This document includes the statements of a range of activists testifying about the impact of sexual harassment on women in the workforce, reflecting the broad coalition of women working on the issue of sexual harassment. Highlights from the hearings included the testimony of Diane Williams, the plaintiff in Williams v. Saxbe, and the testimony of EEOC chair Eleanor Holmes Norton, which was particularly powerful and persuasive.
SEXUAL HARASSMENT IN THE FEDERAL GOVERNMENT
SUBCOMMITTEE ON INVESTIGATIONS
POST OFFICE AND CIVIL SERVICE
HOUSE OF REPRESENTATIVES
OCTOBER 23, NOVEMBER 1, 13, 1979
Serial No. 96-57
Printed for the use of the
Committee on Post Office and Civil Service
U.S. GOVERNMENT PRINTING OFFICE
SEXUAL HARASSMENT IN THE FEDERAL GOVERNMENT
TUESDAY, OCTOBER 23, 1979
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON INVESTIGATIONS,
COMMITTEE ON POST OFFICE AND CIVIL SERVICE,
The subcommittee met, pursuant to notice, at 9:30 a.m., in room 311, Cannon House Office Building, Hon. James M. Hanley (chairman of the full committee) presiding.
Mr. HANLEY.Today we begin the first of 3 days of hearings on sexual harassment in the Federal Government. This is indeed a serious issue which cannot be ignored. Several surveys done by private groups and individuals have indicated that sexual harassment is widespread. Unfortunately, our preliminary investigation has shown that the problem is not only epidemic, it is pandemic, an everyday, everywhere occurrence.
An unofficial survey taken by a HUD employee found approximately 160 female employees who reported being sexually harassed on the job. New Responses, a group we will hear from today, has done a limited survey in several Government agencies. Forty percent of the almost 200 respondents to their survey experienced sexual harassment.
Several years ago, Red Book magazine published a questionnaire on the subject. Over 9,000 women responded and nearly 9 out of 10 of them reported some form of unwanted attention from male bosses or colleagues. Furthermore, nearly 75 percent called these unwelcome advances embarrassing, demeaning or intimidating.
Since the subcommittee began this investigation, we have reviewed approximately 100 complaints from women alleging sexual harassment while employed by the Federal Government. In almost all cases the women who contacted us appeared to have legitimate complaints. I want to take this opportunity to thank them for having the courage to contact the subcommittee. I know that in many cases it was a difficult call for them to place. But those calls and letters certainly further documented the fact that sexual harassment is a working condition and that many federally employed women are forced to deal with on a day-to-day basis.
At this point I want to make it clear that we are not addressing the broad issue of male-female relationships on the job. What we will be focusing on in these hearings is the potential of a serious abuse of power, sexual intimidation by a male supervisor of a subordinate female employee. Frequently, when this abuse occurs
and the supervisor's advances are rejected, what follows is an adverse personnel action or threats of such an action.
This type of behavior simply cannot be tolerated in the Federal work force. Managers should be put on notice that a "boys will be boys" atmosphere will not be condoned in any Federal agency. Women in the workplace must be made to feel that legitimate complaints of sexual harassment will be dealt with seriously and expeditiously. The subcommittee has concluded that there are several positive steps that the Federal Government can take in an attempt to curtail or hopefully eliminate sexual harassment.
First, it is essential that sexual harassment be clearly defined and that it be declared a prohibited personnel practice, as well as a violation of merit system principles. To this end we have requested that the Office of Personnel Management issue a directive to that effect and give it the widest possible distribution. It is imperative that managers and subordinate personnel know the rules of the game so that all employees understand exactly what kind of behavior is unacceptable on the job.
Second, we have requested that the Merit Systems Protection Board initiate a survey concerning sexual harassment in the Federal workplace. As this issue receives more attention, it is inevitable that more unofficial surveys will be taken. And although such surveys are useful, their credibility is often questioned.
The Merit Systems Protection Board is uniquely suited to perform the kind of authoritative survey needed and the resultant data will assist us in determining what additional steps should be taken to stop this type of sexual harassment. During this investigation we also found that an area in which greater attention is sorely needed is training. Besides looking at ways to handle sexual harassment after the fact, the Federal Government, under the leadership of the Office of Personnel Management must look at ways to prevent it from occurring in the first place.
Managers need better training so that they will be made aware of the problem and will be informed of employer obligations and responsibilities in processing complaints. We also need training sessions for employees so that they will understand their rights and the legal administrative remedies available to them.
A final area that needs to be addressed is the reliability of the system which is in place for filing a grievance of sexual harassment. One of the most difficult problems in dealing with this issue is that most cases go unreported. Employees are usually unaware that recent court decisions have ruled that sexual harassment is indeed a form of sexual discrimination and therefore grievable through the Equal Employment Opportunity Commission. Moreover, most of the women we interviewed expressed little faith in the EEOC process.
The Equal Employment Opportunity Commission has told us that it now takes about 440 days to process a claim. And quite frankly, most women are afraid to file a claim against their boss knowing they must undergo such a lengthy process while under his supervision.
We will soon take testimony from the Equal Employment Opportunity Commission and will be looking for possible ways to cut down the length of time it takes to process a claim. I know that the
EEOC is working very hard to cut down on the incredible backlog of cases it now has on the books. It is essential, however, that employees not lose any vital rights in this expedited process. It is also crucial that EEOC counselors receive adequate training on sexual harassment so that they are more sensitive to employee complaints.
In summary, it is high time that we stopped pretending that sexual harassment does not exist in the Federal Government. It is time to train managers properly and inform them that sexual harassment will, under no circumstances, be tolerated and that any person guilty of sexual harassment can expect to be dealt with severely. It is time the Federal Government took affirmative steps so that federally employed women can work in an atmosphere free of sexual harassment.
Our first witness this morning is Ms. Donna Lenhoff, a staff attorney for the Women's Legal Defense Fund.
Ms. Lenhoff,we appreciate your appearance here this morning and look forward to your testimony.
Mrs. SPELLMAN.Mr. Chairman.
Mr. HANLEY.Mrs. Spellman.
Mrs. SPELLMAN.I wonder if I might just say a word before Ms. Lenhoff testifies.
Mr. HANLEY.The gentlelady from Maryland.
Mrs. SPELLMAN.I have been in government now for 17 years. I can tell you that throughout the early years and in the not too recent past there have been allegations of sexual abuse that have been called to my attention, and there was no place to go. There really was no place to go. Men with whom I worked, who were in a position to do something about it, would chuckle and think that it was kind of cute and, as you said, a "boys will be boys" attitude was being taken.
I want to congratulate you on holding these hearings because the mere fact that you, a man chairman of this committee, feel that this is a serious situation and that something ought to be done about it, that women should not be used this way, should not be demeaned in this manner, gives great heart to women all over the country, not only those who are working in the Federal Government but those who are working elsewhere. I want to say to you on behalf of a great many women, I am sure, that we thank you for taking this subject up and for treating it as the serious matter it really is.
Mr. HANLEY.Mrs. Spellman, I appreciate very much what you have said.
Hopefully by the institution of a program that we have in mind, the private sector will take heed and initiate similar programs that will provide the type of protection for those employees. Again our deep appreciation for your comments.
You may proceed, Ms. Lenhoff.
STATEMENT OF DONNA LENHOFF, STAFF ATTORNEY, WOMEN'S
LEGAL DEFENSE FUND
Ms. LENHOFF.Good morning, Chairman Hanley, distinguished members of the committee, we appreciate the opportunity to appear before you to testify as part of your investigation of sexual
harassment in the Federal Government. It is a matter of great concern to those interested in attaining and maintaining a Federal Civil Service that is equitable and discrimination-free for all employees, and we applaud this initiative to examine the problem.
The Women's Legal Defense Fund is a tax-exempt nonprofit organization formed in 1971 to provide pro bono legal assistance to women who have been discriminated against on the basis of their sex. A Women's Legal Defense Fund volunteer represented Paulette Barnes on appeal in Barnes v. Costle, one of the first Federal court of appeals cases to find sexual harassment within the purview of title VII of the Civil Rights Act of 1964. At present the fund's case docket contains a number of such sexual harassment cases. In addition, the fund monitors the enforcement of the Equal Employment Opportunity (EEO) laws by the EEOC, OFCCP, and other involved Federal agencies. A part of this project we have been actively involved in the development and implementation of the EEO enforcement and civil service reorganization efforts.
Based on this experience, we know that sexual harassment in some form is a common and recurring problem for the vast majority of working women. We will leave it to other witnesses who come before you today to demonstrate through their own studies the nature and extent of the problem. Suffice it to say that the lowest estimates of the percentage of working women who experience the problem are in the range of 70 percent.
Even more important than the incidence of sexual harassment is its effect on the reality of the work experience for the woman who must suffer it. In about three out of four cases the harassment is at the hands of a supervisor or someone in a position to hire and fire his victim. At worst, a woman who is sexually harassed loses her source of income because she won't submit or because she cannot continue to tolerate the harassment; at best, she continues to work in a hostile environment in which she is always subject to a demeaning sexual put-down or an unwanted advance.
Sexual harassment is often aggravated for women who are in nontraditional jobs. Similarly, it is often imposed as a condition of promotion or other job success. In effect, the pervasiveness and general acceptance of sexual harassment of women at their jobs operates to circumscribe their employment opportunities in every respect. Thus, it is appropriate to address sexual harassment through the mechanism of antidiscrimination law, primarily title VII of the Civil Rights Act of 1964.
Legal remedies for sexual harassment, however, are by no means limited to title VII. In some circumstances, sexual harassment can give rise to a criminal violation or to tort liability. Indeed there was a recent Federal district court case in the district of New Jersey in which a tort judgment was taken against five individual employees for a truly egregious course of conduct.
Another possible remedy, available if not utilized in the context of Federal employment, is disciplinary action against employees who are abusive or otherwise engage in unprofessional conduct toward coworkers or supervisors. Such alternative means of redress cannot be ignored in the development of policy in this area. Because of the existence of an already-established enforcement mechanism, however, as well as the availability of make-whole relief,
and the sex-linked nature of almost all complaints of sexual harassment, this testimony will focus on the application and enforcement of title VII and other EEO laws to sexual harassment.
The first point I would like to make is that sexual harassment in employment is prohibited under title VII. As the body of case law regarding on-the-job sexual harassment is developing, the principle that such harassment is actionable under title VII, at least where it has adverse employment consequences for the charging party, is becoming increasingly well established. To date, three Federal courts of appeal have so held, as have the majority of Federal district courts.
Barnes v. Costle is illustrative. Ms. Barnes was a payroll clerk at the Environmental Protection Agency. Her supervisor repeatedly made sexual remarks and innuendoes to her, suggesting that if she had an affair with him she would improve her employment status. When it was clear that her refusals were final, she was retaliated against by harassment and finally abolition of her job.
A unanimous three-judge panel of the D.C. Court of Appeals, reversing the finding below that Ms. Barnes lost her job not because of unlawful sex discrimination but because of her unwillingness to engage in a sexual affair with her boss, held that Ms. Barnes' complaint had made out a claim under title VII. The court grounded its holding on the difference in treatment by agency supervisory personnel between Ms. Barnes and any similarly situated male. As the court said,
Plaintiff became the target of her superior's sexual desires because she was a woman, and was asked to bow to his demands as the price for holding her job.
Thus, sexual harassment is sex discrimination because it imposes an adverse effect for failure to comply -- in the Barnes case, retaliation and ultimately loss of job -- on female employees that is not imposed on similarly situated male employees. Moreover, sexual harassment has been a historic burden on women's ability, as a class, to attain full participation in our society. As one commentator put it:
The problem of sexual harassment is revealed as both a manifestation and perpetuation of the socially disadvantaged status of women. A man in a position of authority uses his hierarchically superordinate role to place conditions of sexual compliance on his female subordinate's access to the benefits of her job. The necessity of dealing with sexual pressures that are, by virtue of the man's position and actions, bound up with the woman's desired goal (getting a job, doing a job) burdens and restricts her access to the means of survival, security, and achievement.
Thus the basic principle that sexual harassment is sex discrimination is established.
I now turn to issues of application of that principle that are arising in the current litigation. In Bundy v. Jackson, for example, the lower court found that a pattern of sexual harassment on the part of three of plaintiff's supervisors was proved; indeed, the court found that the making of improper sexual advances was considered a normal condition of employment in the office of the District of Columbia Department of Corrections where plaintiff worked. But plaintiff was granted no relief because the court found that her failure to be promoted was not due to her refusal of these sexual advances.
This analysis overlooks the fact that plaintiff suffered extremely unpleasant terms and conditions of employment which her male counterparts did not, and is in direct contradiction to a line of race discrimination cases finding title VII liability where blacks were subjected to inferior or more arduous working conditions.
If the holding below in Bundy is reversed, as we submit it should be, there will be no doubt that, even absent retaliatory action, sexual harassment in the workplace is not permissible.
Similarly, employer liability for permitting an atmosphere in which male employees may continually sexually harass women coworkers with impunity has been at issue in several recent cases. Where the employer has actual or constructive notice of the situation, we believe it has the duty to take affirmative steps to rid the work environment of the sex-based harassment in order to escape liability.
The legal conclusion that a claim of sexual harassment is actionable under title VII is, unfortunately, only the beginning of a woman employee's battle to obtain relief from such discriminatory practices. The problems that can arise in enforcing title VII rights -- the requirement of undergoing often protracted administrative proceedings, the difficulty of producing proof of often subtle forms of discrimination, the need to persuade often unsympathetic finders of fact, the ease and likelihood of retaliation during the pendency of the action -- are all aggravated in the Federal context.
While Federal Government employees have been protected by title VII since enactment of the Equal Employment Opportunity Act of 1972, the procedural prerequisites to filing a title VII action against the Federal Government differ substantially from those applicable to the private sector. These differences often operate to deter a victim of sexual harassment from filing a charge to enforce her rights.
It should be noted pursuant to the President's reorganization plan No. 1 and Civil Service Reform Act of 1978, authority for enforcement of pure discrimination cases for Federal employees was transferred from the Civil Service Commission to the Equal Employment Opportunity Commission as of January 1, 1979. However, with the exception of a temporary pilot program, the EEOC has not made any substantial changes as yet in the Federal case processing procedures. So all of the problems that were inherent prior to the reorganization remain with us today.
The primary characteristic of filing a charge against a Federal agency is that the investigation is conducted by that agency; that is, by the same agency that is charged with discrimination. Indeed, before a formal complaint is deemed filed, it must be accepted by the agency involved. Only then does a formal investigation begin.
Further, since the investigation is conducted by an employee of the agency, there is often an implicit pressure for the investigator to settle the case favorably to the agency. This pressure may well be intensified in the case of a sexual harassment in which a GS-9 or GS-11 investigator may have to investigate a sensitive charge of abusive conduct by the complainant's much higher level supervisor.
Moreover, investigators themselves are often insensitive to the seriousness of sexual harassment for women employees; indeed, in the New Responses study that I believe will be testified about later
on this morning, 4 percent of the harassers were themselves personnel or EEO officers. Even where they are not hostile to sexual harassment claims, investigators are often unaware that they constitute prohibited discrimination.
The second major disincentive to filing a Federal discrimination charge stems from the delay inherent in the charge process.
I submit with this testimony an appendix detailing step-by-step the 10 to 15 different stages involved in full administrative processing of a Federal discrimination claim. Overall this procedure is extremely cumbersome. It may involve a hearing at the investigative stage as well as an appeal to the EEOC's Office of Review and Appeals; retaining an attorney may well be advisable. The various stages of the investigation in most cases take a very long time, often several years, to complete. While the investigation drags on, the complainant remains in her job, always open to retaliation by the person she has accused.
Of course any Federal employee with a claim of unlawful discrimination is confronted with this administrative morass when attempting to pursue her title VII rights. But the deterrent is particularly strong where the complaint is of sexual harassment. Like a victim of rape, a victim of sexual harassment is often embarrassed and ashamed to admit to the problem, and the embarrassment and shame are magnified at the prospect of a drawn-out administrative process.
In offices where sexual harassment is standard operating procedure, as the district court found was the case in the Bundy case I talked about earlier, to complain means being ridiculed, bucking the system, and probably facing retaliation. The problem is exacerbated by the fact that sexual harassment often occurs in relative privacy, so that witnesses are often unavailable and proof of the conduct turns on the outcome of a swearing contest between the complainant and a man who is her boss.
Finally, there is the problem of an information gap; often neither the victim of sexual harassment nor its perpetrator knows that the conduct is unlawful or that there is any means to redress it.
In what is hoped to be a first step in a major reform of the Federal EEO enforcement procedures, the EEOC has instituted a pilot program to handle Federal discrimination charges in shortened time periods and by investigators who report to the EEOC rather than to the agency. The pilot program covers discrimination complaints in 5 agencies in 11 cities. It is designed to complete the agency investigation of a charge, from acceptance of the charge to issuance to the agency of a recommended disposition, in 100 days, with all the investigation and the preparation of the recommended disposition done by the EEOC.
If this program proves successful, it may begin to alleviate some of the problems present in Federal EEO enforcement, particularly the excessive delays and the lack of impartial investigations. However, the pilot program has only been in effect since July of this year; as of October 15, 1979, only 124 cases were being processed in the program. Thus there is not yet enough data to evaluate the success of this program.
Even if the pilot program, or some modification of it, is adopted for all Federal employment discrimination cases, sexual harassment
is likely to remain difficult to redress. And pending the development of new charge processing methods by EEOC and the agencies, it is imperative that the Federal Government take steps to insure that its work environment is free from the invidious form of sex discrimination that is sexual harassment. At the very least, sexual harassment claims ought to be treated on a par with all other claims of discrimination.
I would like to make a few recommendations for the committee to consider in its review of what the agencies can do, quite apart from what EEOC should do in terms of its charge processing.
To accomplish the goal of increasing the effectiveness of the Federal agencies in the enforcement of the prohibition against sexual harassment and similar discrimination, there are several things they could do.
First and most important, a heightened awareness of the nature and prohibition of sexual harassment is essential. Without a clear issuance of policy from top management, neither victims nor harassers will know that, whatever the agency's previous practice, no form of sexual harassment will be tolerated any longer. Directives along the lines of those already issued by the General Services Administration and the Department of Commerce should be issued, and issued to every employee, and posted in conspicuous places.
The directives should include a broad definition of the prohibited activity; should explain clearly that sexual harassment is a form of unlawful sex discrimination; should set forth the steps, including all relevant time limits, that employees must take to file a discrimination complaint; and should explain that retaliation for complaining is also strictly prohibited. They should also set forth a policy that employees who engage in sexual harassment or retaliation can expect swift and sure disciplinary action.
Issuance of such directives must be accompanied by stepped-up EEO enforcement in the agencies. Over the years, EEO officers have been trained in other aspects of discrimination law. Now a new wave of training is necessary, so that all employees concerned with handling such complaints will be sensitive and informed. In particular, it must be reiterated to investigators that sexual harassment claims are just like other discrimination claims. Complainants must not be held to a higher standard of proof when they allege sexual harassment and should not be required to corroborate sexual harassment any more than in other kinds of discrimination. In addition, existing procedures for handling retaliation charges should be strengthened.
Title VII requires all Federal agencies to adopt affirmative action plans to insure that discrimination on the basis of sex and membership in other protected classes is eliminated. It is only when sexual harassment is no longer implicitly sanctioned through lack of effective enforcement will the promise of EEO for women in the Federal civil service be a reality.
I thank you.
[The appendix to the prepared statement follows:]
APPENDIX TO WLDF TESTIMONY
The current procedure is the federal government for filing a discrimination complaint, as administered by the EEOC and the agencies and virtually identical to the
one inherited from the Civil Service Commission, is presently set forth in 29 C.F.R. Part 1613. The following narrative details each step that a claimant must follow to complete the administrative process for a "pure" discrimination complaint:
First, the employee (or applicant for federal employment) contacts an agency EEO Counselor within 30 days of the alleged discriminatory action. The counselor has 20 days to counsel the complainant and attempt an informal resolution. Next, the complaint files written complaint with the agency EEO officer within 15 days after the final interview with the Counselor or 21 days after her initial contact with the Counselor. This complaint must be accepted by the EEO Office if it has been filed within the time limits and if it alleges discrimination based on race, color, religion, sex, national origin, age, or handicap.
Once accepted, an investigation is conducted by an investigator from the agency (from a different section of the agency than that in which the complainant works). The complainant then receives a copy of the investigative file and opportunity is provided for an informal adjustment.
At this point the agency EEO Officer notifies the complainant in writing of the Proposed Disposition and of her right to a hearing. The complainant must elect a hearing within 15 days, or the complaint is forwarded to the agency head or his or her designee for an agency decision, which, in all likelihood, will be the same as the decision in the Proposed Disposition.
If a hearing is elected, the agency asks the EEOC to assign a Complaints Examiner to review the file for completeness and then schedule and conduct the hearing. The Complaints Examiner then makes findings, an analysis, and a recommended decision which is sent to the agency head or his or her designee. The agency head then makes the final agency decision, which is forwarded to the complainant along with the Complaints Examiner's recommended decision, a verbatim transcript of the hearing, an explanation of the decision if it differs from the recommendation, and a statement of the complainant's right to appeal the decision to the EEOC or to file a civil action in federal court. If, however, the agency head does not make a final decision within 180 days after the date the complaint was formally filed, the Complaints Examiner's recommended decision becomes the final decision 30 days after its submission to the agency.
The appeal to the EEOC Office of Review and Appeals must be made within 15 days of the agency decision, and/or the complainant can file a civil action in federal district court within 30 days. The Office of Review and Appeals may remand a complaint to the agency for further investigation or rehearing, or may have additional investigation done by EEOC personnel. There is no right to a hearing before this office. Based on the file, the Office issues a written decision to the complaintant and the agecny, which is final except if the Commissioners decide to reopen the case.
Mr. HANLEY.Thank you very much, Ms. Lenhoff, for your very fine comprehensive testimony. I commend you for your efforts in behalf of those who have been affected by the problem. Do you find that generally speaking have the complainants been in lower grade positions?
Ms. LENHOFF.I am not sure that our experience gives a statistically accurate picture. I think that the Women's Legal Defense Fund tends to get people who are in a higher level because they are sophisticated enough to know about the Women's Legal Defense Fund. I believe that New Responses' study indicates that the majority of the complainants are in lower grades but I think it is an area that requires a lot more surveying.
Mr. HANLEY.Would it be your opinion that there is adequate awareness among women employees that sexual harassment is grievable under title VII of the Civil Rights Act?
Ms. LENHOFF.No, to the contrary. I think that they don't realize they have recourse either through title VII or any of the other legal remedies that might be available. Often I think they don't even realize that what they are putting up with is something that they shouldn't have to put up with. It is a condition of life.
Mr. HANLEY.Do you think that harassment should be handled outside of the EEO process, perhaps through the MSPB, which of course handles personnel problems.
Ms. LENHOFF.I certainly don't want to close the door to that possibility and I think that at least some cases are appropriate for disciplinary action, especially in egregious cases. I think complainants have rights under both acts, both under the merit systems protection system as well as under title VII and that both the mechanisms for enforcement should preserve both rights.
Mr. HANLEY.It would be the goal of the committee to develop for employees an expeditious process of resolving these claims. We are looking for alternatives that might be better than the present system.
Victims of harassment are usually ashamed and somewhat reluctant to discuss their experience. Do you have any ideas as to how we might encourage them to come forth?
Ms. LENHOFF.Well, as a very first step I think holding hearings such as this is the beginning. But in general I think that this is an area for public awareness programs and for affirmative action in the most literal sense.
If complainants see that these kinds of complaints are handled quickly, and are handled well, then they are going to begin to come forward more often. It tends to be a vicious cycle and someone has to step in and break the cycle at some point.
Mr. HANLEY.Some have said that if the committee were to go no further with the subject and that is not our intent, we intend to pursue it very diligently, but some have said that if we were to cut it off right here we already have served a very meaningful purpose in transmitting into various sectors of this Federal Government a message. We hope that that is the case and we hope that by the time we are through with this activity everybody will have a clearer picture of what it is all about and the fact that harassment is indeed intolerable.
Mr. TAYLOR.Thank you Mr. Chairman.
Ms. Lenhoff, I appreciate very much your testimony. It is very revealing and I think it has been very informative.
We have asked the OPM to define sexual harassment and to make clear that it is a prohibited personnel practice. I realize that the Women's Legal Defense Fund is not advocating particular definition of sexual harassment. What pitfalls should the OPM avoid in coming up, in your judgment, with a workable definition?
Ms. LENHOFF.I think that the main pitfall to be avoided is too restrictive a definition. Sexual harassment, like other kinds of discrimination, is a concept that is not very susceptible to precise definition and it often turns on the circumstances of the case.
I think OPM could give a broad kind of definition with illustrative examples, so that employees and supervisors in particular would be on notice that any kind of abuse of power with regard to sexual favors or sexual innuendos is what is within the intent of the prohibition.
If you would like, the National Organization for Women and Working Women's Institute have proposed a definition in a case that is in litigation in Minnesota. For the record, I have brought
that with me. This is quite a broad definition and I think one that would be a good example of broad language. Let me read it:
Sexual harassment is any repeated or unwarranted verbal or physical sexual advances, sexually-explicit derogatory statements, or sexually discriminatory remarks made by someone in the workplace which is offensive or objectionable to the recipient or which causes the recipient discomfort or humiliation or which interferes with the recipient's job performance.
I hope that gives you an idea of the kind of language.
Mr. TAYLOR.Thank you.
There is a matter of great concern to this subcommittee and it is to say the least a very sensitive question. We have of course also the responsibility of the protection of supervisors, managers, from what might once in a while be a frivolous complaint.
I can envision that in some cases where there was a strained relationship between employees that maybe these charges could be made when they are unwarranted. Certainly I think we would be amiss if we did not address ourselves to the possibilities of a character assassination in unwarranted conditions because of some situation that might arise that was totally unrelated to the definition of what sexual harassment might be construed to be. Would you agree with that?
Ms. LENHOFF.I agree completely.
Mr. TAYLOR.Do you have any suggestions as to how we can effectively provide protection to the managers from these kind of hazards that might present themselves?
Ms. LENHOFF.I agree completely, Mr. Taylor, that that is a problem that can arise. I think that what has happened in the past is that there has been overconcern for that problem and insufficient attention paid to the reality of the working condition for a woman who is being subjected to sexual harassment.
It is again a question of a general social understanding that this is the kind of thing that women should put up with, rather than a concern for making the fine distinctions. It may be necessary to make the judgment whether a particular case is a personal problem or a case of discrimination or other abusive conduct. In the discrimination context we normally are satisfied that our investigators and our courts ultimately can make that distinction, can say no, this is a case of character assassination, not a case of true discrimination or abusive conduct. I think that in this context as well we can trust the triers of fact to make those fine determinations.
The fact that there might be a problem of character assassination isn't enough, I do not think, for the Government to ignore the problem altogether.
Mr. TAYLOR.Well, I am sure that the concern is weighted in that direction and that most of the complaints would be legitimate, but in the few instances where they weren't it could be potentially damaging to an innocent person.
I was wondering if it would be possible, or if you have any concern that the EOC pilot program of rapid charge processing could possibly result in a loss of employee rights.
Ms. LENHOFF.Of the employee rights, you mean the employee who is the accused?
Mr. TAYLOR.Yes. In the rapid charge processing?
Ms. LENHOFF.I believe that rapid charge processing should not affect an employee's rights in adverse actions or disciplinary actions. In fact, the concern, in terms of losing employee rights in the rapid charge processing system, is often a concern for the charging party. For example, if rapid charge processing is instituted in Federal EEO investigations, there is concern that the employee who is complaining will lose existing hearings rights.
The rapid charge processing system is susceptible to a loss of employee rights in the private sector as well, but as far as discrimination law goes, the employee who is accused does not have any employment rights that are going to be lost. I do not think it has any direct bearing on other rights, at least in the private sector, and I believe in the public sector as well.
For example, the investigations are confidential. So that there isn't a possibility of abuse of the information that is discovered through the investigative process.
Mr. TAYLOR.Thank you.
Ms. LENHOFF.Thank you.
Mr. HANLEY.Thank you, Mr. Taylor.
Mr. STENHOLM.I continue to be amazed at the difficulty that we have within our Federal employment system of firing an employee for just cause. I have just experienced over the brief 10 months that I have been in this chair the experience of dealing with an employee who in my opinion was dealt with unfairly by a supervisor. But the problem that Mr. Taylor brings up is one that prevails, it is one that concerns me greatly.
It seems to be an overriding factor within our system of Federal employment that we have, once we became employed -- unless you run for office as I do every 2 years, when the people speak and you either stay or you go home -- but throughout Federal employment we seem to have the idea that we have guaranteed employment.
Now you come and testify that 70 percent, in your opinion, a minimum of 70 percent of the women who work within the Federal employment system are at one time or another discriminated against under the title of sexual harassment. How do you justify, where do you get that figure?
Ms. LENHOFF.That figure is based on studies that are not limited to the Federal Government but are, for example, in the Redbook study that Chairman Hanley cited in his opening statement and a study by Working Women United in New York of employees in that area. It was a general figure and not one limited to the Federal Government.
Mr. STENHOLM.In my opinion this subject is one that, where I grew up and how I have been taught, would be one that would be justifiable removal from employment were it proven. Again it is amazing to me that as my colleague Mrs. Spellman says that it has been going on for 17 years and this hearing is a first step, literally, in combining to address the problem as to the seriousness that it truly is.
I commend you for testifying.
Ms. LENHOFF.Thank you, Mr. Stenholm.
If the committee would bear with us, Ms. Oakar has asked recognition out of order for just a couple of minutes. She is required in another subcommittee and she has a very special interest in this particular subject matter. So if there isn't any objection I would like to recognize Ms. Oakar for 3 minutes.
Ms. OAKAR.Thank you very much, Mr. Chairman. I want to thank my colleagues for allowing me to go out of order.
As you may or may not know, I was appointed by the Speaker to serve on the National Commission on Unemployment Compensation and in that role the chairman of the Commission appointed me to a subcommittee, you might say, to look over the problems of sexual harassment toward women because women who suffer from that problem are in a Catch-22 situation when it comes to unemployment compensation. Very often they leave "voluntarily" from their jobs because they cannot any longer put up with the harassment and, as a result, they are not eligible for unemployment compensation.
And I have, Mr. Chairman, with your permission, some of the testimony from the hearing we had from women across the country who came to Washington several months ago. I think it would really be pertinent to the subject at hand. So I just simply would like to say that it absolutely is a reality; I am delighted that the chairman of this committee is looking into it. With your permission I would like to submit for the record parts of the testimony that we heard when we had a number of organizations come to testify on this very real problem.
Mr. HANLEY.Without objection the material you referred to will become part of the minutes of this hearing.
[The information follows:]
[The following five statements were submitted for the record by Congresswoman Mary Rose Oakar. They were presented before the National Commission on Employment Compensation which was chaired by Ms. Oakar.]
TESTIMONY OF TAMARA BAVAR, SUBMITTED TO NATIONAL COMMISSION ON UNEMPLOYMENT COMPENSATION -- JUNE 1979
My name is Tamara Bavar, I am a member of Local 594, affiliated with the International Union, UAW. I am also the Chairperson of the Unemployment Insurance Task Force of the UAW Region 1B Women's Council. This council consists of working women from a geographical area which covers Wayne, Oakland and Macomb counties, and counties in the Thumb area. Some of our employers include: auto plants, universities, plastics, factories, Blue Cross-Blue Shield and small parts suppliers. Our various jobs include: blue collar work, office, technical, professional and skilled trades. On behalf of the Unemployment Insurance Task Force and the UAW Region 1B Women's Council, we thank this Commission for the opportunity to expand on our testimony.
My testimony is largely based upon the results of two different questionnaires which were received from working women, both UAW members and non-UAW.1
About 12,000 of the first questionnaire were mailed and handed out at branch offices of the Michigan Employment Security Commission (MESC). The answers to this survey helped to establish and confirm some of the problems encountered by women as they seek to collect Unemployment Insurance benefits in the state of Michigan.
1 The questionnaires were prepared at the direction of the Unemployment Insurance Task Force of the UAW Region 1B Women's Council. The actual preparation was done by George Weaver and Leon Potok of the UAW Research Dept., Ronnie Gaddies, International Representative of UAW Region 1B Crystal Carmichael Secretary of the Unemployment Insurance Task
A second survey was then developed to receive more specific information to enable us to concentrate on these problems. This second survey was distributed in May. There were 2,100 copies distributed at branch offices of the Michigan Employment Security Commission (MESC) throughout the greater Metropolitan Detroit area. Both surveys resulted in about a 10 percent return. Copies of the second survey are attached.
These questionnaires and other experiences which we have had within the unemployment insurance area form the basis of this testimony. The first part of this testimony deals with problems faced by working women.
Although federal law was supposed to have eliminated sex discrimination in the unemployment insurance areas, we have found that sex discrimination still exists in a number of respects. Women suffer all the problems that men do in collecting unemployment insurance and, in addition, they have extra burdens to carry simply because they are women.
The second section deals with the unemployment insurance system in the state of Michigan and offers workable solutions to some of the problems. We believe that the points made here, for the Commission's consideration, have general application and should be helpful in preparing the Commission's final report.
I. PROBLEMS FACED BY WORKING WOMEN
A. Women forced out of work due to pregnancy
Although it is against the law, we still hear of cases where employers force women out of work due to pregnancy or where supervisors give pregnant women harder jobs in order to force them to take so-called leaves of absence. The employers' unlawful actions should, of course, be punished by the civil rights agencies. When this occurs, the unemployment insurance agencies should grant them benefits. We have found that not all branch offices properly apply the law in this respect. MESC may consider notifying the employers and re-emphasizing the law and to clarify the fact that they cannot make maternity leaves mandatory.
Approximately, 1 out of 5 respondents indicated problems concerning pregnancy and work or unemployment benefits.
Sometimes a woman who is pregnant reached a point when she is unable to perform her regular job -- although she is able to do other work and is generally able and available for work. One woman mentioned the fact that her doctor had restricted her from overtime and Saturday work, this caused her employer to force her out, even though, she could perform her work 40 hours per week.
Employers should find other work for these women, provided that the employers look for other work for men who are unable to do their jobs because of injuries, such as hernias.
We have found that employers and agencies treat pregnant women with less consideration than they treat men with physical conditions which might impede their job performance.
B. Physical ability to work
If the woman is laid off because she cannot physically do her last job, then she should not be denied unemployment insurance as long as she is able to do other work and is generally available for work.
C. Quitting due to sexual harassment or to other employer unlawful conduct
Women are put under difficult working conditions, and as a result of this they quit their jobs because of sexual harassment by their employer, supervisors or co-workers. A federal standard should be issued to clarify that these women are entitled to unemployment insurance. If the sexual harassment was done by non-supervisors, then it might be fair not to charge the account of the particular employer, but the woman should still get her unemployment insurance.
D. Inverse seniority layoffs
Benefits should be allowed persons who choose to be laid off in inverse seniority since employers initiate all those layoffs. The cost of the fund is the same whether high or low seniority employees are laid off.
This Commission should recommend federal standards allowing benefits to those persons laid off in so-called inverse seniority.
It is important that the Commission remember why these inverse seniority layoffs began. About a dozen years ago, unions and employers realized that if strict seniority was followed in layoffs, the first to be laid off would be minority and women employees because they had been the last to be hired due to years of discrimination.
It was determined to be in the spirit of the Civil Rights Act and in the public interest not to force those low seniority employees out on the streets.
For those reasons, unions and employers agreed that during certain mass layoffs higher seniority employees could be laid off first if those higher seniority employees did not object. These employees should get benefits for the reasons we have indicated.
E. Voluntary quits
1. Sometimes women quit jobs because they learn that men doing the same work receive higher pay, and because their employer refuses to pay them the same rate as men. When a women quits a job because of the employer's sex discrimination or violation of any other labor law, this should not disqualify her for unemployment insurance.
2. Pressing family circumstances. -- It is unfair to disqualify a worker for voluntarily quitting when that worker has been forced to quit by pressing family circumstances, such as: family illness or babysitting difficulties. In these instances, quitting is not really voluntary. We recommend that federal law provide that there be no disqualification for voluntarily quitting if the cause is attributable to the employer or to (substantial) personal reasons. It might not be fair to charge an employer's account for a voluntary quit for personal reasons, but that employer's account should be charged if the voluntary quit was due to causes attributable to the employer.
Some agency personnel, either due to force of habit based on former rules or due to their present attitude of sex discrimination, do not treat unemployed women the same as they treat unemployed men. The questionnaires indicated that women are still required to give more information and answer more questions than men in order to be able to claim unemployment insurance for their dependents. Our second survey indicated that approximately 10 percent of the women answering encountered this situation. In addition, sometimes receipt of very small amounts of child support (such as $10 a week) has caused agencies to deny the unemployed woman her right to claim her children as dependents even though the $10 a week stipend is clearly less than half the support of her children. In addition, where by a court order awards a woman more than half of the support of her children from her former husband, but she in fact is not receiving this money because her former husband has been delinquent, the MESC branch offices have still not allowed her to claim her children as dependents.
G. Plant closings/job transfers
Plant closings affect all workers and the community as a whole. Over 4 percent of the people responding to our questionnaires indicated this as the reason for their unemployment. One woman stated she was 57 years of age with 15 years senority. She had just drawn her last unemployment check and wondered what was to become of her.
In addition, women face the problem of holding their families together. Questionnaires have indicated that people have been disqualified for voluntarily quitting when their employers have moved far away and the workers have been unable to follow their jobs. We also have received several instances of women who found it necessary to quit their jobs in order to remain with their husbands when they were relocated at their employers' discretion.
II. A LOOK AT THE MICHIGAN UNEMPLOYMENT INSURANCE PROGRAM
In order to draw unemployment benefits in the state of Michigan, one must be able, available and seeking work.
A. What is suitable work
The definition of suitable work should be put in federal regulations. The Michigan statute's definition is helpful. It should be clear, however, that "prior earnings" in the definition of suitable work include fringe benefits. We have found that agencies usually overlook this fact. UAW members who are laid off, and who are offered a non-union job supposedly at the same wage really are offered a much lower paying job because of the fringe benefit difference.
B. Job offer should be written
We recommend that no unemployed worker be disqualified for refusing a job offer, recall to a former employer, or for failing to appear for a job interview unless
the job or recall offer is in writing, specifying the type of work, hours, pay and other conditions of employment.
Even if the job offer or recall notice is in writing, the unemployed worker should be given a reasonable time to report to the new job or to the old employer before any disqualification can be imposed. Some employers send telegrams to non-working employees requiring them to report in 45 minutes or the next morning. This is not reasonable notice.
C. Apply "available to work" standard reasonably
A worker who is laid off from a night shift job should not be ruled ineligible if unable to work in the day, as long as the worker remains available for work on the night shift. Nor should a worker who had been working the day shift be ruled ineligible if unable to work at night. At present, some state agencies in Michigan interpret availability to mean 7 days a week, 24 hours a day. This ruling is absurd and unfair.
Even if a worker is unable to work a shift or unavailable for a shift on which he/she has worked, the availability requirement should be satisfied if the worker is available for work on another shift and jobs exist on that shift that are suitable for that worker. Under the law of Michigan and most states, an unemployed worker need not accept an offer of work which is unsuitable. Therefore, a worker should not be disqualified for voluntarily quitting a job that the worker would have been allowed to turn down as "unsuitable" had the worker been unemployed.
D. It is unfair to deny a whole week's benefits when someone is unavailable for one day or part of one day of the benefit week
The questionnaires have indicated that claimants have been denied one or more weeks of unemployment insurance when they are unavailable for a portion of a week. This happens when there is a family death and claimants have to attend a funeral for a portion of a day, when a claimant has a job interview on their reporting day, jury duty on their reporting day, or when they have been sick for one or two days during a week, and when there is a transportation problem on their reporting day. Federal law should make it clear that those claimants get unemployment insurance and are considered available. At worst, they should lose a small prorated amount of their week's benefits.
E. Don't punish people for disqualification other than by postponing their right to the receipt of benefits
An inequity results when claimants do not register right after they are unemployed because they do not understand the disqualification period. Once the worker registers, the Commission then applied the 13-week disqualification. The first 13 weeks do not apply. In addition, an additional 13 week penalty is imposed at that time thereby causing the worker to lose 26 benefit weeks he/she is entitled to in the state of Michigan. This is not fair because it provides a double penalty. Therefore, disqualification should not result in an absolute loss of benefits. The disqualification should not result in a postponement of benefits for a few weeks. Once the postponement period is over, the worker should be allowed to obtain benefits for the maximum number of weeks allowed under state law, such as 26 or 52 weeks.
These laws were passed to provide benefits for people who are out of work so that they can provide for themselves and their families, and maintain their households. Disqualification of this type does not help anyone. Presently, penalties defeat the purpose of the law by taking away all benefits the workers would be entitled to receive during the 26 weeks.
F. Worker's credit weeks should be preserved when they are unable to work for a period of time due to disability
We have heard of cases where workers who worked for many years and earned credit weeks, then became disabled for a period of time, perhaps as long as a year. When these workers then get other jobs, or return to their old jobs and subsequently are laid off, they lose unemployment insurance because they have not earned enough credit weeks during the last year. It is wrong to punish these workers. They earned those credit weeks in the past; and the credit weeks should be preserved to be used again then they have completed their sick leave or disability period and have either returned to work and have been laid off again, or are physically able to work but cannot be re-employed by their employer.
