, 

https://foreignpolicy.com/2018/03/05/for-us-diplomats-metoo-faces-hurdles-state-department-sexual-harassment/.

1145 Ibid.

1146 Ibid.; see also infra notes 1188-90 (Outcomes of Investigations).

1147 Maya Rhodan, “‘We, Too, Are Survivors,’ 223 Women in National Security Sign Open Letter on Sexual 

Harassment,” Time, Dec. 1, 2017, https://time.com/5039104/we-too-are-survivors-223-women-in-national-securitysign-open-letter-on-sexual-harassment/.

1147 Leslie Bassett, “#StateToo: Ending Harassment at the State Department,” The Foreign Service Journal, Mar. 

2018, https://www.afsa.org/statetoo-ending-harassment-state-department.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 219

investigation about how the agency is handling these allegations of sexual harassment.1148 A 

spokeswoman for the Office of the Inspector General reported that the review is still “in an early 

stage” but would focus on the prevalence of sexual harassment and assault, internal procedures on 

how complaints are investigated, what disciplinary actions are taken when an allegation is 

substantiated, and the roles of the S/OCR, Bureau of Human Resources, and Bureau of Diplomatic 

Security.1149 Several State officials told reporters for Foreign Policy that while they welcome the 

investigation, they are not optimistic that it will result in any lasting reforms. For instance, one 

State official said that: “I don’t have much faith in their ability to effect change. A number of 

people have been afraid to report stuff to the [Office of Inspector General] . . . I don’t trust their 

ability to protect sources.”1150 Another current State official stated that “It is well known that even 

when the [Office of the Inspector General] investigates and makes recommendations, including 

disciplinary action against senior employees, that enforcement and implementation of those 

recommendations is, at best, lackluster.”1151

In another report, issued by the Office of the Inspector General in August 2019, investigators found 

several incidents of leadership and management officials treating employees inappropriately and 

disrespectfully, which contributed to a hostile work environment in the Bureau of International 

Organizational Affairs.1152 Further, the Office of the Inspector General investigators found 

incidents of retaliation and serious morale concerns among staff.1153 Several employees and former 

employees in the bureau reported that two high level officials (one male and one female) 

“frequently berated employees, raised their voices, and generally engaged in unprofessional 

behavior towards staff. Senior Department officials outside of [Bureau of International 

Organization Affairs] were particularly concerned about such treatment directed at junior 

 

1148 Robbie Gramer and Emily Tamkin, “State Department Watchdog Reviewing Sexual Harassment, Assault 

Policies,” Foreign Policy, April 13, 2018, https://foreignpolicy.com/2018/04/13/state-department-watchdogreviewing-sexual-harassment-assault-policies/. 

1149 Ibid.

1150 Robbie Gramer and Emily Tamkin, “State Department Watchdog Reviewing Sexual Harassment, Assault 

Policies,” Foreign Policy, April 13, 2018, https://foreignpolicy.com/2018/04/13/state-department-watchdogreviewing-sexual-harassment-assault-policies/. This fear of reporting seems to be a significant hurdle for current 

employees at the State Department. In the Commission’s call for public testimony and submissions in connection to 

the Washington Briefing, the Commission received an email from an individual who claims to be a current state 

employee who stated that they were afraid to divulge information about the practices at the State Department due to 

retaliation. While the Commission could not substantiate these claims, it does raise concern. 

1151 Emily Tamkin and Robbie Gramer, “Will State Miss Its #MeToo Moment?” Foreign Policy, March 5, 2018, 

https://foreignpolicy.com/2018/03/05/for-us-diplomats-metoo-faces-hurdles-state-department-sexual-harassment/.

1152 U.S. Department of State, Office of the Inspector General, Review of Allegations of Politicized and Other 

Improper Personnel Practices in the Bureau of International Organization Affairs (Aug. 2019)

https://www.stateoig.gov/system/files/esp-19-05.pdf.

1153 Ibid., 19.
220 FEDERAL #METOO

employees.”1154 For instance, there was an incident where these two officials publicly berated a 

junior employee and caused her to cry.1155 Moreover, approximately 50 of 300 domestic Internal 

Organizational Affairs employees left the office since the new Assistant Secretary began his 

position in April 2018; and nearly all of the employees interviewed by the Office of Inspector 

General stated that poor leadership contributed to their decision to leave the bureau.1156 The report 

also notes that nearly every employee who was interviewed by the investigators stated concerns 

regarding the behavior of leadership in the Internal Organizational Affairs and the overall 

treatment of the staff.1157 Further, the Office of the Inspector General investigators found that a 

Principal Deputy Assistant Secretary was dismissed from her position by the Assistant Secretary 

specifically because she raised concerns about the misconduct of management and concerns of 

retaliation. The Office of Inspector General notes that the Principal Deputy Assistant Secretary 

had a tenure of 25 years in the Foreign Service, was a career member of the Senior Foreign Service, 

and served as an Ambassador and as the Acting Assistant Secretary of Internal Organization 

Affairs for several months prior to new Assistant Secretary’s confirmation; plus, she has received 

numerous awards from State, including a Presidential Rank of Meritorious Executive Award. 

When she brought her concerns to the Assistant Secretary, however, he dismissed them and stated 

that he supported his advisor’s conduct and she was being named as his Senior Advisor which 

meant she could manage the office as she deemed appropriate.1158 The Office of Inspector General 

report suggests that the Principal Deputy’s dismissal was unrelated to merit-based factors, and that 

it may cause concern under the State Department’s non-retaliation policy.1159 

While not specifically investigating allegations of sexual harassment, the results of the Office of 

Inspector General investigation demonstrate that a hostile workplace culture may exist in at least 

one component of State in recent years. As discussed previously, the culture of an agency plays a 

crucial part in preventing harassment and fostering an environment where employees can 

confidently report incidents, develop trust in management and leadership officials, and be 

reassured that they will not be retaliated against if they report an incident.1160

The State Department explained to the Commission that one of the two high-level officials in the 

Office of Inspector General 2019 report was no longer employed at the agency by the time of the 

 

1154 Ibid., 6.

1155 Ibid., 13.

1156 Ibid., 13.

1157 Ibid., 13.

1158 Ibid., 14.

1159 Ibid., 16.

1160 See e.g., supra notes 321-25; 335-40.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 221

report’s release.1161 Further, the second official named in the report who was a senior official 

responsible for overseeing the bureau during the OIG investigation has announced his resignation 

from the agency.1162 In light of the investigation, State told the Commission that the “bureau is 

undertaking appropriate rebuilding and resilience efforts, in collaboration and coordination with 

S/OCR and other Agency resources.”1163

Another measure of gauging employees’ perception of their work experiences at the State 

Department, although it does not specifically addressing sexual harassment, is to analyze the 

Federal Employment Viewpoint Survey (FEVS).1164 Since the inception of the “New IQ” scores 

in 2014, State’s New IQ total has remained consistent – except a slight increase in 2017 at 64 

percent – at about 62 percent from 2014-2018.1165 The State Department’s total score is slightly 

lower compared to other similarly sized federal agencies, but is one percent higher than the overall 

government-wide average (see Table 22). This total is a combination of the other individual ratings 

of: fair, open, cooperative, supportive, and empowering. 

Table 22: FEVS, New IQ Scores (2018)

Fair Open Cooperative Supportive Empowering Total

Government-Wide 48% 60% 58% 78% 60% 61%

Large Agencies 

(10-74,999k) 51% 62% 61% 81% 62% 64%

Department 

of State 49% 61% 59% 79% 60% 62%

Source: Office of Personnel Management, Federal Employment Viewpoint Survey, 2018, 

https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-managementreport/governmentwide-report/2018/2018-governmentwide-management-report.pdf. 

Most of the annual totals have remained relatively consistent among all five categories from 2014 

to 2018.1166 The State Department’s “fair” rating has remained generally consistent at 49 percent 

to its highest rating in 2017 at 52 percent. The “open” rating has had slightly more variation from 

 

1161 State Department, Affected Agency Review to Commission on draft report, Nov. 6, 2019 [on file].

1162 Ibid.

1163 Ibid.

1164 Office of Personnel Management, Federal Employment Viewpoint Survey, 2018, 

https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-management-report/governmentwidereport/2018/2018-governmentwide-management-report.pdf.

