SHAPE Act of 2020

To require the Secretary of State to develop policy and procedures on prevention and response to harassment, discrimination, sexual assault, and related retaliation, and for other purposes. 1. Short title; table of contents; rule of construction (a) Short title This Act may be cited as the State Harassment and Assault Prevention and Eradication Act of 2020 SHAPE Act of 2020 (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents; rule of construction. Sec. 2. Department of State policy and procedures on prevention and response to harassment, discrimination, sexual assault, and related retaliation. Sec. 3. Reporting, documentation, and investigation procedures. Sec. 4. Sexual assault protocol and victim care. Sec. 5. Rights of employees harassed, discriminated against, retaliated against, or sexually assaulted. Sec. 6. Provision of climate surveys. Sec. 7. Reports to Congress, the Department, and the public. Sec. 8. Required training for Department personnel. Sec. 9. Hiring, vetting, and promotion. Sec. 10. Nondisclosure and nondisparagement agreements. (c) Rule of construction Nothing in this Act shall be construed to supersede or otherwise affect the discrimination protections or related processes provided under section 717 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–16 2. Department of State policy and procedures on prevention and response to harassment, discrimination, sexual assault, and related retaliation (a) Comprehensive policy on prevention and response Not later than one year after the date of the enactment of this Act, the Secretary of State shall develop a comprehensive policy for the Department of State on the prevention of and response to harassment, discrimination, sexual assault, and related retaliation involving employees, contractors, and officials of the Department. (b) Elements of comprehensive policy The policy developed under subsection (a) may include elements as the Secretary deems necessary, but shall include, at a minimum, the following: (1) Prevention measures. (2) Education and training on prevention and response, as provided in this Act. (3) Investigation of complaints. (4) Medical treatment of victims. (5) Mechanisms for confidential reporting of incidents by staff and service contractors, to include online and telephonic methods. (6) Victim advocacy, intervention, and counseling for covered employees of the Department who are victims of harassment, discrimination, sexual assault, and related retaliation that shall be made available, irrespective of where such covered employees are located, to assist and guide such victims. (7) Supportive services, including counseling and victim advocacy, that shall be made available irrespective of whether the victim identifies the accused individual. (8) Oversight and review of administrative and disciplinary actions, to include termination, for employees and officials of the Department of State. (9) Review by appropriate authority of administrative separation actions involving victims of harassment, discrimination, sexual assault, and related retaliation. (10) Uniform collection of data on the incidence of violations and on disciplinary actions taken in cases of harassment, discrimination, sexual assault, and related retaliation. (11) Procedures for disciplinary action in cases of harassment, discrimination, sexual assault, and related retaliation by employees or officials of the Department. (12) Workforce communications relating to harassment, discrimination, sexual assault, and related retaliation prevention, discipline, and reporting, to include printed and electronic materials made available in both English and the working languages at overseas posts, made available for all staff. (13) Acknowledgment of the challenges facing vulnerable groups including women, people of color, entry-level officers, locally employed staff, and the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community. (14) Policies regarding the retention of documents relating to complaints, investigations, and disciplinary action. (c) Clarification of victim reporting and case resolution The Secretary of State shall review Department of State processes for victim reporting and resolution of complaints, as in effect on the date of enactment of this Act, to ensure that the Department’s procedures are clear and easily accessible to all covered employees. Such review shall be included in the report to be submitted in section 7. (d) Application of comprehensive policy to offices in the Department of State The Secretary of State shall ensure that the policy developed under subsection (a) is implemented uniformly by the bureaus and offices of the Department of State. (e) Coordination with other agencies The Department of State is directed to coordinate with other United States government agencies which provide personnel to serve in overseas posts under Chief of Mission authority to develop interagency policies for addressing, reporting, and discipline for incidents of harassment, discrimination, sexual assault, or related retaliation occurring between covered employees and non-covered employees. 3. Reporting, documentation, and investigation procedures (a) Definitions In this Act— (1) the term covered employee (A) any officer or employee (including any temporary, part-time, contract, intermittent employee, interns, fellows, or other unpaid staff; both American citizens and foreign nationals) performing work for or on behalf of the Department of State; (B) members of the Foreign Service (as that term is defined under section 103 of the Foreign Service Act of 1980 ( 22 U.S.C. 3903 (C) an individual who is engaged by an employer or entity as a contractor; (2) the term Office of Employee Advocacy (3) the term Office of Civil Rights (4) the term Global Talent Management (5) the term Diplomatic Security (6) the term harassment (A) conduct based on race, color, religion, sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype), or national origin, 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; (B) sexual harassment is conduct that takes place in a circumstance described in subparagraph (C) and that takes the form of— (i) a sexual advance; (ii) a request for sexual favors; or (iii) any other conduct of a sexual nature; (C) a circumstance described in this subparagraph is a situation in which— (i) submission to the conduct involved is made either explicitly or implicitly a term or condition of employment; (ii) submission to or rejection of such conduct is used as the basis for an employment decision affecting an individual’s employment; or (iii) such conduct unreasonably alters an individual's terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment; and (D) in determining whether conduct constitutes harassment because the conduct unreasonably alters an individual’s terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment, the following rules shall apply— (i) that determination shall be made on the basis of the record as a whole, according to the totality of the circumstances. A single incident may constitute workplace harassment; (ii) incidents that may be workplace harassment shall be considered in the aggregate, with— (I) conduct of varying types (such as expressions of sex-based hostility, requests for sexual