G. Claimants are not properly advised of their rights to file claims, their rights to appeal, or to make other protests
The questionnaires indicate that it is common for branch office personnel to mislead people. One branch office tells claimants who want to protest or appeal that they have to wait two weeks before doing this.
We have found a general lack of understanding, information, and knowledge of the unemployment insurance system among claimants with regard to their rights.
Finally, very often the official MESC decisions and notices are not written in clear language that would enable workers to understand their rights.
We have several suggestions to help correct this problem. We believe that federal standards should be issued along these lines:
1. Appeal time should be increased. -- We suggest appeal times of at least 30 days. The appeal time should run from the date that a decision or other ruling against the worker is actually received, not from the date it is issued or mailed.
2. All states should provide that a late filing is excused, when there is good cause for the late filing. A federal standard should provide this and also make it clear that good cause exists when someone is misled by the state agency.
3. The state agency should be require to publish notices and articles in daily newspapers (not just legal publications) which advise people of their unemployment insurance rights. This is especially important during times of high unemployment.
4. All state agencies should be required to give information booklets to claimants. -- We know that some states do this or at least claim to do this Our experiences in Michigan indicate that the agencies do not really do this but merely say they do.
5. Employer responsibility. Employers should be required to post notices advising their employees of the state unemployment insurance law, and advising them to report to the unemployment agencies and apply for benefits if unemployed for any reason. In addition, employers should be required to hand this information to all persons who are laid off or otherwise unemployed as a result of the employer's action. This would include discharges as well as layoffs.
6. The forms of the state agencies should clearly emphasize the appeal and protest rights of claimants. -- We suggest that this Commission recommend a regulation requiring such emphasis, and that state agencies also be required to attach tear-off forms so that people can appeal or otherwise protest by simply mailing in those forms.
H. Long claim lines and rudeness of claims examiners
Perhaps the most frequent complaint indicated by the questionnaires deals with the experience of these claimants at branch offices. Unemployed claimants have had to wait in line for several hours -- especially during high periods of unemployment. Once they reached the end of the line, many were subjected to verbal abuse and other rude conduct by Claims Examiners who seem to think that these claimants are taking something away from them.
We suggest federal standards or regulations to correct these situations:
1. After claimants have first registered with their state offices, they should be allowed to report and obtain benefit checks by mail. Registration should also be allowed at the local union hall or plant.
2. A claimant representation office should be established in each state along with a "hot line" for information purposes to help claimants, to answer their questions and to handle their complaints of treatment by branch offices, referees and appeals boards.
3. The Federal government and the state agencies should periodically remind state agency personnel that they are being employed to carry out the purposes of the unemployment insurance program and that they should treat claimants as human beings.
I. Agency confusion of records and agency refusal to accept claimant's testimony
We have found that the MESC has frequently lost or misplaced records, and have help up claimants benefit checks. The MESC has also held up paying claimants' benefits, when employers have delayed sending information to the MESC. Our attorneys tell us that this is against the law, but the MESC still does it.
These problems are partly caused by the MESC and other agencies being unwilling to accept the word of workers. When a worker goes to a branch office and certifies to certain facts, that is evidence and should be accepted as truth unless there is contrary evidence. If there is opposing evidence, then all the evidence must be evaluated. We have found, however, that agencies automatically discount worker's testimony, but accept whatever records employers send in even though employ-
J. Employers mislabel discharges as quits. Employers encourage fired workers to sign quit forms by telling them that this will look better on their job records for other jobs
We have found that many employers mislabel discharges as quits. This frequently occurs when employers send workers notices to report to work and they fail to report at the precise time requested. Some of these workers never actually receive those notices. When the workers do report to work, nonetheless, they are fired, and a "quit" is marked on their records for failure to report.
Finally, we are aware of cases where workers disagree with their supervisors and as a result of this disagreement are told to quit. In essence the workers are fired and their records are marked as quit; and this labeling of "quit" results in a 13-week disqualification.
This Commission cannot regulate how employers mark their own work records. We do not want to discourage the practice of allowing workers to have a "quit" placed on their records as opposed to a discharge, if the workers so desire or if their union requests it to help a worker get another job.
This Commission can, however, help regulate what information employers send to the MESC and to other state agencies. Even if an employer lables a discharge a "quit" on the work records, the employers should be required to disclose the truth when sending information to the MESC or other state agencies. If employers send in inaccurate or false information, then the state agencies should prosecute those employers for fraud.
K. Employer's use of job services
We have found that many employers do not use the existing state job placement services. Those employers who do use those services tend to be low wage employers. We believe that all employers should be required to use the state job services, and that if they fail to refer job openings to the state job services they should lose their tax credits.
L. Job service and retraining program
Job services should be improved to help people who are out of work find jobs. The states should also be required to begin training programs so that persons can improve or advance their skills, which would enable them to take new jobs if their old jobs are no longer available.
Thank you again for the opportunity to present and expand upon our original testimony. An appendix of sample quotations from our survey is attached. If this Commission wants more information about the questionnaires or about any of this testimony, we will be happy to furnish it.1
This Appendix is a collection of quotations taken from some of the responses gathered from our questionnaires. The Appendix has been organized in a parallel outline to our testimony.
I. PROBLEMS FACED BY WORKING WOMEN
A. Women forced out of work due to pregnancy
"I quit because company wouldn't comply with doctor's request. They wanted me to take an unpaid maternity leave. The doctor requested to keep me off of one job out of approximately forty (40)." -- 22 year old unskilled factory worker -- 2 dependents.
"Forced on a maternity leave. Foreman refused to give me a suitable job, due to my condition." -- 24 year old unskilled factory worker -- 1 dependent.
"I was put on a 15 pound restriction. The company said that they did not have a job for me with this restriction." -- Unskilled factory worker -- 2 dependents.
"I was forced on maternity leave. I had complications, the company wanted a full time worker to take my place. I signed a leave of absence for insurance purposes, but had to sign another paper stating I wouldn't try to return to work, or try to collect unemployment from them." -- 24 years old -- 1 dependent.
"After my maternity leave, the company refused to let me come back. When I asked why I couldn't return to work, they said my work was unsatisfactory. But
they never complained while I was there." -- 28 year old unskilled factory worker -- 1 dependent.
"Forced on a maternity leave. Couldn't work because of high carbonmonoxide and toxics." -- 23 year old skilled factory worker.
"Forced on a maternity leave. Doctor said I could work, the company forced me out and coerced me into signing maternity leave papers." -- 25 year old unskilled worker -- 3 dependents.
"Forced to quit when I wore maternity clothes." -- 39 year old unskilled factory worker -- 3 dependents.
"I was forced on a maternity leave. Doctor said that I could work, but no lifting." -- 22 year old unskilled factory worker -- 2 dependents.
B. Physical ability to work
"On my first day, I was to install the driveshaft on the rear axle of medium duty trucks (the driveshaft weighs approximately 85-100 pounds). There was one person to train me -- he only stayed in the area, not with me -- on the job. Day two, on this day I was assigned the same job. On this day, the foreman came over to me and asked, ‘How I was doing?’ I answered that I was doing my best but was unable to keep up with the line movement. He said, ‘Take off your apron,’ after he said he wouldn't waste his time training me -- if I couldn't keep up the job. He then proceeded to ask if I would voluntarily quit or else be fired. The foreman trainee took me down to sign a ‘Voluntary Quit slip.’ On our way to the office, he said to me, ‘We have told them not to send women to this job, but they continue to send them. They just can't handle the job.’ I feel I was treated unfairly, because of my inability to do a heavy job. I do feel capable of handling a job more suited to my physical stance." -- age: 22, factory worker -- 2 dependents.
"I worked myself to death for five days at a truck factory then my foreman let me go because he said I couldn't do the work instead of sending me to another department, even though he said the line I was on ‘wasn't for women.’" -- 30 year old factory worker -- 2 dependents.
C. Quitting due to sexual harassment or to employer unlawful conduct
It is interesting to note that each of the individuals quoted below were penalized 13 weeks of benefits for voluntarily quitting.
"I was sexually harassed on my last job by the administrator who made snide remarks, tried to look down your top, if you were not wearing a turtle neck, undressed you with his eyes, or stared at your breasts." -- 37 year of insurance clerk -- 3 dependents.
"I was in the office for construction firm and the boss was always making passes, so I got another job." -- 34 year old bookkeeper -- 1 dependent.
"The men in supervision constantly propositioned me, made snide, obscene comments and suggestions." -- 25 year old assembler.
"I was working and a supervisor walked into the office and pinched my breast. It was taken very lightly by the company president and my boss." -- 22 year old receptionist.
"I worked in a federally funded program where my co-workers amused themselves by constantly trying to seduce me, including the director." -- 26 year old government worker -- 1 dependent.
"I was fired because I resisted sexual harassment by disgusting men." -- 28 year old secretary -- 4 dependents.
"An attorney made suggestive comments and continually harassed me." -- 34 year old legal secretary.
"Supervisor wanted to date me and he gave me a hard time when I refused." -- 22 year old secretary.
"Slapped on the rear by the boss." -- 39 year old switchboard operator -- 1 dependent.
"Advances made by lesbian supervisor. According to MESC, I quit my job without good reason." -- 43 year old clerical worker -- 2 dependents.
"Refused to have sex with foreman." -- 30 year old unskilled factory worker -- 2 dependents.
"Some supervisors exercised the attitude, with the manual labor surplus, that you either shut up and put up or be fired and there is a hundred persons waiting for your job." -- 26 year old federal government worker -- 1 dependent.
"Foreman winked at me and one time he patted me on the rear. I put him in his place and he fired me." -- 20 year old skilled factory worker -- 1 dependent.
1 I want to acknowledge the work on my testimony of: UAW Region 1B Int'l. Rep. Ronnie Gaddies, UAW law clerks Lecia Eason and John Willems, who are law students at the Detroit College of Law and Wayne State University Law School; and Jordan Rossen, Associate General Counsel, International Union, UAW.
D. Inverse seniority layoffs
E. Voluntary quits
"Voluntary quit, women paid lower wages than men doing the same job." -- 25 year old assembler -- 2 dependents.
"Voluntary quit, I left because I was three weeks behind in paychecks. When I asked for at least one paycheck for my bills -- which were piling up -- he said No. He had no money. I was penalized 13 weeks for quitting, even though, I quit because I needed my money which I did work for." -- 24 year old secretary.
"There was no advancement. Only men were office managers or head of departments." -- 37 year old insurance clerk -- 3 dependents.
"I was descriminated against because of age -- gave promotion to a younger person." -- 63 year old clerk typist.
"I was transferred to a location too far from home, so I quit. MESC stated I had limited availability. Penalized 6 weeks." -- 28 year old professional -- 1 dependent.
"I was a secretary/bookkeeper for a one-girl office. My boss owned the company. He took long lunch hours at the bar. The day I quit he came back drunk yelling at me, using obscene language and almost made me cry. I told him when he could talk to me in a decent tone and use decent language, I'd work for him, and I left. I was forced to go on A.D.C. while looking for a job to support myself and one child, and found A.D.C. very degrading." -- 33 year old secretary -- 1 dependent.
"Wanted a job that utilized my talents, abilities and what I was trained for." -- 47 year old switchboard operator -- 3 dependents.
"Employer wouldn't give raise." -- 23 year old skilled factory worker -- 1 dependent.
Pressing family circumstances
"I left my job, in Ohio, to be able to join my husband in Michigan, where he accepted a new job. I am currently appealing my rejection, by Ohio, for unemployment benefits. Ohio considers ‘quitting due to marital obligations’ an invalid reason for receiving benefits. I consider this decision to be discrimination due to marital status and therefore unfair." -- 29 year old employment relations writer.
"My husband was transferred from Dayton, Ohio to Michigan due to a GM shutdown at Frigidaire. I was forced through no fault of my own to quit a job where I had 10 years of experience and seniority to come with my husband." -- 30 year old factory assembler.
Voluntary quit -- "Husband's health (smog in California) moved to Michigan." -- 56 year old skilled factory worker.
"My husband was transferred to California. MESC said that I did not have a good reason to leave with my husband. I have lived with my husband for 40 years and I feel that this was a good reason for me to leave my job." -- 55 year old skilled factory worker.
Voluntary quit -- "lack of babysitter for infants." -- 32 year old clerical worker -- 1 dependent.
Voluntary quit -- "Couldn't get babysitter from 3:00 a.m. to 8:00 a.m." -- 29 year old supplies attendant -- 1 dependent.
Voluntary quit "Illness in the family." Unskilled factory worker.
Voluntary quit "Employer denied time off to take care of daughter, going to hospital." 58 year old unskilled factory worker 1 dependent.
"Denied benefits for unemployed spouse." 30 year old unskilled factory worker -- 2 dependents.
"Had to show proof of custody of child to get benefits for the child." -- 37 year old unskilled factory worker -- 1 dependent.
"I have custody of my three children, I was denied benefits for them because my husband pays child support." -- 37 year old general laborer -- 3 dependents.
"Denied benefits for children. I had remarried and my husband was considered head of household although the kids were not his." -- 48 year old assembler -- 2 dependents.
"Denied benefits for children because my husband and I were separated, not divorced, even though I paid their full support." -- 25 year old assembler -- 2 dependents.
"I was told that I could not claim my three children as dependents because my husband was working, at the time, and I could not prove I had contributed more than half of the children's support. When my husband was laid off, he was told he could claim the children without proof even though I was working." -- 30 year old unskilled factory worker -- 3 dependents
"I was told I could not claim even one of my two children even though I, in fact, pay half of the bills. Although, my husband does earn more than me." -- clerical worker -- 2 dependents.
G. Plant closings/job transfers
"Plant sold and moved out of state." -- 61 year old skilled factory worker.
"Job moved out of town" -- 36 year old unskilled factory worker.
"Company went bankrupt -- closed." -- 24 year old professional worker -- 1 dependent.
"Doctor relocated." -- 34 year old clerical worker, doctor's office -- 1 dependent.
"Plant moved out of Michigan." -- 52 year old unskilled factory worker.
"My place of employment burned to the ground." -- 20 year old cashier.
"Store closed -- 10 years with company." -- 40 year old Deli manager -- 1 dependent.
"My company moved 38 miles from where I lived and it was too much of a distance to travel" (didn't file). -- 22 year old cashier.
"Company moved -- traffic, distance, etc. became too difficult to handle -- expected to find job, but did not. Employers are unwilling to hire anyone over 50." -- 53 year old bookkeeper.
II. A LOOK AT THE MICHIGAN UNEMPLOYMENT INSURANCE PROGRAM
A. What is suitable work
"I was pressured and fired. My employer offered me my job back twice. I felt as if they really didn't want me. They just didn't want to pay unemployment. I was penalized six weeks twice, for a total of 12 weeks, for refusal to return to the same job." -- 20 year old pants presser.
B. Job offer should be written
C. Apply "available to work" standard reasonably
"Day shift preference, no ride at night." -- 58 year old unskilled factory worker.
"Could no longer work midnights." -- 29 year old supplies attendant -- 1 dependent.
"I worked 48 hours a week, but because I went to school too, MESC said that I wasn't eligible for benefits." -- 23 year old retail sales clerk -- 1 dependent.
D. It is unfair to deny a whole week's benefits when someone is unavailable for one day or part of one day of the benefit week
"Denied a week of benefits because I had a job interview on my reporting day." -- 30 year old unskilled factory worker -- 2 dependents.
"Denied a week of benefits -- ill on reporting day." -- 56 year old skilled factory worker.
"Transportation not available on reporting day." -- 51 year old skilled factory worker.
"Failed to report on assigned reporting day -- icy, rain, unpassable road conditions." -- 64 year old retail sales clerk.
"Failed to report on assigned reporting day -- was confused as to correct reporting day." -- 46 year old clerical worker.
"Failed to report on assigned reporting day -- newcomer (immigrant) unaware of MESC procedures." -- 45 year old unskilled factory worker.
"I was denied two weeks, due to the fact I was called away to Ohio because of illness and death. I was told to report there, which I did, but I was still denied." -- 50 year old assembly line worker.
E. Don't punish people for disqualification other than by postponing their right to the receipt of benefits
F. Worker's credit weeks should be preserved when they are unable to work for a period of time due to disability
G. Claimants are not properly advised of their rights to file claims, their rights to appeal, or to make other protests
"I didn't know you could report any day other than the one assigned." -- 24 year old unskilled factory worker -- 1 dependent.
"MESC failed to notify me of the date scheduled for the appeal board hearing and they said that they would. I failed to appear for fault of MESC." -- unskilled factory worker -- 1 dependent.
"I wasn't told that I could appeal until after the deadline stopped me from appealing. From what I understand, no matter what happens to yourself, family, whatever -- if you don't report, you lose your benefits. There must be something done
"I did not realize that I was still supposed to keep the appointment when I answered the appeal letter. I did not see it on the bottom in small print until it was pointed out to me." -- 50 year old clerical worker.
"I am disappointed that there is no extension program. You can go from U.I. to A.D.C. WOW!" -- 26 year old federal government worker -- 1 dependent.
"I was denied a week of benefits because I thought that I had to wait until I got my last check." -- 55 year old skilled factory worker -- 1 dependent.
"Woman at MESC office told me, over the telephone, to wait 13 weeks." -- 39 year old claims representative -- 2 dependents.
"I was fired because I came to work late, and I didn't know I could file for unemployment insurance benefits." -- 25 year old nurse's aide -- 1 dependent.
"My boss told me not to file for one week, as there might be work for me to do." -- 23 year old billing clerk.
H. Long claim lines and rudeness of claim examiners
"Why do MESC give you an appointment, if you have to wait in line for hours. I believe there should be a better system or more than one office to apply at." -- 37 year old insurance clerk -- 3 dependents.
"Claim examiners very abrupt and not a bit understanding or helpful." -- 63 year old clerk typist.
"MESC has poor, slow service, always losing records, lines too long. Should sign up once and MESC mail checks." -- unskilled factory worker -- 2 dependents.
"When you go to MESC office for your check, they act like they are paying you." -- 56 year old operator.
I. Agency confusion of records and agency refusal to accept claimant's testimony
"After supplying MESC with all of the appropriate information, including 14 weeks' check stubs, they reduced my benefit after a period of 5-6 weeks, based on employer information of 26 weeks' pay. They made me wait four hours at the MESC office just to do paperwork. There must be a better way." -- bakery clerk -- 3 dependents.
"Employer did not return proper forms which showed my eligibility." -- 45 year old cook -- 2 dependents.
"I didn't know you could collect unemployment until two months later, MESC told me I applied too late." -- 23 year old meat wrapper -- 1 dependent.
"After lay off, I signed up for unemployment. I reported back in two weeks and was given a hassle -- how do we know you worked for this employer, etc. My following reporting day (two weeks later) I took my check stubs and was given my unemployment, which was four weeks after I first signed up." -- 43 year old grader at packing plant.
"I know of two cases with penalty weeks involved. My sister-in-law lost 13 weeks. She was promised a job at another location and when the bank branch was built they would not let her transfer because of personality conflict with the male manager. She appealed one or two times and then did not argue the case further.
"My sister had worked 24 weeks and drew only three weeks. She was fired from her job supposedly. The manager of the service station posted no schedules of working hours and would call for her to come into work 1-2 hours before starting time. She attended school while working, she worked afternoons and weekends, averaging 40 hours weekly. She received 3 benefit weeks. Also, had to produce her pay stubs because the company said she did not have enough weeks worked for unemployment benefits. She appealed her case two times but only talked with the claims adjuster. She filed February 21, 1978 and went to unemployment office through September 5, 1978 -- all for 3 weeks at $58.00. Why is it that the company always has the upper hand, and the case for the worker has to be proven over and over again? A real mess!!!" -- 37 year old retail sales clerk.
I. Employers mislabel discharges as quits. Employers encourage fired workers to sign quit forms by telling them that this will look better on their job records for other jobs
"Employer said I quit, but I was fired. Unequal and unfair pay raises." -- 33 year old medical assistant.
K. Employer's use of job services
L. Job service and retraining program
"I wish I had more training to qualify for a better job as I have to be self
"When I signed up for work, MESC made no effort to help me locate employment whatsoever." -- 23 year old stock handler.
TESTIMONY PREPARED FOR THE NATIONAL COMMISSION ON UNEMPLOYMENT COMPENSATION HEARINGS, JUNE 28, 1979, SUBMITTED BY BARBARA SOMSON, ASSISTANT GENERAL COUNSEL, INTERNATIONAL UNION OR ELECTRICAL, RADIO AND MACHINE WORKERS, WASHINGTON, D.C., ON BEHALF OF THE IUE AND THE COALITION OF LABOR UNION WOMEN
SEXUAL HARASSMENT AND UNEMPLOYMENT COMPENSATION
My name is Barbara Somson and I am an assistant general counsel of the International Union of Electrical, Radio and Machine Workers, a labor organization which represents approximately 250,000 workers in the United States and Canada. I am here today on behalf of the IUE and the Coalition of Labor Union Women, known as CLUW. CLUW, an organization of women and men trade unionists, was founded in 1974 and is working toward several goals: (1) To encourage the 30 million nonunion working women to take advantage of the tangible economic benefits of unionists by joining unions: (2) to increase women's participation within unions; (3) to seek "affirmative action" on the part of unions against employers' discriminatory practices; and (4) to press for legislative action which would further women's interests, such as child care assistance and passage of the Equal Rights Amendment. Today CLUW has approximately 8,000 members, in 30 chapters across the nation representing, 60 unions.
The topic on which I testify today is employment termination caused by sexual harassment at the workplace. CLUW and the IUE strongly urge this Commission to recommend the adoption of a federal standard specifically prohibiting any state from imposing a disqualification from unemployment compensation to a claimant who has quit or been terminated because of sexual harassment on the job.
The entire subject of sexual harassment at the workplace has only recently been explored. It is just beginning to receive attention from women's organizations and labor unions. Although there is shockingly little statistical data on this subject, what evidence there is indicates that sexual harassment of women on the job is a serious and pervasive problem.1 The responses to the few studies which have been conducted in this area show that between 50 and 90 percent of working women have experienced sexual harassment, ranging from verbal propositions to rape, on the job. The studies also show that the victims of this harassment are reluctant to formally complain or talk about their experiences, particularly when the offender is in a supervisory position.
Of particular interest to the Commission is the evidence that many women who suffer sexual harassment on the job eventually respond by quitting their job. Lin Farley, a journalist who has pioneered in the field of sexual harassment of women on the job, concludes that a majority of working women who are victims of sexual harassment voluntarily leave their job and that this phenomenon contributes significantly to the proportionately higher number of unemployed women than men.2
When used in this testimony, sexual harassment means any unwanted and unsolicited sexual attention on the job from a supervisor, co-worker or client. It includes both verbal and physical attention and ranges from stares, jeers, sexual innuendos and propositions through touching, kissing and physical assault.
Sexual harassment at any time and in any context is, at best, a humiliating and degrading experience; at worst it is a life-shattering event. But sexual harassment at the workplace assumes an even more threatening character. All too often the perpetrator of the sexual harassment is a person to whom the victim is a subordinate. Given the types of jobs men and women perform today, this should not be a surprising fact. Women workers are concentrated in a relatively small number of job categories, predominately clerical and service jobs. The managers, administrators and professionals they work for are, on the other hand, men.
Thus, women who are subject to sexual harassment on the job are often victims of concommitant threats and/or acts of retaliation for their failure to comply or their complaints. Such retaliation includes poor job evaluations, failure to grant raises or promotions, assignments to more onerous tasks or shifts and firings.
The incidence of sexual harassment at the workplace is great; the effects are grave. I believe that as this topic becomes less taboo, as women's groups, labor
1 On the general subject of sexual harassment at the workplace, see Sexual Harassment of Working Women, Catharine A. MacKinnon, Yale University Press, 1979 and Sexual Shakedown: The Sexual Harassment of Women on the Job, Lin Farley, McGraw Hill Book Co., 1978.
organizations and others encourage working women to speak out against perpetrators of sexual harassment, we will all become convinced of just how pervasive and destructive it is.
We will also see more women willing to admit that sexual harassment was their reason for leaving a job and willing to suffer the embarrassment and humiliation necessary to claim unemployment compensation. The women in the accompanying remarks prepared by Jan Leventer of the Women's Justice Center in Detroit are just the beginning. To deal with these cases fairly, there must be a uniform, federal policy allowing victims of sexual harassment to receive full unemployment compensation benefits, despite the "voluntary" nature of their unemployment status.3 For a woman who quits her job due to sexual harassment does not do so voluntarily; she is as much coerced into leaving as if she were fired. She does it as a last resort, to preserve her self esteem and her dignity. She should not be further victimized by being disqualified from unemployment compensation benefits.
Largely through the work of organizations such as the Women's Justice Center, Michigan has developed a fairly reasonable approach to this issue. As the accompanying testimony explains and supports, the Michigan Employment Security Commission has awarded unemployment compensation benefits in several cases to the victims of sexual harassment in the workplace. At least one other state, California, has done likewise.4 New York on the other hand, refused to grant unemployment compensation to a woman who quit her job due to physical illness brought on by constant subjegation to sexual harassment at work.5
A recent development in Michigan, discussed in the accompanying remarks of Jan Leventer, deserves special attention. On February 23, 1979, S. Martin Taylor, Director of the Michigan Employment Security Commission, issued a memorandum to MESC personnel concerning sexual harassment as an issue in unemployment compensation adjudication. (A copy is attached to Ms. Leventer's testimony as Document 7.)
While the MESC memorandum is welcome step in the right direction, there are two serious shortcomings in the policy it expresses. First, it addresses itself to sexual harassment by "the employer, supervisor, or co-worker" and does not include client or customer. The form of sexual harassment to which waitresses, saleswomen and other service workers are most vulnerable is from customers or clients. A woman worker should not be subjected to abuse on her job from her employer's customers any more than from her co-workers or supervisors. Any standard enacted dealing with the issue of sexual harassment and unemployment compensation should specifically allow full benefits to a woman who quits her job because of sexual harassment from a customer or client.
Second, the MESC directive contains a requirement that the claimant have informed the employer of the occurrence of sexual harassment and that remedial action was requested but not forthcoming. Such a requirement places an unfair burden on the victim of the sexual harassment, particularly in light of the reluctance of many victims of sexual harassment to speak out. If the offender was a supervisor or management employee, for example, he is an agent of the employer and the employee who suffered the abuse should not have to take the affirmative, and all too often futile, step of report the incident and requesting remedial action. If a claimant can demonstrate that sexual harassment has occurred and that it led to her quitting, this should be sufficient to entitle her to unemployment compensation. If the employer subsequently offers her a job and demonstrates that the offending individual or circumstance is no longer present, she could then be required to accept this offer of suitable work or lose unemployment compensation benefits. In summary, CLUW and the IUE strongly urge this Commission to investigate the area of sexual harassment and unemployment compensation and to adopt a recommendation for a federal standard to address this issue. Such a standard should prohibit any state from denying compensation to or disqualification for any period a claimant who has shown that she quit her job because of sexual harassment by a co-worker, supervisor, client or customer. No additional requirements should be imposed.
3 Legislation to this effect is currently pending in the State Legislatures in Michigan, Minnesota, and New York.
4 In re Nancy Fillhouer, decision No. 7505225, California Unemployment Insurance Appeals Board (July 2, 1975).
5 In re Carmita Wood, Appeal No. 207958, New York State Department of Labor, Unemploy.
TESTIMONY OF WORKING WOMEN, PRESENTED BY JANE PINSKY AND SUBMITTED TO
NATIONAL COMMISSION ON UNEMPLOYMENT COMPENSATION JUNE 1979
My name is Jane Pinsky. I am here today representing Working Women, National Association of Office Workers. Our goal is to win fair and legal treatment for the nation's 20 million women office workers.
Our organization is based on the recognition that despite more than a decade of legislated equality, working women still face rampant discrimination in terms of pay, promotion and training opportunities, and respect on the job. Working Women grew out of the realization that without an organizational vehicle with which to address these problems, little if any improvement would occur.
Today, Working Women has members in forty states and is affiliated with twelve citywide membership organizations. A list of these affiliates is included in the written testimony.
The activities of our organization include: researching the issues facing working women; educating women about their rights on the job; counseling women who have job-related problems; directly advocating on behalf of women who have suffered discrimination; working for stronger enforcement of anti-discrimination laws; changing unfair employment practices and raising issues to the public.
Since beginning six years ago, tens of thousands of women have contacted our local organizations with specific job problems. Many of these have involved problems related to unemployment insurance. My testimony today is based in large measure on the experiences of these women.
I will begin by describing what we have found to be major problems in the unemployment compensation system and then present some recommendations for improvement.
The following cases are true stories of three different women who tried to collect unemployment insurance. These stories are typical of the many hundreds contained in our files and they illustrate the present failings and specific problem areas within the unemployment insurance system.
The first story involves Jackie, a black women, who worked as a professional salesperson in a midwestern branch of one of the nation's largest companies. She had worked for the company over five years and twice had applied for promotions. Both times less experienced white males were hired for the positions. The second time around Jackie filed a charge with the Equal Employment Opportunity Commission charging her employer with race and sex discrimination. Before the EEOC had a chance to start its investigation Jackie was terminated by the same manager who had denied her the promotions, during an argument they were having. He fired her on the spot, without any warning, despite the fact that she had worked for the company a number of years, had excellent performance evaluations and good attendance records. She applied for unemployment and was denied it. The company claimed she had been fired for "good cause", that she had been insubordinate. She claimed she was being retaliated against and appealed the denial. For the hearing, the company flew in two lawyers from their corporate headquarters to present the company's position. Jackie had only herself to depend on and she lost. Four months later, Jackie is still waiting for the EEOC to investigate her charges of discrimination. She has just gotten another job. She was one of the lucky ones, she had a savings to fall back on.
The second case I wish to discuss involves Nancy, a young woman who was recently hired as a teller at a bank. During training, Nancy was taught never to take a driver's license or a credit card as sufficient I.D. when cashing checks, but rather to make sure that a signature card was on file for the customer. Nancy was put at the auto teller window and when she began following this procedure, customers began complaining to the manager because it took a rather long time to check for the customer's signature card. Nancy's manager put her on probation and instructed her to accept credit cards and driver's licenses in the future for I.D. purposes. After following these instructions, a woman passed a bad check on Nancy, who in turn, was immediately terminated by the manager. It appears that what happened to Nancy was unfair, that she was used as a scapegoat to protect her superior who had issued improper instructions. Nancy is the sole support of her child and a termination such as this makes it almost impossible for her to get a job at another bank. When Nancy went and applied for unemployment she was denied it because her company contested it. Nancy did not know where to turn for help, and did not understand her rights in the situation, and therefore when she appealed the decision of the unemployment board it was too late.
The third and last case I want to bring to your attention deals with Susan, a secretary in a prestigious law firm in a large eastern city. After working for the
lawyer with the firm. And this is where her trouble began. From the very beginning this new boss seemed to have more in mind than just a work relationship. It initially began with little sexual jokes and remarks, then escalated to physical contact with him getting up close to her putting his arm around her, that kind of thing. Susan went to one of the senior law partners to complain about her boss's behavior. The senior partner told her that he really couldn't do anything about it, it was a personal matter and that if she wasn't interested in the man then she should just ignore him. However, this strategy of ignoring the problem, of course, didn't make it go away. The situation continued to get worse to a point where Susan's boss was insisting that she go out with him and making her stay late. This situation began affecting both her home and work life. Finally, Susan felt she had no other option but to quit her job. However, her state unemployment bureau didn't see it that way -- she was denied unemployment benefits and felt in the hearing stage would have little chance against the law firm.
We are not here today to suggest that Unemployment Compensation Law can address the unfair and discriminatory situations working women often find themselves in. We understand fully that it cannot. However, it should not in any way sanction such practices or penalize the victims of these practices. In many respects, we do feel, as illustrated by our three stories, that the victims are penalized, are blamed for their situation.
Although the facts in each of these three cases varies and the women involved live in different states there are striking similarities in their situations. In each of the cases which involves a dispute between the employee and the employer the state bureau sides with the employer. In each case the state chooses to interpret their law in the narrowest fashion and in each case the employer was much better represented than the employee. These patterns are not unique to these three cases but are representative of hundreds and thousands of complaints our organization has received over the last several years.
We believe clear federal standards could go a long way toward alleviating some of the problems described here. Specifically we support and urge adoption of the following.
As regards "discharges due to misconduct" we strongly feel that ‘firing for good cause’ should not be synonymous with "discharging due to misconduct" in relation to disqualfiying an individual. We believe that "misconduct" should be defined very narrowly as a "willful and wanton disregard of the employer's lawful interests." It should be made clear that mere carelessness, violation of company rules or incompetence should not be grounds for denying an individual unemployment insurance. In addition, it should be made clear, that in such cases, the burden of proof should rest with the employer, rather than with the claimant.
In terms of "voluntary quits" we have several recommendations. First of all, we urge adoption of a federal standard which makes it clear that "voluntary quit for good cause" should not be limited to reasons connected with employment but should include serious personal reasons. This is particularly important in terms of the woman worker because she is more likely to have to quit work to care for a family member who is ill or because of child care responsibilities.
Secondly, as regards "voluntary quits," we strongly recommend a federal regulation providing that sexual or other harrassmend of a worker should be considered "good cause" for leaving. As recent studies have indicated sexual harassment is not just an isolated phenomenon and until employers actually come to grips with the problem, very often the only choice a woman will have in such a situation is to quit her job.
Our experience has made it clear to us that basic problems exist with respect to the process itself. In general, we have found, that claimants are underrepresented as compared to employers. Additionally, often claimants are not properly advised of their rights and in some instances these rights are even being violated. We know that much testimony has been presented to the Commission regarding this situation, and recommendations have already been made in terms of rectifying it. Today. Working Women is adding our voice to many of these recommendations. Specifically we urge you to carefully consider the following:
1. The creation of a claimant representation office under federal jurisdiction with branch offices located in every state. A "hot line" should also be established for information purposes, to help claimants, to answer their questions and to handle their complaints.
2. Legal or para-legal representation should be provided to unrepresented claimants. Existing legal service organizations should be allowed to increase representation of unemployment insurance claimants. In addition, we strongly urge that realistic and reasonable attorney fees should be provided for court appeals.
3. Appeal time should be increased to at least 30 days. The appeal time should run from the date that a decision or other ruling against the employee is actually received, not from the date it is issued or mailed.
4. All states should provide that a late filing is excused when there is good cause for late filing.
5. All state agencies should be required to give information booklets to claimants.
6. Employers should be required to post notices advising their employees of the state unemployment insurance law, and advising them to report to the unemployment agencies and apply for benefits if unemployed for any reason. In addition, employers should be required to hand this information to all persons who have been laid off or discharged by the employer.
7. The appeal and protest rights of claimants should be clearly emphasized by the state agencies in their forms and in their dissemination of information.
In closing, we ask that the Commission seriously consider the recommendations we have made today. We feel that not only do they address some of the problems we have described but that they are clearly in line with the original intention of the law.
Thank you for the opportunity to present this testimony. If this Commission wants any additional information regarding my comments, we will be happy to provide it.
TESTIMONY PREPARED FOR THE NATIONAL COMMISSION ON UNEMPLOYMENT
COMPENSATION HEARINGS, JUNE 28, 1979
SUBMITTED BY JAN LEVENTER, ATTORNEY, WOMEN'S JUSTICE CENTER, DETROIT, MICH.
The Women's Justice Center is a non-profit public interest organization formed in 1976. The purposes of the organization are to educate women about their legal rights and to develop law reform litigation and other strategies to protect and further these rights. In 1978, the Justice Center counseled 5,000 women and provided 120 educational programs on the issues of divorce, battered women, employment discrimination, credit, sexual harassment, and other topics covering women's rights. The Center has been prominent in organizing the Tri-County Coalition on Domestic Violence, a coalition of about sixty organizations in the Detroit metropolitan urea. The Center performed a courtwatching study of the domestic relations court in Detroit and has prepared pamphlets on resources for displaced homemakers and on pregnancy disability laws. The Center also spurred the Detroit City Council to ratify the ERA boycott and extension in Spring, 1978.
The litigation of the Women's Justice Center focuses on employment discrimination, in particular pregnancy disability and sexual harassment, and women's rights in police and prosecutorial procedures. With respect to sexual harassment, unemployment compensation was chosen as a priority area for litigation because women were being denied unemployment compensation when they terminated, or were terminated, for their jobs as a result of a sexually extortionary situation between themselves and a male supervisor, or some other sexual harassment situation.
The Women's Justice Center undertook, successfully, three sexual harassment cases before the Michigan Employment Security Commission (MESC) Referee Division. (Documents 1-6) Subsequently, S. Martin Taylor, Director of the MESC developed guidelines for MESC personnel (Document 7) which will hopefully sensitize the MESC staff to this issue.
This testimony is based on my experiences in representing these three claimants and on my experiences counseling women about their rights when they are sexually harassed on the job. I have also included my observations on the MESC guidelines and, finally, my recommendation for legislation in this area.
Unemployment compensation hearings on behalf of women who have been sexually harassed
All three of the MESC hearings presented herein involved young (23- or 24-year-old), unmarried, white women with high school diplomas. All were employed in industrial work. Reference to each case will be by the name of the company and not by the woman's name, to promote the privacy of these individuals.
The Guardian Photo case (Documents 1 and 2) involved a male supervisor who asked out a woman working in another department. She refused pointing out to him that she was engaged. He subsequently asked that she be transferred to his department, which she was. He then embarked on a course of retaliation which included reprimands, discipline, temper tantrums and attempted ostracism of the claimant.
As a result, she suffered weight loss, headaches, extreme nervousness and illness for which she sought medical help. She finally quit. The referee found that her termination was a voluntary quit for good cause attributable to the employer. (Document D)1
In the ITT Thompson case (Documents 3 and 4), the claimant's male supervisor was constantly making sexual suggestions, obscene remarks and jokes to her. She became extremely nervous and developed eczema. The supervisor fired her during a department meeting; this was later reduced to a suspension. The claimant believed this action was taken because she did not respond to his advances. The referee found that her termination was a voluntary quit for good cause attributable to the employer. (Document 3)
In the Case involving Chrysler (Documents 5 and 6), the claimant was working in a predominantly and traditionally male stockroom environment. She was subjected to sexual obscenities by her immediate supervisor and co-workers in the plant. Her complaints to management were not addressed. She quit voluntarily rather than remain in the situation. The referee found that her termination was a voluntary quit for good cause attributable to the employer. (Document 5)
The referee decisions in these cases were largely based on the existence of medical conditions that arose as a result of the harassment. Also, the fact that the claimants complaints were not addressed by Chrysler management was noted as important in that decision. Another fact that appears important is that the supervisors in the Guardian Photo and the ITT cases were clearly using their authority to retaliate against the claimants. The ITT decision (Document 3) states: A female employee should not be disqualified for benefits when she terminates her employment to avoid the sexual advances of a male supervisor. (P. 2.)
Although the employers in these cases did not appear at the hearings to challenge the claimants, in all three cases the referees conducted extensive hearings, examined exhibits, and considered the Memoranda submitted by counsel on claimants' behalf, (Document 2, 4, 6).
It appears from these decisions that women who have been sexually harassed can obtain unemployment benefits in Michigan if they can establish their credibility through additional indicia of veracity, that is, that they had medical problems because of the harassment, that they complained to management, or that there was retaliation against them for refusing to submit to supervisor's advances. Thus, there is an implicit "corroboration" standard applied to women who leave work because of sexual harassment. This is similar to the recently-abolished "corroboration" requirement in rape cases which required the woman's story to be corroborated by another witness. It left most rape victims without a remedy, because rape usually occurs without corroborating witnesses. This requirement has been abolished in most jurisdictions
It is extremely important that there be protection for women who have been harassed. Corroboration should not be required for a variety of reasons. Unemploment compensation law should be sensitive to the fact that it is very difficult to go to one's employer about sexual harassment, which is embarassing and painful enough in itself. Women should not be required to complain to employers about sexual harassment because it may be that such complaints will be futile or that they will subject the claimant to greater ridicule or humiliation. Even worse, the woman faces possible mistrust and retaliation from those to whom she complains.
Women should not have to develop medical conditions before they feel that they have subjected themselves to enough abuse to be able to get unemployment. Furthermore, women should not have to wait to suffer retaliation before quitting in order to qualify for benefits. As noted in the briefs submitted in these cases (Documents 2, 4, and 6), other types of harassing job treatment and subjection to racial insults at work have been found sufficient grounds, in and of themselves, for quitting, without such additional circumstances.
MESC field release:
There has been a great deal of public attention toward the issue of sexual harassment in Michigan in the past year. The Office of Women and Work, Michigan Department of Labor, has formed a Sexual Harassment Task Force which has held public hearings around the state and has published a pamphlet advising women of their rights. There are five bills pending in the Michigan Legislature on sexual harassment. (House Bills 4183, 4406, 4407, 4409, and 4410). The first of these, H.B. 4183 (Document 9), proposes to amend the Michigan Employment Security Act to include quitting because of sexual harassment from a supervisor
Through the efforts of the Task Force and its members, on February 23, 1979 the Director of the MESC published a field release explaining sexual harassment to MESC personnel. (Document 7) It defines sexual harassment and directs examiners to specifically question claimants about this issue. The release indicates that harassment by co-workers can also constitute good cause for leaving.