1165 Ibid. 1166 See Office of Personnel Management, Federal Employee Viewpoint Survey, “New IQ Results by Agency,” 

https://www.opm.gov/fevs/reports/data-reports.
222 FEDERAL #METOO

its lowest rating of 61 percent in 2018 and 2016 to its highest of 64 percent in 2017. The 

“cooperative” rating has a range of 58 percent in 2014 to 63 percent in 2017. The “supportive” 

rating has remained generally consistent at about 78 percent since 2014, but increased slightly to 

its highest rating of 80 percent in 2017. The “empowering” rating also has little variation from 

2014, remaining basically consistent at 62 percent, until 2018 where it dropped to its lowest of 60 

percent.1167

Processing Times

State reports that the time to complete harassment investigations can range from 60 to 180 days 

depending on various components of the case, such as the number of victims, witnesses, and 

alleged harassers, the time frame of the allegations, the location(s) where the alleged harassment 

took place, the current location of all the witnesses.1168 The agency noted that S/OCR aims to 

complete inquiries within 120 days, and that most can be completed in less than 90 days. While an 

investigation is underway, State reports that it may take actions such as “temporary reassignment, 

altering the reporting structure/chain of command, and curtailment (removal) from an oversea 

post.”1169

State Department agency data shows that during fiscal year 2017, it was not able to provide timely 

EEO counseling (i.e., within 30 days of the initial request or within the agreed upon extension in 

writing, which is up to 60 days) to complainants who are alleging incident(s) of harassment or 

discrimination.1170 EEOC also found that State had been lagging in its processing of harassment 

complaints: “EEOC found the timely processing of EEO counseling has consistently fallen below 

the FY 2015 government wide average (93.82 percent). From FY 2013 to FY 2016, the percentage 

of [State’s] timely completed EEO counseling decreased from 71 percent to 67 percent.”1171

The Office of Civil Rights at the State Department explains that the decrease in the number of 

EEO counselings in fiscal year 2017 was due to the agency doing a complete “overhaul of the 

nomination process for new collateral-duty EEO counselors. [And] [a]s a part of this process, new 

EEO Counselors certif[ied] that they will be required to meet strict regulatory deadlines and that 

failure to do so will result in their removal from the agency’s EEO Counselor Program.”1172 State

 

1167 Ibid.

1168 See Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Oct. 17, 2019, at 28-29.

1169 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Oct. 17, 2019, at 30.

1170 U.S. Department of State, Equal Employment Opportunity Commission Management Directive 715 EEO 

Program Status Report, Fiscal Year 2017, at 27.

1171 MD 715 report of FY 17 at p. 42.

1172 Ibid., 44.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 223

also stated that it created a new agency policy to remove EEO counselors from their positions for 

infractions such as inferior work product and tardiness. As such, according to an EEOC annual 

status report, the Office of Civil Rights made progress in FY 2018 and achieved an 80 percent 

timely notice of right to file issuance rate.1173 

As of October 2019, the Office of Civil Rights also explained that it had 9 sexual harassment 

complaints pending and the average time for pending cases at the agency is 135 days, compared 

to pending cases at the EEOC (i.e., after the internal investigation is complete and sent over to 

EEOC for action) was 664 days.1174 In terms of resolving sexual harassment complaints, the Office

stated that it had an average of 54 days in the informal process, compared to an average of 338 

days in the formal process, and an overall average time to resolution of 97 days.1175 Comparatively, 

No FEAR Act data (while it does not break out the processing times for specific claims such as 

sexual harassment) show that in 2018, State had it longest processing time in this study’s 

timeframe.1176 The agency’s overall complaints processing times had decreased to 187.82 average 

days in 2016 compared to 200.97 average days in 2015. But these averages further increased to 

207.17 days in 2017, and 231.30 days in 2018. Moreover, as of March 31, 2019, State already had 

an average processing time for complaints of 249.94 days;

1177 however the agency finished FY 

2019 with an average of 216.45 days for processing investigations, which is a decrease from FY 

2018.1178 The agency noted that its overall timeliness for FY 2019 was 92 percent, which is a 

higher than the federal government-wide average of 83.75 percent.1179 

According to the Department’s fiscal year 2017 MD 715 report, one reason it has struggled with 

its complaints processing (which includes EEO counseling, investigations, and FADs) is due to a 

lack of sufficient personnel resources allocated to the EEO program, which they state was due to 

the federal hiring freeze in January 2017;1180 and continued to be a concern in its FY18 EEOC 

report.1181 In terms of resolutions, the agency stated in fiscal year 2017, that when a complainant 

 

1173 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Addenda, Oct. 17, 2019, at 104.

1174 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Oct. 17, 2019, at 58.

1175 Ibid., 57.

1176 U.S. Department of State, “Equal Employment Opportunity Data Posted Pursuant to the No Fear Act,” March 

31, 2019, https://www.state.gov/wp-content/uploads/2019/04/NO-FEAR-2nd-Qtr-2019.pdf.

1177 Ibid. 

1178 State Department, Affected Agency Review to Commission on draft report, Nov. 6, 2019 [on file].

1179 Ibid.

1180 U.S. Department of State, Equal Employment Opportunity Commission Management Directive 715 EEO 

Program Status Report, Fiscal Year 2017, at 20, https://www.state.gov/wp-content/uploads/2019/01/ManagementDirective-715-Report.pdf.

1181 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Addenda, Oct. 17, 2019, at 83.
224 FEDERAL #METOO

requests a final agency decision (FAD), it has not been able to issue all decisions within the 

regulatory 60-day window.1182 In FY 2017, the agency reported that 86 percent of FADs were 

completed on time,

1183 which is a higher than NASA’s and the government-wide average (17 

percent and 60.83 percent, respectively).1184

Outcomes of Investigations

In fiscal year 2018, State reported to EEOC that it conducted 441 counseling sessions during the 

informal pre-complaint process, and of these 160 were counseled within 30 days.1185 Of the total 

completed counselings, 227 were counseled within 31 to 90 days, of which 37 were untimely. And 

a further 54 counselings were completed beyond the 90 days. There were 310 individuals who 

were offered ADR, 77 of these accepted the ADR process.1186 Of those who went into Alternative 

Dispute Resolution, mediation was the most common technique utilized in counseling. In total, 

State closed all 77 Alternative Dispute Resolution cases with an average of 47.03 days, with 10 

individuals agreeing to settlements (both monetary and non-monetary), and 16 choosing not to file 

a formal complaint. Of those who chose to file a formal complaint, 9 individuals had no resolution 

and 39 did not attempt Alternative Dispute Resolution. In the remaining 3 cases, those individuals 

had not yet decided if they were going to file a complaint at the end of the reporting period 

(September 30, 2018).1187 

State reported to the Commission that through its internal anti-harassment program, the Human 

Resources office issued a total of 15 decisions in disciplinary cases regarding conduct that involved

discrimination, harassment, or retaliation in fiscal year 2018, which was a decrease from 18 

employees in 2017 and 21 employees in 2016.1188 Ten of these 15 disciplinary cases in 2018, one 

of which included an individual resigning with a disciplinary action pending, specifically pertained 

to harassment of a sexual nature or harassment related to gender and/or gender and sexual 

orientation. These cases involved inappropriate conduct such as comments that were sexual in 

 

1182 U.S. Department of State, Equal Employment Opportunity Commission Management Directive 715 EEO 

Program Status Report, Fiscal Year 2017, at 27.

1183 Ibid., 40.

1184 See NASA, Equal Employment Opportunity Strategic Plan: FY 2017-19, at 14, 

https://www.nasa.gov/sites/default/files/atoms/files/fy_2018_nasa_md-715_report_508.pdf; See State Department 

Affected Agency Responses to Draft Report to Commission, Nov. 6, 2019 [on file]. 

1185 U.S. Department of State, Equal Employment Opportunity Commission Management Directive 715 EEO 

Program Status Report, Fiscal Year 2017, at 133.

1186 Ibid., 150.

1187 Ibid.

1188 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Oct. 17, 2019, at 63-64. 
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 225

nature, unwelcome physical contact, and failure of a supervisor or State official to report 

harassment, among others.1189 In all of these cases, disciplinary action was taken, which varied 

from letters of admonishment, letters of reprimand, and 1- to 3-day suspensions. State notes that 

in the case where the employee left the agency with the pending decision, the proposed action was 

a 10-day suspension.1190 Comparatively, of the 18 cases in 2017, 15 of the cases specifically were 

in response to sexual harassment or harassment related to gender and/or gender or sexual 

orientation; and 16 of the 21 cases in 2016 pertained to sexual harassment or harassment related 

to gender and/or gender or sexual orientation.1191

Regarding resolutions of complaints, since 2016, no sexual harassment complaints were resolved 

through Alternative Dispute Resolution in the informal process, but two were settled through 

Alternative Dispute Resolution in the formal EEO complaint stage.1192 Further, the agency reports 

that it has paid monetary benefits in one settled complaint alleging sexual harassment since 2016; 

and has also negotiated other settlement agreements that included other non-monetary relief such 

as: expunging personnel records, a letter of eligibility, leave restoration, training, scheduled 

meetings with the complainant’s leadership, and assistance in finding an onward assignment.1193

In terms of formal EEOC resolutions, as of June 30, 2019, two cases in 2018 and one case in 2019 

had findings of discrimination on the basis of harassment (non-sexual). According to the No FEAR 

Act report data, however, no disciplinary action was taken.1194 No FEAR Act data also showed 

that the number of complaints dismissed by State increased from 2015 to 2016 (from 10 to 17, 

respectively) and increased to 29 cases in 2017 and 2018. 1195 The number of dismissed cases 

further increased in 2019, and as of June 30, 2019, the State Department has dismissed 32 cases.1196

Further, the No FEAR Act report shows that from fiscal years 2016 to 2018, there have been 16 

withdrawn complaints across the two years, and 14 withdrawn as of June 30, 2019.1197

 

1189 Ibid., 63. The other 7 cases included harassment related to national origin, race, and religion.

1190 Ibid., 64.

1191 Ibid., 64.

1192 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Oct. 17, 2019, at 71-72.

