SEXUAL HARASSMENT QUESTIONS AND ANSWERS
A MANAGER'S GUIDE

Foreword: The following contains answers to managers' most frequently asked questions when faced with allegations of sexual harassment within their organization.

Q. What is sexual harassment?

A. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

1. Submission is made either explicitly or implicitly a term or condition of an individual's employment; or

2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual; or

3. The conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

Key points to note in this definition are that sexual harassment involves:

1. Any action of a sexual nature, whether physical, verbal, or even non-verbal, may constitute sexual harassment if it is unwelcome, and… 2. Either amounts to a term or condition of employment (i.e., must be tolerated in order to maintain employment), or… 3. Is considered in making employment decisions regarding that person (e.g., promotions, performance ratings, assignments), or… 4. It creates an intolerable or hostile work environment that negatively impacts upon an employee's performance or ability to remain employed in that workplace.
This definition has been used in identifying two primary types of sexual harassment:

1. Those behaviors that result in tangible employment actions; and;

2. Those behaviors that create a hostile work environment.

Q. What is Tangible Employment Action Harassment?
A. A tangible employment action is a significant change in employment status. Some examples of Tangible Employment Action Harassment are:

1. When an employee tells her supervisor that some people really don't like to have their necks and shoulders rubbed, he responds by saying “Those who want to get ahead, do.”

2. A manager pressures a subordinate employee to join her for dinner and dancing. When he declines, she tells him that he can't expect her to “mentor” him on the job if he's unwilling to spend time together after hours.

3. After an employee resists her team leader's repeated suggestion that she travel with him so they "can get to know each other better,” he turns in a project evaluation rating her work “sub-standard.”

Q: What is Hostile Environment Harassment?

A: Hostile environment harassment is often harder for employees and managers to recognize. Hostile environment harassment is usually found where a general pattern of workplace behavior exists that is sexually-oriented, severe and pervasive. Here's how those descriptive terms have been defined in actual workplace situations:

Sexually-oriented behavior has been found to include: letters, emails, telephone calls, magazines, pictures and objects of a sexual nature or content deliberately touching, brushing, cornering, pinching or leaning over a person suggestive looks, comments, gestures or whistles unwelcome pressure for dates or sexual favors sexual jokes, teasing, remarks, and questions

Pervasive behavior is that which is widespread, common, or repeated. And behavior of a sexual nature is considered severe when it would be objectionable to a “reasonable person” within the circumstances.

Putting it all together, an employee may be found to have been the victim of hostile environment sexual harassment if repeatedly subjected to sexually-oriented behavior that a reasonable person would likely find objectionable.

Examples of Hostile Environment Harassment
When an employee complains about the vulgar language and jokes that routinely fill the break room, her supervisor tells her to “lighten up and get used to it, because that's how boys behave.”
After learning that an employee has separated from her husband and may be getting a divorce soon, a co-worker has begun asking her out. After being repeatedly turned down, he has begun calling her at home to ask if she'd like him to "come over and help cure her loneliness.”
A manager who has decorated her office with various signs and posters containing derogatory remarks about men, routinely opens staff meetings by requesting that the males try to "shift your thoughts above the belt buckle for the next few minutes."
A supervisor returns from an overseas trip with a wooden carving of a man wearing a barrel. When the barrel is lifted, a disproportionately large phallus pops out. The supervisor routinely raises and lowers the barrel while meeting with subordinates, and has asked several female employees if they'd like to see “the real thing.”

Q: Is same-sex harassment also prohibited under applicable laws and regulations affecting federal employees?

A: Yes. For several years various federal courts split on this issue, with some saying current laws prohibit sexual harassment of any type, while others have concluded that it only addresses opposite-sex harassment. But in 1998 the Supreme Court ruled that employees are protected by current laws against both same and opposite-sex harassment. In addition in the federal service most—if not all—agencies already have created internal regulations or policies prohibiting sexual harassment of any variety. Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct. 998 (1998), the Court held that same-sex sexual harassment is also actionable under Title VII.

Q: I understand that the agency is liable for the acts of its supervisors, but what about those situations in which a co-worker engages in harassment despite knowing of the agency's policy against it?

A: The agency is liable in such situations if it knew or should have known of the harassing behavior, unless it can show that it took reasonable precautions and took immediate and appropriate corrective action.

Q: What are the administrative processes under which an employee is entitled to raise allegations of sexual harassment?

A: There are two: Title 10 Section 1561 and 29 CFR 1614.

1. Title 10 Section 1561 requires a Commanding Officer (CO) or Officer in Charge (OIC) who receives a complaint alleging sexual harassment by a member of the armed forces or a civilian employee of the Department of Defense to carry out an investigation, commencing within 72 hours after receipt of the complaint, and completed not later than 14 days after the commencement of the investigation.