The field release is a good beginning in defining and dealing with the question on an agency-wide level. It remains to be seen how effective the field release will be in guaranteeing women their unemployment benefits.
The field release does, however, require that there be a complaint made by the claimant (p. 2, Voluntary Leaving). As explained above, this requirement would put an unfair burden upon the claimant, a burden not placed on other employees who are victims of other types of harassment at work
Finally, I direct your attention to the MESC Board of Review Holding in the case of Ronald Hall (Document 10), where the Board upheld a Referee Decision denying benefits to a male employee who sexually harassed a pregnant co-worker. This situation is unusual in that, unlike most cases in my experience, the employer appears to have ultimately responded to the woman's complaint.
Comprehensive unemployment coverage for women who have been sexually harassed on the job should be specifically included in the unemployment laws. This is necessary to guarantee women their full entitlement to unemployment benefits. Federal legislation, rather than state-by-state coverage, appears to be the most expedient means to achieve this goal.
WOMEN'S RIGHTS PROJECT, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, TESTIMONY OF ISABELLE KATZ PINZLER, DIRECTOR, SUBMITTED TO THE NATIONAL COMMISSION ON UNEMPLOYMENT COMPENSATION, JUNE 28, 1979
My name is Isabelle Katz Pinzler. I am an attorney and the Director of the Women's Rights Project of the American Civil Liberties Union Foundation. The Project, established in 1971, has been in the forefront of the litigative struggles of women for equality and justice in the workplace. On the unemployment compensation front the Project represented Mary Ann Turner in Turner v. Department of Employment Security of Utah, 423 U.S. 44, 96 S.Ct 249 (1975), the case in which the Supreme Court held that a state may not conclusively presume that an unemployed woman is unavailable for work, simply because she is pregnant. The Unemployment Compensation Amendments of 1976 of course subsequently unequivocally prohibited the denial of benefits to women on account of pregnancy 26 U.S.C. 3304(a)(12). The ACLU Women's Rights Project also represented the plaintiffs in Feehan v. Levine, 75 Civ. 3719 (S.D.N.Y.) which challenged the New York state unemployment compensation agency practice of treating pregnant claimants differently from non-pregnant claimants, in particular by demanding greater levels of proof of an adequate search for work, of availability for work, etc. That case was settled by consent decree on April 6, 1978, but the practices complained of still persist in many states, as I shall discuss below. I shall, in my testimony, attempt to outline some of the problems which women claimants confront within the unemployment compensation system, as brought to the attention of the ACLU either directly or through its state affiliate organizations.
The statistics documenting the increased presence of women in the workforce are too well-known to be reiterated at length here. However, it bears noting once more that in 1978, 42 percent of the national workforce was female. The number of women holding jobs grew from 18 million in 1950 to 42.1 million in July, 1978.1 In 1975, the Department of Labor reported that 49.1 percent of women 16-19 worked; 64.0 percent of those 20-24; 54.5 percent of those 25-34; 55.9 percent of those 35-44; 54.6 percent of those 45-54; 41.0 percent of those 55-64; and 8.2 percent of those 65 and over. Clearly, the majority of married women worked and would continue to do so until they were at least 55.2 The numbers have continued to rise: as of July, 1978, the percentage of women 25 to 54 years old in the workforce was calculated as 60.65 percent.3
1 National Commission on Working Women, "An Overview of Women in the Workforce," in National NOW Times, March 1979, p. 12, hereinafter cited as NCWW. Statistics in the report were supplied by the Departments of Labor and Commerce and reflected their information as of September 1978.
2 U.S. Department of Labor, Women's Bureau, "The Earnings Gap Between Women and Men," 1976, n. 65.
The increase in the number of working women, however, has not been due to a massive influx; on the contrary, "the growth that has occurred in the female labor force since the mid-1960's has been primarily due to a drop in the exit rate of women," with an ever-larger proportion of employed women choosing to remain in full-time, full-year jobs.4 The statistics verify our daily observations; contrary to stereotyped notions women are attached and remain attached to the workforce after marriage, during pregnancy,5 and after childbirth. The majority of women who work outside the home do so to support themselves or their families or to raise family incomes above the low-income or poverty level.6 Today, six million preschool children have mothers who work; by 1985, there will be around 12 million such children.7 Almost 29 million children under 18 (46 percent of all children under 18) have mothers in the labor force 8
The ACLU as well as many other organizations identified with the struggles of working women in our society, are repeatedly contacted by women facing a variety of problems and frustrations within the unemployment compensation system, problems not faced by men. Agency personnel are likely to be dubious about a pregnant woman's desire to work and require greater documentation from her than others that she is able to work and actively searching for work. Ironically, the required proof increases dramatically when the woman begins to "show," just at the time when she is, despite her own efforts and desires, most likely to be discriminatorily denied a new job. The unemployment compensation system should not deal these women a double dose of discrimination. Because they experience great difficulty in obtaining new jobs, it is assumed that they are not diligently searching for jobs. Pregnant women laid-off because they are physically unable to do their last job, but who are nonetheless generally available for work, should be treated in exactly the same manner as men, who due to illness or injury, are temporarily unable to do their usual job. Unfortunately, this is not always the case.
Women with children
Women with children are often closely questioned about their child care arrangements. Fathers are, of course, not asked these questions and neither should women be. Such inquiries are based upon the twin assumptions (not always nor universally true) that (1) women bear sole or primary responsibility for child-care, and thus are not really attached to the labor market, and (2) that women with young children really have no place in the labor market, that they belong in the home. The lack of decent, readily available day care is, of course, deplorable, but not within the jurisdiction of this Commission to remedy. However, this Commission can recommend regulations which will shield women with children from discrimination within the unemployment compensation system. Millions of working mothers manage, somehow, to ensure the care of their young children. It is not or should not be the province of unemployment compensation agency personnel to inquire into those arrangements. "Street-wise" women, of course, know better than to bring their children with them to the unemployment office; it almost inevitably leads to questions about child care arrangements. Mothers are, thus, forced to spend part of their much needed benefits payments on babysitters, even while they are unemployed. The justification given is that claimants must be prepared to be sent out for job interviews from the agency office. In practice, however, this almost never actually happens.
Such "special" treatment for pregnant women and women with children should be strictly prohibited by Federal regulation. We believe that Federal Guidelines should be established which clearly spell out to the states that such discriminatory treatment of women workers will not be tolerated. Discriminatory treatment, whether embodied in claims forms, manuals, or in the behavior of individual bu-
4 Isabel V. Sawhill, Director, National Commission for Employment Policy, "Testimony" before the U.S. Senate Committee on Human Resources, hearings on "The Coming Decade: American Women and Human Resources Policies and Programs," Feb. 1, 1979, pp. 2-3. Also see Nancy 5. Barrett. Principal Research Associate, The Urban Institute. "Statement" before the same committee, Feb. 9, 1979, p. 4 citing Carol Len and Robert W. Bednarsik, "A. Profile of Women on Part-Time Schedules," 101 Monthly Labor Review, October 1978, p. 10. Emphasis in original.
5 Now that pregnant women cannot legally be forced to take mandatory maternity leaves (see e.g., Cleveland Board of Ed. v. LaFleur, 414 U.S. 632 (1974)) it is increasingly common for women to work right up to the date of delivery.
6 US. Department of Labor, Employment Standards Administration, Women's Bureau, Why Women Work (June 1976).
reaucrats can and should be ended. In some cases such guidelines would educate agency personnel to overcome the habits and stereotypes which underlie these kinds of inquiries. In other cases Federal Guidelines would give women a tool with which to resist discriminatory treatment.
Dependents and child support
Another area where women are treated differently than men occursi in states which provide additional amounts of unemployment compensation benefits for claimants who provide more than one half the support of dependents. We have had reports of cases where even a small amount (clearly less than half) of child support from the child's father nullifies the claimants right to the dependent's allowance. There are also cases where women are entitled to child support (under court order or by agreement) but are not receiving it, and the agencies still refuse the dependent's allowance. Delinquency in alimony and child support is endemic in this country. A study tracing child support payments over 10 years showed that 62 percent of male parents failed to comply fully with court-ordered child support payments in the first year after the order, and 42 percent did not make even a single payment. By the 10th year, 79 percent were making no payments at all.9 The unemployment compensation system should, again through Federal Guidelines, take this reality into account.
Sex discrimination and sexual harassment in employment
It is no secret that despite laws forbidding sex discrimination in employment (e.g., Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, state fair employment laws), such discrimination persists. Women (and minorities) are not infrequently terminated or forced to quit their jobs in the face of discriminatory treatment. In cases of termination employers will often allege misconduct. In cases where the employee has quit, the employer will, of course, argue voluntary quit, but query whether such "voluntary" quits are really "without good cause attributable to the employment"? The problem here is that unemployment compensation claims takers and referees are not atuned to or trained to deal with questions of sex and race discrimination. In many cases, the unemployment compensation system will deny benefits to claimants whose charges of discrimination are ultimately vindicated in the EEOC or state fair employment agency. In California, however, the state Fair Employment Practices Commission has created a special section to handle cases in which a claim for unemployment compensation benefit is also pending. Under this approach unemployment compensation agency personnel are not left to decide questions about violations of other laws about which they have little understanding and no expertise. Such an approach might prove a useful model for the federal system to follow.
Cases involving questions of sexual harassment (i.e., the asking or requiring of sexual favors in return for employment opportunities) are particularly difficult. The question usually arises in the context of a "voluntary quit" and sometimes in the context of a "misconduct" termination. In either case, most claimants are hesitant to raise this subject as the real reason for the termination. When they do, or when they hint at it, claims takers and referees alike are generally insensitive at best. Women must be given a fair opportunity to demonstrate that the root cause of their separation from employment was illegal sex discrimination, and that they are, or should be entitled to unemployment benefits.A closer look at "voluntary quits" for domestic reasons or due to pregnancy
In most states a person will only be eligible for benefits in a voluntary quit situation if the quitting has for good cause connected with the employment (i.e., substantial reduction in pay, hazardous work conditions, etc.). Generally, the claimant's own health problems are excepted from the "connection with the work" limitation. Ill health of family members and urgent family responsibilities are most often not excepted. Our reading of unemployment compensation cases over the last several years leads us to the conclusion that far more women than men are disqualified from receiving benefits in these circumstances. Society needs someone to bear such family responsibilities and those someones should not be penalized from qualifying for unemployment compensation.
Women also sometimes take voluntary maternity leaves of short duration. During the duration of a completely voluntary maternity leaves or when a women is actually disabled from working, we agree that unemployment compensation need not be paid. However, we are frequently told that women seeking to return from
9 Weitzman, Legal Regulations of Marriage: Tradition and Change, 62 Cal. L. Rev. 1169, 1195
such leaves find, often due to cuts in production, that their jobs no longer exist. In effect, they were laid off while on leave.
At this point, when the woman is ready, willing and able to return to work but cannot through no fault of her own, she should no longer be regarded as having voluntarily quit. Women should not be penalized for bearing children.
The school employee exclusion
Teachers and other non-professional school employees (such as cafeteria workers) who have a "reasonable assurance" of being able to return to work after vacation periods may be and often are excluded from eligibility for unemployment compensation benefits. For teachers, and especially for the generally poorly paid non-professional employees, who are paid on a nine months basis and who are in fact looking for work until the fall term begins, this exclusion is an undue hardship. This issue is relevant to women's rights because, of course, the greater number of persons affected by the exclusion are women. The exclusion is particularly unfair in light of the fact that a worker who has been laid off but is subject to certain recall, which he/she intends to accept, is nevertheless eligible for benefits.
I am grateful for this opportunity to present this testimony and thank the Commission for its gracious invitation to participate in these hearings. The staff of the ACLU Women's Rights Project stands ready to cooperate with the Commission in its efforts to reform the unemployment compensation system and especially in any efforts it undertakes to eradicate sex discrimination from that system.
Ms. OAKAR.Thank you very much, Mr. Chairman.
Mr. HANLEY.Thank you, Ms. Oakar.
Mr. LEACH.Ms. Lenhoff, do you have either statistical evidence or a feeling that there is a greater problem in the Federal Government versus the private sector? Do you have any views on that?
Ms. LENHOFF.I am not sure of the answer to that question and, as I thought you might ask me, I thought about it. A lot of the reported cases, surprisingly enough, have been Federal cases, especially the early cases. I don't know whether that is a fluke or not. Certainly in Washington it feels like it is a very big problem in the Federal Government.
My understanding is that in field offices in the Federal Government it is even a bigger problem because there is less supervision from headquarters, and supervisors who are in the field have an enormous amount of power over their little offices. But that is by no means to say that it isn't also a very big problem throughout the employment sector, private as well as public.
My best guess would be that the extent of sexual harassment is about the same in both the private and public sectors. In the Federal Government two factors operate to cancel one another out. One is what was referred to earlier, which is that Federal supervisors know that they are not very likely to be disciplined or fired because of their actions. But, on the other hand, I think that as civil servants they may feel a higher duty than somebody in the private sector might to uphold certain standards of conduct. The two in the end I think operate to negate one another.
Mr. LEACH.Let me ask you a question that I think has occurred to all of us. I am not sure you are in the best position to answer, representing the Women's Legal Defense Fund, but have you heard of any evidence of the obverse side of the coin -- that is evidence that women supervisors take advantage of male subordinates?
Ms. LENHOFF.We have never had a complaint to that effect to my knowledge. I was at a meeting recently with some people from OPM and the EEOC and they mentioned that they had heard of it
once in all of their complaints. It is my firm belief that it rarely, if ever, happens.
First of all, there just aren't enough, women supervisors; second of all, when there are they are not in that kind of position of power -- they are not that secure. Third of all, it has to do with men's perception of the role of women. Women don't have a reverse perception of the role of men as employees.
Mr. LEACH.Let me just ask you one other question. I am not sure you have dealt with enough cases to have a sense for this, but when you look at the locale likely to give rise to these complaints, are they the types of offices that, for example, don't have enough work to do? Or is the problem commonplace in all settings -- not only in certain types of Government offices, but also in work settings where there is more pressure or work settings where there is less pressure?
Ms. LENHOFF.I am afraid you are right that I don't have enough of a statistical basis to be able to answer that in anything but the most sort of impressionistic way. My sense is that it doesn't have much to do with the work and that it has to do instead with the power relationships. But that is the best I can say in response to that.
Mr. LEACH.Thank you very much.
Mr. HANLEY.Thank you Mr. Leach.
Mrs. SPELLMAN.I would like to make a comment about prevalence and whether it happens more in the Federal Government than it does in other places. When I said I had been in government for 17 years, it was not in Federal Government, it was in local government. Since I was the female figure in my county and in the metropolitan. Washington area, I would get calls from women who were working in the private sector, who were working in the Federal Government, and who were working in local governments. I would suspect that I really couldn't say that any one place had a predominance of this kind of activity. It was happening everywhere.
At that time women had no real sense of security that there was any place they could go. They came to me because I was a female, and because I was a mother figure, I suppose. I would call to people who were in supervisory positions in the various places where the complaints came, and I must say that it was just treated very lightly at that time. It was a "Oh, well they can work that out" kind of an attitude. It really wasn't very satisfying to work with the male supervisors; they just didn't have an understanding of the problem.
I wonder now -- incidentally, when we say that we aren't able to fire people in the Federal Government, that is only because the supervisors who are responsible are not doing their jobs. It can be done, it should be done, but it requires some documentation.
I do want to ask this: Today, when your legal defense group is working with cases like this, I know that for the most part we try for out-of-court kinds of settlements. What is the attitude that you are finding among supervisors, those who supervise the people who are creating the problems?
Ms. LENHOFF.Very recently, especially in the District of Columbia, where the last spate of our cases has come up, I think the attitude may be changing. But the issue has received an enormous amount of attention, partly as a result of the district court case in which the court found that sexual harassment was standard operating procedure in the District of Columbia Department of Corrections and yet ordered no relief. I think probably there will be more testimony about that later this morning.
That is only an extremely recent development and one I think that is the result of this kind of publicity at best. For the most part though, all of the problems that I testified about remain. Even if there is a heightened awareness, it isn't enough without an enforcement mechanism that goes with it.
Mrs. SPELLMAN.You said there needed to be an affirmative action program. This would certainly appear to be the situation here, old cases where nothing has really happened.
While EEOC is attempting to deal with the problem, when it takes over a year to get the problem taken care of, that is hardly justice. So we do know that there needs to be affirmative action. A meeting like this is affirmative action. It is getting the message out, saying, "This isn't permissible behavior." It is getting out the message to women that there is hope, that you don't have to put up with that kind of thing any more.
What is happening here today and the fact that there is the glare of publicity on this, I think is one of the healthiest things that could be happening.
Thank you, Mr. Chairman.
Mr. HANLEY.Thank you, Mrs. Spellman.
Mr. ALBOSTA. Thank you, Mr. Chairman.
I appreciate you coming here today to testify before this committee. I believe myself that for the first time I realize and am appalled that 70 percent, the figures you used or whatever they are, actually are really happening.
I think along with Mr. Stenholm and Mr. Taylor, this committee's responsibility is going to be one, I believe, that will address itself to the problem of how can we discipline or fire, if we need to use that word, employees that will use such tactics as you are talking about.
I think those cases have to be documented, and I don't think that women should believe they become superior in a sense, or could use the laws that may be on the books under title VII for harassment, or whatever you call it, in a false pretense to try to get back at some superior.
But, on the other hand, I think this committee has to address itself, and I believe being here today, yourself, before this committee, is going to make the awareness not only to the Federal employees but to all employees all over the country that there is a problem there and the Congress intends to do something about it.
Mr. HANLEY.Thank you Mr. Albosta.
Mr. CAVANAUGH.Thank you, Mr. Chairman.
Thank you, Miss Lenhoff. I think your testimony is outstanding.
Are you familiar with the New Responses survey?
Ms. LENHOFF.I am familiar with it in that I read it. I believe a witness from New Responses is going to be here later and perhaps you would be better off getting answers -- -
Mr. CAVANAUGH.My understanding of their survey was 40 percent of the respondents indicated they had been subjected to sexual harassment.
Can you reconcile that response with your 70 percent figure or why the variance there?
Ms. LENHOFF.First, the New Responses study was based on a small sample. Second, it was conducted through the auspices of the agencies. There were meetings held, and a certain amount of public coming forward was necessary. The 70-percent figures were based on more confidential studies, and I think that might be one way to reconcile the two different figures.
In addition, I am not sure about how the definitions that were used compare. I think probably the 70-percent figure came from a study that used broader kinds of definitions and included sexual innuendos and little jokes and other kind of unwanted attentions.
Mr. CAVANAUGH.Your definition being broader?
Ms. LENHOFF.Yes, the 70-percent figure definition.
Mr. CAVANAUGH.You have recommended a broad definition be propounded and that there be rapid processing of complaints.
Did you add the recommendation for no corroboration to your testimony? I didn't find it in your testimony.
Ms. LENHOFF.Yes. It was not in the written testimony. Perhaps I had better clarify it.
The concern is that in practice, a higher standard of proof is required at all stages of the investigation of a woman who is accusing sexual harassment especially when she is accusing it of a higher level supervisor. We fear that attitudes reflect too much concern about the possible effects on a supervisor's reputation and career and insufficient concern to the effects on the victim's reputation and career.
Traditionally there was a similar problem in rape law, although it has been changed in many States. Special corroboration requirements were imposed for rape witnesses because of the public concern for the man's reputation.
The purpose of my recommendation is to change the emphasis of that public concern. We have concern for the man's reputation, but no more concern in this case than in any case in which discrimination is charged.
So all I am saying is that for purposes of investigation, as well as for purposes of ultimate proof of the matter, if it comes to filing a suit in court or filing an appeal with EEOC, the same standards should be applied toward this kind of sex discrimination as are applied toward any other kind of discrimination claim.
Mr. CAVANAUGH.Is corroboration now a requirement of the law?
Ms. LENHOFF.No, it is more of a thing that happens as a practical matter.
An investigator hears charges from the employee and then hears some sort of rebuttal or other explanation from the person accused. Based on that, the investigator should then proceed according to
the usual standards for evaluating the credibility of witnesses and understanding the context in which it occurs.
What I am responding to is the indication that we have had that investigators require more from a woman alleging sexual harassment because it is so sensitive an issue. It is a practical rather than legal requirement of corroboration.
Mr. CAVANAUGH. Thank you. That is a helpful clarification.
Thank you, Mr. Chairman.
Mr. HANLEY. Thank you, Mr. Cavanaugh.
With regard to the matter of percentages, the numbers have been bandied around, 40 percent, 70 percent, and figures in between. In an effort to clarify this part of our activity, the committee has directed the Merits Systems Protection Board to undertake a scientific survey.
That work will go along concurrently with the activity of this committee, and certainly as a result of it we will have a far better handle, on the extent of the problem.
Just one question. May I ask how many cases of sexual harassment has your organization dealt with?
Ms. LENHOFF. I am afraid I don't have those statistics. At the moment we have 3 such cases on a docket of about 55 active cases. Those are cases in litigation. And I was not able to get the actual figures of cases where we are helping people with charges of employment discrimination in the administrative process.
We do get about, I think, about 1,200 telephone calls alleging sex discrimination in employment. That is an overall figure, per year, in the last year.
Mr. HANLEY. Did I understand you to say about 1,200 telephone calls?
Ms. LENHOFF. Yes, alleging employment discrimination on the basis of sex. That is not limited to the Federal Government. I don't have that figure broken down. Our statistical-gathering mechanisms are not, unfortunately, that sophisticated.
Mr. HANLEY. I see. Thank you.
Are there any further questions?
Mr. ALBOSTA. Mr. Chairman, I would like to ask the witness one further thing: Do you think there is a moral degeneration in this country that may be causing some of those problems?
Ms. LENHOFF. Mr. Albosta, I am afraid that is not my area of expertise, but I will take a stab at it.
I don't know whether there is a moral degeneracy. I think the problem of sexual harassment has always been there. I don't think this is new.
What is new is the public attention it is getting, and I think that is a direct result of the women's movement.
And I think that the primary, although certainly not probably the only, underlying cause of the problem is the role of women in society and the understanding that is still very prevalent and still held by many people that a woman's place is in the home and if she is in the employment world, she deserves whatever it is that she gets.
I think that is the most basic of the causes, although, as I say, I am not sure whether some other sort of societal causes might not also contribute to the high incidence of the problem.
Mr. ALBOSTA. One other question.
Do you think that in the private sector, particularly, there has been any move among those people in the high positions of corporate interests to encourage the people to find some type of relaxation for the high tensions that they are under?
I have read articles in magazines and I wonder from a woman's viewpoint if you have heard of those things. Have you ever come across that same type of attitude among executives and people below that level that are encouraged to perhaps seek that type of relaxation and use it perhaps on their own employees?
Ms. LENHOFF. I am afraid I have not encountered any particular instances of that, but I am not sufficiently familiar with what is going on in the latest personnel practices in corporate management.
Mr. ALBOSTA. It was a pretty broad question and you could get on a spot with that one.
Mr. HANLEY. Thank you Mr. Albosta.
Mr. LEACH. I would just like to say that I think you are right, there is a remedy through civil rights legislation and probably also through little used disciplinary procedures within promotion and the hiring and firing process. It also strikes me that the Government can do more than the private sector, and that it should set an example.
Would you care to comment on the type of example that you think is set, for example, by a White House staff member who might slobber a mint julep down a young lady's blouse? Do you think that helps set a tone in this whole area?
You don't need to comment on that.
I might say I think that is a problem and there is a problem here in the Congress as well.
We had a few years ago a famous example of a young lady who claimed to be assigned to the "out-of-sight committee." I think that we are going to have to, be more concerned as Government employees and civil servants, not only with the specifics of complaints, but with the generality of behavior.
Ms. LENHOFF. I would be happy to comment on that, Mr. Leach -- just that I couldn't agree with you more, that it is a problem that occurs in all levels of employment and in all levels of Government, and that it is not simply a question of the private sector or the lower grade levels or whatever. It does occur at all levels and needs to be addressed at all levels.
Mr. HANLEY. Thank you.
Mrs. SPELLMAN. Would the gentleman yield?
Mr. HANLEY. Mrs. Spellman.
Mrs. SPELLMAN. My colleague referred to some women who worked here in the Congress who had been mistreated. My heart didn't bleed for them because I think the situation we had there was very different from the one we are discussing here.
One woman said she was hired with the understanding that she was to have sex with the Congressman who had hired her.
If he had said to her at the time he hired her, every Friday you will scrub the floor, she would have said, "no, thank you, I won't take this job." But she took the job understanding that she was to have sex with the man.
I have absolutely no compassion for that woman. She had no business taking the job. She couldn't have been that hungry. So then later when it became fashionable to complain about that sort of activity, she complained.
What we are talking about here are good, honest and decent women who want to work and who are subjected to the kind of activity that they didn't bargain for at all, and shouldn't have to bargain for. I think there is a real difference between them.
Mr. LEACH. I thank the gentlelady for her comments, and I concur with them entirely.
There appears to be an element in all that we have heard, that involves an abuse of power, and in that sense there is a tie to both circumstances that may be tragically interlinked.
Mrs. SPELLMAN. Every man on my staff types.
Mr. HANLEY. Thank you, Mr. Leach.
If there are no further questions, Miss Lenhoff, on behalf of the committee our deep appreciation for your time, effort and input here this morning. We are most grateful to you.
Ms. LENHOFF. Thank you, Mr. Chairman.
Mr. HANLEY. Our next witness this morning is Ms. Mary Ann Largen, director of New Responses, Inc.
Ms. Largen, on behalf of the committee we are most grateful of your appearance this morning and look forward to your testimony.
STATEMENT OF MARY ANN LARGEN, DIRECTOR, NEW RESPONSES, INC.
Ms. LARGEN. Thank you.
Before I begin, I want to point out to the committee that my testimony this morning is going to be somewhat different in substance than the written statement which I furnished the committee prior to the hearings.
However, I would like that written statement to be used as background for the comments that I want to make today.
Mr. HANLEY. Without objection, your entire text will be incorporated into the minutes of this hearing.
[The prepared statement follows:]
PREPARED STATEMENT OF MARY ANN LARGEN, DIRECTOR, NEW RESPONSES, INC.
Between 1960-79 the percentage of working women in the United States' rose from 38 to 53 percent, with two million women entering the labor force in 1978 alone.1 Many economic and social factors have contributed in to this sharp increase in women workers. Among the more obvious are the need of American families to keep up with inflation, a significant increase in the number of households headed by women, and increased employement opportunities for women. Further, the changing social attitudes about sex roles in modern society has also contributed to the current influx of women into the work force.
Once in the work force, however, the expectations of women workers often collide with the grim realities. Women are more likely than men to be white collar workers, but the jobs they most frequently hold are usually less skilled and pay less than those of men. Likewise, while more women are moving into management positions, most women workers still have little autonomy or control over working conditions. It is this lack of control which has traditionally determined that working conditions women will tolerate, or believe they have to to tolerate.
From the early 19th century onward sexual harassment in the workplace has been one of those conditions which working women have learned to expect.2 Early reactions to this workplace hazard were divided into individual and group response.3 Those who saw sexual harassment as an individual problem (i.e., one's personal bad luck) were inclined to suffer the abuse in silence. Those who saw it primarily as a "social" problem; (i.e., a method of driving women out of the labor force or of reinforcing their feelings of powerlessness) began organizing around the issue. In the forefront of those efforts were unions, protective associations and settlement house organizations. Out of these early organizing efforts came a drive for protective legislation for women workers which began even before the Civil War. The focus of the legislative drive was upon the physical and "moral" safety of female workers. However, the laws were later overturned and in the 1870's a second wave of agitation for protective legislation began again -- this one surfacing periodically up until the present day.
With many laws now in place, attention is turning to the enforcement of those laws. And, as attention is being refocused, views of sexual harassment are changing. Sexual harassment is no longer seen as a social problem (i.e., a matter of sexual morals), but rather as an economic problem for women. Most importantly, it is being seen as a matter which directly impacts on equal employment rights for women.
IMPLICATIONS OF SEXUAL HARASSMENT FOR WOMEN WORKERS
Lin Farley, author of Sexual Shakedown,4 asserts that in analyzing women's higher unemployment, higher job turnover, and lower seniority rates than men, the impact of sexual harassment is significant. Where unemployment is concerned, Farley specifically refers to the fact that many women are forced out of their present jobs due to the intolerable working conditions which sexual harassment creates. Farley bases her rationale on the fact that at a time when male sexual harassment of working women is phenomenally high, the usual female response to the behavior is to quit the job, while a smaller number resist and are fired. A few, usually those with fewer job options, submit. In demonstrating the significance of this, Farley offers the following equation: High rate of sexual harassment equals high female resignations and job losses equals devastating emotional/economic impact on women workers, their attitudes toward work and their overall job market behavior.
A 1978-79 sample survey of 198 federal employees, conducted by New Responses, Inc.,5 bore out some of Farley's assertions. Of the 79 female workers in that survey who had experienced sexual harassment, 24 percent had had promotions withheld, 11 percent transferred to another job, 5 percent were fired and 3 percent are currently looking for another job. An additional 3 percent indicated that they had received a poor job performance evaluation. Another 20 percent volunteered that they had not experienced any retribution, but were expecting it. Therefore, it can be seen that full 39 percent or respondents reporting sexual harassment suffered direct retribution and/or job change as a result of their experience.
Further, Farley's assertions about the emotional impact of sexual harassment were also borne out by the NRI report: Respondents were asked to describe their feelings about the harassment. An overwhelming majority indicated anger as the predominant feeling, with feelings of helplessness running a close second. Many reported symptoms of physical illness. Most noted that even those situations which aroused only feelings of discomfort often interferred with their job performance.
A typical response came from one General Services Administration (GSA) employee, who said: "I was feeling ill quite often, head-ache, stomach trouble, etc. * * * not looking forward to coming to work." This individual ultimately had her promotion
2 Frank Carlton, "Crusade to Improve Working Conditions," Life & Labor, vol. 4, No. 4, pp. 108-109.
3 Mary Bularzik, "An Historical Analysis of Sexual Harassment in the United States," Radical America, vol. 12, No. 4, 1979.
4 Lin Farley, Sexual Shakedown: The Sexual Harassment of Women on the Job, McGraw-Hill, 1978.
5 Mary Ann Largen, "Report on Sexual Harassment in Federal Employment," New Responses, Inc. 1979
withheld and transferred to another job. Still another GSA employee who reported being "sick to my stomach with fear of losing my job" was, in fact, fired when she resisted the demands made upon her.
A Health, Education, and Welfare (HEW) employee who reported feelings of "anger" about the harassment received a poor job performance evaluation and volunteered that the: "* * * boss of the entire office finds women unqualified for promotion, yet his friends and buddies go ahead [are promoted]."
At the Labor Department one woman who was "angry" reported that she "first tried to handle it alone." Apparently that did not work, so she made a formal complaint. The result, she noted, was that she encountered discouragement and no disposition was made of her complaint. Perhaps she was lucky * * *.
A woman at the Department of Justice (DOJ) reported filing a formal grievance after experiencing verbal abuse and a poor job performance evaluation. Thereafter, she found that the harassment escalated into job threats. She is currently trying to find another job, but says she is stymied because the "supervisor will not give me * * * the form necessary to apply for a new job." When asked to evaluate the disposition of her case, she wrote: "the reprisals I have suffered due to my making this formal grievance have harmed me physically * * * it was not worth it * * * especially since management always wins."
When the job performance and/or job security of any employee is threatened because of the abuse of authority of another, management does not really win. However, the DOJ employee was expressing a real conviction of most sexually harassed women -- that management will always side with their harassers. The belief is that management will try to protect itself by protecting one of its "own." And, because of that belief, the majority of sexually harassed women prefer not to take a career risk by filing complaints. The vast majority of women who responded to the NRI survey resisted the demands but did not report.
In a similar survey of 114 female workers at the University of Vermont in 1978 6 22 percent of the 64 harassed respondents left the job they were in, while only 2 percent pursued legal action against their harasser.
The most obvious consequence of this form of victim response to sexual harassment is that women are experiencing inhibition, if not destruction, of their career ambitions which may keep them in the lower rungs of the job market. Yet, while this response remains the most frequently seen, a small number of sexually harassed women are beginning to emerge from their passive roles to fight back. Those who have done so already have made some major gains for working women. Already a number of courts have interpreted sexual harassment to be a form of sex discrimination under Title VII of the 1964 Civil Rights Act. More and more federal and state Labor Relations Boards, Commissions on Human Rights and Fair Employment Practices Agencies are beginning to address sexual harassment grievances. In 1977, in a move unique for state legislatures, the State of Wisconsin became the first to pass a state law which prohibits sexual harassment in employment and qualifies for unemployment compensation any person who quits a job because of such harassment. I understand that similar legislation is pending in New York.
In still another turn of events, a 1977 Class Action suit against Yale University produced a ruling which held institutions responsible when victims complain to officials and get no response. In that ruling -- which permitted the trial to go forward -- Magistrate Authur Latimer held in part that: "When a complaint of such an incident is made, university inaction then does assume significance, for refusing to investigate, the institution may * * * be held responsible for condoning * * * the employee's invidiously discriminatory conduct."
In still another case last year, Public Service Electric and Gas Company (New Jersey) entered into a settlement with former employee Adrienne Tompkins. That settlement not only involved monetary compensation for the complainant, but set forth mandatory company policies which included the following:
PSE&G must notify all its employees that sexual harassment is against the law and that the company has a duty to discipline its supervisors;
Personnel manuals will be changed to reflect the policy; and
A film will be shown to employees explaining their rights under Title VII.
The settlement was reached after a federal appeals court ruled against PSE&G on a Title VII suit brought by Tompkins.
Perhaps most unique of recent court decisions is a 1979 case involving the Southern College of Optometry. In that case damages of $8,253 were awarded to former
6 Joy Livington, unpublished thesis, 1979.
employee Ann Dacus. Dacus had sued the college for sex discrimination. In finding that college administrators had made improper sexual advances to Ms. Dacus and other female employees, the judge said: "While the refusal (of the women) to respond to sexual advances cannot be found to have caused a demotion or termination * * * nor the payment of a lesser salary, the attitude of the male hierarchy at the college towards subordinate female employees was one of the degradation which demonstrates a willingness and intent to discriminate against female employees."
In all these cases there are a number of principles being set forth: (1) sexual harassment should not be a condition of employment, (2) sexual harassment is being held a form of sex discrimination under Title VII, (3) employers may now be held responsible for the actions of their harassing employees; and (4) employers may now be held responsible for inaction or other forms of inadequate handling of sexual harassment complaints.
Encouraging as these trends may be, they still represent only a small percentage of the numerous inconsistent and fragmented court decisions which have been reached in recent years. Unfortunately, as the language of Title VII now reads, it is clearly up to the courts to determine whether or not sexual harassment is a form of sex discrimination. Even more unfortunately, the reality is that that decision rests on the shoulders of individual judges who carry with them to the bench their own personal biases about the role and rights of women, workers, and that constitutes acceptable or unacceptable sexual behaviors.
TITLE VII: THE SOLUTION OR THE PROBLEM
It would seem to this witness that a fair and reasonable approach to solving the problems generated by the lack of specificity of the Title VII language should be sought. Perhaps, for example, the language of Title VII could be amended to specifically include sexual harassment as a form of sex discrimination. A clarification of the Title VII language could produce a uniformity in court treatment of the problem. It could certainly go far in ensuring the equal status of female workers and offer a more viable recourse for many sexually harassed women. Hopefully, it might even cut short the amount of time and cost involved in filing a Title VII suit. As it now stands, most cases eventually end up in appeals courts and few women have the financial or emotional resources to endure a process which can take from 2 to 6 years or longer to reach a resolution.
SEXUAL HARASSMENT: A CULTURAL PHENOMENON
Not all cases of sexual harassment can or need end in the courts, however. Where there has been no retribution against the harassed employee, cases are often difficult to pursue through legal channels. Where the nature of the harassment has been more subtle or insidious, often internal personnel procedures might prove to be a better form of redress for the victim. Unquestionably, laws and court protections are necessary to protect the rights of workers. Laws and courts alone, however, cannot eradicate sexual harassment or the imbalance of power which fosters the behavior. It is a cultural phenomenon and will be eliminated only through resocialization and re-education. By "re-socialization" and "re-education" I refer to a change in attitudes as well as behaviors.
IGNORE IT AND IT WILL GO AWAY
The DOJ victim who stated "management always wins" was expressing more than just a personal bias which she (and many others) hold. She was also expressing a certain measure of truth. Sexual harassment exists, in part, because management permits it to exist. This is seen in New Responses (NRI) study.
In the NRI study we asked sexually harassed employees to identify the problems they encountered in making complaints. Of the 4 percent who had made formal complaints, 58 percent indicated that the bureaucratic red tape and delays were the most significant obstacle to reporting. What those delays in resolution mean for the victim are that her sense of job insecurity is increased, her job performance is further effected, and often she is left open for continued or escalated harassment of a sexual or other nature. Still another 25 percent indicated discouragement as an obstacle. For some, this meant that they were discouraged by the red tape and the long delays. For others, it meant that they were actively discouraged by others from making the complaint. One respondent reported that she was told that action on sexual harassment complaints was "rare" and that she would generate "a lot of hostility" by her complaint. Even co-workers proved to be a source of discouragement for some victims. Many reported that co-workers did not want to get involved -- especially when they needed witnesses. Others discouraged them out of fear
that there would be repercussions for other employees. Perhaps most discouraging was the NRI finding that 17 percent of the sexually harassed employees were actually intimidated while attempting to make a complaint.
Given the obstacles encountered in making a complaint of sexual harassment, it is no surprise that only 4 percent of the victims in our survey sought redress through official channels. Nor is it any surprise that 75 percent of those were dissatisfied with the reporting procedures and 83 percent with the disposition of their cases.
Since the NRI study did not attempt to identify the specific details of how the complaints were processed, we do not know what the procedures are for each and every federal department. We would expect sexual harassment complaints to be processed in accordance with procedures used for any sex discrimination complaint. However, we are not certain. Only two departments even have an official policy on the matter. One is the Department of Commerce which sent out a policy memorandum on September 15, 1979. The other is the Department of Health, Education and Welfare which has a policy that went into effect October 5, 1979.
The new DHEW policy takes a strong stand against the behavior as well as sets forth specific plans for actions to address the problem within the Department. Finally, it designates the EEO office as the authorized agent to process complaints of sexual harassment. This, we feel, is preferable to a policy which instructs victims to report to their supervisors.
In the NRI study we found that 67 percent of alleged offenders were supervisors themselves (either line supervisors, division heads, or administrators). Therefore, we feel that to expect a victim of sexual harassment to report the offense to her supervisor is like expecting a rape victim to report her rape to her assailant. Furthermore, we believe that victims should not have to make complaints to anyone who is in a direct line of supervision over them. Our concern is for both the protection of the complainant and the fair resolution of her case.
RESPONSE TO COMPLAINTS
Even the designation of another interagency official to receive complaints will not guarantee a satisfactory resolution of the complaint. It has too often come to the attention of the NRI staff that, on occasion, personnel and EEO officials are themselves sexual harassers. And, where this is not the case, it has also come to our attention that often these individuals are more concerned about protecting the department's reputation than about seeking a just resolution of a complaint. Some are fearful of repercussions for themselves if they pursue sexual harassment complaints too vigorously, while others do not seem to understand that the complaining employee should have as much protection as the alleged offender. In our view these staff members should be serving as employee advocates as well as management advocates. An employee advocate is one who protects the interest of all parties involved. In our view, too, the employer's best interest is served not by ignoring, covering up or trivializing employee complaints, but by addressing them fairly and attempting to correct any individual or situational problems which interfere with the performance of its employees.
At this time we are not convinced that federal management attitudes are conducive generally to the appropriate response to complaints of sexual harassment. Sexual harassment is seen as a "woman's issue" rather than an employment issue. It is frequently seen not as a real internal problem, but rather as an imagined problem fostered by outside agitators or activists. Therefore, it would seem in the best interest of complaining workers to establish a complaint and adjudication unit separate from the individual departments and agencies -- perhaps in the Equal Employment Opportunities Commission. Perhaps there the interests of all parties involved would be better served. Hopefully, there, the self-protectiveness which characterizes Departmental officials would not be the major concern in processing sexual harassment complaints.
In the interim, we would strongly recommend intensive training of all Federal EEO counselors and others who now handle complaints of this nature. Training could serve to improve the current response of federal agencies to the problem.
Sexual harassment is a very real fact of life for thousands of working women. It is the result of misuse and abuse of authority, inapproprate attitudes toward women and negligence on the part of employers. Blaming the victim will not make it go away. Ignoring it or trivializing it will not make it go away.
A QUIET REVOLUTION
By 1990, it is estimated that 52 million women will be working, or looking for work -- 11 million more than in 1978. However, unless women increase their representation in jobs formerly dominated by men, women workers will remain second-class citizens of the working world. We have already seen how sexual harassment contributes to a cycle of higher job turnover, lower seniority rates and lowered career expectations -- all factors which contribute to occupational overcrowding of women into a limited range of jobs on the lower end of the job scale. In this respect, sexual harassment may be seen as a "women's" issue. However, for employers to undermine the potential of women workers is not in the best interest of society as a whole.