favors, and denial of employment opportunities due to sexual orientation) viewed in totality, rather than in isolation; and (II) conduct based on multiple protected characteristics (such as sex and race) viewed in totality, rather than in isolation; (iii) the factors specified in this subparagraph are among the factors to be considered in determining whether conduct constitutes harassment and are not meant to be exhaustive. No one of those factors shall be considered to be determinative in establishing whether conduct constitutes harassment. Such factors are each of the following— (I) the frequency of the conduct; (II) the duration of the conduct; (III) the location where the conduct occurred; (IV) the number of individuals engaged in the conduct; (V) the nature of the conduct, which may include physical, verbal, pictorial, or visual conduct, and conduct that occurs in person or is transmitted, such as electronically; (VI) whether the conduct is threatening; (VII) any power differential between the alleged harasser and the person allegedly harassed; (VIII) any use of epithets, slurs, or other conduct that is humiliating or degrading; or (IX) whether the conduct reflects stereotypes about individuals in the protected class involved; and (iv) in determining whether conduct constitutes harassment, conduct may be harassment regardless of whether, for example— (I) the complaining party is not the individual being harassed; (II) the complaining party acquiesced or otherwise submitted to, or participated in, the conduct; (III) the conduct is also experienced by others outside the protected class involved; (IV) the complaining party was able to continue carrying out duties and responsibilities of the party’s job despite the conduct; (V) the conduct did not cause a tangible injury or psychological injury; or (VI) the conduct occurred outside of the workplace. (b) Establishment of Office of Employee Advocacy (1) In general Not later than one year after the date of the enactment of this Act, the Secretary shall establish a new office to be the Office of Employee Advocacy, to be headed by a full-time Chief Advocate. Personnel of the Office shall be appointed without regard to political affiliation and solely on the basis of fitness to perform the duties of the position. The Chief Advocate— (A) shall report directly to the Under Secretary for Management; and (B) may not have any other duties in the Department of State that are not reasonably connected to employee advocacy. (2) Duties of Office of Employee Advocacy (A) Receive complaints from any Department of State covered employee or eligible family member (EFM), as defined in the Foreign Affairs Manual, of harassment, discrimination, sexual assault, and related retaliation. (B) Counsel victims of their rights, procedures for seeking relief, and available resources, both locally and at headquarters, under this Act, and other employment laws enforced by the Equal Employment Opportunity Commission including the Civil Rights Act of 1964, the Pregnancy Discrimination Act of 1978, the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, the Civil Rights Act of 1991, the Rehabilitation Act of 1973, and the Genetic Information Nondiscrimination Act of 2008. (C) Provide confidential support and information, including referrals to medical and mental health care. (D) Refer complaints to the appropriate offices in the Department of State promptly including— (i) the Office of Civil Rights in instances of harassment, discrimination, or related retaliation; and (ii) Bureau of Diplomatic Security in instances of sexual assault or other complaints with security clearance implications. (E) For the purposes of receiving complaints, operate secure, confidential means of reporting 24 hours a day, including an electronic reporting system and an internationally accessible hotline. (F) Employ Employee Advocates to carry out the duties of the Office and assist those filing or considering filing a complaint. (G) If a victim chooses to file a complaint, such Advocates shall assist the victim in providing information and support until an investigation is completed, and a final agency decision has been made. (H) Employ attorneys licensed to practice law with experience in harassment, discrimination, retaliation, and assault complaints, and provide optional legal assistance, consultation, and representation related to a covered employee’s complaint of harassment, discrimination, sexual assault, or related retaliation. In carrying out this subparagraph, the following shall apply: (i) The relationship between the Office and an employee to whom the Office provides legal assistance, consultation, and representation under this section shall be the relationship between an attorney and client. (ii) Nothing in this section shall preclude covered employees from hiring their own attorneys or require them to use attorneys from the Office. (iii) Notwithstanding any law regarding the licensure of attorneys, an attorney who is employed by the Office and is authorized to provide legal assistance and representation under this section is authorized to provide that assistance and representation in any jurisdiction, subject to such regulations as may be prescribed by the Office. (iv) The Office may not accept any award of attorney fees or other litigation expenses and costs under any hearing or civil action brought. (v) The Office must be empowered to be independent and work on behalf of complainants without undue pressure from State Department leadership. (I) Provide routine training to attorneys and advocates on harassment, discrimination, sexual assault, and related retaliation policies and best practices for victim care. (J) Track the stage of reporting, investigation, or disciplinary process a complaint is in. (K) Conduct climate surveys, as specified in section 6. (3) Electronic reporting system The system established under this subsection shall— (A) include an electronic reporting system under which a complaint may be filed, in addition to a non-electronic system; (B) maintain an electronic record of the date and time at which any complaint is so filed; (C) ensure the security and confidentiality of records; and (D) allow the submission of confidential reports that will not prompt individualized investigations, but shall be monitored by the Office to identify trends and determine whether investigations should be undertaken by the Office of Civil Rights. (4) International hotline The system established under this subsection shall— (A) include an international toll-free number accessible by all covered employees and EFM both domestic and overseas; (B) be staffed 24 hours day, 7 days a week by Office of Employee Advocacy staff during normal working hours, and by a rotating OEA duty officer or contractor during non-working hours; (C) be entered by OEA staff into the electronic reporting system so that all reported cases are captured in the system; and (D) to the extent practicable, ensure access to the hotline for non-English speakers. (5) Overseas post reporting (A) Each overseas post shall notify employees that they may use the electronic reporting system or international hotline as established in paragraphs (3) and (4), or report in person to the Deputy Chief of Mission or other employees