1193 Ibid.

1194 U.S. Department of State, Equal Employment Opportunity Data Posted Pursuant to the No Fear Act, June 30, 

2019, https://www.state.gov/wp-content/uploads/2019/08/nofear-3rd-Quarter-Ending-June-30-2019.pdf.

1195 Ibid., 4. 

1196 Ibid.

1197 Ibid.
226 FEDERAL #METOO

State reported that when it comes to a decision on whether a case should be accepted or dismissed, 

it is S/OCR’s practice to decide in the complainant’s favor.1198 The agency argues that this is 

reflected in its dismissal rate which is below the federal average and its remand rate is even 

lower.1199 For example, in FY 2018, State processed 216 formal complaints and 31 dismissals 

(14.35 percent); comparatively EEOC data show that there were 16,565 formal complaints and 

2,536 dismissals government wide.

1200 These data represent a decrease from FY 2017, where the 

dismissal rate was 17.71 percent, but an increase from 2016 that was 9.44 percent. Of the 31 

dismissed cases in FY 2018, two were remanded by the EEOC,1201 which remains below the 

average dismissal remand rate of about 30 percent.1202

In fiscal year 2018, the Office of the Legal Adviser at the State Department reported that 10 

complaints were filed in federal court alleging discrimination, harassment, and/or retaliation.1203 

As of October 2019, State reported that there are six cases alleging sexual harassment that are 

pending a hearing at EEOC.1204 

In fiscal year 2018, in the formal complaint process, there were a total of 159 closures (with an 

average of 430.98 days), and the majority of these cases were closed through final agency decisions 

(123) that took an average of 470.60 days.1205 Of these Final Agency Decisions, 95 were closed 

without an EEOC Administrative Judge (with an average of 306.80 days) and 28 were closed with 

an Administrative Judge (with an average of 1,026.36 days).1206 The fact that these cases, on 

average, take over a year and may take almost three years to come to a resolution, demonstrates 

the difficulty of this process and further illustrates why some victims may choose not to report.1207

Jenna Ben-Yehuda testified to this point clearly: “when a number of these cases are taking 18 

 

1198 State Department, Affected Agency Review to Commission on draft report, Nov. 6, 2019 [on file]; see also

EEOC, Table B-1 FY 2018 Total Work Force, Counselings, and Complaints.

1199 State Department, Affected Agency Review to Commission on draft report, Nov. 6, 2019 [on file].

1200 Ibid; see also EEOC Table B-13 FY 2018 Complaints Closed with Dismissals; EEOC, Table B-1 FY 2018 Total 

Work Force, Counselings, and Complaints.

1201 State Department, Affected Agency Review to Commission on draft report, Nov. 6, 2019 [on file].

1202 EEOC, New EEOC Report Identifies Common Errors by Federal Agencies in Dismissing Discrimination 

Complaints on Procedural Grounds, Sept. 15, 2014, https://www.eeoc.gov/eeoc/newsroom/release/9-15-14.cfm.

1203 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Addenda, Oct. 17, 2019, at 157.

1204 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Oct. 17, 2019, at 68.

1205 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Addenda, Oct. 17, 2019, at 147.

1206 Ibid.

1207 See e.g., Jenna Ben-Yehuda Testimony, Washington Briefing, p. 81; Debra Katz Testimony, Washington 

Briefing, p. 129.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 227

months, two years to adjudicate, that silences people from coming forward, and it also can carry 

[] the rumor mill for many years to come because it’s not adjudicated in a timely fashion.”1208

Similarly, Debra Katz also asserted: “the fact of the matter is, some of these cases drag on for 

many, many, many years, and it creates a huge disincentive when combined with a fear of 

retaliation, for anybody to come forward.”1209

In the formal complaint process in FY 2018, there were a total of 23 complaints closed and 11 

were with monetary benefits that amounted to $168,775.62 as lump payments for compensatory 

damages.1210 There were 21 complaints that were settled with non-monetary benefits and these

ranged from expungements, reassignments, rescinding removals, to training and having leave 

restored or a performance evaluation modified.

1211

In her publication in the American Foreign Service Association journal, Leslie Bassett wrote that 

while awareness of women’s rights improved greatly since a class-action lawsuit filed in 1986 was 

finally settled in 2010; however:

During the last several years cases pursued and disciplinary action taken through the 

administrative inquiry process have increased significantly. In the last five years the 

Foreign Service Grievance Board (the last forum for appeal of department administrative 

sanctions by members of the Foreign Service) has denied appeals filed by employees facing 

discipline for inappropriate comments, inappropriate behavior and poor judgment. Such 

cases have involved, for instance, an officer who “made sexually inappropriate remarks 

and engaged in offensive touching behaviors”; an officer whose unwanted attentions drove 

a locally employed (LE) staff member to seek resignation; an engineer who harassed a 

contractor; and a management officer who harassed LE staff, local contract staff and 

household staff. Generally the grievants in these cases outranked their victim(s).1212

Jenna Ben-Yehuda testified that “sexual harassment and assault claims are not adjudicated as part 

of the background for Senate-confirmed positions at the Department of State.”1213 This means that 

if a candidate is being vetted to be chief of mission or an ambassador, a record of harassment and 

 

1208 Jenna Ben-Yehuda Testimony, Washington Briefing, p. 81.

1209 Debra Katz Testimony, Washington Briefing, p. 129.

1210 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Addenda, Oct. 17, 2019, at 148. Note, EEOC 

does not break complaint closures down by issue.

1211 Ibid.

1212 Leslie Bassett, “#StateToo: Ending Harassment at the State Department,” The Foreign Service Journal, Mar. 

2018, https://www.afsa.org/statetoo-ending-harassment-state-department.

1213 Ben-Yehuda, Testimony, Washington Briefing, p. 80.
228 FEDERAL #METOO

misconduct is not a requirement for Senate confirmation. According to Ben-Yehuda, this practice 

is currently being investigated by Congresswoman Speier in her upcoming legislation regarding 

sexual harassment and the State Department. 

Further, Ben-Yehuda also testified that it is possible that employees receive beneficial career 

moves that are not a promotion, and if they have a record of misconduct, that information is not 

shared.1214 Lack of accountability or, more pointedly, career progress in the face of established 

records of misconduct can signal that harassing conduct is condoned and costless. She stated that 

in an already stretched workforce, being moved into a different office and taking on additional 

responsibilities is seen as a positive transition and “it ends up benefitting the accused because they 

get additional opportunities, whereas it’s very difficult to come by otherwise [and] the same goes 

for additional training. . . [H]ighly sought-after trainings are often a great place to park people 

when they are a problem.”1215

At the Commission’s briefing, Stacey Young, senior litigator at the Justice Department, testified 

that a similar practice occurs at the Justice Department. Instead of adequately addressing issues of 

harassment, officials engage in a practice Young called “pass the trash, whereby serious offenders 

are moved from one office to another.”1216 Not only does this practice not effectively end the 

misconduct but “transferring predators around an agency telegraphs a permissive attitude toward 

harmful behavior and subjects new offices to future incidents.”1217 In late 2017, the Justice 

Department reportedly implemented a new policy in light of serious harassment and assault 

allegations, focusing on trying to hold harassers accountable. One strategy it implemented was that 

it does not allow an alleged harasser who has a substantiated claim against them to be eligible for 

an award or promotion while they are under an investigation.1218

By contrast, the State Department has not implemented such a policy and information about 

alleged harassment or retaliation are not required to be included in performance reviews or 

promotions for supervisors.1219 At the Commission’s briefing, the State Department’s 

representative testified that if there is a concern when an individual in the Foreign Service is “under 

 

1214 Ibid.

1215 Ibid.

1216 Young Testimony, Washington Briefing, p. 155.

1217 Ibid.

1218 Sari Horwitz, “Inspector general says mishandling of sexual harassment complaints at Justice Department is a 

‘systemic’ problem,” Washington Post, Dec. 26, 2017, https://www.washingtonpost.com/world/nationalsecurity/inspector-general-says-mishandling-of-sexual-harassment-complaints-at-justice-department-is-a-systemicproblem/2017/12/26/ed51abf6-dc35-11e7-b1a8-62589434a581_story.html.