Through EEO laws and plans the federal government has led the way in increasing job opportunities for women. Women in federal service make far more income than their counterparts in private employment. Therefore, it is appropriate that the federal government serve as a model to private enterprise in creating a quality working life environment which will remove sex discrimination in all its forms and protect the rights of women workers to the utmost extent.
The actions taken by the Departments of Health, Education and Welfare and Commerce are definitely a step in that direction. And, they should serve as a model for other departments -- especially if the policy is followed up by training and education of employees and managers.
Currently, discrimination laws are applied to only the most overt kinds of behaviors There are few or no protections for women who suffer the more subtle forms of harassing behavior. Most employers consider sexual harassment a "personal" matter between employers. Few have formal guidelines for lodging complaints and fewer still have a policy which prohibits the behavior.
Obviously, a policy stand alone will not totally eliminate the problems. Policy must have enforcement powers. Guidelines should be accompanied by actions which demonstrate the employer's intent to eliminate the behavior. Nonetheless, a strong policy stand could create an atmosphere of intolerance for the behavior. (Assuming, again, that policy is followed by Departmental actions). It could create a form of peer pressure to regulate employee behavior -- create, in effect, a taboo. This would be a taboo against the misuse of sex in the workplace. In a larger sense it would be a taboo against the victimization of women in the workplace. In the long run such a taboo might do more to eliminate sexual harassment in the workplace than all the courts in the land.
As Members of Congress, you have it in your power to direct federal agencies to take action to eliminate sexual harassment as a condition of employment. On behalf of the women who have been subjected to abuses of power in the federal system, I urge you to correct the inequities which sexual harassment in federal employment creates.
Ms. LARGEN. As Mr. Hanley indicated, I am with an organization called New Responses, Inc., and I would like to begin this morning by telling you something about New Responses and our involvement with the sexual harassment issue.
First of all, New Responses is a small, nonprofit organization of women's policy consultants based in the Washington metropolitan area. While we deal with the broader issues of violence against women and children, we do have a specific program on sexual harassment on the job.
The program includes research, educational programs for general audiences, and specialized training for employment counselors, managers, and administrators.
Over the past 2 years we have conducted educational workshops for various agencies within five Federal departments and have consulted with numerous others.
Recently, NRI published a report on sexual harassment in Federal employment based on a sample survey of 198 Federal employees within 3 of those departments.
Also, we have conducted a management training program for the D.C. Government under the auspices of the Office of Human
Rights. One unique thing about that training program is that it was the first such program sponsored by any U.S. city government.
Because of our extensive work on this problem, we are most pleased with the interest expressed by this subcommittee. We hope that our appearance here today will help you to reach a better understanding of the problems involved so that you can take constructive action to address those problems.
Sexual harassment on the job is not an easy problem to address. The very first difficulty -- and this was mentioned earlier -- is one encountered by researchers, educators, and others seeking solutions to the problem. It is the definition of sexual harassment.
Sexual harassment is a term used to describe a variety of undesirable sexual behaviors in the workplace. Some of these behaviors are overt in nature while others are subtle. Some are verbal, others involve physical contact.
We believe, however, that all forms could be broken down into two basic categories. We have labeled those categories "inducement" and "harassing behavior."
Inducement, as a form of sexual harassment, describes a situation where sexual compliance is proposed or exchanged for a job or job opportunities. The proposition may or may not be accompanied by a job threat or other forms of coercion.
Harassing behavior, on the other hand, describes situations where no job opportunity offers are made, but where the victims are subjected to behaviors ranging from nonphysical acts such as leers and innuendos to pinching, patting, and other forms of direct physical contacts.
Although suggestions or propositions may be made along with this behavior, they may or may not be accompanied by job threats or other pressures.
According to the New Responses survey of Federal employees, we found that harassing behaviors, other than inducement, were the most prevalent type of sexual harassment experienced by those employees in our survey.
Further, where inducements were offered, our survey respondents indicated that only 1 percent had complied with them. Therefore, my remarks today will focus on those continuing and repetitive kinds of harassing behaviors which affect the victim psychologically, affect the victim's job performance, or subject her to retribution or retaliation when she refuses the demands.
Although NRI -- that is the way we refer to ourselves -- continues to collect data on the scope of sexual harassment in Federal employment, we have, as I noted earlier, published a report based on the findings of an early survey in three Federal departments. A copy of that report has been furnished to all members of this committee.
And before I proceed to describe that report I would like to say here that the departments involved in our study have received a lot of media attention because of their participation. Unfortunately, some of them view that attention as negative attention.
However, I would like to say for the record that, given the reluctance of most Federal agencies to participate in surveys of this nature, I think the three departments that participated in ours should be congratulated for their demonstrated desire to identify
the scope and nature of the problem. They should, in fact, serve as models for management response by other Federal departments.
Further, based on the limited data we have collected in other departments, we have no reason, to believe that sexual harassment is any more rampant in these three departments than in any other Federal agencies.
Turning now to the survey, the survey instrument used by NRI was a four-page questionnaire designed to provide NRI with information on the scope and impact of sexual harassment in Federal employment. I believe a copy of that questionnaire has also been furnished to this committee.
The target population of the NRI survey was Federal employees based in the Washington metropolitan area. Our sample was taken from approximately 250 employees who attended workshops conducted by NRI staff members in the Departments of Health, Education, and Welfare, Justice, and the General Services Administration.
Although workshop attendance was higher than the 198 respondent figure, that figure represents those who voluntarily filled out the questionnaires we distributed to workshop participants. A sample description of those respondents is included in the NRI report which you have.
Rather than review the entire report with you at this time, I would like to just mention some of the more significant survey findings.
For one thing, when respondents were asked to identify instances of sexual harassment experienced by themselves and others, 40-percent reported they had personally experienced sexual harassment at some point in their Federal career. Another 36 percent said they were aware of others, usually coworkers, who had experienced sexual harassment.
And since there seems to be some focus this morning on percentages, I would like to say that we have some very limited data from the Departments of Labor and Commerce, which we have not yet incorporated into our major findings. According to that unpublished data, the 40-percent figure is about correct for the other two departments, also.
The harassment experienced by our respondents is not a singular occurrence. Sixty-nine percent of our respondents have experienced or are experiencing harassments on a regular basis.
Of all behaviors experienced by respondents, the majority, or 43 percent, have been subjected to physical abuse or contact, while 34 percent were subjected to verbal abuse or propositions. Threats about promotion -- 15 percent -- ranked equally with inducements, while threats about firing were experienced by 13 percent of the respondents.
We were appalled but not surprised to find that 4 percent of our respondents even reported victimization by raped or attempted rape.
Based on personal conversations with Federal employees who were raped and attempted rape victims, we feel that figure may be somewhat low. While this particular criminal act is not necessarily the inevitable consequence of sexual harassment on the job, it
certainly is not a unique result of that kind of behavior when it escalates.
As noted in my earlier written statement to this committee, a majority, or 39 percent, of harassed respondents did not report the behavior. Most respondents, however, did take some action to help themselves. Usually this was in the form of quitting their job or asking for a transfer.
As also indicated in my written statement, 59 percent of our sexually harassed respondents had suffered direct retribution and/or job change as a result of their refusal of the demands. Twenty percent had not experienced retribution but volunteered that they were expecting it.
Finally, and I refer you to my written statement, the overwhelming majority of respondents who reported harassment were dissatisfied with both the reporting procedures and the disposition of their cases.
It is clear from their responses that management response to sexual harassment complaints is woefully inadequate. There are a number of reasons for this:
Failure to take the problems seriously and lack of adequate departmental guidelines when processing complaints; confusion as to authorities and responsibility, and lack of departmental policy on the issue.
However, we at New Responses believe that inappropriate attitudes toward working women and an over-protectiveness of management's reputation are the major reasons for the difficulties that are encountered by complaining employees.
I would like for you to look now at page 6 of the written statement which you have and reiterate some of the problems noted there which were encountered by complaining employees.
In the NRI study we asked sexually-harassed employees to identify the problems they encountered. Of the 4 percent making formal complaints, over half indicated that the bureaucratic redtape and delays were the most significant obstacles to reporting.
What those delays mean for the victim are that her sense of job insecurity is increased, her job performance further affected, and she is often left open for continued or escalated harassment of a sexual or other nature.
Still another 25 percent indicated that discouragement was an obstacle. For some, this meant they were discouraged by redtape and the long delays. For others, it meant they were actively discouraged by still other individuals from making the complaint. One respondent reported that she was told action on sexual harassment complaints was rare and that she would generate a lot of hostility by her complaint.
Perhaps most discouraging was the finding that 17 percent of the sexually-harassed employees were actually intimidated while attempting to make a complaint.
Given the obstacles encountered in making a complaint of sexual harassment, it is no surprise that only 4 percent in the survey sought redress through official channels, or that 75 percent of that small number were dissatisfied with the reporting procedures, and 83 percent with the disposition of their cases.
Obviously, the victim of sexual harassment who chooses to make a complaint frequently finds herself in the same position as a woman who chooses to report a rape. She may be disbelieved, ignored, her credibility challenged, or her complaint may be trivialized. Reporting the harassment may expose her to retaliation and in the end nothing is usually done about the complaint anyway.
Women who have had that experience often share it with other women, so that the next victim remains silent and tries to deal with the situation by herself. The harassment goes unreported and management continues to pride itself on the fact that "we don't have a problem here" because no complaints are made.
Interestingly, at least to me as an educator, the problems encountered in conducting employee education seem also to be related to the problems encountered by employees in making complaints of sexual harassment.
After 2 years of working with the Federal Government I can say from personal experience that a great number of administrators and managers do not want the problem to surface. There is even resistance to employee education in many departments. Educating departmental employees it is feared will -- and this is a direct quote -- "invite trouble."
Initially, I admit to being perplexed by this attitude. In my own wisdom I felt administrators should see the benefit of education. Education serves many useful purposes, not the least of which is behavioral change.
However, I soon realized that while I was thinking about behavioral change on the part of harassing males, administrators were thinking about behavioral change on the part of harassed females. Education, they fear, will encourage women to come forward and make complaints.
So, from the perspective of many Federal managers, that type of change is not a desirable one.
It follows that where there is resistance to having employees learn of their rights and options, there will also be resistance to the exercising of those rights.
In the case of sexual harassment on the job, that resistance is not so much an open, aboveboard resistance as it is resistance based on a conspiracy of silence, silence which protects not only the department but the abuser himself.
Although some studies, such as the one undertaken at HUD, indicate there are instances of same-sex harassment occurring, most studies point to sexual harassment as primarily victimization of women by men.
In the NRI survey, all reports of sexual harassment involved a female victim and a male offender. I think the implications of this are very important.
In the NRI survey, 67 percent of alleged offenders were line supervisors, division heads, administrators, et cetera -- men in positions of authority. They are abusing that authority, and yet they are frequently protected in their abuse.
That protection involves, as I said, a wall of silence around the subject. Many of those who claim no problem because no complaints are received are also those who are subtly or overtly discouraging women from making complaints.
Many of those who deny the existence of a problem will find someone to blame, and these days it seems to be the news media. They say the media has created a problem where no problem exists.
Further, many of those who claim their agency or department doesn't have a problem are also those who don't want surveys taken in their office and don't want their employees educated.
So whether the problem is denied or ignored, the response results from the same desire -- that of protecting the reputation of the agency or the department. To protect, in effect, the power structure within that department or agency.
If our survey is correct, and we did not dream up our figures, it is members of that power structure who are harassing female workers. Women workers themselves are not yet a significant part of that power structure. So, as long as that concern for self-protection exists, it will stand as a bar to the elimination of sexual harassment as a condition of employment.
That is not the only bar to elimination of sexual harassment as a condition of employment. Biases, assumptions and inappropriate attitudes toward women on the part of employees and employers alike stand as a bar to elimination of sexual harassment.
The ultimate solution to the problem lies in attitudinal as well as behavioral change. Change of that nature, unfortunately, is a very long-term process.
So, in the interim, I would like to suggest that some of these following steps be taken:
One, I would suggest that all Federal departments and agencies have a specific policy stand against sexual harassment in the workplace. To my knowledge only two departments currently have such a policy.
That policy should be included in the department's standards of conduct and should provide for disciplinary and/or other actions to be taken.
Further, the policy should have adequate guidelines to aid those responsible for resolving sexual harassment complaints.
Two, since policy alone will not solve the problem, training of all supervisors, administrators, personnel and EEO staff should become an ongoing part of each department's training program. To date, no such training is generally available to Federal employees.
Three, education for employees should be an ongoing part of each department's EEO efforts.
I think unions should be involved in this issue. Unions representing Federal employees should establish a policy based on the following premises.
One, that rank and file has a deep and active interest in combating sexual harassment.
Two, that in-house education should be conducted to raise the consciousness of union representatives and increase their initiative in combating the problem.
Three, unions should seek to establish active working relationships with other interested groups with the aim of developing a well-defined aid program for the victims of sexual harassment.
Finally, Congress. I believe the United States Congress can also contribute to the elimination of sexual harassment in Federal employment through some, if not all, of the following actions.
One, there should be a clarification of the language of title VII of the 1964 Civil Rights Act to show that sexual harassment was always intended to be defined as a form of sex discrimination.
Two, there should be designated a special sexual harassment complaint and adjudication unit outside of the independent departments and agencies, perhaps within the EEOC. This would serve to both protect complainants from retaliation and focus on the fair resolution of complaints away from self-serving departmental interest.
Three, finally, we recommend that a review committee of non-Federal experts be appointed to work with the Merit Systems Protection Board in the pending study of sexual harassment in Federal employment.
Rather than a rubberstamp advisory group, I believe that committee should serve an oversight function to insure that the position of sexually harassed employees is as adequately represented in that study as is the position of Federal agencies.
The presence of a nongovernmental oversight committee might also serve to deflect any departmental obstruction of the study or manipulation of data.
In closing, I would like to refer back to my written statement where I quote a Department of Justice employee as saying she regretted filing her complaint because "management always wins."
I will leave you with the question, why do the victims of sexual harassment have to feel themselves pitted against both their offender and their employer? Whose interests are served?
I would like to thank the members of this committee for your attention.
Mr. HANLEY. Thank you very much, Ms. Largen, for your testimony.
And in response to your final question there, I think you would agree that the activity of this subcommittee is rather conclusive evidence of our deep concern and our very ambitious desire to eliminate this problem.
May I ask, in the course of your activity have you done anything at all in the private sector in this regard; that is, sexual harassment of employees in the private sector?
Ms. LARGEN. We have one associate, Dr. Joy Livingston, currently at William and Mary College in Williamsburg, who has conducted a survey of employees at a medium-size northeastern university in 1978 when working on her thesis. That is the only study conducted by anyone associated with NRI in the private sector and, I might add, the study was conducted before her association with us.
Mr. HANLEY. What did that work reveal? Are you familiar with it?
Ms. LARGEN. Yes; I didn't bring it with me today, so I can't remember the exact statistical figures, but they were very comparable to our Federal survey. For example, where we found 40
percent of our respondents were harassed, I think she found a comparable figure.
In terms of response -- whether victims reported their harassment or refused the demand and did not report -- her figures were also comparable. This was true where respondents were ask hypothetically what they would do in a harassment situation.
Mr. HANLEY. You are saying that one activity suggests that the scope of the problem in the private sector would parallel that which you find in the Federal Government?
Ms. LARGEN. Right. Since our survey samples were of approximately the same size, I would say so.
Mr. HANLEY. I see.
You stated that 17 percent of the sexually harassed employees were intimidated while attempting to make a complaint.
Could you tell the committee how they were intimidated and by whom?
Ms. LARGEN. OK. I have to search my memory now. In our questionnaire we had a numerical item labeled "intimidated", which a lot of women circled.
Others would volunteer information about their specific situations by writing in the margins. What I remember best about that particular portion of the survey is that they experienced intimidation at a number of levels.
One was when the person who was harassing them either believed they were going to make a report or found out that they had made a report, he would intimidate them to prevent them from pursuing it. It would be suggested that they discontinue the action.
Mr. HANLEY. If you would yield at this point, the suggestion is that the intimidation would be an unfavorable personnel report.
Ms. LARGEN. What was threatened sometimes was a poor job performance evaluation, no step increase or whatever raise was coming up.
If the woman was trying to seek a transfer, he might withhold the evaluation papers or whatever the appropriate papers were which she needed to keep her from making the job transfer. On a number of occasions firing was threatened.
Now, as we heard in earlier testimony, it is very difficult to fire anyone in the Federal Government. Yet we found that some of these harassed women actually were fired. That is more than can be said for their harassers.
So the threats really involved a variety of things.
One other thing that I remember specifically about that portion of the survey is that it seemed that in most instances where those threats were made, they were in fact carried out.
Mr. HANLEY. You are telling the committee that there are cases where women in the employ of the Federal Government have actually been fired by virtue of their failure to submit?
Ms. LARGEN. Exactly, and I understand that you are going to hear from one of those women in person later on this morning.
Mr. HANLEY. Several of the agencies have issued directives on harassment. However, I feel it is essential for OPM to take the lead so that we will have a uniform approach in both defining sexual harassment and in initiating a training program.
Would you be in agreement with this approach?
Ms. LARGEN. Yes; I do. I think it would be more uniformly carried out than if you leave it with the individual departments to take the initiative.
Mr. HANLEY. Thank you, Ms. Largen.
Mr. LEACH. Mr. Chairman, I have no questions.
Mr. HANLEY. Mr. Stenholm?
Mr. STENHOLM. How is your organization funded?
Ms. LARGEN. Through small grants, contracts, donations. We are nonprofit.
Mr. STENHOLM. A grant from whom?
Ms. LARGEN. We have received no grants to date, though we are eligible. When we do the educational workshops I was referring to, for example, we do them under contract to whichever department or agency that we are conducting the workshop at. If, for example, we do a workshop for the employees of the Department of Labor, it is under contract to the Department of Labor. With training, it would be the same thing.
I mentioned earlier that we have conducted a training program for the employees of the District of Columbia Government. That was under contract to the District of Columbia Office of Human Rights.
Mr. STENHOLM. Thank you. No further questions.
Mr. HANLEY. Thank you, Mr. Stenholm.
Mrs. SPELLMAN. Refresh my memory, if you will. Did you serve on the rape task force in Prince Georges County?
Ms. LARGEN. I certainly did, and I was thinking during your introductory remarks that of all our local politicians, you have always been at the forefront of remedial activities in a lot of areas concerning the victimization of women.
Mrs. SPELLMAN. Thank you very much. We certainly opened up a great many areas with that particular task force.
Ms. LARGEN. It was the first in the Nation, and I was proud to be involved with it.
Mrs. SPELLMAN. The national legislation that came as a result was based on the work that you folks did on that task force.
I might point out to my colleagues that it was a unique situation. The word "rape" at that time was something you didn't say out loud, and yet we knew this, of course, was occurring.
And we set up a task force that consisted of just about all of the people who might be involved in rape cases, including a person who had been raped and a rapist. We had the doctors who handled rape victims, we had the police and the sheriffs, and the psychiatrists.
Something came of the task force, and that is why I am so heartened by this particular hearing. I think when we open up a subject to the light of day, when we let sunshine in, then things happen, and changes are made.
I thought I remembered that you had served on it and I am just delighted, because I now know I can trust your judgment even more than I might have otherwise.
Tell me, what advice do you give to a woman who has been sexually harassed, and what legal steps do you tell her to take to protect herself?
Ms. LARGEN. Our advice is basically the same for everyone. Initially, we suggest that in order to protect herself from retaliation she try to talk first to the person who is harassing her, tell him how she feels about the behavior, and ask that he stop. If that doesn't work, we suggest that she be firmer with him, and suggest that if he doesn't discontinue the behavior, she will make a complaint. If the behavior then continues we suggest that she start trying to document her case.
Sometimes this means finding witnesses such as other coworkers who have observed or heard things that were said or done between her and the person harassing her.
We also suggest that she try to keep a diary of the events as they occur, the date, time, place, and what happened. Although the diary is not really conclusive evidence, at least it keeps her memory fresh and does lend some credibility to her story.
If she seriously wants to make a complaint through official channels, nowadays we recommend that she call an organization like the Women's Legal Defense Fund to get legal advice, or have some lawyer outside the Federal agency review her case and give her an idea of how strong it is if she decides to pursue the formal complaint process.
Initially, we didn't really stress that. It was something we told women they could do if they wanted to, but we didn't feel that until a complaint had actually been made she needed to get outside legal advice.
Now, given our experience of the past 2 years, we have found that the extent of retribution and retaliation is great against women who even make a verbal complaint In our survey most of the women did no more than go to a Federal woman's program manager or personnel officer and make a verbal complaint, or complained to coworkers. Even that often subjected them to retaliation when their harasser found out.
So to protect themselves fully we suggest early on that they try to get some legal representation for their own protection.
Mrs. SPELLMAN. You did some surveys in some of the agencies. Have you been contacted by any others who would be interested in having such surveys done?
Ms. LARGEN. Yes. We are working with the women's caucus at the Department of Commerce, leaders of the caucus are going to collect data from caucus members at the Department of Commerce.
We have also collected some very limited data from a Department of Labor workshop, but for the most part there is a real resistance to having us collect data from most Federal agencies.
I know that this is probably going to sound a bit extreme but I am being very honest in saying to you that we have even lost contracts for educational workshops merely because the agency found out that we have a survey capability. We exercise that capability totally at the discretion of each department. Our major focus is on education. If, however, the agency gives us permission while we are there we collect the data in conjunction with the educational process. Sometimes we do workshops, but no surveys. Most often both. That is because departments who are interested in the problem, usually are desirous of knowing the extent of the problem in their own offices. But some of them, as I said, are so
concerned about the fact that we have been collecting data and that we have that capability, sometimes we lose educational contracts because of it.
Mrs. SPELLMAN. Thank you, Mr. Chairman. I know my time is up.
Mr. HANLEY. Thank you Mrs. Spellman.
Ms. Largen, again, on behalf of the committee, our deep appreciation for your excellent testimony, and the time and effort you have given us this morning. We are most grateful. You contributed much to our deliberation.
Ms. LARGEN. Thank you for your interest.
Mr. HANLEY. Our next witness this morning is Ms. Helen Lewis, Executive Director of the D.C. Commission for Women.
Ms. Lewis, we appreciate your appearance this morning.
STATEMENT OF HELEN LEWIS, EXECUTIVE DIRECTOR, D.C. COMMISSION FOR WOMEN
Ms. LEWIS. Thank you very much, Mr. Hanley.
My name is Helen Lewis. I am Executive Director of the D.C. Commission for Women, and I appreciate very much the opportunity to participate in the hearings.
The D.C. Commission for Women is a statutory unit in the Executive Office of the Mayor of the District of Columbia. The Commission is authorized to conduct studies; review progress; develop, recommend and undertake constructive action; and initiate and conduct programs directed toward improving the status of women in the District of Columbia. Our priorities are improvement in the economic status of women and achievement of equality under the law.
The Commission is deeply concerned about the impact of sex harassment on the economic status of women. We are not talking about relationships freely entered into by consenting adults. We are talking about unwanted attention, demands or actions by supervisors or coworkers which directly or indirectly endanger persons' livelihoods.
In the course of the past 6 months, under the leadership of Commission Chairperson Carolyn B. Lewis and Sexual Harassment Chairperson Anne B. Turpeau, the Commission has devoted considerable time and effort to this issue.
We have exchanged advice and information with many individuals and groups, and have gathered some preliminary data in preparation for a carefully controlled survey program on sex harassment. We know that we are dealing with a serious and widespread problem.
The majority of working age women are now in the labor force in the United States, and our numbers are growing. The report published this year by the Urban Institute, aptly entitled the Subtle Revolution, reminds us that in less than a generation the size of the female labor force in the United States has more than doubled. We are told to anticipate that between now and 1990 an additional million women will enter the labor force each year.
If for no other reason than that such large numbers of people are potential victims of employment-related sex harassment, we must
grapple with this problem as quickly and as constructively as possible. We need to know how to root it out where it exists, how to prevent its occurrence in new situations, how to identify and punish its perpetrators, and how to assist its victims.
These hearings are very important and timely. They can help Congress and the public understand the scope of the problem and the need to commit resources to deal with it.
Mayor Marion S. Barry, Jr., issued his precedent-setting order prohibiting sexual harassment on May 24, 1979. A copy of that order, along with the final report of the Mayor's Task Force on Sexual Harassment, is appended to this statement for inclusion in the hearing record.
[The information follows:]
Government of the District of Columbia
OFFICE OF THE CORPORATION COUNSEL
WASHINGTON, D. C. 20004
May 18, 1979
MEMORANDUM TO: Marion S. Barry, Jr. Mayor THROUGH: Elijah B. Rogers City Administrator FROM: The Mayor's Task Force on Sexual Harassment SUBJECT: Final Report
Charter from the City Administrator:
On April 28, 1979, the City Administrator requested, on your behalf, that I serve as the Chairperson of a Task Force consisting of Ms. Anita Shelton, Acting Director of the Office of Human Rights, Burtell Jefferson, Chief of Police; Jose Gutierrez, Acting Director of Personnel, and Ms. E. Veronica Pace, Chairperson of the Women's Coordinator Program. The City Administrator indicated that the Task Force should advise you on how complaints of sex harassment in the District Government should be handled, and provide you with recommendations as to the action that should be taken when persons are alleged or found to have sexually harassed another person. He also advised that you wished to receive a report from the Task Force as quickly as possible.
The Task Force met on May 1, 9, 15, 16, 17 and 18. All members of the Task Force joined in the various meetings, but Ms. Pace, due to death in her family, was unavailable as we concluded our work. The Task Force submitted a report on May 4, 1979, that outlined our preliminary thinking. Since then we have met in extended meetings to discuss individual and collective thoughts. In addition, the Task Force received written
materials, including a memorandum from the Executive Director on the Commission on Women attaching several items from the Commission's files, and a number of calls were made to individual members of the Task Force from persons having personal complaints of sexual harassment or alleging such activities in District agencies.
This report contains a statement of some of the considerations behind the Task Force's recommendations. We appreciate the opportunity to serve on the Task Force and think our recommendations provide you with the basis for actions that will address immediate as well as long-term needs. Recent events and subsequent complaints have focused public attention on sexual harassment in connection with employment in the District Government. We have not taken lightly our assignment of defining an appropriate and effective government response. At the same time, we have been mindful of your need for an early report.
The conclusions and recommendations of the Task Force were developed in light of a number of concerns.
First, the Task Force decided it would confine its recommendations to matters relating directly to employment in the District of Columbia Government. It was our conclusion that certain areas of activity between persons who happen to be employed by the District government are beyond the legitimate interest of the government when that government seeks to intervene to determine rights and take corrective action. These areas include relationships that do not involve matters of supervision, ratings or other types of authority affecting either the specific or general conditions of a person's employment.
Second, it is important for you as the Mayor to make a clear statement that sexual harassment will not be tolerated by your administration. At the same time, because charges of sexual harassment are fairly easy to make and often difficult to prove as well as to refute, it is equally important for you to indicate that such charges are extremely serious and the decision to file a complaint must be weighed carefully. The effects on the person complaining and on the person accused can be serious with respect to personal and professional relationships, as well as future advancement in their job. The statement should also unequivocally
state that an inference of sexual harassment or advancement by means of sexual favors is totally unwarranted from the fact of high position or promotion in government. You may also want to acknowledge in your statement that the feminist movement has created an awareness of women's rights and a need for government to work vigorously to establish standards whereby all employees will be evaluated on the basis of merit and their professional capabilities.
Third, the Task Force was aware of the need to identify a new focal point in the District government where complaints of sexual harassment could be received and addressed. This new focal point would have to be free of any association with past activities or attitudes that would make it suspect in the minds of those who view themselves as the victims of sexual harassment. The focal point must be perceived as one which intended to follow through on legitimate complaints and would provide a fair procedure protecting the rights of those who accuse as well as those who are accused. In this connection it, therefore, seemed preferable to use, to the extent possible, existing procedures for handling these complaints rather than develop a new interim process or a new permanent process that had not withstood the tests of time and fairness.
Fourth, the Task Force recognized the need to establish guidelines for any governmental action that would be taken in future cases in which complaints of sexual harassment are found to be proved involving persons in supervisory positions. In recommending governmental action, the Task Force is of the opinion that careful consideration should be given to the responsibilities of the persons involved at the time of the alleged harassment as well as at the time that a finding is made. The type of action should also consider the nature of the charges, i.e., whether they involve verbal harassment or physical abuse or job-connected actions.
Fifth, the Task Force thought it important that its recommendations address not only the need to provide an adequate remedy for complaining parties, but also provide an opportunity for the government to take appropriate personnel action against District Government personnel. The heads of all Executive Branch agencies should be required to establish internal procedures for handling complaints of sexual harassment. This will indicate that you expect these matters to be resolved within the agency whenever possible on a continuing basis and that the heads of agencies are
to be responsible for seeing that the procedures work and that there is a working environment free of sexual harassment. In addition, because of the need to have a continuing capability to conduct investigations into complaints of sexual harassment the Task Force recommends that the Office of the Inspector General be provided with an investigative capability to handle these complaints.
Sixth, the Task Force is aware of the need for the Mayor to have a mechanism available to him and to senior supervisory personnel to address management problems which do not fall within the regular personnel process. It may be desirable for you to establish an advisory committee or place this responsibility in the central Personnel Office, which will have an Office of Employee Counseling. The purpose of that office could be broadened to address supervisory management problems and provide an avenue for consultations and contributions from persons and organizations outside of the District government. The area of sexual harassment as well as other employee issues may take on dimensions that cannot be predicted at the present time and you should have a mechanism available to address these matters other than appointing ad hoc task forces.
First, that the Mayor issue a statement of his policy on what is appropriate and acceptable conduct by employees of the District of Columbia. This statement should address conduct by supervisory personnel as well as employees being supervised, and set a general tone calling for mature and responsible behavior that recognizes or acknowledges the dignity and integrity of each individual. As Mayor you should remind all employees that employment in the District Government is based on the concept of merit and discrimination will not be tolerated. To assure that allegations of sexual harassment receive the full attention they deserve, the statement should announce the formal procedure for handling a complaint of sexual harassment, call for vigorous enforcement of that procedure and provide a definition of sexual harassment. The statement should be accompanied by a Mayor's Order that would establish a formal policy as well as indicate the procedure to be followed; the statement and Mayor's Order should also address the matters discussed above as concerns of the Task Force.
Second, that sexual harassment be considered a form of "sex discrimination" within the definition of that term in the Human Rights Law of the District of Columbia, Further, that
sexual harassment occurs when an individual in authority exercises or attempts to exercise that authority and power to control, influence or affect the career, salary or job of another employee or prospective employee in exchange for sexual favors. This may include, but is not limited to (1) verbal harassment or abuse; (2) subtle pressure for sexual activity; (3) unnecessary touching, patting or pinching; (4) constant brushing against another employee bodily; (5) demanding sex favors accompanied by threats concerning an individual's employment status; and (6) demanding sexual favors accompanied by implied or overt promises of preferential treatment with regard to an individual's employment status.
Third, that a special unit be established in the Office of Human Rights to handle complaints of sexual harassment. The special unit, which would report to the Director of the Office of Human Rights, would be responsible for receiving complaints in accordance with the basic procedures set forth in Mayor's Order No. 75-230 (October 31, 1975). These procedures permit the informal resolution of complaints when possible but also provide a formal complaint procedure involving hearings with due process protections. By defining sexual harassment as a form of sex discrimination, the procedures in Mayor's Order No. 75-230 provide a fair and established process to receive, investigate, and adjudicate complaints of sexual harassment. Employees should be encouraged to use this system when they think they have a valid complaint. Efforts should also be made to keep the allegations, investigations and findings as confidential as possible.
Fourth, that agency heads be held responsible for the development of an employment climate and a work site in which all employees can work free of sexual harassment. This will require good supervisory management techniques and close monitoring of office conduct. To assure that each agency has internal procedures for informal resolution of complaints of sexual harassment, agency heads should be directed to establish an objective complaint process to resolve complaints that are brought to their attention. In the event sexual harassment is found to have occurred, the regular adverse action procedure would be followed. Regardless of whether a complainant uses the agency complaint process, however, the special unit in the Office of Human Rights would be available at any time to all employees.
The head of each agency should be directed to take measures to assure that all agency employees are informed of the Mayor's Policy and Order and take preventative measures within the agency to assure a work environment that is free of sexual harassment including (a) amending the agency affirmative action plan to provide a focal point for the receipt and informal resolution of complaints, and (b) monitoring employee conduct to assure that sexual harassment is not condoned or encouraged. Guidelines for amendments to agency affirmative action plans should be developed by the Office of Human Rights so that agency plan amendments can be completed and a revised agency affirmative action plan submitted to the Office of Human Rights within 60 days.
The Task Force is available to brief you on this report at your convenience.
_______________________________ JUDITH W. ROGERS
Acting Corporation Counsel
_______________________________ ANITA SHELTON
Acting Director of the Office of
_______________________________ BURTELL JEFFERSON
Chief of Police
_______________________________ JOSE GUTIEREZ
Acting Director of Personnel
GOVERNMENT OF THE DISTRICT OF COLUMBIA
ADMINISTRATIVE ISSUANCE SYSTEM
Mayor's Order 79-89
May 24, 1979
SUBJECT: Sexual Harassment
ORIGINATING AGENCY: Office of the Mayor
By virtue of the authority vested in me by § 422 (2), (3) and (6) of the District of Columbia Self-Government and Governmental Reorganization Act, D.C. Code, § 1-162(2), (3) and (6) (Supp. V, 1978), and D.C. Law 2-38 (24 D.C.R. 2830), and in accordance with the personnel policies of the District of Columbia Government to assure fair treatment of applicants and employees in all aspects of employment without regard to political affiliation, race, color, national origin, sex, religious beliefs, age, marital status, personal physical appearance, sexual orientation or preference, family responsibilities, physical handicap or developmental disability, and to provide a proper regard for the rights of privacy and other constitutionally protected rights of citizens, it is hereby ORDERED that:
The purpose of this order is to establish clearly and unequivocably that the policy of the District of Columbia government prohibits sexual harassment of its employees in any form, to establish procedures by which allegations of sexual harassment may be filed, investigated and adjudicated, and to require agencies to establish affirmative programs within each agency, including internal procedures and monitoring, so that work sites will be maintained free from sexual harassment.
Amendment of Mayor's Order 75-230.
Section 2 of Mayor's Order 75-230, dated October 31, 1975, is amended by adding thereto the following as subsection e:
Sexual harassment shall be deemed to be a form of sexual discrimination which is prohibited under District laws and regulations, including this Order.
Section 3 of Mayor's Order 75-230 is amended by adding thereto the following:
Sexual harassment is defined as the exercise or attempt to exercise by a person of the authority and power of his or her position to control, influence or affect the career, salary, or job of another employee or prospective employee in exchange for sexual favors. Sexual harassment may include, but is not limited to:
verbal harassment or abuse;
subtle pressure for sexual activity;
unnecessary patting or pinching;
constant brushing against another employee's body;
demanding sexual favors accompanied by implied or overt threat concerning an individual's employment status;
demanding sexual favors accompanied by implied or overt promise of preferential treatment with regard to an individual's employment status.
Allegations of sexual harassment shall be fully investigated, and corrective or disciplinary action taken as warranted. Complaining parties shall be required to swear or affirm that the facts stated in the complaint are true to the best of the person's belief, knowledge and information.
Only those complaints shall be investigated which are filed by a person who at the time of filing the complaint is an employee of the District of Columbia, and which are directed against a person who at the time of the filing of the complaint is a District employee.
The complaint file, including all information and documents pertinent to a complaint, shall be confidential.
Office of Human Rights.
The Director of the Office of Human Rights is directed to establish within the Office a unit to receive complaints and allegations involving sexual harassment directed against officers and employers of the District Government. Such complaints will be investigated and processed in accordance with the procedures and authorities set forth in Mayor's Order 75-230. In the event disciplinary action may be warranted, the pertinent complaint file or files of the Office of Human Rights shall be made available to the Director of the Office of Personnel.
Responsibilities of Agencies.
Each Agency head shall within 60 days from the effective date of this Order amend the Agency's Affirmative Action Plan to indicate the procedures and authorities that will be established in the Agency for providing work sites free of sexual harassment, for monitoring working conditions so that instances of sexual harassment will be detected soon after their occurrences, and to provide for resolution of complaints within the Agency.
Agency heads who have complaints of sexual harassment brought to their attention shall promptly investigate and attempt to resolve such complaints. If a resolution cannot be reached in the Agency within 60 days, the Agency head shall refer the complaint to the Office of Human Rights.
The bringing of a complaint or allegation of sexual harassment to an Agency shall not bar nor preclude the complainant from filing a complaint with the Office of Human Rights pursuant to Mayor's Order 75-230.
Time Periods for Filing Complaints.
Only complaints of sexual harassment that concern incidents which occurred within a period of one year from the time the complaint is filed shall be considered.
The provisions of this Order shall be applicable to every office, agency, department, instrumentality and employee of the Government of the District of Columbia, except employees and personnel of the District of Columbia courts.
Effect Upon Prior Mayor's Orders
To the extent that any provision of this Order are inconsistent with the provisions of any Commissioners' Order, Order of the Commissioner or Mayor's Order, the provisions of this Order shall prevail and shall be deemed to supersede the provisions thereof.
The provisions of this Order shall become effective immediately.
Marion Barry, Jr.
Ms. LEWIS. This order establishes:
Clearly and unequivocably that the policy of the District of Columbia Government prohibits sexual harassment of its employees in any form.
Its purpose is also:
To establish procedures by which allegations of sexual harassment may be filed, investigated and adjudicated, and to require agencies to establish affirmative programs within each agency, including internal procedures and monitoring, so that work sites will be maintained free from sexual harassment.
Under the Mayor's order, sexual harassment can be said to occur when:
An individual in authority exercises or attempts to exercise that authority to control, influence or affect the career, salary or job of another employee or prospective employee in exchange for sexual favors.
The order establishes a special unit in the Office of Human Rights to handle employees' complaints of sexual harassment.
The Commission for Women has undertaken a major effort to document the incidence of sex harassment and to survey attitudes and opinions about how it can be remedied. Our planned survey is part of a comprehensive program that goes beyond District of Columbia Government, and includes the private sector. This program calls for training materials and workshops, employee counseling, legislation, documentation, public information, advocacy, support, and referral.
We have packaged these recommendations into a request for planning funds, now pending with the U.S. Department of Labor. The first phase of the funded project will be refinement of our questionnaire and development of a survey design. District of Columbia government will be the first population to be surveyed. The questionnaire will be applicable for use in the private sector and in Federal agencies as well.
We tested the first draft of our questionnaire with several organizations in the District of Columbia and reported the initial results
in an article in City Hall New Times on June 25, 1979. A copy of the article is attached for the hearing record.
Respondents reported personal experience with job-related sexual harassment ranging from verbal abuse and subtle pressure for sexual activity, on to demands for sexual favors with implied or open threats relating to jobs, promotions, or salary increases, and coercion that led to submission to sexual relations with a supervisor or coworker in several cases.
In a second test of the questionnaire, we surveyed an audience of approximately 60 persons at Andrews Air Force Base last month. Thirty-two questionnaires were returned. Among the responses, only five persons indicated having experienced no sexual harassment on their present jobs. Three indicated serious problems.
The dialogue at that meeting reinforced the reality of the problem. We learned that some supervisors had even attempted to discourage attendance of the noon-hour meeting, even though it had been officially authorized and attendance had been encouraged by top officials at the base.
Last week we tabulated a third batch of questionnaires from a test survey at a national meeting of women in policing -- responses from 19 policewomen from 19 different police departments.
"In your opinion, is sexual harassment a problem in your department," was one of the questions. Seven policewomen said yes, seven said no, and five were undecided.
In the seven departments where sexual harassment was considered a problem, each individual reporting indicated that she personally had experienced multiple instances of verbal or other subtle harassment, and several reported serious harassment such as demands for sexual favors with implied or open threats related to their jobs.
It is noteworthy that even among the 12 respondents who did not identify sexual harassment as a problem in their departments, there were reports of multiple experiences of verbal or other subtle harassment, and one report of demand for sexual activity.
Some respondents wrote comments such as these: "Perhaps the worst thing about sexual harassment is that women have been socialized to feel flattered by much of it * * *" and "As soon as I had succeeded on the job, the sexual harassment increased. It was all verbal, remarks trying to discredit my character * * *"
One policewoman offered tough advice. She commented, in response to the question, "If you have ever been sexually harassed on a job, check any or all the actions you took the first time it happened,": "I made it known to the harasser I found such actions intolerable and" she responded, "threatened to break his arm."
Another strong response from a policewoman indicates the importance of having a clearly understood departmental policy regarding sexual harassment.
The question was: "If a coworker asked for sexual relations and you refused, how many times would it have to happen before you considered it sexual harassment?"