designated as Office of Employee Advocacy Liaisons. (B) The OEA Liaisons may include (but are not limited to) the Equal Employment Opportunity Counselor, the Community Liaison Officer, the Locally Employed Staff (LES) Equal Employment Opportunity Officer Liaison, or other staff to be selected by the Deputy Chief of Mission. (C) OEA Liaisons should be provided with educational materials to distribute as well as training on the resources and services provided by the Office of Employee Advocacy, and on the various means of communications that employees can use to reach out to OEA Employee Advocates. (D) The Chief of Mission shall not be notified of the identity of the complainant without the express permission of the complainant. (6) Application This section shall not be construed to preclude, limit, or otherwise effect the rights of a covered employee to file a complaint, based on the alleged harassment, discrimination, sexual assault, and related retaliation that gave rise to the complaint under this subsection, under any other provision of law. This section shall not be construed to preclude, limit, or otherwise affect the rights of a covered employee to file a complaint with another office. (7) Consultation; technical assistance In developing the Office of Employee Advocacy, the State Department shall receive technical assistance and consultation from organizations and other professionals with expertise in victim-centered, trauma-informed care, individuals who have experienced harassment, discrimination, or retaliation at the State Department, the Equal Employment Opportunity Commission, and other relevant executive agencies. (c) Duties of Office of Civil Rights (1) In general Upon the referral of a complaint from the Office of Employee Advocacy to the Office of Civil Rights, the Office of Civil Rights shall— (A) take steps for the initial intake and recording of the complaint, including providing the covered employee who filed the complaint with all relevant information with respect to the rights of the covered employee under this Act and other relevant law; and (B) notify the accused covered employee— (i) of the complaint and the right of that covered employee to participate in any mediation, hearing, or civil action under this section and other applicable law with respect to the complaint; (ii) that retention of documents and evidence is crucial, and any unauthorized destruction of documents and evidence may result in additional investigations and potential punishment; and (iii) that there is a prohibition on retaliation against the covered employee who filed the complaint and may be investigation and discipline for retaliation. (2) Investigation of complaints (A) Investigation The Office of Civil Rights shall investigate all complaints in a prompt, thorough, and impartial manner. The Department shall update the Foreign Affairs Manual to enable Office of Civil Rights investigators to travel to the foreign and domestic sites of received complaints in which widespread or pervasive sexual harassment is reported. The Under Secretary for Management shall authorize sufficient funding for Office of Civil Rights attorney advisors to conduct this travel as necessary. (B) Investigation of Chief of Mission If the Chief of Mission at an overseas post is named as the alleged perpetrator in a complaint, the Office of Civil Rights must notify the Secretary of State. The Office of Civil Rights must prioritize the investigation of such cases. (C) Report Not later than 120 days after a complaint is filed under this section and transmitted to the Office of Civil Rights, the Office of Civil Rights shall conclude the investigation regarding that complaint. On the date the investigation is so concluded, the Office of Civil Rights shall transmit a written report on the results of the investigation to— (i) the covered employee who filed the complaint; (ii) the accused employee and his or her employing office; and (iii) Global Talent Management. (D) Extension The Office of Civil Rights may extend the 120 day deadline in subparagraph (A) if the Office of Civil Rights determines that additional time is necessary to conclude the investigation. The Office of Civil Rights must notify the House Committee on Foreign Affairs and Senate Committee on Foreign Relations of the extension and provide justification for each extension of 30 days. (E) Transmission to Global Talent Management After the Office of Civil Rights concludes the investigation, it shall transmit a report providing a summary of the facts with all investigatory material including transcripts of interviews and evidence to Global Talent Management for consideration of disciplinary action. (F) Transmission to Secretary of State Global Talent Management shall transmit the investigatory report and any resulting disciplinary actions to the Secretary of State. Reports shall be transmitted to the Secretary no less than quarterly. (G) Staffing If the number of complaints received by the Office of Civil Rights exceeds its capacity to respond within 120 days to the majority of cases, the Director of the Office of Civil Rights and Under Secretary for Management shall authorize the hiring of additional attorney advisors or other appropriate staff on a temporary or permanent basis. (H) Record retention (i) Record retention Global Talent Management shall keep a record of investigations, hearings, and other proceedings conducted related to complaints of harassment, discrimination, sexual assault, or related retaliation. (ii) Personnel files Subsequent disciplinary action taken by Global Talent Management in response to the investigation and any EEO settlements or judgements of harassment, discrimination, sexual assault, or related retaliation shall be documented and kept on file and accessible to the Office of Civil Rights, Diplomatic Security, security clearance investigators, and Federal law enforcement officials. Global Talent Management shall also ensure that a standalone document containing a description of the offense and disciplinary action taken, redacted of any personally identifiable information, shall be provided to and reviewed by all subsequent Department Foreign Service and Civil Service Selection and promotion Boards, to include a permanent notation in the employee’s file, including annual performance assessments or employee evaluations. (d) Disciplinary action (1) Suspension Section 610 of the Foreign Service Act of 1980 ( 22 U.S.C. 4010 (c) (1) In order to promote the efficiency of the Service, the Secretary may suspend a member of the Foreign Service without pay when the member’s security clearance is suspended or when there is reasonable cause to believe that the member has committed a crime for which a sentence of imprisonment may be imposed or if the member has a history of harassment or Equal Employment Opportunity violations documented and substantiated by Global Talent Management. . (2) Separation for cause Section 610 of the Foreign Service Act of 1980 ( 22 U.S.C. 4010 (a) (1) The Secretary may decide to separate any member from the Service for such cause as will promote the efficiency of the service, to include findings by Diplomatic Security that the member has engaged in criminal misconduct, to include murder, rape, or other sexual assault. . (3) Update