1219 Emily Tamkin and Robbie Gramer, “Will State Miss Its #MeToo Moment?” Foreign Policy, March 5, 2018, 

https://foreignpolicy.com/2018/03/05/for-us-diplomats-metoo-faces-hurdles-state-department-sexual-harassment/.
CHAPTER 4: INVESTIGATION OF TWO FEDERAL AGENCIES 229

consideration for tenure to remain in the Foreign Service, for promotion, for appointment to senior 

level positions,” the Office of Civil Rights will flag a personnel file and alert the Human Resources 

office.1220

According to State’s responses to the Commission, a discriminatory finding is not included in an 

employee’s personnel file, but the case is referred to the Conduct, Suitability, and Discipline 

Division in the Bureau of Human Resources’ Office of Employee Relations for discipline and, if 

found appropriate, the resulting disciplinary action could result in the finding being documented 

in the employee’s personnel record.1221 Further, State reports that a disciplinary action is 

documented in an employee’s file for varying lengths of time, depending upon the method. For 

instance, if a letter of admonishment is issued in lieu of disciplinary action, it is not place in an 

employee’s Official Performance Folder (OPF) but is retained for a year and then destroyed; letters 

of reprimand remain in a Foreign Service employee’s OPF for one year or until it is reviewed by 

a promotion or commissioning and tenure board; and a decision letter imposing a suspension for 

five or fewer days remains in the OPF for two years or until reviewed by two tenure boards.1222 

In the EEOC’s Select Task Force report, EEOC Commissioners Feldblum and Lipnic argue that 

an agency needs to take a “swift, effective, and proportionate” response to dealing with 

harassment.1223 This includes addressing behaviors that may not necessarily rise to the level of 

being “severe or pervasive,” but yet still contribute to hostile workplace environment.1224 The

report suggests that managers should focus on enhancing workplace civility and intervene if they 

are witness to the misbehavior, or if bystanders or victims report inappropriate conduct.1225

Further, some advocates suggest that it is beneficial for management to be more transparent about 

the disciplinary or corrective actions that they are taking with the accused party. This practice 

thereby informs the victim and other employees, about what steps are being taken to correct the 

 

1220 Smith Testimony, Washington Briefing, p. 79.

1221 Department of State Interrog. Resp. to U.S. Comm’n Civil Rights, Oct. 17, 2019, at 58.

1222 Ibid., 59-60.

1223 Chai Feldblum and Victoria Lipnic. EEOC Select Task Force on the Study of Harassment in the Workplace, 

Report of Co-Chairs Chai R. Feldblum and Victoria A. Lipnic, June 2016, at 32.

1224 See e.g., Karen Brummond, Robyn Dupont, Maria Kaplan, Joseph Popiden, Navarro Pulley, Alex Romero, and 

Laurence Thompson, “Assessing Workplace Harassment Methods Through Comparisons with Similar Crime 

Prevention Strategies,” Digest of EEO Law, https://www.eeoc.gov/federal/digest/vol_2_fy18.cfm; see also, Equal 

Employment Opportunity Commission, “Promising Practices for Preventing Harassment,” 

https://www.eeoc.gov/eeoc/publications/promising-practices.cfm. 

1225 Chai Feldblum and Victoria Lipnic. EEOC Select Task Force on the Study of Harassment in the Workplace, 

Report of Co-Chairs Chai R. Feldblum and Victoria A. Lipnic, June 2016.
230 FEDERAL #METOO

misconduct.1226 The data and testimony received by the Commission suggest that managers and 

senior leadership officials at State should continue focusing their attention on how to prohibit these 

behaviors to ensure a workplace that is free from harassment for all employees.

Finally, the Commission received an anonymous comment from a current employee with concerns 

that Nondisclosure Agreements (NDAs) signed by State employees cause hesitation to discuss 

sexual harassment.1227 The commenter stated that, “Presently, State employees are told that if they 

talk to their Congressperson or USCCR about the events that resulted in an NDA, then they could 

lose any financial remedies and be fired.”1228 The Commission is not in a position to verify whether 

these allegations are true, as this does not fall under its jurisdiction, and in fact State internally 

requires mandatory reporting of sexual harassment.1229 However, the Commission emphasizes 

that, for legal and policy reasons, in the realm of EEOC complaints, EEOC generally prohibits 

settlements requiring that the victim keep the information confidential.1230

The allegations could be connected to an overall environment in which women at State have felt 

pressure not to report sensitive information because they work in national security positions.1231

But it is clear that while strict confidentiality agreements may be required in national security 

positions, they should not operate to prohibit the reporting of sexual harassment or other civil rights 

violations.1232

 

1226 Sunu Chandy Testimony, Washington Briefing, p. 31; Jenna Ben-Yehuda Testimony, Washington Briefing, p. 

52; Tamara Chrisler Testimony, Washington Briefing, p. 90.

1227 Anonymous Public Comment to USCCR (May 28, 2019), Individual 6, at p. 3, 

https://securisync.intermedia.net/us2/s/folder?public_share=Cw5d2N47Zoq3vCkv3tuRjg0011ef58&id=L1B1Ymxp

YyBDb21tZW50cw%3D%3D.

1228 Ibid.

1229 See supra note 991.

1230 See supra notes 700-704.

1231 See e.g., supra notes 946-47; 1110-28.

1232 See e.g., 12 Foreign Affairs Manual § 713.2-5e (State Department NDAs “are consistent with and do not 

supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute 

or EO (Executive Order) relating to: (1) Classified information; (2) Communications to Congress; (3) The reporting 

to an Inspector General of a violation of any law, rule or regulation, or mismanagement, a gross waste of funds, an 

abuse of authority, or a substantial and specific danger to the public health or safety; or (4) Any other whistleblower 

protection.”),

https://fam.state.gov/searchapps/viewer?format=html&query=classified%20information%20nondisclosure%20agree

ment&links=CLASSIFI,INFORM,NONDISCLOSUR,AGREEMENT&url=/FAM/12FAM/12FAM0710.html#M71

3_2_5; 5 U.S.C. § (b)(8)(prohibition against retaliation for employee reporting any information which they believe 

to be a violation of any law, rule or regulation); Exec. Order 13.526, Classified National Security Information (Dec. 

29, 2009), § 1.7(a) (“In no case shall information be classified, continue to be maintained a classified, or fail to be 

declassified in order to: (1) conceal violations of law, inefficiency, or administrative error ... or (4) present or delay 

the release of information that does not require protection in the interest of the national security.”). In 2013, 
CHAPTER 4: INVESTIGATIONS OF TWO FEDERAL AGENCIES 231

Congress extended these protections to cover even federal contractors. 41 U.S.C. § 4712(a) (employee of federal 

contractor may not be “discharged, demoted or otherwise discriminated against as a reprisal for disclosing to a 

person or body... information that the employee reasonably believes is evidence of... “a violation of law, rule or 

regulation related to the contract”); see also U.S. Dept. of State, Office of Inspector General, Review of the Use of 

Confidentiality Agreements by Department of State Contractors, (Mar. 2015),

https://www.stateoig.gov/system/files/esp-15-03.pdf at 6 (some contractors have policies that may inhibit reporting 

of fraud, waste, and abuse).
232 FEDERAL #METOO

CHAPTER 5: FINDINGS AND RECOMMENDATIONS

FINDINGS

Background and Rule

1. Despite the passage of over thirty years since the landmark ruling establishing that sexual 

harassment claims may be pursued under Title VII of the Civil Rights Act, sexual 

harassment continues to be a significant problem, including in federal workplaces. 

2. Sexual harassment in the federal government imposes harms on individuals and infects 

federal workplace cultures.

3. There is a dearth of publicly available data regarding sexual harassment among federal 

employees. The challenge of fully understanding the scope of the issue in federal 

workplaces is compounded by the fact that sexual harassment often goes unreported.

4. In the 1986 decision in Meritor Savings Bank v. Vinson, the Supreme Court held that Title 

VII of the Civil Rights Act of 1964 prohibits sexual harassment in the workplace as a form 

of sex-based discrimination.

5. The judicial test for actionable sexual harassment which requires that it rise to the level of 

being “severe or pervasive,” has drawn criticism because the test invites inconsistent 

results. 

6. Sexual harassment under Title VII and federal regulations includes unwelcome sexual 

advances, requests for sexual favors, and other verbal and/or physical harassment that is of 

a sexual nature. Harassment, however, need not be motivated by sexual desire to support 

an inference of discrimination on the basis of sex. 

7. Sexual harassment claims are generally of two types: quid pro quo harassment and hostile 

work environment. Incidents of quid pro quo harassment involve a supervisor demanding 

sexual favors or acquiescence to unwanted sexual attention as a condition of employment

or advancement. Hostile work environments, on the other hand, are those that courts 

recognize as uncomfortable, intimidating, or offensive due to certain behaviors, comments, 

or actions.

8. Sexual coercion (i.e., “sleep with me or you’re fired”) is the least common scenario of 

sexual harassment that occurs in the workplace; some studies show that “ambient” 

harassing behaviors, reflecting disparaging attitudes and or environment based on gender 

constitute the most common form of sexual harassment. 
CHAPTER 5: FINDINGS AND RECOMMENDATIONS 233

9. Sexual harassment may consist of verbal and non-verbal behaviors that convey hostility, 

objectification, exclusion, or second-class status based on a person’s gender. Harassment 

is not solely based on gender or sex, and for workers who are part of more than one 

marginalized social group, it may have a cascading effect.

10. While harassment may sometimes be part of inappropriate workplace manifestations of 

sexual attraction, it is ultimately a demonstration of power, control, and dominance. As 

such, any person can be a victim of sexual harassment, regardless of the victim’s or the 

harasser’s sex or sexual orientation.

The Federal Workforce

11. The federal government is the largest employer in the nation.

12. According to a 2018 Merit Systems Protection Board (MSPB) survey, an estimated 1 in 7 

federal employees experienced sexually harassing behaviors at work between 2016-2018.

13. Structural risk factors for sexual harassment often intersect and are exacerbated by other 

discriminatory biases based on race, ethnicity, national origin, religion, age, gender 

identity, sexual orientation, and disability. 