Answer: "He can ask all he wants if he's not in a position to
And to the question: "If a supervisor asked for sexual relations and you refused, how many times would it have to happen before you considered it sexual harassment?"
The answer was clear and decisive: "Once. And action would be taken by our internal squad."
Let me pause here to point out this person was making the distinction between overtures that she could handle because the person who was making the overtures had no power over her.
He could ask as long as he wanted and it wouldn't be a problem. Once he threatened her with rape, that would be a problem and it would be handled immediately.
But a supervisor who is in a position to control her job, once, and she would turn it over to the internal squad.
Her comments shows not only that this woman understands the problem. They also indicate that she knew that she had a way to handle it in her department because there was a policy, there was a place for her to report, and that she had confidence that her complaint would be handled.
Sexual harassment is a problem in settings other than the employment setting, and I want to make that point with you very strongly here.
Our questionnaire elicits information about the possibility of sexual harassment in educational institutions and in connection with consumer and other services.
We have reports in our preliminary data collection of harassment by persons in the following categories: Physician, psychologist, lawyer, social worker, taxicab driver, salesperson, construction worker, educator, job trainer, minister, detective, librarian, regional director of a Federal agency, realtor, auto mechanic, small business owner, and reporter.
I have some recommendations to offer to the committee. The problem is real. We believe it is pervasive. Clear and stern policies must be articulated and enforced so that supervisors and coworkers alike will understand the penalties of unacceptable behavior.
Employees must have clear and ready access to persons who can counsel and guide them in dealing with sex harassment problems and help them with the filing of grievances. Federal agencies must allocate the resources necessary to document the full extent of the problem and to train personnel to deal with it. Ultimately, all employees must be assured of worksites free of harassment.
Our Commission urges the full use of administrative and civil remedies, but we also call for adoption of legislation that would provide criminal penalties. Our proposal for revision of District of Columbia sexual assault legislation defines four degrees of sexual assault and four levels of punishment.
Certain types of job-related sexual harassment, if they include sexual relations or sexual contact, would be covered by the law and would be punishable by imprisonment or by fine or both.
We know that a problem as endemic as sexual harassment will not be brought under control by isolated measures. We must make a broad attack and we must enlist the support of victims. The Commission encourages victims to use available remedies and we try to provide guidance and support to the extent we can.
We believe that thought needs to be given to the use of criminal law in cases of extortion, blackmail, and conflict of interest where sexual favors rather than money or other items of value are sought.
We urge officials to use available disciplinary options, including demotion and firing, against persons found guilty of sexual harassment.
Many victims of sexual harassment who have nowhere to turn for aid and comfort bear severe emotional burdens. In recognizing this aspect of the problem, our sexual harassment committee will be concentrating in the immediate future on ways to help victims cope with stress related to sexual harassment in the workplace.
We receive numerous calls each week in our office asking for information or advice related to sex harassment. When we tell callers now of our plans for a meeting on the subject of coping with stress related to sexual harassment, they express a sense of relief knowing that this subject will be discussed. They tell us they need help in this area. Some of our calls have been from women in Federal agencies. We hope that help will be on the way soon to all who need it.
Thank you again for holding these hearings which we consider so important and for giving us the opportunity to participate.
Mr. HANLEY. Thank you very much. Miss Lewis, for your very fine testimony. It is indeed heartening to note what is occurring in the District of Columbia. I was appalled with some testimony offered this morning relating to a court case in the District of Columbia, it said:
For example, the lower court found that a pattern of sexual harassment on the part of three of the plaintiff's supervisors was proved. Indeed, the Court found that the making of improper sexual advances was considered normal condition of employment in the office of District of Columbia Department of Corrections where the plaintiff works.
Well, that was most disheartening, a very appalling situation. That existed in mid-1978, a year or so ago. It is most heartening to note the program that has since been developed.
May I ask, have the number of complaints diminished since the Mayor inaugurated this activity?
Ms. LEWIS. I am sorry to say, sir, that I am not prepared with any statistics on complaints. I think that kind of information will have to come from our Office of Human Rights. It may be possible to find the answer to that.
Mr. HANLEY. Fine. We will direct the staff to check with that office for some more statistics. Yours could well be a prototype which we would want very much to examine. The task force report raised the issue of protecting a supervisor against frivolous complaints. May I ask what have you done to protect supervisors from this potential abuse?
Ms. LEWIS. Well, I think that the Mayor's order incorporates that concern on the part of the task force which reported to him. There is a definition of the kinds of actions that are considered to be sexual harassment and there is a careful procedure of taking the complaint in a confidential setting and investigating to make sure that people are simply not bringing complaints that may have their roots in other causes; I think the order provides the same
kinds of protections that exist in regard to complaints that are brought on the basis of race or other kinds of sex discrimination. In those cases, too, you must take all kinds of steps to protect individuals against frivolous complaints. They are just as serious.
Mr. HANLEY. In the event of a malicious complaint, what action would be taken against that employee?
Ms. LEWIS. I don't know how it would be established, what the motivation of an individual was, and whether or not a complaint was malicious. If a complaint was groundless, a case would obviously be dismissed before any public charges would be made against a supervisor or an employer. I think the system of investigation carries with it a kind of protection against public exposure on the part of a complainant who may have a groundless complaint.
Mr. HANLEY. Do the Mayor's regulations apply to those who are serving the District of Columbia under contract?
Ms. LEWIS. I think the Mayor's order is really a first step to deal with a big problem. I think the first step spells out most clearly what the procedures are in regard to dealing with problems of sex harassment in the employment setting now within the District of Columbia. It is clear to the commission for women that more attention needs to be given to the procurement problem and also to coverage of people who are covered by human rights law in the District of Columbia but who are not necessarily employed by the city government.
Mr. HANLEY. Thank you, Ms. Lewis.
Mrs. SPELLMAN. I would like to congratulate the District of Columbia and the Mayor for the action they have taken. I think that is pretty fabulous. If that sort of thing were followed around the country a great many changes would take place. Of course the next part of it will be the enforcement, and we will be watching that very carefully to see what kinds of problems you have in the enforcement. I know that the intentions are good; how to go about making this happen will be important. But an attitude has already been set by the mere fact that such an order was issued and the Mayor, as I recall, made it very clear that he meant what he was saying about it.
Has the Mayor given the D.C. Office of Inspector a general investigative capability for handling harassment complaints?
Ms. LEWIS. I believe that the Office of Human Rights has the authority right now to move ahead with the problem of sexual harassment. That is where the effort is concentrated.
Mrs. SPELLMAN. It will be there that you handle it?
Ms. LEWIS. Right.
Mrs. SPELLMAN. Very good. I probably have a thousand questions that I would like to ask but we are running a little late on time. Just one, if I may.
Would you elaborate a bit on what you expect to do with respect to training workshops and employee counseling?
Ms. LEWIS. Yes. For example, Ms. Largen from New Responses, Inc., mentioned earlier, having done a training program for District of Columbia government. The commission for women cooperated with the Office of Human Rights and the Office of Personnel in helping to structure the setting for those training programs. The
idea was to start some training at the top and to begin to filter down, to give managers the capability, the potential of beginning to train others.
We are going to be doing a training program in 2 weeks in connection with Women in D.C. Government Week, making available a film, a discussion, and a panel; we will have someone who is an actual victim of sex harassment. We will discuss our questionnaire and engage in some consciousness-raising conversation there with women program managers and others in District of Columbia government who in turn will be able to fan out in their agencies to do additional training of this kind.
Mrs. SPELLMAN. Very good. Thank you for your testimony. It has been most enlightening.
Ms. LEWIS. One other thing I would like to mention. The subject of the private sector came up a number times in the course of the hearing this morning.
I would like to say that we have initiated some conversations with the D.C. Advisory Committee to the U.S. Commission on Civil Rights, and together we expect in the very near future to be outlining the possibility of some hearings in the District of Columbia focusing on the private sector, encouraging employers to consult with us and to help us to understand how they view the problem and what kinds of steps they are taking in order to help assure worksites free of harassment. We think that will be an interesting undertaking.
Mr. HANLEY. Well, thank you very much, Ms. Lewis, for your time and effort this morning. Again we commend you and your associates for the initiative that you have taken in the District of Columbia. You are apparently leading the pack, so to speak.
I am advised by our counsel that this committee has been working with your associates in this regard; we will continue to work along with your people. We are delighted with this spirit of cooperation.
Thank you very much.
Ms. LEWIS. Thank you.
Mr. HANLEY. Our next witness this morning is Ms. Diane Rennay Williams.
On behalf of the committee we are most appreciative for your time and effort this morning. We look forward to your testimony.
STATEMENT OF DIANE RENNAY WILLIAMS, PLAINTIFF,
WILLIAMS VERSUS SAXBE
Ms. WILLIAMS. Good morning.
Members of this subcommittee, I am very pleased to be here despite the circumstances surrounding our being here this morning. I am supposedly the plaintiff in the landmark 1976 decision known as Williams v. Saxbe. However, recent developments in that case make me feel as though I am the defendant instead.
I would like to reinforce some of the statements made by Ms. Lewis earlier, particularly concerning the need for adequate relief and protection to women who complain of sexual harassment and to mention, second, that I think there are already sufficient protections to alleged discriminating officials in the case of sexual harassment complaints, because quite often it is the woman who is made
to feel as though she is the culprit, by having the audacity to bring forward a complaint of sexual harassment, rather than the man who is actually guilty of perpetrating what I consider to be a criminal offense.
In many instances we have heard recently about women actually being assaulted. In my particular case I was not physically assaulted. However, some of the remarks, very suggestive remarks which were made bordered on being really disgusting and tasteless and the emotional trauma that has been wreaked upon me in the last 7 years that we have been litigating the case of Williams v. Saxbe, now known as Williams v. Civiletti -- and I might mention we have sued every Attorney General since Mr. Kleindienst was in office -- led me to believe, who really cares whether or not women are being fairly treated on the job scene, especially in Federal Government, especially when you notice in this particular case the Justice Department is the defending agency?
And when you take note of the fact that the Justice Department is the agency which represents the Federal Government with respect to employment discrimination cases against private employers, it seems to me ironic that such an agency would pursue litigation, very vexatiously in my opinion, for 7 long years. It simply has no case, it cannot prevail on the merits and, in the meantime, I am being made to feel as though I am the defendant in the action
The Justice Department is bringing my personal life into the controversy. It has sought to involve my family directly. I might mention that earlier this year my mother was deposed as a witness by the Government and my family relationships have been invaded, my personal privacy has been invaded. The Government is now trying to make me out to be a, "loose woman," whatever that means and is relying on my former supervisor as its primary defense.
At the present time I don't know if you have been made aware of the fact, however, for 5 years approximately, my supervisor contended he was completely innocent of any wrongdoing. He never touched me physically, he asserted under oath, and he had not been guilty of any of the offenses with which I charged him.
Basically I said that he appeared to be friendlier with certain staff members than he was with others and that his memorandums, frequent memorandums critical of my professional ability as well as me as a person, were directed toward the fact that I had refused consistently to go out with him after office hours for whatever purpose, whether it was for a date or an affair or whatever. Since that time within the last 2 years my former supervisor now contends that we had "an affair" and that I became angry when he ceased the affair and that he fired me for the good of the service.
Well, for 5 long years he contended that he fired me because my work performance was clearly unsatisfactory and he made me out to be such a totally obnoxious person that it was for the good of the Federal service that he fired me. However, the allegations that he made at the time 5 years ago in firing me with 25 minutes notice on a Friday afternoon were that I had made "false, malicious and slanderous statements against CRS officials," meaning Community Relations Service of the Justice Department.
Now, however, the Department of Justice seems to be relying on the fact that my supervisor is now willing to perjure himself and say that we had an affair and that I became angry, when he terminated that affair and that he found it necessary to fire me and probably that he was saving my reputation by saying these other allegations were the reason for my being fired, namely my unsatisfactory work performance and my supposedly negative attitude.
I have explained consistently that if by negative attitude he meant that I said no, I simply was not going out with him after work and no, I simply was not going to have an affair with him because I thought I could rely on my job skills, the civil service system says merit, it doesn't have anything to say about a woman having to succumb to the personal tastes of her supervisor, and I relied on my skills as a professional writer, as public information specialist, as a public relations specialist, as a journalist.
I considered that to be what the civil service system meant by merit. I did not consider it to mean that I would be promoted, I would be receiving job training opportunities simply by virtue of the fact that some man liked the way I looked, my physical appearance. Consequently we are now waiting for what is called the trial de novo.
I might explain that very briefly because it is a rather ironic situation. We originally asked for a trial de novo, which simply means a full-scale trial. At that time the Supreme Court had not decided the Chandler v. Roudebush case and the Justice Department vigorously opposed our having a full-scale trial. Consequently we asked for the judge to review the administrative record which resulted from two administrative hearings before the Civil Service Commission, now known as the Merit Systems Protection Board and the Office of Personnel Management.
The first hearing examiner found no discrimination. We then went to the Federal district court, suing under title VII of the 1964 Civil Rights Act as amended, and the judge suggested that the case be remanded to the Civil Service Commission for a second administrative hearing, placing the burden of proof on the Justice Department to come forward with proof showing that I had not been the victim of discrimination because he said initially it seemed as if the plaintiff, meaning Diane Williams, had been wholly carrying the case, the whole burden of proof had been placed upon my attorney and myself.
Consequently, the second hearing examiner, going by what Judge Richey had said, found that the Justice Department had failed to carry that burden. It had not come forward with sufficient evidence to show the absence of discrimination and he ruled in my favor, saying that I had been discriminated against because of my sex as a woman, and that the termination should be rescinded, and it was unwarranted and I should be reinstated with back pay, promotion, and that the Justice Department consider taking appropriate corrective action against my former supervisor.
We then went to the Justice Department once again, as is required by the regulations, and the Justice Department refused to accept those findings and recommendations and thus we had to go back to the Federal district court to seek relief. The Federal district
court judge, Judge Charles Richey, after approximately a year, said yes, there is sexual harassment here and Ms. Williams was not the only person subjected to such sexual harassment, and he ruled in our favor.
What has happened in the meantime is that initially the Justice Department argued that Ms. Williams was not the victim of sex discrimination; it was not because of her sex, being a woman, she was discriminated against, but it was simply by virtue of the fact she refused to provide the "sexual consideration," that was claimed to be demanded of her.
Now the Justice Department is relying on my former supervisor's testimony that he and I had an affair. This flies in the face of the fact that in the last few months we have had one of my female former coworkers to come forward and say that she and he were having an affair during the time that I was working at the Justice Department and he supposedly was having an affair with me.
I might mention also that this gentleman is married. He has had one of his personal confidants and friends to come forward to submit some testimony on his behalf to testify as to the fact that my supervisor was having personal relationships with women in the office and outside the office before, during, and subsequent to my tenure with the Justice Department.
My mother has been deposed as a witness by the Government. She has been called upon to attest to my social activities, whatever they may be. And she virtually has had to serve as my alibi to attest to the fact that no, I did not go out two or three times a week; no, I am not the disco queen of this city; and no, I did not have a personal relationship or an affair with this gentleman during that particular time or any other time.
I have been very vocal about the fact that I did not want my family brought directly into this controversy. I thought my private life was irrelevant to the fact that I had complained of sexual harassment.
I think over the past 7 years the Justice Department knows as well as we do that they simply do not have a case and that the allegations I made 7 years ago have been substantiated, whereas the allegations made by my former supervisor as to my work performance and to me as a person have simply not been substantiated and we have had very much of a problem over the past 7 years. The whole case has dragged on for much too long as far as I am concerned. However I don't intend to quit now. They probably don't intend to quit either.
One of the problems that I have had recently is that whenever I protest, whether it is via the media or via one of the numerous occasions on which I have been called upon to answer a new allegation that has been made against me, I have protested, consistently and vigorously, and as vigorously as possible, and I will continue to do so. Upon doing so the Justice Department characterizes me as the lady who doth protest too much.
In an interview yesterday afternoon with a reporter I suggested that I wanted to serve notice on the Justice Department now and in the future I will continue to protest as long as the case of Williams vs. Saxbe continues and I will not be bulldogged by the Justice Department or anybody else when it comes to litigating
this matter. I feel it is a matter of time before we will prevail but I think we will prevail on the merits of the case.
I am pleased to be here today and I congratulate this subcommittee for holding these hearings and I look forward to all women in the Federal Government as well as in the private sector coming forward to protest incidents of sexual harassment and to get over that initial embarrassment, initial humiliation and degradation that one feels, and to protest as vigorously as possible and not let the problem continue to go unreported and unchecked and uncorrected.
Insofar as Ms. Lewis mentioned earlier, I welcome the D.C. code, I think it is a very positive example of what can be done to try to ameliorate the situation. You might also be interested in knowing that the State of Wisconsin has similar legislation on its books now. I think these are progressive examples of what can be done to try to correct the situation.
I feel as though women who complain of sexual harassment are often put in the place of women who complain of physical assault. I think we have to get over that embarrassment. It was terribly humiliating for me to have to cope with a situation whereby I was accused of such egregious offenses that I found it very difficult to deal with, let alone verify, to talk about. I am getting over that embarrassment after 7 years and I think it is time for other women to get over their embarrassment as well and to come forward.
I think the men who are guilty of sexual harassment ought to pay and pay dearly. I think the litigation going on now with the Justice Department is nonsensical. It has to be curtailed. If these alleged discriminating officials who are actually proved to be discriminating have to bear the burden of the attorneys' fees that are eventually awarded, there wouldn't be this long-enduring litigation.
As plaintiffs in these cases have probably found out and will find out, you have to find the money somewhere to take on the attorneys' fees. I was very fortunate in being able to get an attorney who agreed to take the case on a contingency fee basis. One of the problems I feel with that is that the courts have not been particularly generous in setting attorneys' fees for prevailing plaintiffs.
As you may know, there was a case earlier this year whereby the Appellate Court set aside a $106,000 award of attorneys' fees to a very prestigious law firm here; $106,000 was not overly generous as far as I am concerned when you consider the length of time these cases go on. I think one of the problems that we are having now is that the attorneys simply can't afford to take on these cases. If you don't have an attorney you can't get through the rather long, protracted, innocuous procedures presently set up for Federal employees to process their complaints.
Now I am encouraged by the fact that the Equal Employment Opportunity Commission is now processing the complaints of Federal employees. However, it still does not have the same authority that it has with respect to the private sector. Presently the Federal employees don't have the same kind of EEOC-type agency that private sector employees have. We have nobody who can intervene on our behalf. We have to go it alone or find the help of some organization such as the NAACP or ACLU, or the Women's Legal Defense Fund.
However, quite often these agencies, these organizations don't have the resources to engage in litigation and they don't have the staff help that they need to involve themselves in the numerous cases that have been filed by Federal employees and, as we all know or I hope we know, it is not particularly difficult to fire a Federal employee, as we know from the recent situation surrounding Mr. Dodd of the Interior Department.
I had a similar situation whereby the allegations that were made against me have not be substantiated, nor was my supervisor called upon to substantiate those allegations. I was fired with 25 minutes' notice on a Friday. If we had had adequate notice, at least 48 hours as we requested, I would have been able I hope to go into court and get a restraining order. However, I am sure they knew as we did that that was the purpose of asking for notice before they fired me. Consequently, we got no notice.
So I am very pleased to see all of you this morning. I hope that we can put together a nice report and after that have some follow-up to find out exactly what is happening with respect to women who make complaints of sexual harassment. I feel as though we do need training for the counselors in EEO, we do need training for the investigators, we do need training for the hearing examiners.
With the exception of one person involved in my complaint during the administrative hearings, I was very much dissatisfied with the manner in which they conducted themselves during the hearing; I was very much dissatisfied with the fact that they seemed to be insensitive to the problem I was facing, especially the emotional dilemma that I then found myself in, and very unaware of how to address the situation because it was one of the early cases that had to do with the problem of sexual harassment.
Second, I think that the courts have not been as generous as they might be in terms of fashioning appropriate relief for prevailing plaintiffs and in awarding attorneys' fees. I think if we can do something to remedy those particular problems we might be able to facilitate the possibility of women coming forward and making their complaints of sexual harassment.
And if we take, third, some type of action with respect to not the alleged discriminating officials but those officials who are actually found to have discriminated, I think if they are made to pay for the harm that they do, I think we can remedy the problem at least to some extent and help put women complainants in the place where they would have been but for the unlawful discrimination.
I think that is one thing that has been lost sight of in my case; whereas the hearing examiner recommended reinstatement, back-pay and promotion for me with corrective action being taken against my supervisor, the Justice Department has lost sight of the target that title VII says I am to be made whole, that is to include a whole range of remedies to put me back in the position where I would have been had it not been for its unlawful discrimination.
I thank you very much and I would be happy to respond to any questions that you have.
Mr. HANLEY. Thank you very much, Miss Williams. You certainly articulate your position eloquently and I commend you. You have been through a rather trying 7-year period, obviously.
For how long were you employed by the Federal Government?
Ms. WILLIAMS. I was employed by the Justice Department in January of 1972 as a GS-7 public information specialist, and less than I month later I was promoted to a GS-8 public information specialist. My employment with the Department was terminated at 4:35 on Friday, September 22, 1972.
Mr. HANLEY. Your tenure was rather brief.
Ms. WILLIAMS. Very brief compared to the length of the litigation.
Mr. HANLEY. Other than the case in point, during that brief tenure were their any other overtures of harassment that you were subjected to?
Ms. WILLIAMS. My supervisor appeared to have a rather notorious reputation within the agency. I was not aware; of that fact before I started my employment with the agency. I came to be aware of that fact shortly thereafter.
However, initially I experienced no problems with him. I had a very heavy workload of which I was very much appreciative. It gave me an opportunity to show what I could do, my skills as a writer, as an editor. We got along rather well. We experienced no problems as far as I was concerned until approximately June or July of 1972.
It seemed to be a contest between not only my supervisor but other members of the executive level staff, which was comprised of all men, as to which one of them was going to be able to take Diane Williams out first and which one of them was going to be able to take her to the poshest restaurant in town.
The court has noted in the case -- it is in the testimony of several witnesses and it is in the court's opinion in the 1976 decision -- that there was a pattern and practice of sexual harassment at that agency, and not only was Diane Williams subjected to this treatment but other women were similarly subjected to such treatment.
The problem was that it was considered to be a game. It was all in fun. There was no evil intention behind it, and no one had complained about it beforehand.
I mean, let's face it, who is going to complain about receiving a promotion that one doesn't necessarily deserve or that probably would not come for another year or two. Why not get the promotion now, regardless of the basis for that promotion.
Mr. HANLEY. Well, in recognition of the problem that you developed, certainly you had to attract attention in the sense that other women who may have been subjected to similar harassment might have contacted you to say, "I know what you are talking about. Here is what happened to me."
Did that occur many times? Have you heard from many women who said, "Yes, it occurred to me, too?"
Ms. WILLIAMS. If you understand the context of that particular situation, that agency, the Community Relations Service, has had several suits filed against it. And if I am not mistaken, the last I heard, all of those suits had been won by the plaintiffs.
There were at least two other cases of sex discrimination, not involving sexual harassment, however, won by women plaintiffs. There was at least one indication of racial discrimination.
The women did not sympathize with my plight, however, and I found it rather cumbersome and awkward to talk to other women
about the problem, particularly since the climate of the agency was not conducive to employees getting together to discuss problems.
If we did so, we did so very clandestinely because it had been known that the then director of that agency did retaliate against certain employees who were friendly with those employees who had either filed discrimination complaints or had been very vocal about certain procedures that were then being carried on in the agency.
And we were all very frightened people, and I think some of us were probably just as frightened as those who did not complain by filing a discrimination complaint. And we were very reluctant to talk to people who were not experiencing severe problems, problems severe enough to complain about openly, because we did not want them to be the victim of retaliation.
We simply did not want them to be labeled as personna non grata and then to incur the wrath of the director, whether that was because of -- in one case an employee went to lunch with an employee who was on the outs, so to speak, with the director, and that employee was reprimanded subsequently by the director.
No one wants to jeopardize anyone else's security when it comes to employment, and certainly that was not my intention. So I kept to myself rather than to face the possibility of jeopardizing someone else's job.
I knew that there was a possibility and a very good possibility that once I did seek outside help, especially in terms of filing a formal complaint of discrimination, that I was going to be fired. Consequently, I did not want that same problem visited upon another employee.
Mr. HANLEY. For the record, what was the purported reason for your dismissal?
Ms. WILLIAMS. Supposedly, I had very poor work performance and had a very negative attitude, and I made "false, malicious, and slanderous statements against community relations service officials.".
I might add that later allegation about the false, malicious, and slanderous statement is still in my Federal personnel file, and whenever I apply for a Government job, whether it is in the Federal Government or State and local government, all the employer sees is that I supposedly made a false, malicious, and slanderous statement.
There is no explanation in the record that I was fired right after I filed a discrimination complaint, nor is there any evidence that I prevailed on the merits at the administrative hearing, or that a Federal district court judge in a sense ruled that those statements are not true, and that I did do adequate work at least.
We have not been able thus far to document the extent of my work performance as much as I would like. However, I think we will do so when we finally get a trial.
We thought we were going to trial in March. However, the Government wasn't ready at that time because there were other cases pending. We are awaiting now for the trial, and the ironic part is that we initially asked for a trial. The Justice Department vigorously opposed that request.
We agreed to have the district court judge review the case based on the administrative record. That decision by Judge Richey was handed down April 20, 1976.
Less than a month later, on June 1, the Supreme Court ruled in the Chandler v. Roudebush case, Federal employees, like private sector employees, are entitled to a trial on the merits of their discrimination complaints.
Consequently, had we been given a trial as we asked for in the first place, we probably could have knocked off a couple years of litigation. We think probably we will go to court sometime next year; at least we are hoping to do so.
Mr. HANLEY. How do you assess the adamancy of the Department of Justice
Ms. WILLIAMS. It is beyond explanation, really, I have no idea why it might be pursuing this litigation, and as you mentioned earlier something about how to guard against women bringing frivolous complaints, I don't know if you know but recently the appellate court upheld a district court decision whereby an employee of the Labor Department will have to pay attorneys' fees and court costs for vexatiously and capriciously and frivolously pursuing litigation, and probably this will serve as an adequate deterrent.
With respect to the Justice Department in this case, I have no idea, other than the possibility that it might be wanting to set up as an example of what other women complaining of sexual harassment can expect to face if they complain.
We have accepted sexual harassment just as we have accepted the fact that women are expected to take notes at meetings and expected to make the coffee.
Sexual harassment to me is not fun and games. It is a very emotional experience, a very degrading experience, a very humilitating experience, and once we are able to pound that into the heads of men and women -- because we do have a problem with some women who think it is cute that they are physically attractive and they rely on that physical attraction rather than relying on the fact that they may possibly have job skills that will enable them to make it in the labor market.
So I don't know what we can do about those particular situations. It is going to be a problem that will continue, but I am glad at least it is out in the open now so we can deal with it as constructively as possible
Mr. HANLEY. Thank you, Miss Williams.
Mrs. SPELLMAN. Would you explain to us what happened? You were fired. Then what steps did you take?
Ms. WILLIAMS. When I initially encountered the problems with my supervisor, I talked to him initially. I then talked to his supervisor who was the director of the agency. I anticipated that he would step in and seek to resolve the problems that I was then experiencing. That was not to be the case.
Consequently, I went to the Justice Department to talk to an Equal Employment Opportunity counselor to try to resolve the problem informally.
She met with my supervisor and subsequently told me that he appeared to be abrupt, abrasive, and seemed capable of harassment. I said, put that in the record and let's go with that.
However, when it came time for her to file her formal report as to her meeting with my supervisor, which lasted approximately 45 minutes or so, she said she found no evidence of sex discrimination.
Consequently, I hired a private attorney to represent me in filing a formal complaint of sex discrimination by reason of sexual harassment.
The Justice Department then tried to quash the complaint on the basis that since Miss Williams is no longer a Federal employee, the issue is now moot.
We protested, and because of a woman in the Justice Department itself -- I don't know if I should mention her name or not, but it is Mary Eastwood -- she saved my complaint from being quashed by the department and we asked for an investigation.
The Justice Department subsequently assigned its own investigator to find out what exactly was the problem, to investigate the merits of my complaint. After his investigation, the investigator came back and said that the firing had been unwarranted, unnecessary, and had been punitive in the extreme.
Mrs. SPELLMAN. This was a Justice Department investigator?
Ms. WILLIAMS. Yes, a Justice Department investigator.
He recommended that the termination notice be rescinded and I be reinstated to a comparable position. The Justice Department refused to accept those conclusions and findings and recommendations and we had to file a suit in the district court.
We asked for a hearing on the merits of the case. A hearing was held by the old Civil Service Commission. The first hearing examiner came back with a finding of no discrimination.
We went to the district court. Judge Richey remanded the case for a second administrative hearing with the burden of proof placed upon the Justice Department to show the absence of discrimination.
The Justice Department failed in that burden, according to the second hearing examiner, and he found in my favor and suggested that I be reinstated with back pay and promotion to a comparable position with appropriate corrective action taken against my former supervisor.
The Justice Department refused to accept those findings of fact and we had to go to the district court again. We asked for a full-scale trial on the merits of the case.
The Justice Department opposed that request and we agreed, us did the Justice Department, to have the judge review the administrative record and to make a decision based on the evidence in the record.
About a year later, Judge Richey ruled in our favor and said, yes, she has been discriminated against, and she is entitled to back pay and attorneys fees.
We negotiated what proved to be a very short-lived settlement. The department initially said I was entitled to slightly over $19,000 in back pay. It subsequently reduced that amount to slightly over $16,000, saying it had initially miscalculated, and by allowing an employee of the Justice Department who did not work at the
department in 1972 to reconstruct a reduction in force which, it said, would have allowed the department to terminate my employment lawfully.
Consequently, we accepted that settlement, or we were willing to accept it simply because we were tired of the whole mess and wanted to get out of it.
The department then appealed, based on the fact that less than 2 months later the Supreme Court ruled in the Chandler case that, yes, she should have been entitled to a trial on the merits under the Chandler v. Roudebush decision, saying Federal employees, like private sector employees are entitled to trial when there are employment discrimination conditions and they don't need to rely on the administrative hearing necessarily if they choose to have a full-scale trial.
We thought we were going to court earlier this year, in March. We are still waiting for a trial date despite the fact that title VII says that EEO cases are to be expedited.
I don't know what that means, because 7 years seems like a long time to me. And now that we are waiting for a trial date and have to go through a trial, and I suppose that one or both of us will appeal after this district court decision, we will probably be in this for another 6 or 7 years.
Mrs. SPELLMAN. How do you keep your sanity through all of that?
Ms. WILLIAMS. It is not very easy at times, but my family and my attorneys have been very supportive, and when I start, like hollering and screaming and pulling my hair, they are around to get me through that very difficult period.
I just become more determined. As obstinate as the department is, I think I am equally obstinate, and I think I will not allow them to make an example of me for other women not to come forward with their complaints of sexual harassment. If anything, I intend to teach them a lesson.
Mrs. SPELLMAN. What have you done about employment during that period of time?
Ms. WILLIAMS. I subsequently was able to get employment on a part-time basis. That was shortly after I was fired at the department. I did not apply for unemployment compensation, and I understand from former HEW Secretary Cohen's commission that women who quit, complaining of sexual harassment, have had a very difficult time getting unemployment compensation.
I worked for a friend, more or less on a part-time basis, after I was fired. About a year after I was fired I did find full-time employment and I am very grateful to the person who hired me.
I simply explained to him what had been my problem a year ago, and he took me on good faith that what I was saying was actually true, and was really a very decent person as I found my lawyer to be. And when I encounter people like that, it gives me faith to go on.
I have not had very many problems recently in terms of finding jobs. The main problem has been I am not at a grade level that I would have been had it not be for my experiences in 1972.
Consequently, I am frequently in jobs for which I supposedly am not qualified. Yet I do the work and receive commendations and
have even gotten quality increases as a result of doing work I was not qualified to do. I am presently a second year law student.
Many people ask the question whether or not my case has served as the impetus for my going to law school. That is not true. I had planned to go anyway, but my experiences during the past 7 years have certainly kept that dream alive.
Mrs. SPELLMAN. Thank you very much. Thank you, Mr. Chairman.
Mr. HANLEY. Thank you Mrs. Spellman.
Mr. CAVANAUGH. Thank you, Mr. Chairman, and thank you, Miss Williams. I think you bring a very poignant presentation of the problem to this committee.
I have just been trying to resurrect, you have gone through three Presidents, it seems about six Attorneys General, and I think what that indicates to me is that the process today certainly does not work. It doesn't work to protect an individual who would be the subject of sexual harassment, nor does it work to protect an individual who might be wrongfully charged with having engaged in sexual harassment in a supervisory function.
Certainly your experience is not an experience in the administration of justice by the Department of Justice, and I think that is a burning indictment of our system, which I hope will serve as an impetus to this committee to correct those procedures and to see that we have a procedure that does indeed serve the interest of justice.
Could you tell me what the Department of Community Services does?
Ms. WILLIAMS. Quite ironically, the Community Relations Service of the Justice Department is supposed to alleviate racial tensions in minority communities and to foster good will among majority and minority communities. It has been involved in some of the school desegregation cases as well as some of the recent instances of police brutality in Philadelphia and Houston.
Mr. CAVANAUGH. So they are the primary agency for dealing with the public's perception of lack of discrimination?
Ms. WILLIAMS. I don't know if they could be called the primary agency but that certainly is their primary thrust with respect to the Justice Department. When initially set up, the agency was under the Commerce Department and it was transferred to the Justice Department for some reason or another.
There have been questions as to whether or not the agency is in fact a spy organization and it has been cited in at least one magazine, a very reputable magazine, that it is an intelligence-gathering arm of the Justice Department.
Mr. CAVANAUGH. Your supervisor is still with the Department of Justice?
Ms. WILLIAMS. He is still working with the Justice Department in his same position. I understand he is probably a GS-15, step 4.
Mr. CAVANAUGH. Was your harassment complaint ever investgated by the Department of Justice?
Ms. WILLIAMS. It was investigated by the Department and its EEO investigator found that the reasons for my being fired, either
individually or collectively, were simply insufficient to justify their firing me
He recommended that the firing be terminated and that I be reinstated, saying that because -- -
Mr. CAVANAUGH. Could I interrupt you there, because I did read that in your testimony and you testified to that previously, but what I mean by your sexual harassment complaint having been investigated, was the conduct of your supervisor investigated and was there a determination made on his conduct with regard to those allegations?
Ms. WILLIAMS. Initially -- -
Mr. CAVANAUGH. Outside of your employment status.
Ms. WILLIAMS. Initially we asked that the sexual harassment allegations not be investigated, and the EEO investigator confined his investigation to the fact of sex discrimination, primarily because I was very embarrassed at the time and did not want to talk about the matter, and especially because of the treatment to which I had been subjected, I was not in an emotional state where I could talk about it comprehensively.
After the investigation, the investigator said that the firing was unnecessary and unwarranted and punitive in the extreme and suggested that the termination be rescinded.
Subsequently, he found that there had been evidence -- well, for instance, part of our evidence consisted of a card which my supervisor sent to me, which said, "Seldom a day goes by without a loving thought of you," and it was signed by my supervisor.
When he was called upon to explain this card during our first administrative hearing, he suggested that that was not evidence of sex discrimination primarily because he sent such cards to men and women.
The hearing examiner evidently bought that argument and it was not until we had the judge review the administrative record that that card was brought into question once again, and throughout the Justice Department had maintained simply that I had not been the victim of sex discrimination because I had not been discriminated against because I was a woman, but because I refused to comply with the sexual consideration my supervisor was asking for, and thus that wasn't sex discrimination within the meaning of title VII.
Mr. CAVANAUGH. There was a determination made that he had requested sexual -- -
Ms. WILLIAMS. Yes, in the evidence that was brought out at the administrative hearing. The judge had concluded in the decision that not only was I subjected to sexual harassment, but that other women in the agency were similarly subjected to sexual harassment.
Mr. CAVANAUGH. Do you know of any actions that the Justice Department has taken in regard to your supervisor in the context of his conduct, not your conduct?
Ms. WILLIAMS. As far as I know, it has taken no action with respect to him, and I think probably that the Department cannot do so until after this case comes to some conclusion, primarily because he is their primary defense now.
He now is willing to come forward and amend his earlier protestations of innocence of any wrongdoing and unless the Department can use him to say now that we did have an affair and that, thus, his advances were not improper, the Department has no defense.
So it is to its best interest not to do anything to him.
Mr. CAVANAUGH. I have to disagree with you. I don't think it is in the Department's best interest to not pursue the truth; that is the Department's responsibility. The Department of Justice doesn't exist to win cases or to maintain them in perpetuity. It is to dispense justice, that is my understanding of the purpose of the Department.
Ms. WILLIAMS. That is what we hoped, too, but we found otherwise during the past 7 years.
Mr. CAVANAUGH. I would hope this committee -- and I think it is appropriate for us to have heard your testimony -- and I would hope we would be able to move from that and to listen to the Department of Justice explain if not the substantive matters of your case, at least the motivating factors and the procedural action they took. I think that is the essence of what this committee can do to evaluate that procedure because clearly whatever the merits of your case, whether you are right or whether your supervisor is wholly innocent, or whatever the resolution of that is, it should have been resolved by now, and no one's interests were served -- your's, the Department's, or this country's -- by the procedures that have been utilized in this particular case. I think this is an area in which this committee will move and force the Department of Justice to respond appropriately.
Ms. WILLIAMS. I am sure my attorneys join with me in saying that we would very much appreciate finding out what the motivating factor is for the Department continuing this litigation.
Mr. CAVANAUGH. Thank you, Mr. Chairman.
Mr. HANLEY. Thank you, Mr. Cavanaugh.
Ms. Williams, the EEO grievance procedure presently requires victims of harassment to file their complaints with the agency where they were harassed.
Do you feel that the complainants can get a fair shake through such a procedure which is subject to an in-house review quite possibly by the supervisor or colleagues of the supervisor of the alleged harasser?
Ms. WILLIAMS. I think it would be very unfair for me to say that that would be the case across the board. I know that many persons who work in EEO capacities in many of these Federal departments are very much concerned about the problem not only of sexual harassment but of employment discrimination generally. Consequently, I do not think that we can say that it is always or most often the case that a complainant will not receive fair treatment at the hands of the alleged discriminating agency.
I think that there are instances whereby the complainant has reason to be concerned as to whether or not he or she will get a fair shake, so to speak, when the complainant lodges a complaint against an agency and then has to have that agency to process the complaint initially.
I think there are enough safeguards, especially I am very much aware of the fact that EEOC is now on the job. I have a great deal of faith in EEOC. I hope that my faith in that agency will be borne out over time and that it will not operate in the manner that we have had experiences with in the past.
I had no hesitancy whatsoever about starting off my complaint with the Justice Department. It has just been the treatment that has come about after the complaint was investigated by its own EEO investigator and it gave little or no weight to what the EEO investigator had to say.
I think if we are going to spend time having the Department investigate these complaints of discrimination and then give no weight to what the investigator has to say when he or she is the person who has been most intimately involved with the complaint.
One of the problems that I had with the Civil Service Commission was that it had no authority to make its findings and conclusion and recommendations binding on agencies when it found that a complainant had been unlawfully discriminated against. All it could do was recommend and then it was at the hands of the Department itself, the discriminating agency, to say whether it would or would not accept those findings and recommendations and conclusions.
I hope that EEOC probably has more authority or will at least exert more authority or exercise more authority than the Civil Service Commission did previously.
Mr. HANLEY. We would hope very much that one of the results of this activity will be a process where the processing of complaints and the resolution of complaints will be expedited. One of the mechanisms which we envision using is the Merit Systems Protection Board.
Ms. WILLIAMS. As I understand the present division of labor between the EEOC and the Merit Systems Protection Board, the Merit Systems Protection Board will handle what is called a mixed complaint. That is a complaint of discrimination on one of the bases covered by title VII or the Equal Pay Act or the Age Discrimination in Employment Act; coupled with some type of adverse personnel action such as a demotion or a firing, and that once the complainant exhausts that process, then she can go over to EEOC to appeal. If the complainant has simply a complaint of discrimination then she can go directly to EEOC. So I don't know whether or not that is going to expedite the process.
But I suggest that one of the things that could be done is to have some type of procedural due process for EEO complainants. That is notice and opportunity to be heard prior to that employee's being fired. I realize that it will probably take some time to get through that mechanism but I think it is better to have a hearing before an impartial factfinder before the employee is subjected to some type of irreparable injury than to go through the process of firing that employee and then the possibility of that employee not being given, if you will, make-whole remedies.
For instance, in my case I will not be reinstated probably, I will probably get merely a backpay award and attorneys' fees. I am sure the attorneys' fees won't be anything comparable to what my attorneys actually deserve. If the Justice Department is allowed
once again to reconstruct a reduction in force, the backpay award won't amount to very much either, especially since I tried to mitigate my damages as much as possible by getting other employment shortly after I was fired.
So if the employee who is aggrieved is entitled to at least the possibility for a hearing before an impartial factfinder, for instance a hearing examiner at the EEOC or Merit Systems Protection Board, before she is fired and have the agency come forward with a preponderance of evidence to justify the reasons for the adverse action -- for example, a firing, demotion, or lack of job training or lack of promotion -- and give the complainant time to show that these allegations are mere pretexts for discrimination, I think then that will help the process, when these agencies are made to justify the allegations that they make, in making these decisions about firing somebody or demoting someone.