to manual Global Talent Management shall update the Foreign Affairs Manual’s Grounds for Disciplinary Action List of Disciplinary Offenses and Penalties (e) Penalties Consistent with other civil service and Foreign Service laws and regulations, the Secretary of State shall develop a policy of applying penalties to any covered employee who is determined to have sexual assault, harassment, discrimination, or related retaliation complaints against him or her substantiated. Such penalties shall include additional mandatory training, suspension with or without pay, demotion in rank, or removal for a period of the Secretary’s choosing. (f) Additional documentation Global Talent Management shall ensure, to the extent practicable and appropriate, that any third country national or any national of a host country that was assigned to work at a diplomatic facility or employee residence who harasses, discriminates against, sexually assaults, or retaliates against a covered employee is— (1) documented in an appropriate site history file and in a global tracking and recording system, to be coordinated by Global Talent Management; (2) taken into account with respect to determinations regarding placements of third country nationals or any national of a host country at such post and the provision of any funds or other benefit by the Department; and (3) any covered employee who filed the complaint may opt out of having personally identifiable information included in such a report. (g) Case review (1) In general The Office of Civil Rights and Diplomatic Security shall conduct case reviews of a statistically significant number of cases on a quarterly basis to determine if proper procedures were followed in accordance with the harassment, discrimination, sexual assault, and related retaliation protocols and guidelines provided under this Act and other applicable laws. (2) Reports to Congress An analysis of such case reviews shall be annually reported to the Committee on Oversight and Reform and Committee on Foreign Affairs of the House of Representatives and the Committee on Homeland Security and Governmental Affairs and Committee on Foreign Relations of the Senate in the report mandated in section 7(a). 4. Sexual assault protocol and victim care (a) Establishment (1) In general In addition to the other requirements of this Act, not later than one year after the date of the enactment of this Act, the Secretary of State shall develop and implement comprehensive sexual assault protocol and guidelines that conform to best practices in the sexual assault field and are applicable to all posts at which covered employees serve. (2) Consultation In developing the protocols and guidelines under paragraph (1), the Secretary shall consult with and incorporate, as appropriate, the recommendations and views of experts in the sexual assault prevention and response field, victims, victim advocates, and current or former covered employees who have reported sexual assault or related retaliation. (b) Elements The protocols and guidelines under subsection (a)(1) shall include the following services with respect to a covered employee who has made an allegation of sexual assault: (1) Protection of such employee’s confidentiality. (2) Provision of a victim’s advocate, as described in subsection (e), who is able to refer the victim to supportive services and resources and explain the victim’s rights at no cost to the victim. (3) Provision, within 72 hours of a report, of a sexual assault forensic evidence kit to such employee, upon request. (4) Provision of emergency health care to such employee, including, to the greatest extent practicable, a choice of medical providers and a mechanism for such employee to evaluate such provider. (5) Provision of comprehensive health services, to the greatest extent practicable, to include physical and mental health services. (6) Nothing in this subsection may be construed to authorize the furnishing of any medical benefit that the Secretary of State is not otherwise authorized to reimburse for covered employees who receive treatment for injury or disease proximately caused by their service in the Department of State. (c) Notification Diplomatic Security Office of Special Investigations shall be notified immediately of any reported sexual assault against any covered employee. For the purposes of maintaining comprehensive records of all incidents of sexual misconduct at the Department of State, if Diplomatic Security receives the initial report of a sexual assault involving a covered employee, Diplomatic Security shall notify the Office of Employee Advocacy. (d) Sexual Assault Prevention and Response Victim Advocates (1) In general The Secretary of State shall ensure the Victims’ Resource Advocacy Program, as defined in the Foreign Assistance Manual, includes, in the competitive service in Diplomatic Security within the Department of State, staff formally trained to provide victim-centered, trauma-informed care and advocacy for victims of sexual assault. (In this subsection referred to as the Advocates (2) Duties The Advocates shall— (A) receive continuous training in victim advocacy; (B) assist the victim in navigating those processes required to obtain care and services needed; and (C) offer trauma-informed care to victims, referrals, and ongoing nonclinical support. (3) Limitations The Advocates shall not be— (A) responsible for providing mental health services or to act as an investigator; or (B) placed under the Department’s medical offices or be responsible for providing physical health services. (4) Placement The Secretary shall ensure that Advocates are physically present at Department headquarters, major domestic and international facilities and embassies, as determined by the Department and with logistical consideration to allow for expedient travel to Department facilities without Advocates. (e) Overseas post (1) In general The Department shall serve as the lead agency for reporting and responding to harassment, discrimination, sexual assault, and related retaliation within an Embassy, Consulate, or other overseas location (in this subsection referred to as an overseas post (2) Referral The Department shall refer incident reporting to the appropriate agency for any employees working under Chief of Mission authority if the accused is not a covered employee of the Department of State. (3) Chief of Mission authority If a credible allegation of harassment, discrimination, sexual assault, or related retaliation is made by a covered employee at an overseas post against a non-covered employee serving under Chief of Mission authority, including against an employee of another executive agency or non-executive branch agencies operating under memoranda of understanding, the Chief of Mission may use all authorities at their disposal to include revoking the non-covered employee’s permission to be in the country on official business. (4) Diplomatic Security Training Diplomatic Security shall ensure that individuals serving as regional security officers in overseas posts are trained in victim-centered, trauma-informed care and sexual assault investigation techniques. (f) Sane program training The Bureau of Medical Services within the Department of State shall ensure that to the greatest extent practicable, Sexual Assault Nurse Examiner trained staff shall be placed at Department headquarters and major domestic and international facilities and embassies. 