14. Within the federal workforce, people of color are overrepresented at lower levels of pay 

and underrepresented at higher levels of pay. There is also a gender pay gap among federal 

workers; OPM estimated in 2012 that women earned about 87 to 89 cents to the dollar 

compared to men. These wage disparities represent a significant issue because harassment 

thrives in workplaces with power imbalances on the bases of race/ethnicity, gender, sexual 

orientation, and gender identity. 

15. Though contractors are particularly vulnerable to issues of sexual harassment, Equal 

Employment Opportunity (EEO) complaint processes and most other legal protections 

extend only to employees. Many harassment complaints are dismissed because the 

complainant was found to be a contractor rather than a federal employee, and thus, the 

complainant lacks legal standing to file an EEO complaint against a federal agency. 

16. In some cases, government agencies have misclassified workers as contractors even when 

they should be classified as employees for the purposes of a sexual harassment complaint

to avoid exposure to a claim.

17. Interns are especially vulnerable to sexual harassment due in part to their dependence on 

recommendations and networking opportunities from supervisors. Yet, unpaid interns do 

not have the same protections as employees. Courts and the EEOC maintain that 

compensation (or other meaningful remuneration) is essential for the existence of an 

employer-employee relationship and that unpaid interns do not meet this requirement.
234 FEDERAL #METOO

18. Research shows that retaliation, or fear of retaliation, is one of the main reasons why 

employees choose not to report harassment.

The Complaint Process

19. The federal EEO complaint process is unduly complex for victims and the steps associated 

with filing a complaint are not widely known. Though agencies offer several informal 

mechanisms for addressing sexual harassment in addition to the formal EEO process, 

including alternative dispute resolution (ADR), mediation, and internal Human Resources 

(HR) processes, the parallel informal and formal structures are difficult to navigate. For 

example, victims may pursue a resolution through an informal process but not realize that 

the clock on their formal EEO complaint deadline continues to run.

20. The federal sector EEO process is longstanding and has never been restructured, and many 

of the procedures, once introduced, have remained.

21. Under federal regulations, government employees must first contact an EEO counselor at 

their agency within 45 days of an alleged sexual harassment incident prior to filing a formal 

EEO complaint. After EEO counseling, federal workers have only 15 days to file a formal 

complaint or else they lose their claims completely. By contrast, employees in the private 

sector are typically allowed a much greater time period – between 180 and 300 days – to 

file charges with the EEOC. 

22. The federal complaint process imposes financial caps on damages that have not been 

adjusted since they were first enacted in 1991: given that the federal government is a large 

employer, the maximum compensatory damages available in employment discrimination 

lawsuits is $300,000. Combined with the complexity, uncertainty, and delays inherent in 

the complaint process, these limitations on damages provide an economic disincentive to 

attorneys who could take these cases, often leaving victims without an advocate.

23. Resources within a federal agency such as the Office of General Counsel or Human 

Resources office will typically be devoted to advocating on behalf of the agency in sexual 

harassment cases, creating an unfair advantage for the employer agency and inherent 

conflict of interest regarding employee complainants.

24. EEOC decisions have ordered training and held agencies in contempt for egregious sexual 

harassment situations where there was evidence of contempt or disrespect for the EEO 

process.
CHAPTER 5: FINDINGS AND RECOMMENDATIONS 235

Data and Trends

25. An estimated one in every two women encounter some form of harassing behavior during 

their work life, and people of color experience the highest levels of harassment and 

discrimination in the workplace overall.

26. Organizational factors have strong correlations in predicting harassment. Harassment 

against both women and men is more likely to occur in male-dominated work environments 

than in gender-balanced or female-dominated work environments.

27. Harassment flourishes in a climate of tolerance for it and a culture of silence in the face of 

it.

28. Overall, the total number of sexual harassment claims – and the number of claims per 

employee – has been steadily increasing in recent years.

29. Women face the highest risk of sexual harassment in federal workforces. The EEOC does 

not report intersectional data on sexual harassment; however, studies have shown that black 

women are at the highest risk of being victims of sexual harassment across all sectors. 

Within the federal workforce, black workers are substantially more likely to be the victims 

of sexual harassment than members of any other race.

30. Uncertainty and inconsistency in defining “sexual harassment” can impact the accuracy of 

data on its prevalence, as often individuals do not label certain behaviors that are 

unwelcome, problematic, or offensive as sexual harassment.

31. Between 2010 and 2018, federal employees filed 62,465 sexual harassment claims with the 

EEOC. These data are likely to be under-inclusive since studies consistently indicate that 

there is very substantial under reporting of individuals who claim to have experienced 

sexual harassment and do not take formal action against the harasser. Rather than report 

the incident(s), the majority (61%) of people who claim to have experienced sexual 

harassment merely avoid the harasser(s). Research by the Center for Employment Equity 

in 2018 found that women working in government, compared with other industries, were 

among the least likely to file sexual harassment charges.

32. The EEOC estimates that three out of four individuals who experience sexual harassment 

in the workplace never tell a supervisor, manager, or union representative about the 

incident.

33. Fear of retaliation and lack of trust in the reporting processes play a major role in the 

persistence of sexual harassment.

34. A 2018 study of U.S. Forest Service employees showed that despite the agency’s “zero 

tolerance” harassment policy, most employees who alleged harassment did not report the 
236 FEDERAL #METOO

incident(s) because they did not trust the reporting process. Many of the women at the U.S. 

Forest Service who did report sexual harassment suffered retaliatory actions such as verbal 

threats, bullying, negative performance reviews, and demotions. Another 2018 study found 

that, of federal employees who claim to have experienced sexual harassment at work, only 

8% believed their agency took corrective action against the harasser(s).

35. Sexual harassment can have a serious impact on victims’ daily functioning. There is a 

significant correlation between experiences with harassment and mental health issues.

36. Sexual harassment contributes substantially to the enduring gender pay gap by causing 

reductions in productivity, increased use of sick and annual leave, and attrition of women. 

37. One study found that women who were the targets of sexual harassment were 6.5 times as 

likely to leave their jobs compared to non-targeted women. 

38. The negative effects of sexual harassment are not isolated to just the target(s) of the 

harassment. Coworkers who observe or are aware of their colleague’s experiences with 

sexual harassment can suffer from similar psychological health and job satisfaction 

problems.

39. The effects of sexual harassment are also felt by employers and society at large: by forcing 

women out of their jobs, employers have to cover replacement costs while also missing out 

on the contributions of gifted workers and innovators. Workplace sexual harassment also 

results in decreased productivity, increased turnover, absenteeism, decreased job 

satisfaction, and reputational harm to employees and employers.

40. The Department of Labor does not collect data regarding the prevalence and cost of sexual 

harassment in the federal workforce and has refused to begin doing so despite requests 

from members of Congress.

41. According to a 1994 MSPB study, sexual harassment in the federal workplace cost the 

government an estimated total of $574 million over the course of two years (when adjusted 

for inflation). This figure likely underestimates the true financial cost of sexual harassment, 

due to the lack of available data. 

Organizational Factors

42. Workplaces where employers do not take harassing behaviors and misconduct seriously 

tend not only to have a higher frequency of sexual harassment, but also worse outcomes 

for victims.

43. Studies have found that sexual harassment decreases linearly as structural gender 

imbalances approach parity. 
CHAPTER 5: FINDINGS AND RECOMMENDATIONS 237

44. Workplaces structured around a “masculine job gender context,” such as occupations in 

which managerial roles are more likely to be filled by men, tend to have greater issues with 

sexual harassment. 

45. Women who hold positions of authority may be more likely to experience sexual 

harassment, possibly due to the perceived threat of female authority figures to the gender 

hierarchy presented in predominantly male-dominated industries. According to a 2012 

study, women supervisors were 138% more likely to experience harassing behavior, report 

harassment at a rate of 73% greater than non-supervisors, and experience more varied and 

sustained forms of harassment than in the more common scenario of a male boss and female 

subordinate.

46. The federal government continues to struggle with gender parity: in 2016, 56.8% of 

positions – and 64.7% of the most senior-level non-political appointee management 

positions – were held by men.

47. Women of color are more likely to experience harassment in compounded ways on the 

basis of their gender and race or ethnicity. Intersectional harassment decreases the 

likelihood of victims coming forward and reporting or filing complaints. Data reflect that 

black women are most likely to experience retaliation, and women of color with economic 

resources who rely on their jobs to support their families may be especially fearful of losing 

their jobs and therefore reluctant to speak up.

48. Sexual harassment is especially pervasive in Science, Technology, Engineering, and 

Mathematics (STEM) fields within the federal government. In one study, every STEM 

professional surveyed reported having at least one experience of sexual or other identitybased harassment.

49. Workplaces with well-known “rainmakers” (particularly esteemed employees whose status 

may lead them to believe they are not subject to the organization’s rules) also tend to have 

increased likelihood of sexual harassment, due to the rainmaker’s prominent status.

50. Some victims wait decades before coming forward, only doing so when they have enough 

seniority to protect themselves from the potential ramifications of reputational harm.

EEOC Policies and Investigations

51. The No FEAR Act of 2002 requires federal agencies to track summary statistical data 

regarding complaints of employment discrimination and submit the data to Congress, the 

Department of Justice, Office of Management and Budget, and EEOC. These data are 

intended to assist Congress, federal agencies, and the public to assess if agencies are living 

up to their EEO responsibilities.
238 FEDERAL #METOO

52. Among federal employees, EEOC reported 7,733 non-sexual harassment complaints and 

685 sexual harassment complaints in 2018 – an increase over 2017 for both types.