2. Under 29 CFR 1614, an employee may bring an allegation of sexual harassment based on race, color, national origin, religion, sex, age, disability or reprisal to the EEO office. Employees bringing allegations using this process will be advised of their right to also bring it forward under Title 10 Section 1561.

Both of these processes may be used simultaneously. If an employee chooses not to use Title 10 Section 1561, the activity head will be contacted, either by the EEO or Labor Relations staff, and advised to take immediate action with regard to the allegations of sexual harassment, which would include initiating an investigation, using criteria set forth by the activity or following guidelines set forth in Title 10 Section 1561 and Secretary of the Navy message 151508Z May 00.

NOTE: Even though discrimination on the basis of sexual orientation is not covered under 29 CFR 1614, it is a prohibited personnel practice as set forth in Executive Order 13087 and an employee may seek assistance either from the Merit Systems Protection Board, Office of Special Counsel, Negotiated Grievance Procedures or Agency Grievance Procedures.

Q. What should I do if an employee comes to me raising allegations of sexual harassment?

A. Advise that employee of his/her right to exercise one or both of the two options above, and refer them to the command point of contact who receives Title 10 complaints, but do not stop there. Once a person raises sexual harassment allegations, it is your responsibility as a manager to report it up the chain of command so that your activity head can take appropriate action.

Q. Do I have a time limit?

A. The Secretary of the Navy requires that complaints of sexual harassment filed by civilian employees will be processed according to the following timelines and procedures:

1. Within 72 hours of receipt of the complaint, activity heads will:

a. Forward a detailed description of the allegation(s) to the next superior officer in the chain of command who is authorized to convene a general court-martial. This can be accomplished face-to-face, via e-mail or telephone call. This is intended to be a "heads-up" contact to the next reporting senior.

b. Commence, or cause the commencement of, an investigation of the complaint.

c. Inform the complainant that the investigation has commenced.

2. Activity heads will make every reasonable effort to ensure investigations are completed within 14 days of commencement.

3. Within 20 days after the date that the investigation has commenced, activity heads will submit a final report on the results of the investigation to the next reporting senior, including any action taken as a result of the investigation.

4. If the investigation is not completed within 14 days of commencement, activity heads will submit an interim report to the next superior officer in the chain of command and will continue to submit a report every 14 days until the investigation is completed by whatever method is requested by the next reporting senior.

5. Upon completion of the investigation, activity heads will:

a. Within three days of receipt of the investigation report, determine if the allegations are substantiated.

b. Within six days, notify the aggrieved person in writing of receipt of the investigations findings to include: (1) the results of the investigation, (2) the decision made on substantiation of the allegation(s) and (3) to the extent practicable, the decision on corrective actions taken or proposed.

Q. How should the investigation be conducted?

A. An employer should set up a mechanism for a prompt, thorough, impartial, and appropriate investigation into alleged harassment. As soon as management learns about alleged harassment, it should determine whether a detailed fact-finding investigation is necessary. For example, if the alleged harasser does not deny the accusation, there would be no need to interview witnesses, and the employer could immediately determine appropriate corrective action. If a fact-finding investigation is necessary, it should be launched immediately. The amount of time that it will take to complete the investigation will depend on the particular circumstances. If, for example, multiple individuals were allegedly harassed, then it will take longer to interview the parties and witnesses.

Q: Why should the command conduct an investigation?

A: It preserves and protects the rights of the alleged victim and harasser. It also establishes a point from which the activity can reduce its liability should a finding of discrimination be made ... and it's required by Title 10 Section 1561 and SECNAVINST message 151508Z May 00.

Q. Who should conduct the investigation?

A. The investigator should be well trained in the skills that are required for interviewing witnesses and assessing credibility. Such skills include neutrality, objectivity and empathy. The alleged harasser should not have any supervisory authority over the individual who conducts the investigation and should not have any direct or indirect control over the investigation.

Q. What questions should the investigator ask?

A. The following are suggested questions:

1. Questions to Ask the Alleged Victim:

a. Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur and is it still ongoing? Where did it occur? How often did it occur? How did it affect you?

b. How did you react? What response did you make when the incident(s) occurred or afterwards?

c. How did the harassment affect you? Has your job been affected in any way?

d. Are there any persons who have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it? Did anyone see you immediately after episodes of alleged harassment?

e. Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person?

f. Are there any notes, physical evidence, or other documentation regarding the incident(s)?

g. How would you like to see the situation resolved?

h. Do you know of any other relevant information?

2. Questions to Ask the Alleged Harasser:

a. What is your response to the allegations?

b. If the harasser claims that the allegations are false, ask why the alleged victim might lie.

c. Is there anyone else who might have relevant information that should be interviewed?

d. Do you have any notes, physical evidence, or other documentation regarding the incident(s)?

Note: These are open-ended questions designed to let the witness tell their story. Close-ended questions should be asked when clarifying information is needed.