5. Rights of employees harassed, discriminated against, retaliated against, or sexually assaulted (a) Right to legal counsel Any covered employee filing a complaint of harassment, discrimination, sexual assault, or related retaliation may have access to legal counsel as specified in section 3(b). (b) Availability of mediation during harassment investigations (1) Availability of mediation during investigation During the complaint intake of a covered employee’s complaint under section 3— (A) the Office of Civil Rights may inform the covered employee of the availability of mediation; (B) the covered employee who filed the complaint and the accused covered employee may jointly file a request for mediation with the Office of Civil Rights; and (C) the covered employee who filed the complaint and the accused employee may request the presence of an attorney or a victim advocate in the mediation. (2) Requiring parties to be separated during mediation at request of employee At the request of either party, the parties shall be separated during any mediation proceeding under this subsection. (c) Availability of alternate work assignment or paid leave of absence during pendency of procedures (1) Options for employees (A) Emergency curtailment of overseas assignment At the request of a covered employee who files a complaint of harassment, discrimination, sexual assault, or related retaliation, an employee may request emergency curtailment of his or her tour of duty at no penalty to their career progress and shall be reassigned. Such requests for emergency curtailment shall be approved by the Secretary or their designee, not post management, within 10 days. The Department shall develop a process by which covered employees may request this option in a manner which does not inadvertently result in retaliation to the employee. (B) Alternate work assignment At the request of a covered employee who files a complaint, during the pendency of any of the procedures available under this title for consideration of the violation, the employing office shall permit the covered employee to carry out the employee’s responsibilities from an alternate location where such relocation would have the effect of materially reducing interactions between the covered employee and any person alleged to have committed the violation, instead of from a location of the employing office. (C) Exception for work assignments required to be carried out onsite If, in the determination of the covered employee’s employing office, a covered employee who makes a request under this subsection cannot carry out the employee’s responsibilities from an alternate location or such relocation would not have the effect described in subparagraph (B), the employing office may during the pendency of the procedures described in subparagraph (B)— (i) reassign the covered employee; (ii) make another workplace adjustment that would have the effect of reducing interactions between the covered employee and any person alleged to have committed the violation described in subparagraph (B); or (iii) grant a paid leave of absence. (D) Ensuring no retaliation An employing office may not grant a covered employee’s request under this subsection in a manner which would constitute retaliation in violation of any provision of law, including any provision of title 5, United States Code. (E) No impact on annual or personal leave In granting leave for a paid leave of absence under this section, an employing office shall not require the covered employee to substitute, for that leave, any of the accrued paid annual leave of the covered employee. (F) Use of duty hours An employee may use up to 16 hours of duty hours to prepare for the investigation and resolution of the applicable complaint. (2) Exception for arrangements subject to collective bargaining agreements Paragraph (1) does not apply to the extent that it is inconsistent with the terms and conditions of any collective bargaining agreement which is in effect with respect to an employing office. (3) Protections A request under paragraph (1) may not be granted or carried out in a retaliatory manner, including retaliation for whistleblowing in violation of the provisions of title 5, United States Code, or any other provision of law. (d) Exit interviews Departing employees may request the opportunity to be interviewed in person with Global Talent Management or its designee to discuss the circumstances of their departure and should be asked specifically about the prevalence of and incidents of harassment, discrimination, sexual assault, and related retaliation. 6. Provision of climate surveys (a) Definitions In this section— (1) the term bureaus and offices of the Department of State 22 U.S.C. 3902 (2) the terms Department of State Department (3) the terms employees and officials of the Department of State 22 U.S.C. 3903 (b) Climate surveys of employees of the Department of State (1) Requirement to conduct surveys Not later than 180 days after the date of the enactment of this Act and every 2 years thereafter, the Office of Employee Advocacy within the Department of State shall conduct a survey of covered employees of the Department of State regarding harassment, discrimination, sexual assault, and related retaliation in Department of State employment, including a survey of the following: (A) The prevalence of perceived violations by employees and officials of the Department of State. (B) The extent to which such violations arise from harassment or discrimination, including on the basis of sex, race, religion, national origin, disability, genetic information, and other demographic characteristics. (C) The presence of a hostile work environment in the agency. (D) Whether employees are aware of their rights and Department processes and procedures, and able to effectively exercise the rights and protections provided under this Act and other applicable laws, including the effectiveness of the procedures applicable under this Act and other applicable laws for investigating and holding accountable violations. (E) The extent to which employees feel comfortable making use of the available reporting and resolution mechanisms. (F) For employees who have used the reporting and resolution mechanisms, the extent to which the process was accessible and fair. (2) Special requirements (A) In general In each survey conducted under this section, the Office of Employee Advocacy shall survey respondents regarding the prevalence of and attitudes regarding harassment, discrimination, sexual assault, and related retaliation in Department of State employment. (B) Compilation of information by various categories The Office of Employee Advocacy shall endeavor to compile information from the survey on the basis of various categories of demographic characteristics, including gender, race and ethnicity, and age, so that the survey will report on the rates of incidents of harassment, discrimination, sexual assault, and related retaliation affecting each such demographic category. The provision of such demographic information shall be voluntary. (C) Consultation; technical assistance The Office