53. Few EEOC hearings end in a finding of discrimination: only .41 percent of sexual 

harassment hearings resulted in findings of discrimination in 2018.

54. Between 2014 and 2016, EEOC reviewed anti-harassment programs at each federal agency 

under its jurisdiction, finding that a vast majority of federal agencies had ineffective antiharassment programs.

55. EEOC may recommend disciplinary action against federal employees but does not have 

the authority to order discipline of individual employees, and instead must refer its 

recommendations to the Office of Special Counsel for enforcement action.

56. Agencies have the obligation of disciplining an employee found to have engaged in sexual 

harassment. 

57. If an agency labels a charge misconduct (i.e., “sexual harassment”) when it imposes 

disciplinary action on an employee, the disciplinary action can be appealed and will be 

upheld in a Merit Systems Protection Board only if the agency proves the elements of that 

charge. The elements may be defined in agency or EEOC policy or in a relevant statute. If 

an agency instead disciplines an employee based on a generic charge (i.e. “inappropriate 

conduct”), there are no specific elements that must be proven. 

58. MSPB’s jurisdiction depends on the severity of the disciplinary action. For example, 

MSPB has jurisdiction over termination and disciplinary actions that result in suspensions 

of longer than 14 days. Conversely, MSPB does not have jurisdiction when an agency 

reassigns an employee without changing their salary and grade. This can lead agencies to 

reassign harassers instead of disciplining them.

59. Though the EEOC offers training programs that are a positive tool to address harassment

for private companies and federal agencies, the registration fees and travel costs can be 

cost-prohibitive for some smaller agencies.

60. EEOC’s Select Task Force on the Study of Harassment in the Workplace found five 

fundamental principles that have been effective in preventing and addressing workplace 

harassment:

a. Committed and engaged leadership

b. Consistent and demonstrated accountability

c. Strong and comprehensive harassment policies

d. Trusted and accessible complaint procedures
CHAPTER 5: FINDINGS AND RECOMMENDATIONS 239

e. Regular, interactive training tailored to the audience and the organization

61. Employees often feel uncomfortable with discrimination and sexual harassment in the 

workplace but don’t know how to report it and fear retaliation for getting involved. The 

utilization of bystander training to encourage people to step forward is supported by 

numerous studies and has been successful in the violence prevention industry. 

62. Effectively combatting sexual harassment often requires changing workplace culture, and 

bystander training can achieve cultural change from within by demonstrating that 

complaints are welcomed and everyone is working collectively towards a safe and effective 

workplace. Bystander training, however, is generally only effective when it is voluntary 

and may not be useful in workplaces with pre-existing harassment problems.

63. In 2019, twenty-nine states have introduced legislation directed at preventing and 

redressing sexual harassment of state government employees, often requiring updates to 

internal sexual harassment policies and mandatory sexual harassment training. 

64. Although judges, legislators, and the EEOC have noted the chilling effects that 

nondisclosure agreements can have on investigating and remedying discrimination claims, 

the federal government is still free to utilize them in employee settlement agreements.

Investigation of State Department and NASA

NASA

65. NASA has the lowest rate of formal EEOC complaints in the federal government among 

the ten largest agencies. Between 2016 and 2018, NASA reported zero formal incidents of 

sexual harassment to EEOC; however, the number of harassment claims through its internal 

anti-harassment program has increased.

66. NASA’s workforce is generally under-representative of racial and gender minorities 

compared to the total U.S. population. NASA’s 17,515 employees are predominantly white 

(12,553) and men (11,520). Within NASA’s workforce, there are disparities in the number 

of women and members of racial minorities in leadership position. Though women 

represent 34 percent of NASA’s total workforce, women account for only 16 percent of 

employees in Senior Scientific and Professional (ST) and Senior Level (SL) positions, 23 

percent of those in Science and Engineering (S&E) positions, and 28 percent of those in 

GS-14, 15, and Senior Executive Service (SES) positions.

67. NASA’s anti-harassment policy defines harassment more broadly than the legal definition. 

NASA states that this is in order to achieve a goal of addressing harassment before it 
240 FEDERAL #METOO

reaches the legal standard of discrimination and prevent harassment at the earliest possible 

opportunity.

68. Under NASA’s policy, management officials who fail to take corrective action to address 

harassment allegations can themselves be subject to disciplinary action.

69. NASA’s anti-harassment policies do not offer the same protections to contractors or 

employees of grant-receiving institutions as they do for employees.

70. Gender bias and a lack of accountability in the STEM fields continues to deter women from 

entering the aerospace community and works to preserve gender disparities.

71. NASA provides initial and annual EEO training for both supervisory and non-supervisory 

employees; however, NASA imposes no repercussions on employees who fail to complete 

the training. Additionally, only online (as opposed to in-person) training is available for 

contractors and vendors.

72. Responding to independent reports and substantiated allegations of sexual misconduct 

within the scientific community, the House Committee on Science, Space, and Technology 

in 2018 proposed several recommendations to government science agencies and their 

grantees to increase protections against sexual harassment.

73. The Federal Employment Viewpoint Survey (FEVS) allows employees to rate the level of 

inclusion at their federal agencies through questions in the categories of fairness, openness, 

cooperative, supporting, and empowering. Compared with the federal government as a 

whole and other large agencies specifically, NASA scored higher in all five categories in 

2018. The FEVS, however, does not fully capture the viewpoints of all federal employees, 

as it excludes political appointees from participating. 

74. As a result of NASA’s Anti-Harassment Program, launched in 2018 to address the issues 

raised by the #MeToo movement, there has been a spike of harassment claims. 

75. NASA completes its sexual harassment investigations in a timely manner at a higher rate 

(94% in 2018) than the government-wide average (73% in 2018).

76. At NASA, complaints of bullying were as prevalent as sexual harassment complaints in 

2018, possibly reflecting overlapping behaviors and indicating larger underlying issues 

affecting NASA’s workforce. Low-level harassing behaviors such as bullying which may 

not meet the legal standard for discrimination may nevertheless set the tone for what is 

considered acceptable behavior and can serve as a predictor of future harassment. Antiharassment policies like NASA’s, which extend to these behaviors, can help address 

workplace conflict at the earliest opportunity and ensure that the behavior does not 

adversely affect the workplace.
CHAPTER 5: FINDINGS AND RECOMMENDATIONS 241

77. A comparison of outcomes between NASA’s EEO and internal complaint processes show 

that many employees want to settle workplace issues as quickly and efficiently as possible, 

oftentimes deciding not to go through the complex and timely formal EEO process that 

rarely results in findings of discrimination. 

78. In 2017, NASA began requiring alternative dispute resolution (ADR) to be offered in all 

harassment cases and established an ADR Management Team at each Center to facilitate 

the process. That year, the ADR participation rate in both the informal and formal processes 

at NASA exceeded the government averages.

79. Though NASA’s time to complete EEO investigations is faster than the federal government 

average, the process still takes ten times longer than the informal anti-harassment program 

process.

80. NASA has enacted a number of procedures to protect complainants during pending 

complaints. Complainants receive advice and counsel about their rights and NASA’s 

sexual harassment policy, while supervisors are informed of their obligations and 

regulations against retaliation. While a complaint is underway, NASA states that it does 

not reassign complainants or managers unless it is deemed necessary. 

81. While NASA has increased its representation of women in its workforce, women are still 

underrepresented at NASA. Consequently, the planetary science community is underbenefiting from the expertise of qualified women scientists.

82. In 2019, the delay of the first-ever all-female spacewalk in March highlighted the lack of 

female representation at NASA: the spacewalk was delayed because NASA did not have 

two spacesuits available for the women astronauts.

Department of State

83. Geographic isolation has been shown to increase the risk of workplace sexual harassment. 

Because State Department employees are stationed in embassies and consulates in 200 

countries around the world, preventing and addressing sexual harassment within the agency 

poses particular challenges.

84. Women enter the State Department as Foreign Service Officers at the same rate as men, 

but they are under-represented in senior positions. According to a 2017 public letter by 223 

former Ambassadors and high-ranking national security officials, the national security field 

generally suffers from a culture of hostility toward women. These factors may contribute to 

an increased risk of sexual harassment at the State Department.

85. Sexual harassment complaints at the State Department have increased in recent years.
242 FEDERAL #METOO

86. The demographic breakdown of the State Department workforce shows striking disparities 

in senior positions: people of color, women, and people with disabilities are generally vastly 

underrepresented.

87. The State Department’s sexual harassment policy, issued in January 2019, includes both 

the quid pro quo and hostile work environment forms of sexual harassment; however, unlike 

NASA, the policy does not extend beyond the reach of the EEO definition. Additionally, 

the policy does not explicitly state that it covers harassment based on gender identity.