Mr. HANLEY. We appreciate that observation very much as we ponder the best way of handling this problem. Of course we hope very much that resulting from these hearings that the number of complaints are going to diminish, if not fade away entirely.
What about that ability on the part of those who have been harassed to enjoy legal counsel?
Ms. WILLIAMS. Legal counsel is a very difficult problem. First of all, the complainant rarely has sufficient financial resources to hire a lawyer at his or her going rate. I was fortunate in being able to find a lawyer who was well versed in EEO case law and was also willing to take the case on a contingency fee basis, after I gave him an initial retainer.
It is very difficult processing an EEO complaint without the help of experienced legal counsel. I don't care how many times they suggest that a complainant can go through the administrative process without a lawyer, it simply is not true. It is a very protracted process; there are time deadlines that have to be met, there are responses that have to be made. Quite often you do have to go into court in order to get the agency to adhere to what it says that the complainant is entitled to under title VII and the regulations as promulgated by the EEOC and formerly the Civil Service Commission.
I went through a very long process which I had to compress simply because I was in a very time constrained situation. I talked to somebody I knew had some experience in EEO case law. That person referred me to the Lawyers' Committee for Civil Rights Under Law. I talked to someone there and explained the problem that I was having and that I was looking for a lawyer to handle the case in the event that I had to file a formal complaint or go to court. And that person referred me to three attorneys.
I talked to each of the three attorneys during an interview and concluded that the one I selected, Michael Hausfeld, was the very best one for me. I was fortunate in that process in that we discussed at length what I was looking for in terms of an attorney to handle the case. Initially I am embarrassed to say I was looking for a woman to handle the case. I am embarrassed only because now I know I couldn't have found probably even a woman who would have been as sympathetic to my plight as this particular lawyer I eventually ended up with.
I am very pleased with him. I understand a number of women have not been as fortunate as I have been. I couldn't have done any better had I gotten a woman lawyer to begin with. But it is a difficult problem.
I don't know how we can respond to the problem other than for those of us who have been in the process of filing discrimination complaints to help women find attorneys, whether they go through the referral services offered by the professional bar or whether we form networks among ourselves to keep women apprised of lawyers who might be willing to take their case and preferably on a contingency fee basis.
Mr. HANLEY. Thank you, Ms. Williams.
Ms. WILLIAMS. Thank you very much.
Mr. HANLEY. Mrs. Spellman, any further questions?
Mrs. SPELLMAN. I think we have kept you almost as long as the Justice Department.
Mr. HANLEY. Mr. Cavanaugh?
Mr. CAVANAUGH. Do you mind giving us the name of your lawyer?
Ms. WILLIAMS. My lawyer's name is Michael D. Hausfeld. He is with the firm of Kohn, Milstein & Cohen.
Mr. CAVANAUGH. I used to practice law myself, knowing those cases where you get little remuneration but that perhaps the only reward is a little advertisement. I would hate to deprive him of that opportunity.
Mr. HANLEY. If the gentleman would yield?
Ms. WILLIAMS. Mr. Hausfeld is from New York.
Mr. HANLEY. You keep forgetting that that was many, many years ago when you were practicing law.
Mr. CAVANAUGH. It was indeed, before the advent of the public defender.
Mr. HANLEY. Times do change.
In behalf of the committee, we appreciate your time and effort. You have been a wonderful witness. Your eloquence is again most certainly commendable. You have been a very patient person and obviously a very determined person?
Ms. WILLIAMS. I have learned to be patient over the last few years.
Mr. HANLEY. Thank you?
Ms. WILLIAMS. Thank you very much.
Mr. HANLEY. With that we adjourn the hearing until November 1.
[Whereupon, at 12:40 p.m., the subcommittee adjourned, to reconvene November 1, 1979.]
[The prepared statement of Ms. Williams follows:]
PREPARED STATEMENT OF DIANE RENNAY WILLIAMS
Good morning, Chairman Hanley and and members of this Subcommittee. I am Diane Rennay Williams, the plaintiff in the landmark 1976 Williams v. Saxbe decision. That decision held that sexual harassment is, indeed, a form of sex discrimination within the meaning of Title VII of the Civil Rights Act of 1964, as amended.
I would like to summarize as briefly as possible the events during seven years of still unfinished litigation surrounding that case and, in so doing, to emphasize why I am here today and why I commend this Subcommittee for holding these hearings and investigating sexual harassment in the Federal Government.
In September 1972. I filed a sex discrimination complaint against the Community Relations Service of the Justice Department, after unsuccessfully trying to resolve informally problems I was having with my supervisor. Nine days later. I was fired with 25 minutes' notice. The Justice Department then moved unsuccessfully to dismiss my discrimination complaint on the ground that, since I was no longer Federal employee, the issue was moot.
Following an investigation of my complaint, the Department's EEO investigator concluded that my firing was "unnecessary, unwarranted, arbitrary, capricious, and punitive in the extreme." and was brought about in a "shotgun" manner. This was due largely to the fact that my supervisor's pattern of fault-finding occurred during a very brief period of time prior to my being fired, and the allegations leading to my dismissal, individually or collectively, did not constitute "just cause." As a result, the EEO investigator recommended that my firing be rescinded and that I be reinstated to my previous position as a public information specialist. However, the Department refused to accept these conclusions and recommendations, and my attorney and I requested that the Civil Service Commission (now known as the Office of Personnel Management) conduct an administrative hearing. This first hearing resulted in a finding of no discrimination. The Justice Department concurred in this finding, thus necessitating our going to Federal District Court, which ruled that the evidence was "suggestive of sex discrimination by reason of sexual harassment and remanded the case to the Commission for a second administrative hearing. At that time, the burden of proving the absence of discrimination was placed on the Justice Department, whose argument was that I had not been the victim of discrimination because I was a woman, but rather because I had "decided not to furnish the sexual consideration claimed to have been demanded."
The second hearing examiner subsequently concluded that the Department failed to carry its burden and that I had, in fact, been the victim of sex discrimination by reason of my former supervisor's intimidating, harassing, and eventually firing me. He recommended that I be reinstated with back pay and that "appropriate corrective action" be taken with respect to my former supervisor. The Justice Department's Complaint Adjudication Officer rejected the hearing examiner's conclusions and recommendations, and we returned to the Federal District Court to obtain relief. We initially requested a trial de novo; however, the Justice Department "vigorously opposed" that request. Consequently, we then agree -- as did the Department -- to have the District Court judge review the administrative record and render a decison accordingly.
On April 20, 1976, Judge Charles Richey sustained our EEO complaint, finding that, since I had refused to submit to sexual conditions imposed by my supervisor, the latter had retaliated by creating grounds for my dismissal. "The connection between the advances of (the plaintiffs) supervisor, which advances were not disputed, and the subsequent criticism by the supervisor of her work, was supported by the timing of the incident: the commencement of this criticisms of here alleged employment deficiencies when there had been no prior proof of criticism," Judge Richey stated, adding that there also was evidence that other persons -- all women -- had been similarly subjected to sexual harassment.
My attorney then negotiated what proved to be a short-lived settlement. After agreeing to a monetary award in excess of $19,000, which was later reduced to a sum in excess of $16,000 because the Department "miscalculated," and after being allowed by the Court to "reconstruct" a reduction-in-force (RIF) that allegedly would have allowed the Department to terminate my employment lawfully, the Department, in its wisdom, appealed the District Court's decision.
What happened to the "make whole" relief I should have been accorded as the result of the Justice Department's unlawful discrimination against me?
Less than two months after the District Court's ruling in our favor in April 1976, the U.S. Supreme Court on June 1 of that year held in Chandler v. Roudebush that Federal employees have the same right to a trial de novo of their Title VII employment discrimination claims as is enjoyed by private sector employees and employees of state governments and political subdivisions.
Ironically, in September of 1978, more than two years after Judge Richey's decision, the U.S. Court of Appeals here reversed and remanded the Williams case to the District Court for a trial de novo. Despite taking note of the fact that six years had already elapsed since I initially filed my discrimination complaint, the appellate court found fault with the manner in which Judge Richey had reviewed the administrative record and had responded to the rebuttal of the Department's Complaint Adjudication Officer. And, apparently, it reasoned that, "since Ms. Williams had initially requested and been denied a trial de novo and the highest court of the land has since held that she was, in fact, entitled to such a proceeding, let's now give her
one. No matter that it has already been six years, and she will probably have to start virtually all over again."
Last month marked our seventh year in litigating the Williams case, and we still have not had a trial de novo. Furthermore, we have been informed that the case probably will not go to trial before some time next year, due to the court's crowded docket. This situation occurs despite the fact that the 1972 Amendments, pursuant to sect. 706(f)(4), added a requirement that title VII cases be expedited by the court.
In the meantime, my attorneys and I are constantly barraged with odious and specious allecations by my former supervisor -- with the cooperation, if not also the encouragement, of the Justice Department -- that I am a "loose" woman, and that I welcomed, if not invited, his sexual advances which, therefore, could not be characterized is "improper."
This new development means that my former supervisor has "amended" his earlier protestations of complete innocence of any wrongdoing. He alleges further that we had an affair, that I became angry when he put an end to this personal relationship, and that he fired me "for the good of the Federal service." This confession comes after he earlier testified under oath that he never touched me physically and in the face of a recent admission by one of female former co-workers that she and my former supervisor had a personal relationship outside the office during the very name time that this supervisor alleges that he had an affair with me. There is also evidence, offered by my former supervisor's personal friend and confidant, that my former supervisor -- who is married -- also had personal relationships with other women before, during, and subsequent to my tenure with the Justice Department.
Additionally, on the Defendants' motion to amend the District Court's opinion in Williams -- which motion was denied -- the Court quoted the second hearing examiner's finding that "* * * I find it credible to believe that (the supervisor) was of a disposition to and did make personal advances toward (the plaintiff) and that these advances were rejected by the plaintiff." (Emphasis added.)
As a result of my former supervisor's most recent defamatory allegations, my family has been brought directly into the controversy. My Mother, who has been deposed as a witness by the Government, now must also function as my alibi to attest to the fact that I could not have had and did not have an affair or any other type of personal relationship with my former supervisor. My personal privacy and that of my familial relationships have been seriously and irreparably invaded. This fact I cannot and will not take lightly, in spite of the Federal Government's attempts to characterize me as the "lady who doth protest too much."
These and other developments give rise to my sense of frustration and pessimism as to the viability and integrity of the Federal Government's EEO complaint procedures, particularly insofar as these pertain to the processing of sexual harassment complaints. The present system is neither effective, efficient, nor judicious. It also is not conducive to Federally employed women reporting incidents of sexual harassment on the job.
As I stated in my letter of August 8th, I am appalled by the machinations of the entire Federal EEO process. I consider it ironic and ludicrous that the same Justice Department which has represented the Government in pattern and practice suits against private employers and which even now brings suit against state and local governments because of their unlawful employment practices is the same Federal Department which is capriciously and vexatiously pursuing litigation it simply cannot win on the merits.
Now, I would like to point out some particular concerns I have with the present Federal system for processing EEO complaints, particularly insofar as these complaints relate to the issue of sexual harassment.
It was not until approximately three or four years ago that the former Civil Service Commission recognized sexual harassment as an actionable offense under Title VII. By virtue of its intervening on behalf of the plaintiffs in the Corne case, EEOC, I hope, will have little or no problem in recognizing and constructively dealing with complaints of sexual harassment. Unfortunately, however, Federal employees, unlike their counterparts in the private sector, have no Federal agency to intervene on their behalf as the EEOC does with respect to suits against nongovernmental parties and the Attorney General does against state and local governments.
Despite the legislative intent behind the Civil Service Reform Act of 1978, Federal employees, including so-called "whistle blowers," have no guarantees against or protection from irrational and unjustified management decisions which adversely affect their employment. Contrary to popular opinion, it is not difficult to remove a Federal employee, even for spurious reasons, from his or her job. Those who have
been following the Dood situation recognize this fact all too well. However, once an employee is fired, for whatever reason, it is difficult for that employee to be reinstated or to gain other government employment. In my particular situation, for example, my Federal personnel folder says only that I was fired for making "false, malicious, and slanderous statements." What employer wants to hire an individual with such an accusation of misconduct and without explanation?
To avoid the possibility of irreparable injury to aggrieved Federal employees, I would like to propose the following:
Some measure of procedural due process before an employee is discharged. This could include an administrative hearing before an impartial fact finder on the merits of the allegations for dismissial. Where the agency is unable to show cause by a preponderance of the evidence, the proposed adverse action should be cancelled.
A minimum of two weeks' notice, not 25 minutes, between the employee's receipt of the letter of intent to dismiss her and the date the proposed dismissal is to take place. This would allow an aggrieved employee an opportunity to go to Federal district court to seek preliminary injunctive relief and to obtain such relief where she is able to show that she is likely to prevail on the merits and that irreparable injury will result if the petition for a preliminary injunction is denied.
Appropriate corrective action against management officials found to have discriminated unlawfully. This corrective action could run the gamut form a written reprimand placed in the official's personnel file to suspension or firing. In any event, management officials must be made aware of the fact that sexual harassment is not fun and games.
Complete restoration of all rights and benefits to prevailing plaintiffs. Where an employee has been unlawfully discharged or demoted, she should automatically be placed in the position she previously occupied or would have occupied but for the unlawful discrimination. This "make whole" remedy should include "bump back rights," retroactive seniority, and promotion, as well as expunction of negative materials from personnel files, back pay, and attorneys' fees. In effect, the agency should be made to pay, and pay dearly, for allowing sexual harassment to go unpunished.
Greater protection for women complainants. At present, inadequate protection to women complainants negates the possibility of prompt reporting of incidents of sexual harassment. Women making sexual harassment complaints, like women who have been sexually assaulted, are treated as the culpable party, rather than as the victim. Women complaining of sexual harassment should be given temporary details or transfers until the complaint is investigated, and resolved.
Still other measures need to be taken with respect to women who are fired or resign from their jobs, should the aforementioned procedures not function adequately. For example, women who quit their jobs because of sexual harassment may be confronted with the problem of having to establish "good cause" for their resignation or risk being penalized when seeking unemployment compensation, as former HEW Secretary Wilbur Cohen's Commission hearings pointed out earlier this year.
Finally, because sexual harassment cases are a recent phenomenon under Title VII, courts have applied diverse legal principles and rationales, thus resulting in grossly inconsistent determinations. In this regard, the following problems have emerged:
Some courts still do not recognize sexual harassment as an actionable offense under Title VII.
What constitutes "sexual harassment"?
What is a "condition of employment" within the meaning of section 703(a)(1)?
Must the plaintiff prove submission to sexual advances was a term or conditon of her employment?
How does a woman meet the initial burden of proof, especially when the alleged discriminating official practices "selective discrimination," that is, discrimination against one woman or a particular category of women, rather than women as a class?
Must the plaintiff prove that sexual harassment was a pattern or practice, as in Williams, or will an action lie if the incident complained of was an isolated one, as in Miller v. Bank of America?
Is the employer strictly liable for the acts of its supervisors, as in Williams, or is the employer vicariously liable?
Is the fact that the alleged discriminating official is a nonsupervisory, nonmagerial co-worker of the plaintiff, rather than her supervisor, significant?
I realize that these are difficult problems, but I sincerely hope that this Subcommittee will review the comments made here today and will develop some constructive means by which the problem of sexual harassment in Federal Employment can be alleviated, if not eradicated.
Thank you for affording me the opportunity to come here today. I will be happy to respond to any questions you might have.
SEXUAL HARASSMENT IN THE FEDERAL GOVERNMENT
THURSDAY, NOVEMBER 1, 1979
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON INVESTIGATIONS,
COMMITTEE ON POST OFFICE AND CIVIL SERVICE,
The subcommittee met, pursuant to notice, at 9:41 a.m., in room 311, Cannon House Office Building, Hon. James M. Hanley (chairman of the subcommittee) presiding.
Mr. HANLEY. This morning we continue with our second day of hearings examining the subject of sexual harassment in the Federal workplace. Last week we heard several witnesses offer case histories and statistical data that confirmed our preliminary, investigation showing that the problem of sexual harassment in the Federal Government is widespread.
I will take this opportunity to state again that sexual harassment simply will not be tolerated in the Federal work force. We have requested the Office of Personnel Management to issue a directive defining sexual harassment and stating that it is a prohibited personnel practice and a violation of merit system principles. Once OPM agrees to issue this directive, both managers and employees will know the rules of the game.
We have also asked OPM to initiate training programs on sexual harassment. We feel that training is an essential element in eliminating this objectionable kind of behavior.
We must make every effort to assure a victim of sexual harassment that there is a mechanism in place to assist employees. The victim must feel that a complaint will be handled sensitively, equitably, and expeditiously.
Unfortunately, according to the testimony that we have heard, many women do not have confidence in the EEO process and are therefore reluctant to file a complaint. They know that a discrimination complaint takes a very long time to process and they are afraid of additional intimidation by their bosses should they file a charge.
The problem of underreporting will continue until women have gained more confidence in the system. Hopefully, today's testimony from the Equal Employment Opportunity Commission and other witnesses can suggest additional initiatives that will give employees new confidence in the system.
Our first witness this morning will be Ms. Eleanor Holmes Norton, chairperson of the Equal Employment Opportunity Commission.
Ms. Norton, it is a pleasure to have you with us this morning. We look forward to your testimony.
STATEMENT OF ELEANOR HOLMES NORTON, CHAIR, EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION
Ms. NORTON. Thank you very much, Mr. Chairman.
EEOC is a five-member bipartisan Commission having principal responsibility for the administration and enforcement of Federal laws prohibiting discrimination in employment.
I would like to commend you for convening these hearings and raising this matter to the level of congressional oversight and concern. Sexual harassment is an issue which has confronted every woman in the course of her career, whether directly or through the experience of her friends. It is often a constant threat and yet one that the victims feel powerless to confront.
The woman who insists on pressing the issue often finds herself ostracized, written off as thinskinned or a troublemaker.
Finally, in the event that she proves unable to sustain the allegation -- and these cases are by their very nature often impossible of proof because of traditional due process requirements -- there has been virtually no recourse except to seek other employment.
The women who have been courageous enough to come forward and share their experiences during the course of these hearings are therefore to be praised. They will help us to confront an issue which for too long has gone unattended.
EEOC regards sexual harassment as an important antidiscrimination issue. Thus, I would like to discuss the subject today from that perspective.
Only since January 1 of this year has the Commission been responsible for administration of employment discrimination protections for Federal workers. The transfer of jurisdiction from the old Civil Service Commission to EEOC, approved overwhelmingly by the House in May 1978, was an important step toward bringing the rights of Federal workers up to the standards that have been used for almost 15 years now in the private sector. These responsibilities transferred include:
One, responsibility for providing governmentwide leadership and guidance in the processing of individual and class complaints of employment discrimination by the Federal agencies;
Two, responsibility for processing employment discrimination appeals from final agency decisions; and
Three, responsibility for prescribing standards for drawing and reviewing Federal agency affirmative action plans.
Each agency is responsible for receiving employment discrimination charges from its employees or applicants, conducting investigations, issuing decisions and providing information on the status of individual complaints. The personnel performing these functions remain employees of the affected agency.
However, EEOC is using its overall procedural authority to examine the system of Federal complaint processing. We are particularly concerned with the wide variations in processing which exist among the agencies, and with the substantial delays that are often experienced by charging parties.
If the procedures of a pilot program now being tested are as successful as they now seem to be, they will be adopted for complaint processing throughout the Federal service.
We would, therefore, request that any procedural recommendations which the subcommittee may develop, based on a review of present Federal EEO procedures, be held in abeyance pending completion of our review and final report.
As important as the complaint processing system is, it would be naive to rely on complaints alone to handle sexual harassment. To do so places an unfair and totally unrealistic burden on women to come forward in a situation where this is extremely difficult for the average person.
It is, therefore, not surprising that there have not been larger numbers of complaints. Of 6,299 case resolutions reported by Federal agencies between January 1, 1979, and October 24, 1979, 1,426 were filed by women alleging discrimination because of sex. Of these, 39, or 0.6 percent, involved allegations of sexual harassment. Yet it seems clear that the problem is more pervasive.
We are deeply concerned that once sexual harassment has occurred, it is difficult, if not impossible, to make the victim psychologically and emotionally whole again. We believe the only truly acceptable answer is prevention of a practice which, though deeply rooted in male perceptions of women, has no place in the workplace.
As in its actions to curtail racial and other forms of discrimination, the Federal Government should set the tone for other employers in trying to rid the workplace of this manifestation of the culture's bias against women. The Commission believes that sexual harassment must be brought to the surface as a workplace issue and dealt with affirmatively and aggressively by the employer.
We believe that it is an answer, but an inadequate answer, to leave women to their remedies. The burden is and should be on the employer and not the women, or even the man, to affirmatively raise the subject, define the problem, discuss its legal implications, express strong disapproval, and, finally, develop training programs and other methods to sensitize all concerned.
We believe our new responsibility for affirmative action planning for all Federal agencies provides an important vehicle for requiring agencies to take the initiative on this troublesome issue.
I would like to describe the actions we have already taken or are in the process of taking: First, using its affirmative action authority, the Commission is requiring agencies to include in their affirmative action plans steps to insure:
That Federal employees are informed that coercive sexual advances are prohibited in the workplace by title VII; and
That specific steps detailed in the affirmative action plan be taken to make the work environment free of sexual intimidation.
Second, the Commission is designing a training module on sexual harassment for EEO personnel and is working with OPM to include the subject of sexual harassment in training programs for all new supervisory staff. We will recommend that this aspect of training be extended to existing personnel as well.
Third, the Commission is issuing directives to Federal agency EEO counselors which will be circulated to Federal women's program
officers as well, asking them to include sexual harassment information in their programmatic initiatives.
I should also stress, Mr. Chairman, that the Commission's concern and activity in this area is not new. While our jurisdiction over Federal employment discrimination complaints is recent, the Commission pioneered development of the title VII case law on sexual harassment.
In a number of cases we have forcefully argued, on behalf of charging parties, the application of title VII to sexual harassment situations. We have taken the position that sexual harassment violates section 703(a) of title VII which prohibits the imposition of an onerous condition of employment upon any individual because of that person's sex.
We have insisted that sexual discrimination, like racial discrimination, generates a phychologically harmful atmosphere and that title VII guarantees female employees as well as black employees a working environment free of discriminatory intimidation.
And we have stated that common law tort concepts dictate that:
The fact that the employer has cautioned against, or even strictly forbidden -- conduct -- is not sufficient to absolve it from liability; the employer must take every step necessary, including discharge if need be, to ensure that such activity is effectively prevented. An employer has at least as great an obligation to prevent its employees from injuring others in violation of Title VII.1
We believe that our presence as the Government's chief law enforcer in the field of antidiscrimination in employment law has had an impact on courts, which were initially divided. Our position has now been generally sanctioned in the courts.
Several recent decisions indicate the extent to which the courts concur with the Commission's interpretation that sexual harassment is gender-based discrimination which violates title VII. The U.S. Court of Appeals for the District of Columbia, in a case involving a Federal employee, explained:
We start with the statute as written, and, so measured we think the discrimination portrayed was plainly based on appellant's gender. Her thesis, in substance, is that her supervisor retaliated by abolishing her job when she resisted his sexual advances. More particularly, she states that he repeatedly told her that indulgence in a sexual affair would enhance her employment status; that he endeavored affirmatively but futilely to consummate his proposition; and that, upon her refusal to accede, he campaigned against her continued employment in his department and succeeded eventually in liquidating her position. So it was, by her vision, that retention of her job was conditioned upon submission to sexual relations -- an exaction which the supervisor would have not sought from any male. It is much too late in the day to contend that Title VII does not out-law terms of employment for women which differ appreciably from those set for men, and which are not genuinely and reasonably related to performance on the job.2
The body of law that has developed thus far requires that in order to show a violation of title VII, a plaintiff must establish that:
One, submission to sexual advances of a supervisor was a term or condition of employment;
Two, rejection of sexual advances substantially affected plaintiffs' employment -- for example, discharge, denial of promotion;
Three, employees of the opposite sex -- male -- were not affected in the same way as the plaintiff by the employer's action.
1EEOC Brief Amicus Curiae. Corne v. Bausch & Lomb, Inc., 562 F.2d 55 (9th Cir., 1977)
2Barnes v. Castle. 561 F.2d 983, 14 EPD para, 7755 (D.C. Cir. 1977) pp. 5699-5700.
Currently, the legal standard of proof revolves around the question of pecuniary interests, where a supervisor may abuse his authority in making submission to sexual advances a term or condition of employment. For example, the courts have found violations of title VII where a female employee, who after refusal to submit to her supervisor's sexual advances, was barred from promotion or transfer,3 discharged,4 or had her job abolished5 in retaliation. The question of whether a particular action or incident establishes or attempts to establish a purely personal, nonemployment related relationship requires a factual determination. In making such a factual determination, the courts have looked at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred.6
An employee does not have to prove that it is a policy or practice of an employer to endorse sexual harassment. A recent ninth circuit case, Miller v. Bank of America, -- F.2d -- , 20 EPD para. 11479, (9th Cir. 1979), has established that an employer is responsible for the acts an employee -- supervisor -- under the theory of respondeat superior. A company regulation prohibiting supervisors from making sexual advances to employees did not relieve the employer of liability. The doctrine of respondeat superior applied where the action complained of was that of a supervisor authorized to participate in or recommend disciplinary actions even though what the supervisor said violated company policy.
Finally, we cannot help but note that just as many racial practices were once accepted as custom, so there are aspects of male/ female interactions on the job which have been tolerated in the past despite the assault they visit on the dignity of their victims.
While sexual harassment is not a new phenomenon, our understanding of it and of the ways in which it can operate to intimidate and to circumscribe the career movements of women continues to evolve.
Sexual harassment is a phenomenon associated with the subordination of women. It is directly inverse to the degree women are accepted as peers in employment situations and in the society generally. Until quite recently it was thought to be unacceptable for women to engage in employment outside the home, and those who did had to expect whatever happened.
I, therefore, submit to you, Mr. Chairman, that the overall problem of sexual harassment will only be abated when women cease
3Rinkel v. Associated Pipeline Contractors, -- F. Supp. -- , 16 EPD para. 8331 (D. Ala. 1978).
4Heelan v. Johns Manville Corporation, -- F. Supp. -- , 16 EPD para. 8330 (D.D.C. 1978); Williams v. Saxbe, 413 F. Supp. 654, 11 EPD para. 10,840 (D.D.C. 1976); Munford v. James T. Barnes and Co. et al., 441 F. Supp. 459, 16 EPD para. 8233 (E.D. Mich. 1977) Garber v. Saxon Business Products, due 552 F.2d 1032 14 EPD para. 7587 (4th Cir. 1977).
5Barnes v. Catle, 561 F.2d 983 14 EPD para. 7755 (D.C. Cir. 1977).
6Williams v. Saxbe, 413 F. Supp. 161, 11 EPD para. 10,840 (D.D.C. 1976), received on other grounds and remanded, -- F.2d -- , 17 EPD para. 8605 (D.C. Cir. 1978), wherein the Court noted "whether this case presents a policy or practice of imposing a condition of sexual submission on the female employees of the CRS or whether this was a nonemployment related personal encounter requires a factual determination. For, if this was a policy or practice of the plaintiff's supervisor, then it was the agency's policy or practice, which is prohibited by Title VII. Secondly, the decision of the Court that plaintiff has stated a cause of action under Title VII will not have the feared result defendants urge (that the courts will become embroiled in sorting out the social life of the employees of the various federal agencies.) What the statute is concerned with is not interpersonal disputes between employees. Rather, the instant case reveals the statutory prohibition on the alleged discriminatory imposition of a condition of employment by the supervisor of an office of an agency." (11 EPD) para. 10840 at 7526.
meeting artificial barriers to their career advancement; when they are present at all levels of employment, and represented in all job categories.
A man contemplating sexual harassment reacts differently when he knows that there are women in his chain of command. And a man who would ignore sexual harassment by his colleagues reacts differently when he understands that it could also happen to his wife or daughter.
We appreciate your convening hearings which have shed light on this subject. We look forward to continuing our close relationship with the Office of Personnel Management with whom we are examining this and other employment practices which discriminatorily affect Federal workers.
We shall look very closely at the record of these hearings. In the meantime, we would be happy to provide you with copies of the directives that are being sent to Federal personnel and supervisors, and to provide any additional information you may request.
Thank you very much, Mr. Chairman.
Mr. HANLEY. Thank you very much, Ms. Norton, for your excellent testimony.
If, as you suggest in the conclusion of your testimony, you will provide the committee with copies of the directives which you have mentioned, it would be helpful to the committee.
On page 3 of your testimony you relate to the pilot program now underway. Could you tell the committee what the time element is, how long you anticipate before that program will be completed?
Ms. NORTON. Yes, Mr. Chairman.
We anticipate that in January or February we should have enough statistical results to begin to evaluate the program. We have negotiated memoranda of understanding with five agencies to investigate their complaints.
We have had to proceed in this way because Congress provided that Federal agencies investigate themselves at the agency level while requiring private employers to come under the scrutiny of the EEOC from the beginning, at the filing of an antidiscrimination complaint. I wish to call attention to what I believe is an anomaly.
In any case, we believe that there are ways to extend our own oversight over complaint processing at the agency level.
One of these would be for us to conduct investigations ourselves, even though, I stress, that under the statute the agency would retain the right to accept or reject the EEOC finding as to discrimination.
I think the five agencies that have agreed to cooperate with us voluntarily in the pilot program deserve praise because they did not have to do this. They could have continued to investigate their own cases for themselves.
They are HEW, the Veterans' Administration, the Nuclear Regulatory Commission, the Department of Transportation, and the Postal Service. I should say that half of all complaints filed by Federal employees today are filed by the Postal Service.
We seek to introduce procedures which will begin to bring Federal complaint processing to the point that we have brought complaint processing for the private sector.
When we began our charge processing reform at the EEOC 2 years ago, it took 1 1/2 years before a case was assigned to an investigator. Today, the average case from the private sector at EEOC is resolved in 51 days from beginning to end.
The remedy rate as we found it under the old procedures was 14 percent. In the private sector today for EEOC-investigated complaints it is 52 percent. The escalation in the remedy rate we believe is due almost entirely to the fact that employers are much more remedy-oriented when they get a case before backpay has mounted to such an extent that they think that they might just as well fight.
In the Federal sector, at the agency level today it takes 441 days to process a complaint. For the hearing part of it, if a hearing is requested at the time -- and a hearing is requested in about 51 percent of the cases -- it takes 160 days between the time the hearing is requested and the time the record is finished in the hearing. We seek to reduce the 440-day time to 100 days. That would be approximately 3 months.
The statistical sample thus far is not significant enough for me to report to you, Mr. Chairman. But I can say to you that the results are very, very encouraging. We are finding that the settlement of cases is increasing at a great pace.
We are finding that because the process is much more wide open, with the parties on each side being able to exchange information, people who brought cases under an illusion learn so early in the process, and withdraw cases. The agency learns early exactly what is being contested and is settling cases earlier.
I think these procedures can have an important effect upon the issue you have been investigating. I believe a process which takes 440 days at the agency level alone, and this is before any appeal, is per se a discouraging one.
And certainly when the kind of conduct complained of is one that would in any case require a great deal of courage to step forward, when you know that you will step forward and you will be kept waiting for years, I think that the tendency of complainants is not to step forward at all.
We do believe that, in answer to your question, Mr. Chairman, that the complaint process itself will have an effect upon bringing people forward.
At the same time I do want to stress that the gravamen of my testimony is that no complaint process will ever deal satisfactorily with this humiliating situation. If all of the EEO counselors were the most sensitive women in the world, if there were a special commission that did only sexual harassment, it would be too much to say to women, "That is all right. After this happens to you, you can come forward and file a complaint."
Because in our system of law there is due process, and an allegation will meet a denial; in our system of law, an allegation and denial usually gets us nowhere. Such incidents are normally not witnessed.
So I regard the complaint process as a poor second to prevention, and I mean affirmative and aggressive prevention, of this practice by making clear in no uncertain terms that it will not be tolerated,
that it is illegal, that it is the kind of shameful practice that the law specifically spells out as illegal.
I must say to you, I think that if EEOC and other agencies are successful in bringing the issue out in the open, a very significant number of those who feel free to engage in sexual harassment will fall back simply by virtue of the fact that the employer has made his position known.
There will always be some for whom the complaint process will be the only approach. I trust that would be far and away the smallest number.
Mr. HANLEY. Well, certainly the goals you have set for your office are indeed noble and have the full support of this committee. The committee wants very much to adhere to the requests you make in your testimony.
On the other hand, the committee is extremely anxious to put into place a mechanism which hopefully will minimize, if not eliminate, this problem within the Federal ranks.
We would ask you to accelerate your activities to the extent possible, and of course, to do so very responsibly. The quicker you can complete your pilot program and come back with a report on it will be extremely helpful to our efforts.
I have a number of questions, but there is a vote on the floor of the House. Perhaps at this point, if my colleagues are in agreement, we should recess for 10 minutes to respond to the vote and return in 10 minutes.
Ms. NORTON. Mr. Chairman, I would like to know if you have more questions for me. I have a meeting with the President shortly. Therefore, I need to know if you will need me.
Mr. HANLEY. I am sure Mrs. Spellman and Mr. Cavanaugh, who took themselves away from other meetings to be here, do have questions.
Ms. NORTON. Then I will wait.
Mrs. SPELLMAN. I would just as soon send you my questions so that you won't have to stay at this time.
Ms. NORTON. Thank you, Congresswoman Spellman. I appreciate that. We will get you back answers to the questions.
Mr. HANLEY. Mr. Cavanaugh?
Mr. CAVANAUGH. Mr. Chairman, maybe we could spend whatever time is left here and not delay her.
Mr. HANLEY. We can work for another 5 minutes.
Mr. CAVANAUGH. You indicate that there has been a heavy utilization of your office since January of this year of cases relating to sex discrimination on the basis of sex, but a very small percentage of those allegations -- you say 39 out of 1,426 -- are of sexual harassment.
What specifically do you attribute that to? Because the previous testimony this committee has had is that sexual harassment within the Federal agencies is an overwhelming problem and there has been testimony that up to 70 percent of the female employees of the agencies of the Federal Government suffer from sexual harassment. That would seem to be out of all proportion to the 0.6 percent reported to the Commission.
Ms. NORTON. Yes; I agree and we believe that this figure is out of all proportion to the actual presence of sexual harassment. And if I
may be frank, we believe the figure will always be out of proportion to the amount of sexual harassment.
We believe it is too much to say to the average woman that what we really believe you ought to do is to wait until these things occur and be brave enough to come forward because we think most people simply will not do that.
We think even for the most liberated women this is an embarrassing situation and that the complaint process will never, therefore, truly reflect the true extent of the practice.
That is why we have stressed that the employer has an obligation to take affirmative actions which eliminate the practice before it begins. We think there is a need within the Federal Government today to indicate to men that this practice should not go on.
After we try measures of this kind, bringing the practice out in the open, I would predict that, first, you will see more complaints coming forward, and at the same time I believe you would see the opposite, less sexual harassment.
So I report these figures -- and please understand that these are figures from the agencies; these complaints were not filed with EEOC because they cannot be filed with us at the agency level -- I report these figures only because they exist. I believe you should attach no significance whatsoever to them.
Mrs. SPELLMAN [presiding]. Would you yield?
Mr. CAVANAUGH. Yes.
Mrs. SPELLMAN. I want to put something in its proper perspective. It sounds like 60 percent is an enormous figure, and it is, but it would make it appear that Federal employees are engaging in orgies.
Let's take a look at what happened in NBC. In view of some of the things that had been asked here, they asked their own women employees how many of them had situations of sexual harassment, and they found almost 100 percent.
So I think we ought to put all of that into its proper perspective. It may be that just as we were told this morning, the ground rules were not set and it was an anything goes kind of a situation. When the ground rules have been set and everybody knows what they are, then I think we will see a real change in that.
Ms. NORTON. I do believe this is very much the point, that where you have a cultural practice and no one has even declared it is wrong in the wrong place, you ought to expect it is going to go on.
I think many, many men will engage in what women call sexual harassment because they believe it is expected of them. Once it is clear that it is not expected of them but it is a practice that may indeed subject them to law, I think many people will cease such practices.
Mr. CAVANAUGH. Thank you. I think we will have to go vote. I don't wish to detain you. I think I can submit any further questions we have in writing.
Mrs. SPELLMAN. We will now introduce the counsel, Mr. Tom DeYulia, who will ask a few questions for the record while we are gone.
Ms. NORTON. Thank you.
Mr. DEYULIA. Could you tell us if there have been any cases where disciplinary action has been taken against a supervisor who was found guilty of sexual harassment?
Ms. NORTON. That is not in our jurisdiction. You would have to ask the OPM or perhaps the Merit Systems Protection Board. EEOC only received its civil service jurisdiction since January. There may have been some cases prior to the transfer, though we are not aware of any.
Mr. DEYULIA. Last week several employees said that they found the EEO counselors to be somewhat insensitive to the problems of sexual harassment. Now this obviously hurts the credibility of the process.
Do you plan to begin training EEO counselors in this particular area?
Ms. NORTON. Yes. During the pilot program period we are looking into a number of steps, including the sensitizing and training of complaint counselors in issues related to, sexual harassment.
At the same time, I caution you that the counselors are found in thousands of installations all across the United States, therefore placing something of an intolerable burden on anyone who undertakes to train them.
We think the present system is totally unacceptable. If you are a private employee, you go to an EEOC office where our people are trained strictly in how to take complaints, and they are extremely sensitive.
If you go to a Federal agency, the counselor may be somebody who is an accountant or a librarian, and only a counselor part time, and in the midst of his activities he may have other deadlines. He is supposed to counsel somebody about discrimination. That system will always be unsatisfactory.
We would like to see the statute changed, quite frankly, to place Federal employees under our jurisdiction in exactly the same way that private employees are.
At the same time, I would like to commend the Congress for having taken the step, at least, of putting the responsibility for offering guidance on complaint processing at EEOC in the President's civil rights reorganization and for putting Federal employment discrimination appeals totally under the jurisdiction of EEOC.
But we do believe that some training of counselors will help. At the same time, we believe it will not be entirely effective because the counselors change, they are under somebody else's jurisdiction and not under ours. You can train somebody and they may not be the counselor the next day because we do not have the authority in that respect.
So it will be a somewhat frustrating exercise, but we think it is an exercise that will help to some measurable degree and one that we are obligated to engage in.
Mr. DEYULIA. Thank you.
[The following letter was furnished for the record.]
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Washington, D.C., January 30, 1980.
Hon. JAMES M. HANLEY,
Chairman, Subcommittee on Investigation of the Committee on Post Office and Civil Service, House of Representatives, Washington, D.C.
DEAR CHAIRMAN HANLEY: Enclosed is the additional information1 you requested concerning your very excellent hearings on the problem of sexual harassment in the Federal service.
In addition, pursuant to its authorities under § 717 of Title VII of the Civil Rights Act of 1964, as amended, and Reorganization Plan No. 1 of 1978, the Commission is in the process of issuing a directive to Federal agencies concerning sexual harassment. The directive is subject to coordination under Executive Order 12067. The final issuance will be forwarded to the Subcommittee.
Please do not hesitate to contact me if we may be of further assistance.
ELEANOR HOLMES NORTON.
Mr. HANLEY. Our next witness is Ms. Louise Smothers, director of the Department of Women's Affairs, the American Federation of Government Employees.
Ms. Smothers is accompanied by Ms. Karen Boyd, the National Women's Advisory Committee, and Local 32 of the American Federation of Government Employees.
Ladies, we are delighted to have you with us this morning and we look forward to your testimony.
STATEMENT OF LOUISE SMOTHERS, DIRECTOR, DEPARTMENT OF WOMEN'S AFFAIRS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, ACCOMPANIED BY MARY JACKSTEIT, LEGISLATIVE ATTORNEY
Ms. SMOTHERS. Thank you, Chairman Hanley, and just before we start I would like to, on behalf of our national president, express his deepest regrets for not being able to personally deliver the testimony because a conflict in scheduling at the last minute prevented him from being here.
Additionally, Karen Boyd has been unavoidably detained and is not here presently. With me is Mary Jacksteit, who is a legislative attorney in our legislative department.
Mr. HANLEY. Fine. We are delighted that you can be with us this morning.
Ms. SMOTHERS. The American Federation of Government Employees, which represents over 700,000 Federal employees, almost half of whom are women, is pleased to have this opportunity to testify before this subcommittee on the issue of sexual harassment in the Federal sector.
One of our highest priorities is to improve the status of women in the Federal Government.
We wish to commend Chairman Hanley for scheduling these hearings on sexual harassment in the Federal workplace. Public hearings such as these bring an awareness of the issue to the general public and raise the level of debate on this issue.
This subcommittee's initiative in recognizing this issue as a serious one faced by many women in the Federal sector provides us with an opportunity to deal with this problem in a more constructive climate.