of Employee Advocacy shall develop the survey in consultation with offices of the executive branch which currently conduct similar surveys of their employees, including the Sexual Assault Prevention and Response Office of the Department of Defense, the Office of Violence Against Women of the Department of Justice, and the Merit Systems Protection Board. Additionally, in developing the survey, the Office of Employee Advocacy shall enter into agreement to receive technical assistance from Workplaces Respond to Domestic and Sexual Violence: A National Resource Center (also known as Workplaces Respond 34 U.S.C. 12501 (D) Confidentiality The underlying data of the climate surveys shall only be available to the Office of Employee Advocacy. (3) Methodology The Office of Employee Advocacy shall conduct each survey under this section in accordance with the following: (A) All responses to all portions of the survey shall be anonymous and confidential, and each respondent shall be told throughout the survey that all responses shall be anonymous and confidential. (B) The Office of Employee Advocacy shall design the survey so that it will take no more than 15 minutes to complete, and so that it may be taken online through the use of both stationary communication devices (such as desktop computers) and portable communication devices (such as cell phones and tablets). (C) The Office of Employee Advocacy shall include in the survey a list of resources available to respondents who wish to get more information about harassment, discrimination, sexual assault, or related retaliation in Department of State employment, including the services the Department of State provides to individuals who allege violations. 7. Reports to Congress, the Department, and the public (a) Annual report (1) In general Not later than one year after the date of enactment, and annually thereafter, the Secretary of State shall submit to the Committee on Foreign Affairs and Committee on Oversight and Reform of the House of Representatives and the Committee on Foreign Relations and Committee on Homeland Security and Governmental Affairs of the Senate a report on allegations of harassment, discrimination, sexual assault, and related retaliation involving employees and officials of the Department of State during the preceding year. (2) Availability Any report submitted under paragraph (1) shall be made available to— (A) Department personnel on internal websites and town hall meetings; and (B) to the general public on the Department’s public website. (b) Contents Each report under subsection (a)(1) shall contain the following: (1) The number of instances of harassment, discrimination, sexual assault, and related retaliation against employees and officials of the Department of State, and the number of instances of harassment, discrimination, sexual assault, and related retaliation by employees and officials of the Department, that were reported to the Department during the year covered by such report, and the number of the cases so reported that were substantiated. The types of harassment and discrimination shall be disaggregated by category. (2) A summary of types of charges of, and the disciplinary action taken, in each such resolved case, with identifying information of both the accused and complainant removed. (3) The policies, procedures, and processes implemented by the Secretary of State during the year covered by each such report in response to incidents of harassment, discrimination, sexual assault, and related retaliation involving employees and officials of the Department of State. (4) A plan for the actions that are to be taken in the year following the year covered by each such report on the prevention of and response to harassment, discrimination, sexual assault, and related retaliation involving employees and officials of the Department of State. (5) Details on the average caseload of Department investigators handling harassment, discrimination, sexual assault, and related retaliation, to include the number of staff working, the average and median time to investigate cases, and the number of extensions requested by the Office of Civil Rights to conduct investigations past the 120-day timeframe. (6) Details on the average caseload of Office of Employee Advocacy Employee Advocates and staff attorneys. (7) Details on cases of bystander intervention where a bystander assisted to counter or report incidents of harassment, discrimination, sexual assault, and related retaliation. (8) Detailed findings and underlying data of the climate surveys required in section 6 of this Act, including an independent assessment by the Chief Advocate, not subject to the Secretary of State, of the current climate at the Department of State with regard to harassment, discrimination, sexual assault, and related retaliation. (9) Frequency with which those alleging harassment, discrimination, sexual assault, or related retaliation took advantage of supportive services, such as medical care or counseling. (c) Assessment Each report under paragraph (1) for each year beginning with 2021 shall also include an assessment by the Secretary of State of the implementation during the preceding fiscal year of the policies and procedures under section 2(a) of the Department of State on the prevention of and response to harassment, discrimination, sexual assault, and related retaliation involving employees and officials of the Department in order to determine the effectiveness of such policies and procedures during such fiscal year in providing an appropriate response to such harassment, discrimination, sexual assault, and related retaliation. (d) Assessment of additional authorities needed Not later than one year after the date of enactment of this Act, the Secretary of State shall submit to Congress a proposal for such changes and legislation as the Secretary considers necessary to enhance the capability of the Department of State to address matters relating to harassment, discrimination, sexual assault, and related retaliation involving covered employees. The report shall include recommendations for additional appropriations, as appropriate, to implement these changes. 8. Required training for Department personnel (a) Whistleblower protection training Not later than one year after the enactment of this Act, and annually thereafter, the Office of Civil Rights shall provide to each covered employee of the Department of State training regarding whistleblower disclosures and protections. Such training shall include instruction and an explanation of the rights of such covered employee regarding whistleblowing, including— (1) each method established by law in which a covered employee may file a whistleblower disclosure; (2) the right of the covered employee to petition Congress regarding a whistleblower disclosure; and (3) the fact that the covered employee may not be prosecuted or retaliated against for disclosing information to Congress, the Inspector General, or any other investigatory agency in instances where such disclosure is permitted by law, rule, or regulation. (b) Bystander intervention training Not later than one year after the enactment of this Act, and annually thereafter, the Office of Civil Rights shall provide to each covered employee of the Department