88. The efficacy of the State Department’s sexual harassment policy is hindered by multiple 

factors:

a. Although the Office of Civil Rights is responsible for conducting internal 

investigations into allegations of sexual harassment, it has no authority to determine 

whether or to what extent staff should be disciplined if the allegations are 

confirmed.

b. Though the policy requires supervisors to report sexual harassment, some managers 

simply ignore the policy.

c. The EEO process can involve substantial delays: one State Department employee 

reported that her sexual harassment complaint waited for 16 months before being 

assigned to an Administrative Judge at the EEOC.

d. Procedures may vary from post to post, and personnel are sometimes moved around 

while claims are pending, complicating the investigations.

89. Foreign nationals, or locally employed staff, are especially vulnerable to sexual harassment 

in State Department workplaces abroad, because incidents that occur in overseas posts are 

handled locally and are often not addressed adequately. The State Department has 

established a Locally-Employed Staff Liaison program to ensure protections against 

retaliation and facilitate communication between foreign nationals and the Office of Civil 

Rights. Locally employed staff can also seek informal EEO counseling and are protected 

by local labor laws. They do not, however, have the ability to participate in the formal EEO 

process.

90. The State Department disciplinary system is complex and disjointed, requiring the 

involvement of several department offices and non-department agencies for each complaint. 

As a result, the agency suffers from inconsistency between disciplinary decisions and 

resolution times that are long and vary widely. According to a report by the Office of 

Inspector General, the average time from case receipt to decision letter between 2010 and 

2014 was 114 days – much higher than the target of 30 days.
CHAPTER 5: FINDINGS AND RECOMMENDATIONS 243

91. The grievance process for State Department employees who belong to labor unions and fall 

within the terms of a negotiated grievance procedure is also complicated and difficult to 

navigate. Employees may only file a grievance for sexual harassment if expressly permitted

by the governing collective bargaining agreement, and employees must choose between 

filing an EEO complaint or a grievance – but may not pursue both avenues.

92. According to an Investigator General report, the State Department does not require the 

recusal of personnel involved in disciplinary decisions who had existing relationship with

the accused, which can jeopardize the independence of a disciplinary decision and cause 

conflicts of interest.

93. A combination of complex processes, inadequate accountability at senior levels, and a lack 

of training and other issues at the State Department allow repeat offenders to continue to 

abuse. 

94. Many women at the State Department fear that they will suffer retaliation if they come 

forward to report harassment. 

95. Though the State Department mandates harassment training for all domestic and foreign 

employees, these trainings may not be sufficient to address the issues within the agency: 

attendance in trainings specifically addressing misconduct tends to be lower than for those 

addressing other topics. 

96. The importance of “corridor reputation,” peer and supervisor perceptions, at the State 

Department and in the national security industry generally imposes a heavy cost on victims 

of sexual harassment who choose to come forward. “Corridor reputation” in the State 

Department is a major factor for promotions and selection for assignments. Bringing 

complaints of harassment can cause victims to be labeled as “unpatriotic” and can have a 

negative impact on corridor reputation.

97. The frequency of rotation at the State Department contributes to the problem of sexual 

harassment because supervisors sometimes forego pursuing an investigation or discipline 

based on the knowledge that the alleged harasser will eventually move on to another post.

RECOMMENDATIONS

The Administration

The federal government, as the largest employer in the nation, must be a model employer and it, 

through its Office of Personnel Management and following guidance from EEOC, should 

continually disseminate sexual harassment policies and practices consistent with the conduct of a 

model employer and a leader of protecting the rights of all workers. The existing criteria for 
244 FEDERAL #METOO

categorizing workers as either contractors or employees must be properly enforced, ensuring that 

Title VII protections reach all eligible workers. 

1. The Government Accountability Office and/or Bureau of Labor Statistics should begin 

collecting data and reporting on the economic effects of workplace sexual harassment on 

the nation’s workforce.

2. Government agencies should employ the use of climate surveys to evaluate employee 

perceptions of harassment in their workplaces. These surveys should capture the 

viewpoints of all federal employees, including political appointees. Climate surveys have 

been shown to increase trust between employers and employees and create an atmosphere 

where employees feel that sexual harassment will be taken seriously.

3. To protect and assist victims of workplace sexual harassment, federal agencies should 

implement:

a. Mandatory reporting requirements for managers and supervisors

b. Increased transparency regarding the EEO process and its outcomes

c. Institutional support for victims of harassment

d. Resources such as counseling sessions, monetary stipends for wellness programs, 

and onsite professionals to help employees recover from the trauma of sexual 

harassment.

4. Federal agencies should take steps to prevent the incidence of workplace sexual 

harassment, including:

a. Implementing department-wide, uniform penalties to be used in disciplinary actions

b. Banning serious perpetrators from receiving promotions and performance awards

c. Ending the practice of reassigning perpetrators to other divisions

d. Embracing and training employees regarding bystander intervention

5. Federal agencies need to implement mandatory anti-harassment training programs that are 

specific, clear, and accessible and target every level of employee.

6. Transferring known harassers to another agency or department should not be used as a 

response to sexual harassment, because it merely relocates the harms to a new workplace.

7. Federal agencies should strengthen protections against retaliation for those who report 

sexual harassment.
CHAPTER 5: FINDINGS AND RECOMMENDATIONS 245

8. Federal agencies should scrutinize policies that permit the use of nondisclosure clauses in 

settlements of harassment and other discrimination claims.

9. Office of Management and Budget (OMB) has not released the updated harassment 

guidance approved by a bipartisan vote of the EEOC. The EEOC’s current guidance is 

decades old and does not reflect many developments in the law. OMB should release the 

updated sexual harassment guidance immediately. 

Congress

10. Congress should explicitly classify harassment based on sexual orientation, gender 

identity, and sex/gender stereotyping as prohibited under Title VII.

11. Congress should enact legislation replacing the “severe or pervasive” standard applicable 

to sexual harassment claims with a clearer and more workable standard that promotes 

greater uniformity.

12. Congress should enact explicit statutory protections from sexual harassment for federal 

government contractors and interns, whether paid or unpaid. 

13. Congress should establish a federal ombudsperson, empowered to investigate alleged 

sexual harassment claims of complainants who may not have adequate recourse through 

available channels where existing agency structures may be compromised by conflicts.

14. Congress should enact legislation to extend the time limits for filing EEO complaints and 

change EEO procedure so that formal complaint time limits are tolled while a complainant 

is pursuing informal processes such as ADR or mediation.

15. The limits on damages for federal discrimination claims, including sexual harassment 

claims, should be increased or removed to give victims a more realistic opportunity to 

retain outside counsel to represent them through the complaint process. 

16. Congress should amend the No FEAR Act to automatically refer every finding of 

discrimination to the Office of Special Counsel to facilitate compliance with EEOC orders. 

The staff of the Office of Special Counsel should be appropriately increased to enable it to 

respond.

17. Congress should allocate additional funds to enable EEOC to help agencies proactively 

identify and prevent sexual harassment. EEOC should provide technology tools to assist 

agencies in tracking trends in real time, and to launch more “Inspector General” type indepth investigations based on data trends that emerge or complaints. 
246 FEDERAL #METOO

The EEOC

18. The EEOC should begin collecting and reporting intersectional data on sexual harassment

in federal workplaces, so that more effective and targeted measures can be taken to combat

harassment against the people most affected by it.

19. The EEOC should implement metrics to track the outcomes at workplaces that receive their

new “Leading for Respect” and “Respectful Workplaces” to assess efficacy, and expand

the use of these trainings if they yield results.

20. The EEOC should direct agencies to prioritize EEO complaints to mitigate any

circumstances that exhibit the risk of an ongoing harm, which may include sexual

harassment complaints.

21. EEOC should continue working with behavioral scientists to develop evidence-based

responses/methods to harassment prevention that are applicable to the federal workforce.

22. EEOC should consider whether the CIA’s report on its response to individual harassment

complaints is a replicable model for other agencies and consider piloting the idea at other

agencies.

23. EEOC should eliminate fee-based federal agency training and replace it all with free

training. This would be more efficient and won’t cost the government more money overall.

NASA

24. Stricter enforcement of the anti-discrimination and anti-harassment laws that protect

individuals in federally funded institutions under Title IX is needed to address the culture

of sexual harassment and misogyny in grant-receiving research institutions.

25. NASA should amend its anti-harassment program and policies to include the addition of

“low-level” offenses that may not necessarily rise to the level of harassment, such as

bullying.

26. NASA should investigate and access the potential causes for the increased reports of

harassment at its Goddard Space Flight Center.

27. NASA should develop criteria by which it will provide immediate and effective corrective

action before for individuals with credible claims of sexual harassment at the time of

reporting the harassment.

Department of State

28. In light of testimony that the USCCR received, and the often isolated geographic conditions

in which diplomatic functions must be discharged, it is important that State Department
CHAPTER 5: FINDINGS AND RECOMMENDATIONS 247

leadership, including the Secretary, direct and ensure that the culture of State workplaces 

globally is to have zero tolerance for sexual harassment, meaningful access to fair 

processes where claims are asserted, and no tolerance for retaliation.

29. The Human Resources Department at State should conduct discipline actions for all

employees found to have engaged in sexual harassment. In disciplining employees who

have engage in sexual harassment, State should take into account the nature and seriousness

of the offense, the employee’s job level, past disciplinary record, past work record, effect

on the employee’s ability to perform the job, consistency of the penalty, notoriety of the

offense, warning about the conduct, potential for rehabilitation, and any mitigating

circumstances. The State Department should ensure that the sexual harassment policy is

publicly posted at overseas posts and that the policy is fully and equally enforced in every

remote location where employees are stationed.