1The information referred to consisted of five EEOC briefs in sexual harassment cases and
At the outset we would like to note that AFGE supports a broad definition of sexual harassment. Because the scope of sexual harassment can range from the very subtle to the more overt forms, we find that a comprehensive definition is necessary to fully define this problem.
Broadly stated, sexual harassment is any unwanted physical or emotional contact between workers or supervisors and workers, which makes one uncomfortable and/or interferes with the recipient's job performance or carries with it either an implicit or explicit threat of adverse employment consequences.
The Federal Government is one of the largest employers of women. As such, the incidence and pervasiveness of sexual harassment in the Federal sector has serious consequences on the emotional and economic status of a major segment of women in the labor force. The precise extent of sexual harassment in the Federal sector awaits further and more exacting investigation, yet all of the preliminary research indicates that the problem is extremely widespread. However, one need not show that sexual harassment is commonplace in order to argue that it is severe for those afflicted by it.
A number of our locals have had to deal with the problem of women members being sexually harassed in Federal agencies. They have attempted to do so in spite of the lack of Federal action on this issue, and sometimes in the face of hostility.
One of the most alarming and perplexing instances of sexual harassment was brought to our attention by AFGE Local 1834 at Fort Wainwright in Fairbanks, Alaska.
Ms. X, after being approached sexually by her supervisor, and refusing him, received a poor evaluation. The evaluation was vague and ambiguous. Ms. X felt it was in retaliation for her refusal to accommodate her supervisor. She then filed an EEO complaint. Shortly thereafter she began receiving anonymous calls at her home throughout the night. These calls were traced back to Fort Wainwright.
Further, a note threatening her life was found on her door. Ms. X went through the entire EEO complaint and appeals processs without success. AFGE Local 1834, which represented Ms. X throughout the complaint process, felt the case had merit and has filed suit against the Army alleging sex discrimination. The case is currently in litigation.
At the Johnson Space Center in Houston, Tex., it was common knowledge that there were two kinds of evaluations; one for good work and another for entertainment on the side. Supervisors told women that in order to be promoted to a GS-6 level secretarial position, it would be necessary to entertain out-of-towners.
Bob Bryant, local 2284 president, confronted personnel with these practices and threatened public exposure. This curtailed the more overt practices, but recent complaints of sexual harassment from more than 25 women on base indicates that this is an ongoing problem at the Space Center. The union has filed several complaints with the local EEO office which have resulted in three harassers being reassigned and in one being fired.
Social Security Council 147 tried to help a victim of sexual harassment in the San Francisco regional office of the Social Security
Administration when she was unable to obtain any other assistance in complaining about her supervisor. Because the victim was outside of the AFGE bargaining unit, the Assistant Regional Commissioner for Field Operations sent a letter of complaint to Social Security Council 147 President Mike Redding stating that representation of the complainant by an AFGE representative was an inappropriate action and in violation of the master agreement.
He further stated that the actions taken by the AFGE representative were irresponsible and malicious and contributed to a climate of stress in the district office. In such an environment, one can well understand the continuing presence of sexual harassment in Federal agencies.
The instances of sexual harassment described present straight- forward coercion; unwanted sex under the gun of economic reward or retaliation. These are but a few of what we fear to be numerous occurrences of sexual exploitation in the Federal work force.
The AFGE has recognized that sexual harassment is one of the most serious occupational hazards faced by working women. Firm union support will be given to those we represent who are victims of sexual harassment.
The AFGE is the only Federal employee union to have established a separate department which focuses on employment issues faced by women in the Federal sector.
The three-level structure of the women's program provides for women's advocates on the national, district and local levels.
This past weekend the AFGE District 14 National Women's Advisory Committee Representative, Karen Boyd, sponsored a well attended workshop on sexual harassment.
Further activities will include informational materials to promote awareness of the issue of sexual harassment; a survey of AFGE members to determine the level of sexual harassment experienced by our members; and the development of strong contract language establishing strict prohibitions against sexual harassment on the job.
Finally, our union expects to pass a resolution against sexual harassment at its next national executive council meeting and will adopt a policy taking a strong stand against sexual harassment in the workplace.
At present there are several procedures that a Federal employee can use in attacking the problem of sexual harassment.
First, the employee could initiate an equal employment charge through a counselor, leading to a formal complaint and all the other steps that are encompassed at 5 CFR 713, with the ultimate resort to the Federal court.
Women's worst fears about the impact of complaints and the complaints process are amply justified. Earlier witnesses before this subcommittee have testified to the protracted EEOC administrative proceedings, the difficulty of establishing evidence, the insensitive and/or hostile personnel encountered during the complaint process, and the very real possibility of retaliation to the complainant.
One advantage of the equal employment procedure is that the agency is required to take disciplinary action against an individual
who is implicated in discrimination, or explain its reasons for not taking that discipline.
We have noted, however, that agencies frequently fail to discipline supervisors involved in discrimination, occasionally justifying their refusal to do so by the passage of time between the discriminatory event and the formal decision finding discrimination. Because the Federal case processing procedure is more prolonged and complex than that in the private sector, the problems faced by those filing a title VII complaint are heightened for the Federal employee.
The strengthening of the EEO complaint process as a result of the implementation of the President's Reorganization Plan No. 1 now vests the EEOC with the authority to investigate and prosecute EEO complaints, and should strengthen the appeals process.
Second, one of the strongest weapons available to women is their right to organize into unions and to bargain collectively for contractual provisions that establish strict prohibitions against sexual harassment on the job.
In addition, the negotiated grievance procedure established by 5 U.S.C. section 7121 provides an additional avenue for women to grieve sexual harassment and to have such grievances heard and decided by arbitrators.
Although this procedure is much more expeditious than the equal employment procedures, an arbitrator is not in the position to direct management to transfer or discipline a supervisor.
The arbitrator could sustain the grievance, and could advise management that the conduct should not again occur, but with respect to the critical element in the case -- discipline of the supervisor -- the arbitrator is powerless.
Third, an employee could request an investigation by the Special Counsel of the Merit Systems Protection Board. The Special Counsel has the statutory authority to investigate complaints of sex discrimination and to initiate a complaint against the harasser implicated in the problem.
However, the Special Counsel has been very reluctant to accept discrimination complaints because of its heavy workload; as a result, discrimination problems that have been coming to the attention of the Special Counsel have routinely been advised to use the agency procedures available under 5 C.F.C. 713. This is precisely what happened to our victim from local 1834 in Alaska when she appealed to the Office of the Special Counsel for assistance with her complaint.
Because the MSPB and the Special Counsel already have regulations in effect which permit complaints to be filed against supervisors and to be adjudicated by the MSPB following investigation by the Special Counsel, we feel that this procedure can most easily be adopted to resolve problems of sexual harassment.
Legislation should be enacted which would first define sexual harassment, and second, require the Special Counsel to accept allegations of sexual harassment and process them on a priority basis, with the requirement that the case be investigated completely within 30 calendar days of receipt of the request for investigation
At that point the Special Counsel would be required to proceed with a complaint within 15 days if its investigation substantiated the charges of sexual harassment.
If the Special Counsel refused to take the case, the employee would then have the right to follow the formal EEO procedures, and the Special Counsel's investigative report would be included in the EEO administrative file.
In this way an employee would still have the right to file suit in Federal court if she or he received inadequate assistance in the administrative process.
We are submitting for the record suggested language for the statutory changes we have discussed, which is attached in appendix I.
Other positive steps which could be taken include: The establishment of an employee sexual harassment counseling program under the aegis of the Inspector General in every agency. We understand that the Inspector General's offices are not now equipped to carry out such a function. What we would like to see happen is the creation of new positions which would require the special expertise needed to counsel victims of sexual harassment and which would function as an independent body within the agency.
The recognition of sexual harassment by the Department of Labor as a bona fide cause for leaving one's employment and the establishment of appropriate guidelines for awarding unemployment compensation to victims of such offenses.
We would like to thank Chairman Hanley and this subcommittee for the constructive approach they have taken on this issue by holding these hearings.
Further, we would like to offer our fullest support and encouragement for the steps outlined in Chairman Hanley's opening statement as methods of curtailing the practice of sexual harassment, namely, an OPM directive taking a firm stand against sexual harassment, a survey of the level of sexual harassment in the Federal workplace, and training for employees and managers.
Most importantly, we strongly agree with Chairman Hanley that prevention of sexual harassment from occurring in the first place is the key to resolving this problem.
We appreciate the opportunity to present our views and look forward to working with this subcommittee to resolve the problem of sexual harassment in the Federal workplace.
[The attachment follows:]
We suggest the following statutory changes:
5 U.S.C. 1206(a)(1) would be modified by adding the following sentence: "Investigations concerning allegations of sexual harassment will be completed within thirty days from receipt by the Special Counsel."
5 U.S.C. 1206(g)(1) would be modified by adding the following sentence: "Where an investigation by the Special Counsel substantiates an allegation of sexual harassment, the Special Counsel shall prepare a written complaint against the employee responsible for the prohibited activity, and shall present the complaint and statement of supporting facts to the Merit Systems Protection Board within fifteen days following completion of the investigation."
U.S.C. 2000 shall be amended to include the following definition: "Sex discrim-
actual conditioning of any term or benefit of employment upon sexual relations and/or repeated verbal or physical abuse of a sexual nature, including but not limited to sexually degrading words, pictures, or propositions of a sexual nature in the workplace."
WOMEN FIND FLAWS IN JOBLESS PAY
(By Spencer Rich)
Phyllis Scozzari quit her $170-a-week job in Michigan, claiming sexual harassment. Her supervisor, she said, would "stare at her body while licking his lips," and would often make lewd comments to her.
Debra Valentic quit her Michigan job for similar reasons. She told the National Commission on Unemployment Compensation that one of her supervisors took to "innocently" touching her bosom, rubbing her knees and making suggestive gestures.
Neither woman was able to get a new job immediately and both applied for unemployment insurance. But the Michigan Employment Security Commission turned both applications down on grounds they had quit voluntarily with good cause. Only after the Women's Justice Center of Detroit intervened and fought the cases two levels higher were the decisions reversed and benefits granted.
As these cases suggest, the federal-state unemployment insurance systems contain traps and pitfalls for the nation's 47 million working women.
Scozzari and Valentic were lucky and ultimately won benefits. But witnesses told the national commission, which is headed by a former secretary of health, education and welfare, Wilbur J. Cohen, that untold thousands of women in states all over the nation are deprived of unemployment compensation after quitting over intolerable sexual harassment, because most state officials simply won't accept this as a valid reason for quitting.
According to Tamara Bavar of the United Auto Workers, women in one survey said they had been penalized by loss of 13 weeks of benefits because they quit under the following provocations and then couldn't find another job:
"Supervisor wanted to date me and gave me a hard time when I refused."
"Refused to have sex with foreman."
"Slapped on the rear by my boss."
Loss of benefits after quitting for sexual harassment, however, isn't the only way women can lose out under the current unemployment insurance system, which allows states to set most of their own eligibility rules. Witnesses said women also lose out for these reasons:
"Child-bearing and child-rearing and housekeeping duties cause a far larger proportion of women than men to work part-time -- about 28 percent compared to about 11 percent. Women also earn less -- an average of about $8,700 a year for full-time workers compared with $14,700 for men. Because all state eligibility rules are based oan length of work and earnings during some base period before the onset of unemployment, some women fail to meet eligibility criteria because of their intermittent employment or low earnings.
"Most states require a person to be available for work full-time in order to be considered unemployed and therefore eligible for benefits if unable to find a job Women available only part-time may be excluded and lose all benefits.
"In 28 states, according to a commission study, the ‘good cause’ for leaving a job that makes you eligible for unemployment benefits must arise from the work itself. Therefore, in many cases where a woman quits her job to take care of a sick child or sick husband, or to join her husband who has found a new job in another area, she loses eligibility even though otherwise meeting all criteria.
"Bavar's testimony cited this pathetic example from a 55-year-old factory worker: ‘My husband was transferred to California. Michigan Employment Security Commission (which would have made any payments if the woman was unable to find work in California) said that I did not have a good reason to leave with my husband. I have lived with my husband for 40 years and I feel that this was a good reason for me to leave my job.’
"Quitting because of discrimination. Recently the Women's Justice Center had to intervene to obtain benefits for a woman, Carrie Phillips, who quit a civilian job with the Army after charging she had suffered discrimination in promotions, according to Jan Leventer, attorney for the center.
"Failure of most state laws to cover the nation's 1.2 million to 1.8 million household workers. Only about 130,000 are now covered. Under federal law, the states are required to provide coverage only to workers of an employer who pays at least
$1,000 in wages to household workers (whether he uses one or 20) in a calendar quarter.
"Some states used to exclude women from receiving benefits during pregnancy even if they were ready, willing and able to work. A recent Supreme Court decision takes care of this problem legally, but the American Civil Liberties Union testified that, in practice, pregnant women still suffer because of attitudes of administering personnel."
Under existing laws and constitutional rulings, Congress has the power to compel the states to write new rules to solve some of these problems -- but the solutions are difficult and could involve billions of dollars. What the commission will recommend to Congress is far from clear. In Pennsylvania, Michigan and California, some of the difficulties for women -- who comprise nearly half the labor force -- are being solved by state laws, regulations and court rulings.
Wilbur Cohen, in an interview, said the two biggest problems are loss of benefits when a woman quits for sexual harassment or for family needs like taking care of a sick child, and can't find another job afterward. He said benefits shouldn't be taken away where it can be established that sex harassment really did occur or that there were legitimate family needs.
But he said the cost of benefits in sex harassment cases should be charged to the employer only if it was the employer who was doing the harassing. "If it was a fellow employee, not the employer, there should be some sort of statewide pooled funding," Cohen said. "But if it's the employer, he should pay." Cohen said the question of full-time availability for work and other problems are more complex and he hasn't reached any conclusions yet.
Mr. HANLEY. Ms. Smothers, on behalf of the committee, I want to express our deep appreciation for your very fine testimony and our deep appreciation to the American Federation of Government Employees for the keen interest it has taken in this problem and the positive efforts it has taken in an effort to eliminate the problem. We want to work along with your association. I look forward to the day that we can say that this is no longer a problem within the ranks of the Federal Government, and, beyond that, hopefully, the spinoff will encompass the private sector as well.
We appreciate the suggestions outlined in your testimony with respect to coping with the problem.
I am appalled at what you state in your testimony on page 3 related to the Johnson Space Center in Houston, Tex. This is sickening.
Ms. SMOTHERS. Yes.
Mr. HANLEY. Absolutely sickening.
In the course of that investigation were the women involved at all reluctant to specifically name the supervisors involved?
Ms. SMOTHERS. Chairman Hanley, I really cannot answer that question because I did not personally speak to the local president. They called in this information and one of my other staff members spoke directly to him, but I really don't know.
Mr. HANLEY. The committee would be very much interested in an elaboration of the circumstances there and would appreciate it if your counsel would contact Mr. DeYulia of this staff for an expansion on the information related to that particular situation.
Ms. SMOTHERS. All right. We will be glad to do that.
Mr. HANLEY. Have any of your members attempted to include as a part of contract negotiations any language which would specifically describe sexual harassment as a grievable offense, and, if so, what were the results of their efforts?
Ms. SMOTHERS. At this point we do not know of any, but since initiating the preparation for the testimony, and with locals that
are in the process of developing contract language now, we are developing contract language on sexual harassment.
In other words, I don't know of any locals prior to this time that have attempted to negotiate any language on this issue.
Mr. HANLEY. Is your association aware of any instance where a supervisor has been perhaps demoted or disciplined or dismissed by virtue of a sexual harassment charge?
Ms. SMOTHERS. In San Francisco we know of a reassignment that did occur as a result of our local's involvement on the issue of sexual harassment; the official was transferred to another unit.
Now, what they are alleging at the Johnson Space Center, they are saying that one supervisor was fired, but whether or not sexual harassment was the ultimate reason or not, I cannot say.
Mr. HANLEY. Would that be the only instance that you are aware of?
Ms. SMOTHERS. That we know of presently.
Just going back to the incident in San Francisco, for example, this particular supervisor happened to have a record, seemingly, of these incidents of sexual harassment. This was not the first time this had happened.
But President Blaylock did inform me that in discussion of the issue of sexual harassment with Stan Ross of Social Security that he had committed to President Blaylock his efforts on behalf of Social Security in ferreting out this problem where it was brought to their attention.
But the one in San Francisco definitely sticks out in my mind because this was not the first incident, but they had a tendency to just transfer him.
Mr. HANLEY. In noting your proposal for the harassment counseling program, may I ask, would this take any investigative role in processing complaints? One problem in handling of complaints through the EEO process is that EEO complaints are first handled through the agency, and the fair resolution of complaints can be adversely affected by internal agency pressures.
My question is, how would your proposal tend to avoid these pressures?
Ms. SMOTHERS. In recommending that there would be someone with expertise in counseling, not to handle complaints, this person would have to, in other words, almost be an independent individual, would have to have the complete confidence of the individual, and the reason we recommend this is because many times -- and I am sure it has been brought out here very well during the process of the hearings -- when it does happen sometimes people don't know where to go or what to do about it and is something they carry with themselves and they start blaming themselves. They have become the victim.
"There is something wrong with me." So this is one of the reasons we made this recommendation.
Also along the lines, we have a drug abuse counselor, someone to counsel on drug abuse, and also alcoholism, and we felt that there should be someone with expertise in counseling on the issue of sexual harassment.
Mr. HANLEY. Thank you, Ms. Smothers.
Mr. STENHOLM. No questions.
Mr. HANLEY. Mrs. Spellman?
Mrs. SPELLMAN. Have you noticed whether there is any correlation between the position; that is, the grade level or the type of work that a woman is doing, and sexual harassment of professional women, clerical women in clerical jobs or those in blue collar jobs?
Ms. SMOTHERS. A mixture. I say a mixture because definitely the clerical jobs, and then also we represent employees who are known as nonappropriated fund employees that work for the PX, Army and Air Force Exchanges. Definitely they are faced with it, and primarily because they are afraid to speak up many times, they are threatened with the loss of their jobs, and then I also say a mixture because women that are, say, maybe going into the paraprofessional job areas that are in training are told, "Well, if you want to come out of this program successfully, you better go my way."
I point this incident out because I remember in Oregon this year in my class on women in government I was just giving an example to the class as to how would you handle this problem if a member of the union came to you saying that she was being harassed by a supervisor or what-have-you, and not knowing that the example I cited was the identical situation that one of the members of the class was faced with, and she spoke up and she told the class "This is exactly the same thing that is happening to me now. I am in a training program for a higher position to promote me out of the clerical field and this is exactly what the supervisor has said to me," and she was saying that she would then go to his immediate supervisor, but he had come to her twice and told her he was not playing, that he could see that she was drummed out of this training program.
So this is why I say a mixture.
Mrs. SPELLMAN. I lectured before a think tank-type of group and my subject this past weekend was what is happening on the Hill. I mentioned these hearings and one of the men in the group -- these are top level Federal employees and you would be interested to know that out of the whole group there was one woman -- one of the men said, "You aren't going into this fairly. Men experience the same kind of harassment," and he told of women who come in and shut the door.
Do you have cases or complaints of this too?
Ms. SMOTHERS. No case has come to our attention.
I only know of one incident where I could probably say this occurred and it was only given to me secondhand from one of our members who told me that this happened in his agency, that he knew the reason why this man was getting some of the choice assignments is because he in fact was going to bed with his supervisor who happened to be a woman. Even though that type of statement is made, I still contend that it is not as pervasive as what occurs to women.
Mrs. SPELLMAN. You haven't had complaints concerning the problem in reverse?
Ms. SMOTHERS. No, we have not.
Mrs. SPELLMAN. What difficulties have employees faced in seeking unemployment compensation after being fired or leaving the job because of sexual harassment?
Ms. JACKSTEIT. Well, in most States if you resign your job voluntarily, the operative word, you may not receive unemployment compensation either permanently or for a period of 8 weeks, 10 weeks, depending on the State law, so if you resign your job to avoid sexual harassment because you thought you had no choice, in most States you would still be "voluntarily" resigning without due cause and be disqualified from unemployment compensation, so they cannot receive unemployment compensation because they technically resign from their position even though they felt they had no choice.
Mrs. SPELLMAN. We know that women often have resigned because the idea of spending a year or more in the same room, and the same situation with the person who has been reported, is beyond what they can stand. Yet they are not able to get unemployment insurance.
Thank you, Mr. Chairman.
Mr. HANLEY. Thank you, Mrs. Spellman.
Mr. ALBOSTA. No questions, Mr. Chairman.
Mr. HANLEY. Mr. Cavanaugh.
Mr. CAVANAUGH. I didn't expect Mr. Albosta to pass.
Mrs. SPELLMAN. I have more questions if you want more time.
Mr. CAVANAUGH. I will yield to my colleague while I readjust my thought process here.
Mrs. SPELLMAN. You proposed an employees' sexual harassment counseling program. Now, would this take any direct or investigative role in processing complaints?
Ms. SMOTHERS. No, it would not.
Mrs. SPELLMAN. It would not. It would merely -- and I shouldn't use the word "merely" because I think it is very important -- it would provide counsel before the fact, I would hope, and after the fact. Am I right?
Ms. SMOTHERS. We see it operating two ways, before and after, both to the employee as well as to the managers, because this is an issue, as we stated in our testimony, that definitely we need both education and training on.
The more we focus on the issue, I think the more we are going to get at perhaps maybe impacting on it.
Mr. CAVANAUGH. Thank you. I am prepared.
On page 2 you state "Because the scope of sexual harassment can range from the very subtle to more overt forms, we find that a comprehensive definition is necessary to fully define this problem."
We have had other testimony in favor of a broad definition of sexual harassment, but it seems to me that this raises a difficult problem from several respects and even poses the potential of not resolving the difficulty.
I think that we can all realize that there is a broad range of activity which is undesirable, but to overly define the offense sometimes, or not defining offense with gradations of severity, often leads to a diminution of enforcement or appreciation because if the penalty is too severe for a lesser infraction, it may be considered that no penalty at all then should be assessed.
Wouldn't we be better served to seek to define gradations of sexual harassment according to severity rather than to have an
all-encompassing definition that may tend to discourage enforcement rather than enhance it?
Ms. SMOTHERS. I defer to Mary.
Ms. JACKSTEIT. Well, one problem with that would be arriving at a consensus, I suppose, as to what was worse or what was not as bad as any other kind of harassment, so I think you would have a problem there.
Mr. CAVANAUGH. It seems to me that should be possible. Certainly that is going to have to occur either at the enforcement level or at the definitional level. There are going to be gradations of offenses.
Ms. JACKSTEIT. I was just going to say that the discretion is probably going to be with whatever adjudicative body it is or manager it is that is administering the discipline. Whether it is the Merit Systems Protection Board, or Special Counsel, or the EEOC, there is no mandatory penalty for almost any offense in the Government.
There is usually a range of things which the adjudicator can do, depending on what they perceive to be the seriousness of the case. It would seem that that is where the flexibility comes in.
I mean the EEO hearing officer who hears the case will decide whether discipline in the form of a suspension is warranted, or counseling, or reprimand, or firing, whatever it is. It seems to me it is at that point that the discretion is already there and the person hearing the facts will then evaluate just how to decide the case.
Mr. CAVANAUGH. That discretion being there already and having a broad definition, the system as we understand it today doesn't work, so as we discuss definition it seems it might be wise to try and address a gradation of offenses. A supervisor who bases employment on the exchange of sexual favor engages in an outrageous exercise of authority over another human being.
Ms. JACKSTEIT. Right.
Mr. CAVANAUGH. It seems to me we could define that clearly and explicitly and harshly and not leave that kind of activity subject to the grading that it may get with flirtation or other levels of sexual harassment and leaving that subject to the diminution that I think now occurs in the process.
Ms. JACKSTEIT. We are not fixed on the type of language that we are advocating that would be included in the legislation which you would be considering. We would be happy to work with your staffs in considering any possible formulation that you might think is possible.
Mr. CAVANAUGH. I just asked for your input because we have gotten a lot of testimony about the broadness of the definition and I see serious dangers to the purposes to be served here by overly broadening the definition.
Thank you, Mr. Chairman.
Mr. HANLEY. Thank you, Mr. Cavanaugh.
Ms. Smothers, is AFGE aware of any States in the Nation that have tackled this problem and done a reasonably good job with it?
Ms. SMOTHERS. We really can't speak with any real authority to that issue. This is one of the reasons why some of our other actions in pursuing this issue of sexual harassment will be a survey to find
out what is going on not only within our local union, but also in their respective States.
Mr. HANLEY. That could be very helpful to the committee.
I understand that one or two States have taken an initiative in this area and we would be interested if your survey suggests that other States have become involved.
Ms. SMOTHERS. All right. I do know for a fact that there is a Michigan State task force on sexual harassment and this past Saturday they too had a seminar on sexual harassment with over 600 people attending.
Now, this task force is made up of both union, academia, and women's groups, and I believe the task force has been in existence for well over a year and a half, possibly 2 years, and one of the persons from the University of Michigan who was very involved in it, I did talk to her on Tuesday because I wanted to get copies of the resolutions I understood that were passed because there was one resolution directed to the Federal Government.
Just what that resolution entails presently I do not know.
Also, the Illinois Commission on the Status of Women, I believe they too are looking at the issue of sexual harassment in the State of Illinois. Those are two States that I just happen to think of right off.
Mr. HANLEY. If you do come upon other information related to specific activities in States we would appreciate being made aware of them.
Ms. SMOTHERS. All right.
Mr. HANLEY. Do you have any ideas as to how we might protect supervisors against frivolous complaints?
Ms. SMOTHERS. Well, No. 1, and it has been recommended, I think, is the importance of the awareness, or the seminars, or training sessions, and I do know that managers get together from time to time for training sessions.
I think this issue of sexual harassment should be encompassed in their training programs because, yes, one can overreact or under react to something and not only should it be to protect the managers, but also employees, if there would be someone who would attempt to go that far just perhaps to get back at a supervisor, then I think this is the necessity for having the training for both, for the employees to be aware of consequences that they could incur if they did bring a frivolous case.
Mr. HANLEY. We want very much to protect the innocent in the process of penalizing the offenders.
In the matter of unemployment compensation, could you tell us what difficulties employees have faced in seeking unemployment compensation after having been fired or quitting due to sexual harassment?
Ms. JACKSTEIT. The difficulty is generally not in being fired. Well, in most States, if you are fired for cause or misconduct or if you resign your job voluntarily, you may not receive unemployment compensation, either permanently or for a certain number of weeks. People who resign from the Federal Government then have their separation reported to the unemployment authorities as a resignation and are thereby disqualified regardless of the reason.
If they are fired and the agency uses some reason, naturally they are not going to record the fact that sexual harassment is involved. That again would be reported to the authorities and in many cases the person will be disqualified from unemployment compensation and then the burden is on the individual to try to prove that they had no other choice, and in some cases the State law is quite severe.
Whether you resign, almost no matter what the circumstances are, you may not receive unemployment compensation, so that is the kind of consequence we are talking about.
Ms. SMOTHERS. Also I think you could consider the fact that if the employee would appeal to the unemployment compensation board to try to get compensation because of sexual harassment, there again, depending upon the height of the awareness of the members of that board and whether or not they recognize or consider the sexual harassment as reason for one leaving one's job, that would also pose another barrier.
Mr. HANLEY. Thank you.
Mr. STENHOLM. No questions.
Mr. HANLEY. Mrs. Spellman?
Mrs. SPELLMAN. No thank you.
Mr. HANLEY. Mr. Albosta.
Mr. ALBOSTA. I pass.
Mr. HANLEY. Mr. Cavanaugh.
Again, ladies, our deep appreciation for your appearance here this morning. You have assisted the committee greatly.
Ms. SMOTHERS. Thank you.
Ms. JACKSTEIT. Thank you.
[The following communications were received for the record:]
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,
Washington, D.C. November 15, 1979.
Mr. DAVID MINTON, Executive Director,
House Committee on Post Office and Civil Service,
U.S. House of Representatives, Washington, D.C.
DEAR MR. MINTON: Enclosed is a memorandum recently submitted by the NASA Office of Inspector General to the Associate Deputy Administrator relating to the recent testimony of Louise Smothers, Director, Department of Women's Affairs, American Federation of Government Employees (AFGE). The testimony took place on November 1, 1979, before the Subcommittee on Investigations and pertained to the issue of sexual harassment in the Federal Government.
Mrs. Smothers made reference to certain derogatory personnel practices at the Johnson Space Center (JSC), Houston, Texas. These statements were the source of at least two newspaper articles that reflected very poorly on NASA.
Investigative efforts by my staff have failed to substantiate any of these statements. Repeated attempts were made by my office to obtain additional information from Kenneth T. Blaylock, National President, AFGE, and Mrs. Smothers.
On November 14, 1979, Mrs. Smothers telephonically advised that her comments stemmed from an article appearing in the local union newsletter which indicated that, "based on a recent survey, sexual harassment could be a problem at JSC." She stated there now appears to be a conflict between the article and her testimony and the situation is not as "pervasive" as indicated. She "intends to ride out the storm" until she receives a letter from the President of the local chapter before taking any corrective action.
Mrs. Smothers was told that should AFGE have any additional facts regarding this matter, the Office of Inspector General would like to be advised. It does appear,
at this point, that the allegations are baseless and without merit. Any assistance you can render to correct the record would be appreciated.
ELDON D. TAYLOR,
NOVEMBER 9, 1979.
To: ADB/Associate Deputy Administrator.
From: W/Assistant Inspector General for Investigations.
Subject: AFGE Allegation of Sexual Harassment of Women at the Johnson Space Center.
The prepared testimony of Kenneth T. Blaylock, National President, American Federation of Government Employees (AFGE), before the House Subcommittee on Investigations of the Committee on Post Office and Civil Service on October 31, 1979, included the following: "At the Johnson Space Center in Houston, Texas, it was common knowledge that there were two kinds of evaluations; one for good work and another for ‘entertainment’ on the side. Supervisors told women that in order to be promoted to a GS-6 level secretarial position, it would be necessary to ‘entertain’ out-of-towners. Bob Bryant, Local 2284 President, confronted personnel with these practices and threatened public exposure. This curtailed the more overt practices, but recent complaints of sexual harassment from more than twenty-five women on base indicates that this is an ongoing problem at the Space Center. The union has filed several complaints with the local EEO office which have resulted in three harassers being reassigned and in one being fired."
Actual testimony was given by Louise Smothers, Director, Department of Woman's Affairs, AFGE, and her statements appear to be substantially as set forth above (final transcript not yet available).
At the request of this office, the NASA Resident Inspector at JSC interviewed Mr. Jack Lister, JSC Personnel Officer, about this matter and was advised as follows.
Contrary to Smothers' testimony, Bob Bryant, Local 2284 President, did not go to Personnel with any such alleged practices. After reading the testimony of October 31, Mr. Lister called Bryant in and asked for an explanation and for Bryant to furnish specifics on any complaints received by the AFGE local. Bryant had no such complaints and he issued a press release on November 2, 1979, copy attached. Bryant reportedly telephoned Blaylock to inform him that the testimony regarding JSC was not correct and he put Bryant on the spot. Blaylock reportedly told Bryant that he would take appropriate action.
Regarding the statement that "the union has filed several complaints with the local EEO office which have resulted in three harassers being reassigned and one being fired," our Inspector contacted Ms. Virginia B. Hughes, Federal Women's Program Manager, Equal Opportunity Programs Office, JSC. Ms. Hughes stated that she was speaking for both Mr. J. Atkinson, the JSC EEO Officer, and herself and they do not know what Smothers was talking about, and the testimony was simply not true. There have been no complaints of sexual harassment filed by the union with the EEO Office and there have been no personnel actions as claimed.
OIG attempted to contact both Blaylock and Smothers at their office in Washington, D.C., with negative results. We will continue in our attempts to determine if they have information to support the testimony and if not, what corrective action will be taken.
J. BRIAN HYLAND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
Houston, Tex., November 6, 1979.
Hon. GLADYS N. SPELLMAN,
Cannon House Office Building,
U.S. House of Representatives, Washington, D.C.
DEAR Ms. SPELLMAN: You will find enclosed a letter to AFGE National President, Ken Blaylock, in which I have requested that the record be set straight concerning Sexual Harassment at Johnson Space Center in Houston Texas. It is my hope that Mr. Blaylock will present this information to you soon. If not, then I request that
you make my letter to him a matter of record for your Subcommittee of Investigations of Sexual Harassment.
ROBERT L. (Bob) BRYANT,
President, AFGE 2284.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
Houston, Tex., November 6, 1979.
Mr. KENNETH T. BLAYLOCK,
National President, AFGE,
DEAR KEN: First, I would like to say that I agree with your definition that "Sexual harassment is any unwanted physical or emotional contact between workers or supervisors and workers, which makes one uncomfortable and/or interferes with the recipients job performance or carries with it either an implicit or explicit threat of adverse employment consequences."
And second, that "one need not show that sexual harassment is commonplace in order to argue that it is severe for those afflicted by it."
Your testimony before the subcommittee or investigations concerning sexual harassment included statements about Johnson Space Center in Houston and myself, as Local 2284's President. These statements were taken out of context, misconstrued and do not represent the situation that exists at the Johnson Space Center. I request that the record be corrected before the subcommittee as follows:
One of the women who responded to our article in our Newsletter (Sept 79) stated that "Her supervisor told her that outstanding evaluations were reserved for other duties as assigned, such as outside entertainment." As this was reported to have occurred over one year ago, no names were given, only that the supervisor and the employee had both been reassigned due to a reorganization. This was added to the list of types of Sexual Harassment.
There is a common belief by women over 40 that you must have a "sweet young thing" appearance in order to be selected for the higher female positions. This has perpetuated rumors of out-of-towners type of entertainment requirements. It is the belief in these rumors that is sexual harassment, for when the employees accept it as a way of life, it cannot be eliminated nor can you get qualified older women to compete for these jobs. This is the only practice I have confronted personnel with and that was three years ago. It is this practice which has influenced the Johnson Space Center's Women's Program designed by Management, Equal Opportunity Counselors, Federal Women's Program Manager, and AFGE Officers which is now starting to pay off with more and better positions which women can qualify for.
I have not now or in the past threatened public exposure. This and the curtailing of more overt practices is completely out of context and is meaningless as related to sexual harassment and Johnson Space Center.
It is a fact that more than twenty-five women made inquiries pertaining to sexual harassment as a result of the September article. However, the above definition will eliminate about 80 percent of the inquiries. It is the position of AFGE 2284 to seek the facts in any complaint and present them to JSC management for resolution. Management, Equal Opportunity Counselors, Federal Women's Program Manager, and AFGE Officers are cooperating to eliminate any form of sexual harassment at JSC.
Local 2284 has filed no complaints with the local EEO Office and there is no open case of sexual harassment on file in the Union Office as a result of the inquiries. The one harasser that was fired was a referral to the private union and the Houston EEO Office.
The Federal Women's Program at Johnson Space Center is on of the best in the Nation and I do not want it or the credibility of AFGE put in jeopardy as a result of misconstrued statements taken out of context and structured to emphasize a condition which does not represent the true situation. It is with this in mind that I request that you set the record straight with the Subcommittee on Investigations and NASA Headquarters.
ROBERT L. (Bob) BRYANT,
President, Local 2284.
Mr. HANLEY. Our next witness this morning is Ms. Dorothy Nelms as president of the Federally Employed Women.
Ms. Nelms, we are pleased to have you with us this morning and if, for the purpose of the record, you would introduce your associate.
STATEMENT OF DOROTHY NELMS, PRESIDENT, FEDERALLY EMPLOYED WOMEN, ACCOMPANIED BY BERYCE Mac- LENNAN, VICE PRESIDENT FOR COMPLIANCE
Ms. NELMS. Yes. Good morning, Chairman Hanley.
I have with me our vice president for compliance, Dr. Beryce MacLennan.
Mr. HANLEY. Doctor, it is good to have you with us this morning.
Ms. NELMS. I also have with me our congressional liaison, Lynn Revo-Cohen, and our legislative chairperson, Rose Thorman, and a few other members, as you can see, who are deeply concerned about this issue.
Mr. HANLEY. Fine. Thank you.
Ms. NELMS. As national president of Federally Employed Women, and on behalf of 740,000 women employees of the Federal Government, I thank you for the opportunity to testify about sexual harassment of women in the office.
We commend you for initiating this long overdue investigation of a long hidden problem.
We commend you and we also recommend that this issue of sexual harassment is more pervasive than just in that portion of the Federal Government which is known as the executive branch.
Sexual harassment, as we know it through our members who are federally employed women in the legislative branch, and the judicial branch, is a severe problem. We would recommend that if it is within the scope of this committee's activity that this investigation be extended also to sexual harassment as it exists on Capitol Hill.
We are committed to working with you and this committee on follow-up activity to insure that effective measures are taken to establish systems that are responsive to complaints of sexual harassment that will lead to the end of these atrocities.
Before I go further into my formal report, I would like to talk a little bit about some of the questions I have heard raised here, particularly by Mr. Cavanaugh, one of which conerns what is sexual harassment, and how would it be defined.
We, too, believe in federally employed women that it is a very difficult and very broad term. But the thing that is most important and that may not be able to get into a definition is the very personal aspect that goes with sexual harassment, the fact that a touch on the body can be just as offensive to one person as an attempted rape is to another person.
This makes it very difficult to say we are going to deal with gradations of sexual harassment, because the personal element has to be considered to determine what is the level of sexual harassment.
Another indication of how deeply people are wondering how you define sexual harassment is in our tacit acceptance over the years of the caricature of the secretary who must sit on her boss' lap while she takes dictation, of people laughing at jokes about the boss who chases women around the office. When we talk about sexual harassment in the Federal Government, these are very
common things that happen. In addition we have new phenomena facing women as they advance in the Federal Government. One is that we are going into nontraditional jobs, jobs where previous to this women did not work at all. There are women working on construction sites, women working as engineers, and these women have encountered, in the isolation of these jobs, a form of sexual harassment that is almost incredible to relate. The general answer given is that if, as a woman, you choose to work in this particular kind of environment, then you have to learn to live with what goes with it. That is the sexual harassment that goes on.
In addition, as we become more mobile, a lot of us have to travel on our jobs. It used to be, before it was made taboo, a rather normal question to ask a woman who was being interviewed for a job, do you understand that travel is connected with this job, and answering yes, the next question would be, do you understand that you also have to travel with men?
Now, I wondered about that question for years until I started traveling and I found that what could be a very affable, innocuous coworker or supervisor while in the office, could turn out to be quite different once we had traveled to another place and were both staying in the same hotel. This again takes in the fact that it is very difficult to define what is sexual harassment, and it is not always perceived as coming from one who is a supervisor.
It comes from coworkers and in some cases, as we call "others," instructors in training courses who have a decision to make over a field course or whether somebody is going to pass a course that is related to a particular aspect of their job. It plays havoc with women as they get to higher positions where, as was said by Louise Smothers, you get into a much more subtle form of sexual harassment, and this may be only words. It may not be actions.
It may be constant abuse and derogatory remarks about women, women who are occupying jobs that men ought to have, women who are caricatures of males, and again you get into a very personal definition of what is sexual harassment.
One of the most pervasive things about sexual harassment would be in the side-effects that occur in women, and the most significant of these is the feeling of powerlessness. We also feel that the manifestation of sexual harassment has to do with the males having power in the economic environment and the exercise of that power in the form of sexual harassment against women and the feeling of powerlessness because women feel the systems haven't been responsive. Again, in connection with Mr. Cavanaugh, we have some specific reasons in our testimony why we think and why we know women have not used the formal systems.
No. 1 is that these systems are pretty public and once a person files such a complaint, it is known and they are subject to embarrassment, to harassment, from the coworkers of the man against whom they made charges, and from other women who feel perhaps they brought it upon themselves.
Frist, a lot of sexual harassment happens with women who are economically deprived, which means they have got to work for their living. They are afraid if they report it, and it becomes known that they are protesting, they will lose a much needed job. In fear of this, they do not report it.
Finally, some women feel that somehow they have been to blame for this, that they have caused it, and in the process of reporting it they feel they will be incriminated and end up being further victimized. I think these are three essential reasons why more people do not use the formal complaint system.
Again, you have with the formal complaint system the length of time that it takes to get a formal complaint processed. I think Ms. Norton pointed out the length of time, and if you take it from the point when the incident occurs and you file a complaint and you consider that you have to live on that job in that particular environment and be subject to all sorts of reprisals, it is really small wonder that people use the formal complaint system as it is currently set up to complain about sexual harassment on the job.
I have two specific incidents I would like to talk about. One is in my formal testimony and it concerns a questionnaire that we sent out to 1,000 of our members here in the Washington, D.C., area, and the second is an incident of sexual harassment that has come to my attention because some of our members in a particular area took some action on it.
I am not at liberty to tell you the names of the persons because I haven't obtained their consent. It just recently came to my attention. It involved three women who are working in nontraditional employment who have reached a point where they can no longer handle the physical handling of their bodies by the men, the kind of obscene jokes the men made because they chose to work in these kinds of occupations. They decided to seek help, which they did through Federally Employed Women.
We extended help, explained to them the systems under which they could file, and eventually complaints were filed.
When the men who were involved heard about the complaints they posted, and it was later proved that they did, some very obscene cartoons on the wall that were caricatures of these women. The upshot was that after an investigation the three men who were charged were either reduced in rank and transferred to other organizations or given a suspension.