3. Questions to Ask Witnesses:

a. What did you see or hear? When did this occur?

b. What did the alleged victim tell you? When did s/he tell you this?

c. Do you know of any other relevant information?

Note: These are by no means inclusive questions; they are samples only of what could be asked. Investigators are strongly encouraged to seek advice from a Labor Relations Specialist prior to commencing an investigation, especially when bargaining unit members will be interviewed.

Q. How can the investigator determine credibility?

A. If there are conflicting versions of relevant events, the employer will have to weigh each party's credibility. Credibility assessments can be critical in determining whether the alleged harassment in fact occurred. Factors to consider include:

1. Inherent plausibility: Is the testimony believable on its face? Does it make sense?

2. Demeanor: Did the person seem to be telling the truth or lying? Assess their body language, nervousness, extreme calm, etc. Caution: You can be nervous and telling the truth - the key is to probe for weaknesses in a witness's version of the story.

3. Motive: Did the person have a reason to lie? 4. Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party's testimony?

5. Past record: Did the alleged harasser have a history of similar behavior in the past?

None of the above factors are determinative as to credibility. For example, the fact that there are no eye-witnesses to the alleged harassment by no means necessarily defeats the alleged victim's credibility, since harassment often occurs behind closed doors. Furthermore, the fact that the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so again.

Q. What should the report of the investigation contain?

A. The investigator's report should contain evidence, results of interviews (either summaries or statements), and determinations of credibility. Avoid making conclusions or recommendations; an investigator's job is to gather the facts only. The employer will draw the conclusions and take corrective action.

Q. Who completes the final report and makes sure reporting requirements are met in accordance with SECNAV directives?

A. The person or persons responsible for taking corrective action.

Q. What should be included in the final report?

A. The final report should include:

1. Data on alleged victim (name, pay plan, series and grade level).

2. Data on alleged harasser (name, pay plan, series and grade level and their relationship to the complainant; i.e., supervisor, subordinate, co-worker, etc.).

3. Date and location of the incident(s) (on base, off base, while on travel, etc.).

4. Date investigation began.

5. Date investigation completed.

6. Investigator's findings (evidence, results of interviews, either summaries or statements, and determinations of credibility).

7. Determination of whether allegations are substantiated or unsubstantiated.

8. Resolution achieved.

9. Corrective action taken (be specific).

10. Disciplinary action taken (be specific).

Q. If these allegations are substantiated, what measures can I take to stop this harassment and make sure it doesn't happen again?

A. First, remedial measures should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur. These remedial measures need not be those that the alleged victim requests or prefers, as long as they are effective. Remedial measures should not adversely affect the alleged victim. Thus, for example, if it is necessary to separate the parties, then the alleged harasser should be transferred (unless the alleged victim prefers otherwise or there is an overriding business necessity for not transferring the alleged harasser). Remedial responses that penalize the alleged victim could constitute unlawful retaliation and are not effective in correcting the harassment. Remedial measures also should correct the effects of the harassment. Such measures should be designed to put or restore the alleged victim "or make them whole" had the misconduct not occurred.

1. Examples of Measures to Stop the Harassment and Ensure that it Does Not Recur:

a. Disciplinary or non-disciplinary action. Remember: This behavior is misconduct!

b. Transfer or reassignment.

c. Demotion/reduction of wages.

d. Suspension.

e. Discharge.

f. Training or counseling of harasser to ensure that s/he understands why his or her conduct violated the employer's anti-harassment policy.

g. Monitoring of harasser to ensure that harassment stops.

2. Examples of Measures to Correct the Effects of the Harassment:

a. Restoration of leave taken because of the harassment.

b. Expungement of negative evaluation(s) in employee's personnel file that arose from the harassment.

c. Reinstatement.

d. Apology by the harasser.

e. Monitoring treatment of employee to ensure that s/he is not subjected to retaliation by the harasser or others in the work place because of the complaint.

f. Correction of any other harm caused by the harassment (e.g., compensation for losses).

Q. What resources are available to me for further guidance?

A. Title 10 Section 1561 29 CFR 1614 Secretary of the Navy 151508Z MAY 00 SECNAVINST 5300.26C EEOC Enforcement Guidance (www.eeoc.gov/docs/harassment)

Q. What role does the EEO Programs Department play?

A. When the EEO Programs Department becomes aware of an allegation of sexual harassment, they immediately contact the activity point of contact and advise them that an investigation should be conducted. EEO complaint processing is conducted if the alleged victim wishes to file an EEO complaint.

Q. What role does the Labor Relations/Employees Relations (LR/ER) Department play?

A. When the LR/ER department becomes aware of an allegation of sexual harassment, they provide advice and guidance to management regarding what type of corrective action, if needed, should be taken. The LR/ER department can also advise on rights of unions and bargaining unit members during the processing of allegations of sexual harassment.