30. Supervisors with a conflict of interest should be required to recuse themselves from assault

or harassment investigations.

31. Alternative dispute resolution (ADR) training should be required for all managers and

supervisors and the use of ADR at the pre-complaint stage should be encouraged.

32. The sexual harassment policy must clearly identify the offices and people to whom

employees should report cases of sexual harassment.

33. The State Department should reduce its complaint processing times.

34. The State Department should implement mandatory exit interviews for all employees

leaving the workforce to provide a channel for feedback on the workplace culture.

35. Records of misconduct should be taken into consideration for employee promotions and

transfers.
248 FEDERAL #METOO 

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COMMISSIONERS’ STATEMENTS, DISSENTS, AND REBUTTALS 249

COMMISSIONERS’ STATEMENTS, DISSENTS, AND 

REBUTTALS

Statement of Commissioner Debo P. Adegbile 

Sexual harassment shares some common characteristics with many other forms of discrimination. 

It imposes painful, sometimes lifelong harms on its victims. It thrives in environments where 

power is abused. It is disproportionately borne by women, though men are not immune. It demeans 

human dignity, and its costs fall both on victims, their families, colleagues, and on society at large. 

Like other movements, #MeToo has amplified the voices of people who, too often, have felt 

voiceless, assures victims that they are not standing and suffering alone, and shines a bright 

national spotlight on an intolerable injustice. Most importantly, sexual harassment calls for a 

response. As the #MeToo movement has illuminated, sexual harassment claims do not exist in a 

vacuum. At times race and sexual harassment discrimination intersect, and retaliation is a well -

placed concern for those who come forward. With this report the U.S. Commission on Civil Rights 

examines the federal role in responding to sexual harassment. 

Workplace sexual harassment is a problem across all sectors and industries, and the federal 

government is no exception. But because of its dual role as the largest employer in the United 

States and as the principal enforcer of federal civil rights protections, a special threat exists when 

sexual harassment is faced in the agencies and workplaces of the United States government. Our 

federal government must be a model employer when it comes to addressing and eradicating sexual 

harassment and other sex discrimination in the workplace. It is therefore imperative that the federal 

government understands the causes and costs of workplace sexual harassment and that it 

exemplifies the protections and best practices necessary to stop it in order to ensure that it is a safe 

and inclusive workplace for all. 

Sexual harassment is often driven more by misuses of power than by sexual attraction. For that 

reason, sexual harassment thrives in workplaces where power dynamics and organizational factors 

embrace gendered statuses and enforce antiquated norms. Additionally, organizational conditions, 

and climate are strong determinants whether there are higher risks of sexual harassment. 

Workplaces where women are underrepresented in positions of leadership have higher incidences 

of sexual harassment. Other workers who have a systemic disadvantage in the official hierarchy, 

including interns and independent contractors are especially vulnerable to sexual harassment too 

often without any adequate remedy. Sexual harassment flourishes in places where it is tolerated: 

in other words, where reporting mechanisms are ineffective or where victims do not report out of 

fear that their personal or professional lives will be negatively impacted by retaliatory actions. This 

may further be compounded in workplaces where employees are not empowered to help victims, 

or where victims are isolated from their colleagues. 
250 FEDERAL #METOO 

Several of these factors are prevalent across federal government workplaces. The agencies we 

studied suffer from gender disparities in leadership, gender-based stereotypes, and remote or 

isolated work environments. Our investigation showed that the federal equal employment 

opportunity (EEO) complaint process lacks the necessary means for protecting victims from 

retaliation and providing adequate remedies. 

Throughout this study and the Commission’s briefing, we were reminded that existence of sexual 

harassment in the federal workplace is not an abstract issue. The personal accounts, with bravery 

and painful resolve recounted to us by some of those who has faced sexual harassment underscored 

the urgency of this problem and the consequences of inaction. 

Personal Testimony 

One of the witnesses that testified at our briefing explained: “...I'm a senior litigator at the Justice 

Department. My supervisor stalked me for over a year and it was a terrifying and life altering 

experience. He admitted to it, but my office responded largely with indifference. They didn't fire, 

demote, or suspend him, involve outside law enforcement, or even mention the episode in his 

permanent file. Instead, they merely transferred him to a different office and I feared for the women 

there. When I later learned about other instances of egregious sexual harassment in my office that 

were similarly mishandled, I filed a complaint with DOJ's Inspector General's Office. This sparked 

a multiyear investigation into sexual harassment at the Department's Civil Division.”1233

Another witness’s account was also vivid and difficult to countenance. “I'm a Foreign Service 

Officer with the Department of State. An American non-DOS member of my mission overseas 

assaulted me after attending the Marine Ball many years ago. It took me about a year to recognize 

that incident for what it was, date rape, and at that point, the guy had left the country. Within hours 

of the assault, I convinced myself I was entirely to blame for the incident. I was terrified to speak 

about my experience to anyone in my vicinity given the paramount importance myself and my 

colleagues place on our corridor reputations. This was my first assignment in the Foreign Service. 

I know my rank as a junior officer meant I had to keep my head down, handle all tasks thrown my 

way, and never, ever complain, especially to HR, yet after a year of panic attacks and nightmares, 

I knew I couldn't function as a professional without additional support that wasn't available to me 

overseas. I ultimately felt somewhat comfortable admitting to a med in HR at post that I had been 

assaulted when I read Secretary Clinton's directive to state employees which explicitly stated that 

those who sought mental health treatment would not automatically face loss of or a downgrade in 

their security or medical clearances to continue to serve. It was impossible for me to step away 

from post, quite a large one, without notice, as I was one of two staffers to our male ambassador. 

I remain profoundly grateful to those at post who did grant me the leave I requested to treat 

1233 USCCR Briefing Transcript Federal Me Too: Examining Sexual Harassment in Government Workplaces, May 

9, 2019, at 54, https://www.usccr.gov/calendar/2019/06-12-Transcript-Briefing-Federal-Me-Too.pdf. 
COMMISSIONERS’ STATEMENTS, DISSENTS, AND REBUTTALS 251

subsequently diagnosed anxiety, depression, and PTSD. ...To my knowledge, my supervisors 

never reported this incident to the Office of Civil Rights as was likely mandated at that time, and 

certainly is now per the Foreign Affairs Manual. I had to advance sick leave over three months 

with a reduction in pay, loss of differential, while purchasing my own plane ticket and 

accommodations in the U.S. to remain away from my work overseas to treat my PTSD 

domestically. I'm extremely proud of myself for returning to complete that assignment.”1234

This report makes clear that this problem is not without solutions. The federal government has the 

tools which, if employed, can make a difference. 

• Mandatory training programs can mitigate potential harassment and create a culture

where bystanders know how and when to intervene.

• The widely used practice of transferring harassers to other workplaces must be discarded

in favor of real corrective actions that curtail the possibility of future harassment.

• Protections against retaliation are necessary in order to ensure that victims feel

comfortable coming forward to report when harassment occurs to them or to their

colleagues.

• Likewise, nondisclosure clauses in settlements and other discrimination claims must also

be scrutinized.

• When victims do speak up, their call for help must be met with a complaint process that

is navigable, unbiased, and offers a realistic chance of remedying the underlying

problem.

• Existing EEO procedures should be revised and agencies must ensure that victims have

an advocate throughout the process.

In sum, what we learned throughout our investigation is that that sexual harassment is driven 

principally by power dynamics. We learned that sexual harassment is dramatically underreported. 

That the current existing data illuminates that retaliation, or fear of retaliation, is one of the main 

reasons why employees choose not to report harassment. We learned that structural risk factors for 

sexual harassment often intersect and/or are exacerbated by other discriminatory biases based on 

race, ethnicity, national origin, religion, age, gender identity, sexual orientation, and disability. 

We learned that sexual harassment flourishes in a climate of organizational tolerance to

harassment. We learned that independent contractors and interns are especially vulnerable to 

sexual harassment because they do not enjoy the full protections afforded to federal government 

employees under Title VII. We learned that the federal EEO complaint process for sexual 

harassment is unduly complex for victims and the steps associated with filing a complaint are not 

1234 USCCR Briefing Transcript Federal Me Too: Examining Sexual Harassment in Government Workplaces, May 

9, 2019, at 56, https://www.usccr.gov/calendar/2019/06-12-Transcript-Briefing-Federal-Me-Too.pdf. 
252 FEDERAL #METOO 

widely known. Finally, we learned that sexual harassment has both individual, familial and 

workplace-wide impacts. It has individual impacts on the victims their professional aspirations and 

experiences, and it has economic impacts which also have larger societal consequence for agencies 

employers have to cover replacement costs while missing out on the contributions of workers and 

innovators. Workplace sexual harassment results in decreased productivity, increased turnover, 

absenteeism, decreased job satisfaction, and reputational harm to employees and employers. 

Sexual harassment is common in both federal and non-federal workplaces, however, the federal 

government as the largest employer in the nation, must be a model employer and demonstrate 

leadership in addressing sexual harassment, protecting the rights of all workers and ensure that 

these matters are handled effectively and efficiently.