of State training regarding harassment, discrimination, sexual assault, and related retaliation, including— (1) describing what such conduct entails; (2) identifying the types of conduct that serve as grounds to report or intervene; (3) training on relevant laws that may require an officer or employee to report or intervene in instances of such conduct; (4) reporting and intervening protocols and strategies for such conduct; (5) specific training for covered employees who process allegations of such conduct against other covered employees; and (6) such training must be developed based on consultation with organizations with expertise in trauma-informed care, effective strategies in prevention and response, and healthy workplace culture. (c) Supervisor training Not later than one year after the enactment of this Act, and annually thereafter, the Office of Civil Rights shall provide and institute mandatory training on responding to complaints of harassment, discrimination, sexual assault, and related retaliation to each covered employee of the Department of State who is a supervisor. Such training must be developed based on consultation with organizations with expertise in trauma-informed care, effective strategies in prevention and response, and healthy workplace culture. (d) Executive leadership training Not later than one year after the enactment of this Act, and annually thereafter, the Office of Civil Rights shall provide and institute mandatory training for each covered employee serving in an executive leadership role, including Chiefs of Mission. The training shall emphasize the statutory requirements for reporting and responding to complaints of harassment, discrimination, sexual assault, and related retaliation, including— (1) understanding the damage and harm harassment, discrimination, sexual assault, and related retaliation do to the employee and the organization; (2) senior leadership’s responsibility and role to create and foster a work environment free from harassment, discrimination, sexual assault, and related retaliation; and (3) such training must be developed based on consultation with organizations with expertise in trauma-informed care, effective strategies in prevention and response, and healthy workplace culture. (e) Policies and procedures Not later than one year after the enactment of this Act, and annually thereafter, the Office of Civil Rights shall provide to each covered employee of the Department of State training on the policies and procedures on harassment, discrimination, sexual assault, and related retaliation applicable by operation of section 2. Employees should receive this training within 30 days of entering on duty. Such training must be developed based on consultation with organizations with expertise in trauma-informed care, effective strategies in prevention and response, and healthy workplace culture. (f) Manager’s Toolkit The Secretary of State shall establish resources, to be referred to as a Manager’s Toolkit (g) Equal employment opportunity counselor training The Office of Civil Rights shall revise the 32 hours of training provided to Equal Employment Opportunity Counselors to include the resources and responsibilities of the Office of Employee Advocacy, as well as the various means of communication available to employees to relay their complaints to OEA. 9. Hiring, vetting, and promotion (a) In general The Secretary of State, in consultation with relevant agencies, shall ensure that questions relating to harassment, discrimination, sexual assault, and related retaliation complaints are included in any background investigation with respect to a security clearance or access determination and vetting of any covered employee. (b) Requirements for appointment Consistent with the civil service and Foreign Service laws and regulations, the Secretary of State shall ensure that a background investigation on any potential sexual assault is conducted before an individual is appointed to a position within the Department. (c) Requirements for promotion into the senior foreign service or senior executive service The Secretary of State shall ensure that potential candidates are vetted for their history of promoting a work environment free from harassment and discrimination. Promotion boards shall take into account whether candidates have a history of offenses that occurred under their leadership, regardless of whether the candidate was named an offender or not. (d) Promotion policy objectives Consistent with the civil service and Foreign Service laws and regulations, the Secretary of State shall ensure that promotion precepts and selection panels reward officers who have volunteered to serve as Equal Employment Opportunity Counselors, and that documentation of the precepts emphasize that counseling experience is to be viewed as valuable experience preparing officers to perform in senior-level positions with respect to the leadership, management, and interpersonal skills precepts. 10. Nondisclosure and nondisparagement agreements (a) Definitions In this section— (1) Employee The term employee 42 U.S.C. 2000e–16 (2) Employer The term employer 42 U.S.C. 2000e–16 (3) Nondisclosure clause The term nondisclosure clause (4) Nondisparagement clause The term nondisparagement clause (b) Unlawful practices (1) In general It shall be an unlawful practice for an employer to enter into a contract or agreement with an employee, as a condition of employment, promotion, compensation, benefits, or change in employment status, or as a term, condition, or privilege of employment, if that contract or agreement contains a nondisparagement clause or nondisclosure clause that covers prohibited discrimination or harassment in employment or contracting, or retaliation for reporting, resisting, opposing, or assisting in the investigation of such discrimination or harassment. (2) Enforcement Notwithstanding any other provision of law, it shall be an unlawful practice for an employer to enforce or attempt to enforce a nondisclosure or nondisparagement clause that covers prohibited discrimination or harassment in employment, or retaliation for reporting, resisting, opposing, or assisting in the investigation of such discrimination or harassment. An employer’s enforcement or attempts to enforce such a nondisclosure agreement against an employee shall be determined to be prohibited retaliation. (3) Settlement or separation agreements (A) In general The provisions of paragraphs (1) and (2) do not apply to a nondisparagement clause or nondisclosure clause contained in a settlement agreement or separation agreement that resolves legal claims or disputes if— (i) such legal claims accrued or such disputes arose before the settlement agreement or separation agreement was executed; (ii) the clause involved is mutually agreed upon by and mutually benefits both— (I) the employer, as the case may be; and (II) the employee; (iii) the employee’s agreement to such clause is knowing and voluntary, as described in subparagraph (C); and (iv) the settlement agreement or separation agreement expressly states that the agreement involved does not prohibit, prevent, or otherwise restrict a worker from— (I) reporting the allegations underlying those settled claims to the Equal Employment Opportunity Commission, any other Federal, State, or local agency with the authority to enforce laws (including regulations) that prohibit discrimination or harassment in employment, as the case may be, or law enforcement; (II) testifying at, assisting, or participating in an investigation or proceeding conducted by the Equal Employment Opportunity Commission, any other Federal, State, or local agency with the authority to enforce laws (including regulations) that prohibit discrimination or harassment in employment, as the case may be, or law enforcement; or (III) testifying in a hearing or trial or complying with a request for discovery in relation to civil litigation. (B) Prohibition on sole benefit For purposes of this paragraph, it shall be an unlawful practice for an employer to unilaterally include a nondisparagement clause or nondisclosure clause that solely benefits the employer in a separation or settlement agreement. (C) Knowing and voluntary agreement For purposes of this paragraph, agreement to a nondisparagement clause or nondisclosure clause may not be considered knowing and voluntary unless at a minimum— (i) the nondisparagement clause or nondisclosure clause is written in a manner designed to ensure that the employee understands the content of the clause involved; (ii) the nondisparagement clause or nondisclosure clause is included only in exchange for consideration of value provided to the employee, in addition to anything of value to which the employee is already entitled; (iii) the nondisparagement clause or nondisclosure clause does not apply to any rights or claims that arise after the date the settlement or separation agreement is executed; (iv) the employee is advised in writing to consult with an attorney prior to agreeing to such an agreement that includes a nondisparagement clause or nondisclosure clause; (v) the employee is given a period of at least 21 days to consider any proposal for a settlement or separation agreement that includes a nondisparagement clause or nondisclosure clause; and (vi) the settlement or separation agreement provides that for a period of at least 7 days following the execution of such agreement the employee may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired. (D) Burden of proof In any dispute that may arise over whether any of the requirements of subparagraph (A) have been met, the party asserting the validity of an agreement shall have the burden of proving that the requirements of subparagraph (A) have been met. (E) Participation in investigations or proceedings No nondisparagement clause or nondisclosure clause may affect the ability of an employee to testify at, assist, or participate in an investigation or proceeding conducted by the Equal Employment Opportunity Commission, any Federal, State, or local agency with the authority to enforce laws (including regulations) that prohibit discrimination in employment, as the case may be, or a law enforcement agency. (F) Prohibition on damages Under no circumstances shall an employee be required to pay damages for breach of a nondisparagement clause or nondisclosure clause permitted by this paragraph in excess of an amount equal to the consideration of value provided to the worker in exchange for the workers’ agreement to the nondisparagement clause or nondisclosure clause. (c) Enforcement (1) Enforcement powers With respect to the administration and enforcement of this section in the case of a claim alleged by an employee against an employer for a violation of this section— (A) the Commission shall have the same powers as the Commission has to administer and enforce title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e (B) the Librarian of Congress shall have the same powers as the Librarian of Congress has to administer and enforce title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e (C) the Board (as defined in section 101(a) of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301(a) 2 U.S.C. 1301 2 U.S.C. 1311(a)(1) (D) the President, the Commission, and the Merit Systems Protection Board shall have the same powers as the President, the Commission, and the Board, respectively, have to administer and enforce chapter 5 (E) a court of the United States shall have the same jurisdiction and powers as the court has to enforce— (i) title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e (ii) the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301 2 U.S.C. 1311(a)(1) (iii) chapter 5 (2) Procedures and remedies The procedures and remedies applicable to a claim alleged by an employee against the employer for a violation of this section are— (A) the procedures and remedies applicable for a violation of title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e (B) the procedures and remedies applicable for a violation of section 201(a)(1) of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1311(a)(1) (C) the procedures and remedies applicable for a violation of section 411 of title 3, United States Code, in the case of a claim alleged by an employee of the employer for a violation of such section. (d) Right To report reserved Notwithstanding signing (before, on, or after the effective date of this Act) any nondisparagement clause or nondisclosure clause, an employee retains— (1) any right that person would otherwise have had to report a concern about harassment, including sexual harassment, in employment or another violation of the law to the Commission, another Federal agency (including an office of the legislative or judicial branch), a State or local fair employment practices agency or any other State or local agency, or a law enforcement agency; and (2) any right that person would otherwise have had to bring an action in a court of the United States. (e) Regulations (1) In general Except as provided in paragraphs (2), (3), and (4), the Commission shall have authority to issue regulations to carry out this section. (2) Librarian of congress The Librarian of Congress shall have authority to issue regulations to carry out this section with respect to workers of the Library of Congress. (3) Board The Board referred to in subsection (c)(1)(C) shall have authority to issue regulations to carry out this section, in accordance with section 304 of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1384 (4) President The President shall have authority to issue regulations to carry out this section with respect to employees described in subsection (c)(1)(E). (f) Remedies Notwithstanding any other provision of this Act, in an action or administrative proceeding against the United States for a violation of this section, remedies (including remedies at law and in equity, and interest) are available for the violation to the same extent as the remedies are available for a violation of title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e (1) punitive damages are not available; and (2) compensatory damages are available to the extent specified in section 1977A(b) of the Revised Statutes ( 42 U.S.C. 1981a(b)

Summary: State Harassment and Assault Prevention and Eradication Act of 2020 or the SHAPE Act of 2020 This bill establishes policies, employee rights, and accountability measures to address harassment, discrimination, sexual assault, and related retaliation in the Department of State.