In each case each of them was given a punishment. You would think that that would supply a happy ending to the story. Somebody complained, the system responded, somebody was punished. But indeed, it is only the beginning of a lot of torment. Those three women involved are presently at home, physically incapable of going to work because of nervous strain during this process. The nervous strain came from, one, the kind of subtle continuous abuse from the coworkers of these men that they accused of sexual harassment. It has also come from their women coworkers.
The women have said that punishment for the men was too severe, women who said, "Maybe you brought this on yourself by the way you dress, by the way you act." Finally, even so far as one woman's husband who has said, "I knew you wanted to go to work for a reason like that," who is almost convinced that somehow they also contributed to this sexual harassment.
They are currently on extended administrative leave and I don't know when they will be able to go back. So I say when you talk about defining sexual harassment, it is very difficult and very intriguing and a very personal kind of process.
When I talk about our study that we conducted in Washington, I would like to say first that it was not a validated scientific study. We devised our own questionnaire and we mailed it to about a thousand of our members in the D.C. area on a very short time frame. By the time we got ready to analyze it for this particular hearing, we had received responses from about 140 women. We subsequently have received another 50 or 60 responses which we have not anlayzed. I think it is significant, in the responses that we got to the questionnaire, the percentage of women who had experienced some form of sexual harassment, as we defined sexual harassment for the purposes of our questionnaire and they are on page 2 of my testimony. Ninety-three of the women who responded said that they had experienced sexual harassment, which is 67 percent of those that replied. When you talk about formal complaints again, only seven women had filed formal complaints.
Of the seven that filed formal complaints, only one situation occurred in which the harasser was reprimanded for what had occurred.
Eighteen women filed informal complaints, and actually only two positive things happened out of all that, so I guess we can conclude from that that it is not unusual for people not to choose the formal complaint process.
Again we found out from our questionnaire some comments about women and their perceptions of the frequency of sexual harassment in the government and we have some comments, some of which I will quote, on page 4 of my testimony.
It is pervasive.
Sexual harassment in the workplace is common. It varies from name calling, like "dumb broad" to actual sexual advances.
As far as sexual remarks, that goes on around me all the time as my field is predominantly male.
Complaints about sexual joking and propositions were made verbally and in writing to the authority at each level up through bureau chief to personnel and security office. The general response was, "if you work in a man's world, you have to play the game or get out."
So I guess what I would like to say -- we have included some recommendations -- is, we do not feel that this is a subject that can be totally mandated by law. It is going to be totally impossible to say that sex in the workplace is out because when men and women work together there will be sex. We have to find out how do we determine or how do we get people to understand the fine line that must be drawn between accepted social behavior on the job and what is unaccepted or prohibited behavior in the work environment.
We think there are two approaches to that. By one approach we definitely have to have some form of training. This training cannot be confined just to the women in the organization. We must also be training our men. I am quite certain that a lot of men, because of our cultural acceptance of the kind of behavior I mentioned earlier, are not aware that they are being offensive in the work environment; are not aware that they are engaging in prohibited sexual behavior, this kind of training that we recommend would help the men to become more aware of what is acceptable and what is unacceptable behavior.
We also have a lot of women who don't know when they are being sexually harassed, who do not know when it first starts, so they can take a first step to eliminating it.
We think training for women would help in this area and help them become aware of some behaviors and how to cope in the work environment.
Finally, we believe that somewhere from the White House, from the Office of Personnel Management, a clear statement has to come out on the unacceptability of sexual harassment. It must show some of the manifestations of sexual harassment, and a clarification and a restatement of what the punishments are for engaging in this kind of behavior on the job.
Finally, we think a separate board needs to be set up and several people before me have alluded to it. There are things that happen in an agency that make filing a complaint like this so personal that people don't wish to engage in it.
Our recommendation of a separate mediation board is to take out some of that personal element. It is a place where the person who claims that she has had sexual harassment can go for counseling, for filing a complaint, or for whatever.
It is also recommended as a place a harasser can go for counseling, for whatever, for training, and we think this would help to alleviate the situation.
Again, Chairman Hanley, we thank you for this opportunity to testify in this significant investigation, and we look forward to working with you to implement these and other recommendations that will eliminate sexual harassment in the Federal Government. [The statement follows:]
STATEMENT OF FEDERALLY EMPLOYED WOMEN
As National President of Federally Employed Women (FEW), and on behalf of 740,000 women employees of the federal government, I thank you for the opportunity to testify about sexual harassment of women in the office. We commend you for initiating this long overdue investigation of a long-hidden problem. We are committed to working with you on follow-up activities to ensure that effective measures are taken to establish systems that are responsible to complaints of sexual harassment that will lead to the end of these atrocities.
We have long been aware that many male supervisors and co-workers have exploited the economic vulnerability of women employees with constant physical overtures and threats of reprisals for those who resist. These physical overtures range from touching and patting of their bodies, to sexually abusive and derogatory language, to outright demands for sexual intercourse, attempted rape, and rape.
Why isn't all of this found in the records? We do have an Executive Order, Title VII of the 1964 Civil Rights Act, the Constitution, and government standards of conduct that make such offenses grievable and punishable. We believe there are a number of reasons why these systems are not working:
The women hardest hit by sexual harrassment are generally in the lower grades, they need their jobs and are afraid to report these activities for fear of losing their jobs.
Some women even feel guilty about these advances, and believe they have done something to cause this to happen, and are loath to report it because they think they will also be incriminated.
Others transfer out of the section or office, ignore it, and unfortunately, in some cases, give in.
The systems to redress these grievances are public, persons filing complaints can generally be identified, and this results in even more unpleasant work environs, embarassment, and even ostracization.
A more pervasive reason for the lack of filing of more formal complaints is that many women, and some men, are not even aware when the line has been crossed between permissible social behavior on the job, and prohibited behavior. For example,
in many offices, it is accepted that there are jokes about sex, and a lot of kidding. However, when do the jokes cease to be funny and become lewd; when does kidding about sex turn into subtle, and then more serious demands? When does a woman complain of what she considers offensive behavior -- at the first dirty joke? The second? When is a woman's behavior perceived as invitational? This is a very cloudly area that needs to be clarified for both men and women.
Mr. Hanley, Federally Employed Women attempted to get some specific information about sexual harassment from our members in the Washington, D.C. metropolitan area. We were operating on a very short time frame, but we did devise a questionnaire, and mailed it to 1,000 members (copy attached to this testimony). We have had over 200 responses, but we were only able to analyze for this meeting the first 150 that were received by the stated deadline. Of the respondents, 93 of them, or an overwhelming 67 percent had experienced some form of sexual harassment defined in our questionnaire:
Sexual remarks or jokes directed to women -- 73 "yes"
Patting and/or touching of a woman's body -- 46 "yes"
Sexual propositions demanded in exchange for promotions or special treatment -- 30 "yes"
Sexual propositions with promises of special treatment -- 44 "yes"
Sexual assault -- 9 "yes"
We asked how these women dealt with this sexual harassment:
7 formal complaints were filed.
18 formal complaints were initiated.
4 women resigned or requested transfers.
The others endured it and did nothing, others feel they ended it themselves.
What were the experiences of those who used the complaint system?
5 out of 7 women who filed formal complaints experienced reprisals. In only one situation was the harasser reprimanded.
6 of the 18 informal complaints had positive results: in 2 cases the harasser was transferred; in 4 situations the harassment stopped; in 12 situations where the outcome was less favorable, the harassment lessened in 2 cases; continued unabated in 4 cases; in 2 cases the women were transferred, and in the remaining 4, the women experienced reprisals, such as failure to receive merit promotions.
It is therefore not strange that the majority chose not to complain: 17 of these women said they were afraid of reprisals; 2 felt they would receive no support; 11 others said they were too embarrassed to complain. Thirty nine handled the problem themselves. One woman stated that she did not feel inclined to make a scene and in 11 situations the harassment eventually ceased without any action being taken.
Those characterized as harassers were drawn from all ranks: Supervisors, 35; supervisors above the supervisor, 17; colleagues, 41; from outside the work area, 21; other, 6.
Of these "others", one was an instructor of a required pass/fail course, and the woman commented "In a sense I am still faced with reprisals, I am still trying to get my back pay and was forced (because of the notoriety) to seek another position with a different agency, at a lower grade". A second "other" was a member of a state agency and third was a contractor's representative.
Many women wrote comments on the questionnaires. It was obvious that not only had more than half of these women experienced harassment more than once, but that many women believed that sexual harassment is wide-spread in the Federal Government. They made the following comments:
"It is pervasive."
"This type of thing happens much more than women are willing to admit".
"I do not believe there are any women who have not suffered sexual harassment in government".
"As far as sexual remarks, that goes on around me all the time as my field is predominantly male".
"I feel strongly that, in this area, women are treated as girls rather than employees. Some men in these offices had the reputation for that sort of thing (touching, sexual propositions) and the women employees forewarned each other".
"Sexual harassment in the work place is common. It varies from name calling dumb broad to actual sexual advances".
"The three responses represent three different types of harassment experienced in the office over ten years. I have left the agency but it is still going on".
The information received points out a fact we have heard orally over and over from women, there is no support given to the women employees who experience sexual harassment. Comments as the following:
"I am the first woman in my job series at my grade level (hired at GS 9). There is virtually no support system for women who are ‘career’ women, that is, who compete with men for positions. I was subjected to a great deal of verbal harassment the first three months I was here. One 50 year old secretary remarked, ‘I was like you once too, but they broke me -- just like a horse’. I feel this is extremely unprofessional behavior and reflects negatively on Federal Government managers".
"Complaints about sexual joking and propositions were made verbally and in writing to the authority at each level up through bureau chief to personnel and security office. The general response was, ‘if you work in a man's world, you have to play the game or get out’."
"My boss said I must learn to get along with my harasser: that no one else seemed to have any trouble with him". (This woman found another job as quickly as possible). "One supervisor talks continually from 8 to 4:30 about how all women can't wait to be screwed. He has propositioned our secretary and has been extremely cold to her since she refused".
"Formal complaint systems are unequipped to hear or help women under pressure of sexual harassment."
"The women who have had the most problems with sexual harassment in my agency are those in the lowest grades, the least sophisticated, the helpless who have no friends or family. They are also the ones least able to handle sexual harassment. This harassment is like rape. It has a lot more to do with power than sex. It will take intense social pressure backed up with the strong arm of law to stop sexual harassment."
The questionnaire data also rendered that it is not always the weak and helpless who are harassed:
"As I have moved into managerial positions the sexual harassment has become more subtle -- more vocal, less physical."
"It is demeaning when my supervisors or colleagues call me ‘babe’ or ‘honey.’ I am a female military officer and it undermines my authority."
In support of my earlier statements about where there is not more documentation of sexual harassment records of formal complaints -- we read:
"I personally feel it is useless to complain. If you are believed, it is a miracle. At best you will be labelled a troublemaker."
"Most women up until now, have let this kind of harassment occur because they felt they were powerless to do anything about it. Very often the sexual abuse involves the woman's supervisor so she is reluctant to ‘make waves’ for fear of losing her job or suffering such reprisals as poor performance ratings."
"Because of my complaint I was detailed to another lab and then another. I had to discontinue my research program and lost my coauthorship. I did one experiment and wrote the manuscript and gave it to my supervisor and never heard anything more. I had to rewrite my Ph. D. research proposal and lost 2 years. Yet my supervisor is still there in the same position, same rank."
"My hands are tied. If I complain I will be transferred, made an ‘outcast’ in the eyes of other employees. The complaint process will not benefit me."
"At the time this happened I was afraid and needed my job since I had a child and was divorced."
"I only confront when I will not affect the relationship adversely. This means putting my work before my feelings about myself."
"The others have done nothing and remain in the branch. As a result of my complaint I was removed from my branch and from duty and threatened with dismissal from my agency. I was ordered to undergo a fitness for duty examination. My attorney and I have had this order revoked."
"At the time of harassment I was 17 years old and had just begun working. I believe all secretaries coming on board should be advised that such things can happen and where to go."
"I was too naive. I tried to stop the harassment and then was ridiculed in front of others for my naivete."
We are not submitting these survey responses as a scientifically validated study on the prevalence of sexual harassment in the Washington, DC metropolitan area. We do believe, however, that these responses certainly indicate the necessity for the investigation you are currently conducting, Mr. Hanley.
We are submitting the following recommendations for consideration by your Committee:
That a strongly worded policy statement be issued to all federal workers by the Office of Personnel Management, and the President of the United States. That this statement reiterate the unacceptability of all forms of sexual harassment, and spell out what this term includes, and the punishments for such behavior.
That a training be mandated in the following areas, and that it be undertaken as expeditiously and professionally as was Race Relations Training in the Department of Defense: a. Training for all women employees to help them become more aware of what constitutes sexual harassment, now to cope with it, and how the regular or special complaint systems operate in this area; b. Training for all men employees (including those in non-supervisory positions), to increase their awareness of unacceptable sexual behavior in the office, and the consequences of such.
That a separate Mediation Board, outside the scope of a particular agency, be established under the Merit Systems Protection Board. This Board will handle complaints filed by women based on sexual harassment, and provide a neutral and confidential channel for their processing; and thus encourage more women to utilize the system for justifiable complaints. This would also allow alleged harassers to be counselled, and/or punished for this unacceptable behavior, and lead to an end of sexual harassment.
Again, thank you, Mr. Hanley, for this opportunity to testify in this significant investigation. We look forward to working actively to implement these and other recommendations that will eliminate sexual harassment in the office.
Mr. HANLEY. Thank you very much for your excellent testimony, Ms. Nelms.
On page 3 of your testimony you allude to a particular situation and you state, "The harassment eventually ceased without any action being taken."
How or why did the harassment in that instance cease?
Ms. NELMS. I can only suppose, without being privy to the thought of the woman who filled out that questionnaire, that perhaps in her case she did an open confrontation with the individual; she spoke with the individual, or maybe the person no longer had an interest in pursuing her. I really couldn't give you an answer as to what was in her mind when she filled out this questionnaire.
Mr. HANLEY. We would like very much to get the secret to that success story.
Ms. NELMS. I agree with you heartily.
Mr. HANLEY. Could you elaborate on how the separate mediation board you propose to install under the Merit Systems Protection Board would work? For instance, how would the Board keep complaints confidential?
As soon as an investigation begins the harasser knows the victim has complained. How would it protect women employees from reprisals?
MS. NELMS. Well, I think first of all, if we have a separate mediation board, we will have a shorter time between the complaint and when a decision is made. Most of the reprisals are carried out while a decision is being made on a complaint and someone knows the person has filed a complaint.
I would expect that a mediation board in its examination or its investigation would be able to go into a work environment and question in general without identifying the specific people that are involved.
I would expect, secondly, that it would give counseling on a confidential level to the alleged harasser and to the person who was allegedly harassed. I am not sure that we would get total anonymity for the individual involved. I don't think that is possible.
But I would hope that with the other supportive items like the training, where a person gets enough courage to understand what is happening and to take some action about it, gets the ability to stand up and say, I am OK. I did accuse somebody of harassing me, then the kind of reprisals we are talking about, even though they occur, would be less effective.
If we had a mediation board, they would certainly go on for a shorter length of time.
Ms. MACLENNAN. I think one thing that is very important is that reprisals should be seen as absolutely unacceptable behavior and there should be very strong penalties of these behaviors approved. I think that is one important way to stop reprisals from occuring.
Mr. HANLEY. Thank you.
Why do you propose that a mediation board be set up at the Merit Systems Protection Board rather than at the Equal Employment Opportunity Commission?
Ms. NELMS. I sort of amended my way of thinking after I heard Mrs. Norton this morning.
Our initial thinking was that the Merit Systems Protection Board under the new civil reform legislation has some responsibility for complaints by persons that are referred to as "whistle blowers," and we kind of used an analogy from there, that a person who is alleging sexual harassment is kind of going against the system.
If the Merit Systems Board could have a responsibility in the area of whistle blowers, we could see an analogous responsibility in terms of those who alleged sexual harassment. But as I said, I thought it over and added in my notes, "on the Equal Employment Opportunity Commission" after I heard Mrs. Norton this morning.
Mr. HANLEY. I see.
Mr. STENHOLM. I want to pursue the comment that was made with regard to how reprisals should be effected in this matter.
What would be your comment with regard to someone who would bring an untrue charge? How should a person who would choose to abuse whatever laws or whatever rules we might set up or whatever punishment, how would you say that someone who would clearly harass from the other side should be treated?
Ms. NELMS. I think untrue charges have to be dealt with in this context like they are dealt with in any other, that essentially when you investigate any kind of charge, you have to try and get at the truth of what has actually occurred. So this has to be taken care of within the investigation.
Mr. STENHOLM. To what degree of severity would you say that someone who would try to utilize this procedure to harass themselves, what degree of severity would you say that that would be in your scale as far as the problem that we are addressing?
Ms. MACLENNAN. Well, I think as we have discussed, there is some difference in the degree of sexual harassment in the first place. I regard the issue of pervasive jokes and suggestive remarks as part of the climate of an organization, and that this is really the responsibility of the administrator of that organization to set the tone.
So that I think that there is a matter for general government acceptability. This does require some changes in our culture.
In the past it is very clear that sexual joking has not been unacceptable amongst men, but when we have a heterosexual work force, then I think there has to be a change in this kind of culture and the degree to which sexual joking is acceptable.
However, when you get into sexual advances or repeated touching, situations where men or women are taking advantage of their position and the fears of their colleagues and employees, then I think you are getting into a very different situation where, first of all, you have to try and negotiate it.
Second, perhaps there are reprimands, letters in one's files.
And, last, actual firing if somebody is repeatedly harassing and ultimately then taking reprisals on people who complain. I think in other kinds of offenses you don't hesitate to fire. I think it would be no different in sexual harassment.
Ms. NELMS. Mr. Stenholm, could I see if I could further elaborate on your question?
I think your question has to do with, suppose a person deliberately maligns another person as a sexual harasser and files a complaint against said person and it is processed all the way through. And in the process the person against whom they filed this may be embarrassed or whatever and then exonerated at the end of the process. Is that the question that you are referring to?
Mr. STENHOLM. Yes.
Ms. NELMS. OK, I have two things.
One, I would hope situations like that would be at a minimum. I would hope that women would not use any systems established to try to reverse a trend that has occurred against them.
Second, I ask you, is this any different from a situation in normal law where you can bring a charge against someone and end up going to court, and in the process that person is found not guilty. You are not punished for bringing that charge against a person. I somehow feel you are asking should there be a punishment against a person who brought false charges against another person.
Mr. STENHOLM. I thank you for your response. That is a question that comes up.
Personally, I agree very much with the statement that was just made in regard to how I was brought up as to what is socially acceptable conduct in mixed company. I find offcolor jokes, particularly sexual jokes, in mixed company very offensive. That is just the way I was brought up.
But I think we have to be very careful as we establish new laws to deal with any subject that we address the possibility.
I will entertain your comment a little further. I think it is a point well taken as far as how we treat this subject in regard to other equally addressed subjects, that we don't go overboard either way. That was the question. I thank you for responding.
Ms. NELMS. You are welcome.
Mr. HANLEY. Thank you, Mr. Stenholm.
Mrs. SPELLMAN. To follow up on that one just a little bit further, I think a charge like this is even more serious than a good many of
those charges that might be made in a work relationship. It could affect a person's family life.
If a person is accused of not giving full attention to the job, it is traumatic but it doesn't affect your family life. I have seen situations where it has been quite serious. So we are going to have to look at that very carefully and put all the protections in that we possibly can for both sides.
I do think probably clear definitions are terribly important, and attitude -- an attitude by the agency that spells it out. This won't be tolerated. That is preventive medicine and we won't have to spend as much time with curing the ailment. We will have prevented it.
I have been concerned, too, about just which agency ought to have jurisdiction, and how that should be handled. I think one of the most important things is prompt action. If you don't have prompt action, then you really don't have very much.
Although I suspect that in many ways it is better to take it right out of the agency and have it handled by EEOC, if it takes a long time, then I would oppose that. I think it just has to move very, very quickly. Probably in your testimony, which was most eloquent, it was beautifully done, you answered most of my questions. I was very proud.
Ms. NELMS. Thank you, Mrs. Spellman. Thank you very much.
Mr. HANLEY. Thank you.
Mr. ALBOSTA. I would like to bring up the question of unemployment. Do you feel if a person is on a construction job or whatever the case may be, if that person is being sexually harassed in their opinion, that they should be able to voluntarily quit and be able to draw unemployment at that time?
Ms. NELMS. If you take it one step further and presume that this situation exists and that there is a system that is responsive to this woman's complaints and would handle them if she exercised those responsibilities, then, no, I don't think so.
But given the current environment where there is no response to a woman's complaints, where the bosses even laugh at her, I would say, yes, if it is intolerable, she should be allowed to quit and she should be allowed to collect her unemployment based on that.
Mr. ALBOSTA. How would you propose, then, that we determine this unless the case has actually been taken before some board and determined that there was a violation?
Ms. NELMS. I would rather think in terms of doing something about what is happening within the system as opposed to how you go about changing unemployment laws so that they are more reflective of what is happening and people can get benefits in a fairer manner.
I think it is going to be far easier to see what we can do about the sexual harassment of women in the Federal Government than we can do about changing unemployment so that if this situation doesn't change, they can collect unemployment. That is a negative side to me that I would rather not deal with. The positive is what do we do about it.
Mr. ALBOSTA. I understand that, but my point is, if we do go so far as to say somebody is sexually harassed on a job, no matter
what that job might be, if they take a voluntary quit, they just feel they can't stand it any longer, some people may abuse that.
In fact, I would be able to foresee that employees then would say, I have been sexually harassed on the job. I will go to the unemployment office and I am going to draw unemployment until I find another job. This could become a real severe problem in terms of what the company would have to pay out to the program.
Ms. NELMS. Again, I think that is an assumption of a negative attitude that I don't think is existent. I think the majority of the women who are the victims in these cases would not turn around and abuse the system that would protect them.
Mr. ALBOSTA. I am not saying that. I am saying the trend could get that way and it could be uncontrollable. I am not taking a negative attitude toward it.
Ms. NELMS. I personally don't feel that would happen. One of my experiences has to do with the fact that I worked 14 years under social security which was at that time predicated on the theory that most people are basically honest.
If you did not have such innate honesty, such a system as social security could never work because there is no way to prove every fact or issue or expect people not to abuse the system. But the abusers are by far in the minority.
Mr. ALBOSTA. Thank you.
Mr. HANLEY. Thank you, Mr. Albosta.
Mr. CAVANAUGH. Thank you, Mr. Chairman.
It is nice to see you again. We met in Omaha.
Ms. NELMS. Omaha, Nebr., that is true.
Mr. CAVANAUGH. It is nice to have you back. I must say your testimony has been the best that I have experienced during the course of these hearings.
I was developing the feeling that we were beginning to go adrift here and not appreciating really a dichotomy of issues that exist here, one, the social-cultural, and the other a more identifiable employment, legal rights kinds of issue.
We have tended to mesh those. I think your testimony has highlighted again that they are separate. They affect one another but they will have to be addressed in substantially different terms. If we don't have that appreciation, I am afraid that we cannot do much at all.
Your suggestion to heighten awareness of -- a White House statement on behalf of the President -- I think, is an excellent one. Just my experience, and I think there is no way that people can adequately express their appreciation to the chairman for his efforts here because what I witnessed from the public consciousness heightening that these hearings have initiated is overwhelming.
In my own community, the local reporter for the newspaper went to the city hall and did interviews on what the circumstances were there because these inquiries were going on at the Federal level.
As Mrs. Spellman indicates, NBC began an examination of their own structure.
All of that is a spinoff of these hearings which were initiated by Chairman Hanley. I think the addressing of that broader cultural malaise is one that can only be handled by that kind of repeated
and perpetual bringing to the attention of the public and having them focus on it, much as the civil rights movement required that kind of heightening of public consciousness. So that is one forum and we can play some role in that.
The other forum is in terms of legislation. As I understand your testimony, you would favor rather specific definitions and gradations of offenses that are identifiable, is that correct?
Ms. NELMS. To some degree; yes.
Mr. CAVANAUGH. As opposed to a broad definition. I am not saying that all aspects of sexual harassment shouldn't be covered, but that they should be perhaps covered in a breakdown.
Ms. NELMS. There has to be some reference to what we are talking about in more than general terms. Then I think the specifics can be filled in with training, with examples of what we are talking about, so that people clearly understand what it is when we say sexual harassment.
Mr. CAVANAUGH. It seems to me that an appropriate approach would be a standard that identified the use of supervisory authority to command sexual favors for either retention of employment or advancement in employment. That would have to be the most severe offense and one subjected to immediate and severe punitive action and remedy.
And that you could move down from that to make an effort to identify the jokes, the advances and those kinds of things and create a separate level of discipline for those and have that carried on in conjunction with the kinds of educational requirements to change the climate and the atmosphere.
Would you agree that that is an appropriate approach?
Ms. NELMS. Yes, I agree with that.
Mr. CAVANAUGH. Finally, on the issue of false charges, I tend to agree with you that this is a disturbing matter but one that we encounter in every aspect of setting legislative or social standards. We have encountered it for many years in the issue of rape.
I think, unquestionably, human experience in our society is that forcible rape occurs at a far higher incidence than does false allegations of rape. I think clearly the indication of our testimony so far is that we have almost a pervasive system of sexual harassment.
While we would create some opportunity for unscrupulous persons to utilize legal protections and standards for their own advancement and for intimidation and manipulation of the system, as we have in extending civil rights equalities -- we have created that opportunity and it has unquestionably occurred -- but in that instance, as I believe in this instance, it occurred far less than the pervasive system of racial discrimination that existed or the system of sexual harassment.
So we live in an imperfect world, but we do, I think, have to measure the balances of injustice. In this instance, the balance, unquestionably, is against those who are being harassed.
I think that the law should follow that, not ignoring the possibility that it could be abused but recognizing that in most instances you can remedy that through the administration of justice, but you should not use that excuse not to define justice in the first instance.
Mr. ALBOSTA. Would the gentlemen yield?
Mr. CAVANAUGH. I yield.
Mr. ALBOSTA. I would like to express my appreciation of your being here. I think your testimony was excellent and your attitude and approach to the question also excellent.
I didn't want the questions I asked to indicate that I was negative toward this problem because I certainly am not. But I do feel it was necessary for me to ask that of you and I do think your testimony was very excellent.
Mr. CAVANAUGH. I didn't mean for my final statement to reflect on the gentleman's questions. I concur that the gentleman's questions are essential to the development of this subject. I think that we have to consider the potential consequences and to try and construct a remedy that minimizes the potential for abuse by people who would seek to use legal standards and manipulate them for their personal advancement.
But we also, I think, have to make some judgment on human character and realize that those kinds of people are a distinct minority in our society.
Ms. NELMS. I accept the apology and the counterapology.
Thank you very much.
Mr. HANLEY. Thank you very much, Mr. Cavanaugh.
Mrs. SPELLMAN. I just wanted to say how heartening it is to me to be sitting here listening to the kind of dialog that is going on.
First of all, our chairman has seen fit to call hearings like this. He thought it was a problem and he is acting on it. We have these young men here discussing the question and there is no tittering and they are not saying little snide things behind their hands. They know that it is a problem and they want to address it.
I have been in government -- and I have made mention of this at our first hearing but I don't think you were here. I have been in government now for 17 years. I can tell you that when I became a commissioner in Prince Georges County it was almost as though women had waited for that opportunity. There was a woman commissioner. There had never been one before, never someone running government who was a woman.
And so many complaints came my way, not only from people in my own county but from the Metropolitan Washington area. Women came to tell me of those problems. There was no place for me to go to help them because my colleagues didn't understand. The men they worked with didn't understand. There were always men who were in positions to do something about it. They didn't understand and there was all this tittering that went on. It was frustrating. It was so frustrating because there was no way to help.
When I would try on my own to go to talk with the people who were creating the problems, they didn't realize they were causing problems. They thought it was cute. It was a great compliment that had been paid to these women. I found at the time that women in the lower grades were less able to protect themselves than were some of the more sophisticated women. I also found young women just coming into the work force, who didn't know how to react to a boss. They said, "This man is my boss, what do I do? I will lose my job. It will be on my record for the rest of my life that I couldn't keep a job."
We are talking seriously today seriously about how to change things. The mere fact that we are talking is changing things right this moment. Right this moment things are changing because people know that there are going to be new ground rules and they are already beginning to adjust to those ground rules.
Many of the people who created problems didn't understand -- perhaps not even until these hearings -- that they were creating problems, that what they were doing was wrong. It has been an attitude and I think attitudes will be changed as a result of these hearings, and as a result of the oversight that I am sure this subcommittee will be providing.
So, I want publicly to thank Mr. Hanley for having seen fit to look into this, and for having cared enough. Today, I think men are going to be looking at this whole subject in terms of their own wives, and their own daughters, because we have a work force that includes their wives and daughters. I think the whole question is going to get a far more sympathetic hearing right here in this House.
I want to thank the chairman.
Ms. NELMS. I couldn't agree with you more, Mrs. Spellman.
Mr. HANLEY. Thank you very much, Mrs. Spellman. I am certainly grateful for what you have said. You, of course, are contributing so much to this deliberation.
To add to what you have said, we would be remiss if we did not express our appreciation to Al Ripskis from HUD who some months ago conducted an unofficial survey. This survey was called to our attention. And as a result we are here today.
As I have said through the course of these hearings, if we were to stop dead in our tracks, we have already accomplished a great deal of good. It is not our intention to stop in our tracks. We intend to pursue this, and working together with people like yourself we hope to put together a program that will eliminate this problem from the Federal work force.
We hope very much that we can develop a program that will set an example for the private sector to follow.
I have been on this committee for 15 years and it was only during the course of this year that the problem has been recognized.
So, although it is late the Congress is responding, and responding in a responsible fashion. I am pleased with the splendid cooperation that we anticipate in the full committee, and certainly the cooperation that will be forthcoming from the agencies of jurisdiction. I am confident that when we complete to this activity we will be able to look back and say this is an achievement.
Should you encounter any information or come up with any ideas that you think might be helpful to our deliberations, please contact the subcommittee.
If there are no further questions or comments, we will adjourn this hearing. The next hearing will be November 13, 1979.
[Whereupon, at 11:55 a.m. the subcommittee adjourned.]
SEXUAL HARASSMENT IN THE FEDERAL
TUESDAY, NOVEMBER 13, 1979
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON INVESTIGATIONS,
COMMITTEE ON THE POST OFFICE AND CIVIL SERVICE,
The subcommittee met, pursuant to notice, at 9:42 a.m., in room 311, Cannon House Office Building, Hon. James M. Hanley (chairman of the subcommittee) presiding.
Mr. HANLEY. This morning we will conclude 3 days of hearings on the issue of sexual harassment in the Federal Government.
It is quite clear from the testimony already received that many women who work in the Federal Establishment are often subjected to humiliating and unwanted sexual harassment. We have heard witness after witness outline the nature of the problem and make specific recommendations designed to eliminate it as a Federal workplace hazard.
Today, we are pleased to have before the subcommittee the U.S. Justice Department, the Office of Personnel Management, and the Merit Systems Protection Board. I believe these governmental entities have at their disposal the resources, talent, and willpower to implement many of the more sensible recommendations that would help eliminate sexual harassment.
We look forward to the Office of Personnel Management issuing soon a clear definition of what constitutes sexual harassment and categorizing it as a prohibited personnel practice that will not be tolerated. I expect OPM will also soon instruct all agency managers to begin implementing the necessary training program for supervisors and employees alike.
Finally, I am pleased that the Merit Systems Protection Board has agreed to undertake a massive survey of the Federal work force, and will analyze the parameters of this problem and make appropriate recommendations for any additional action this committee should take.
I believe if we transmit a clear, strong message to all Federal employees that sexual harassment is illegal and unacceptable and we provide employees with intelligent training the problem will soon diminish.
Prior to the introduction of the witnesses, if my friend and colleague from Nebraska has any comments, Mr. Cavanaugh, go ahead.
Mr. CAVANAUGH. No, thank you, Mr. Chairman.
Mr. HANLEY. That being the case, our first witness this morning is Mr. William Medina, Assistant Secretary for Administration, the Department of Housing and Urban Development.
I understand that Mr. Medina is accompanied by Mr. Charles Dempsey, Inspector General.
STATEMENT OF WILLIAM MEDINA, ASSISTANT SECRETARY FOR ADMINISTRATION, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, ACCOMPANIED BY, CHARLES DEMPSEY, INSPECTOR GENERAL, AND VIRGINIA ARMSTRONG, DIRECTOR OF PERSONNEL
Mr. MEDINA. Mr. Chairman, I am also pleased to introduce our Director of Personnel, Virginia Armstrong, on my right. Mr. Dempsey is the Inspector General.
Mr. HANLEY. Fine. We are delighted to have you with us this morning.
Mr. MEDINA. I am here today representing the Secretary and executive staff of the U.S. Department of Housing and Urban Development.
Let me state at the outset that we consider any behavior constituting sexual harassment by our employees as an abuse of authority and power and we have communicated this to our employees.
Ever since July we have been concerned about recurrent media reports alleging widespread sexual harassment of female workers by their superiors within the Department of Housing and Urban Development. Further, charges were also made that management was not taking actions against offenders.
These allegations were based upon an unofficial survey taken of a very small universe of departmental employees by a HUD employee. Unfortunately, we have never seen the raw data of this survey, and furthermore, the respondents remain anonymous, making verification difficult.
Nevertheless, since July we have directed resources toward ascertaining whether or not there is validity to these allegations. In addition, we have taken steps to strengthen our procedures for reporting and investigating allegations of sexual harassment, and have communicated to employees that sexual harassment may constitute sexual discrimination.
There are several procedures available to employees who wish to allege incidents of sexual harassment on the job:
One, an employee may file a grievance in accordance with the HUD handbook "Employee Grievances." In some instances, a complaint may be filed as prescribed by provisions of a negotiated grievance procedure. In both cases, if the allegations are confirmed, disciplinary action may be taken against the offender;
Two, our Office of Inspector General, in accordance with our handbook 2000.3A, "Office of Inspector General Audit and Investigation Activities," accepts and investigates complaints involving fraud, mismanagement, and misconduct by HUD employees. A special hotline telephone number, 202-472-4200, has been established to facilitate receipt of allegations. In cases in which allegations are confirmed, disciplinary action may be taken against the offender;
Three, employees who allege sexual harassment as a form of sex discrimination, which is covered under title VII of the Civil Rights
Act of 1964, as amended, may contact an EEO counselor and file a formal EEO complaint. If the subsequent EEO investigation results in a finding of discrimination, various remedial actions may be taken; and
Four, employees may choose to bring allegations of sexual harassment to the attention of any of HUD's Federal Women's Program Managers in the field or headquarters. These will be forwarded to the Office of Inspector General.
Four individuals have spoken to EEO counselors concerning sexual harassment. One of these contacts has resulted recently in an individual filing a complaint of discrimination.
Our records for the past 2 years show that one HUD employee has filed a court action concerning sexual harassment. This civil action is apparently outside of discrimination complaint procedures. We had reported another court case in our August letter to the subcommittee.
However, this was a sex discrimination case in which we anticipated that the complainant would raise the issue of sexual harassment in court, but she did not.
The Office of the Inspector General has investigated three allegations of harassment concerning a supervisor and employee relationship. Based upon these investigations, two offenders received disciplinary actions -- one received an official reprimand and the other a letter of warning. The Inspector General has completed investigation of the third allegation. At this time, local management officials are determining the appropriateness and degree of disciplinary action.
On October 22, 1979, Sterling Tucker, HUD's Assistant Secretary for Fair Housing and Equal Opportunity and Director of Equal Employment Opportunity, distributed a memorandum to all HUD employees reminding them that discrimination complaint procedures are available for dealing with this issue, when appropriate. As further illustration of how strongly we feel about sexual harassment, our Secretary will also issue a statement on the subject shortly.
In addition, as representatives of the Department and subcommittee staff agreed on September 28, 1979, we will instruct our managers and supervisors in the proper exercise of their authority. This topic will be addressed in our supervisory and managerial training courses which will include information on sexual harassment.
Also we will include a summary of remedies available to employees who believe their rights have been violated for any reason, including sexual harassment, in new employee orientation packages. The Office of Inspector General will address the issue of sexual harassment in the annual Standards of Conduct briefings.
I would hope that one of the results of these hearings would be a uniform definition of sexual harassment for the executive branch of Government. We see sexual harassment as any demand or pressure for sexual activity, accompanied by implied or overt promises of preferential treatment or implied or overt threats concerning an individual's employment status.
However, in absence of any uniform definition or policy for the executive branch, our policy toward sexual harassment is clear and unambiguous, as I have stated, and we are acting on it.
I would like to thank the members of the subcommittee for inviting our participation in these very important hearings.
Mr. HANLEY. Thank you very much, Mr. Medina.
May I ask, at any time did anyone from HUD ever contact Mr. Ripskis, the gentleman who took the initiative for the unofficial survey?
Mr. MEDINA. I am not aware whether anyone did or not from the Office of Administration or the Assistant Secretary for Fair Housing and Equal Opportunity. I am not aware whether anyone did or not. We did read the results of his findings in his newsletter.
Mr. HANLEY. It seems to me that one of the first things you would do in the investigatory process would have been to have contacted him for a discussion of his findings.
Mr. MEDINA. Well, one of the key points in his survey was that he promised anonymity to the people who responded to the survey.
Mr. HANLEY. But again, wouldn't you agree that it would have been sensible to have a conference with the gentleman in recognition of the effort that you have outlined in your testimony.
Mr. MEDINA. Well, as I said, we did read the results of his survey in the newsletter and we have acted upon the allegations that have been made in that. I think that our behavior was responsible.
Mr. HANLEY. For instance, you say we have never seen the raw data of this survey. Did anyone ever ask him for the raw data?
Mr. MEDINA. Not to my knowledge.
Mr. HANLEY. You stated that you have communicated to employees that sexual harassment may -- and I underline "may" -- be sexual discrimination.
Now last week, Eleanor Holmes Norton, the Chair of the EEOC, said that sexual harassment is prohibited in the workplace and is grievable under title VII.
Would you disagree with that position?
Mr. MEDINA. Well, I assume that she knows the law better than I do in that particular instance. We consider it a very serious matter within the Department. It is taken seriously and we comply to the law. To my knowledge we don't have any problem with that.
Mr. HANLEY. Then I guess you are telling the committee that you would defer to the judgment of Eleanor Norton with respect to this interpretation?
Mr. MEDINA. Yes.
My point I was trying to make is that we interpreted the word sexual discrimination to include activities other than sexual harassment. So the reason for the qualification in my statement is that there may be other forms of sexual discrimination which are not harassment.
We were trying to make a distinction between those forms of activities which are harassment and those which clearly are not.
Mr. HANLEY. Well, of course she very specifically puts sexual harassment in this category and states that it is prohibited and is grievable under title VII.
Would you please elaborate on what kind of resources you have used to verify the widespread claims of sexual harassment at HUD?
Mr. MEDINA. It is very difficult to verify. I don't think we will ever get to a situation where the data base in this area is ever going to be accurate.
I can tell you that the Office of Personnel, the Inspector General, and the Assistant Secretary for Fair Housing and Equal Opportunity have spent a considerable amount of time looking through our records, talking to employees.
I personally have spent time talking to the women's caucus in our own Department. They clearly indicate that even they do not have a firm handle in terms of the amount and the degree of alleged harassment in the Department.
What we are really trying to focus on is: What can we do about a problem which is probably by definition always going to be underreported because of the sensitivities to the individuals.
So our efforts have been more on prevention in the future than verification of allegations that have occurred in the past. It is very difficult to get your hands on the problem in terms of the data base because it is just always inadequate.
Mr. HANLEY. On page 2 of your testimony you recite the procedures that are now available to employees. Is my interpretation correct that these procedures became operable since July? Is that correct?
Mr. MEDINA. No, sir. We have had these procedures in effect for a considerable period of time. I don't know the date, but these have always been HUD's procedures in the personnel area.
Mr. HANLEY. Then over the period of time apparently few people have come forth with complaints of sexual harassment?
Mr. MEDINA. That is correct. In spite of the procedures there have been relatively few people who have chosen to use the many avenues that we have, either through the EEO counseling, the women coordinators, the personnel office, or the Inspector General, either in person or through the hotline.
So there are many opportunities for reporting. Apparently few people take advantage of those reporting mechanisms.
Mr. HANLEY. If I read your testimony correctly, as of this date there have been relatively few who have registered complaints officially.
Mr. MEDINA. That is correct. As I said, our particular emphasis is on prevention and to create a climate in the department where mangement has sent down a very strong signal all the way through the management chains that this behavior is completely unacceptable.
I think it is analogous, if I might say so, sir, to the signals that we have sent out repeatedly over time as it relates to discrimination against women and minorities.
As you know, it takes a long time to get that message down through the organization. I think we have done a good job of that. I think in all candor, the Government and the society as a whole has not done a good job of sending the signal out that this type of behavior is unacceptable.
Mr. HANLEY. Thank you.
Mr. CAVANAUGH. Thank you, Mr. Chairman.
Your response to the chairman to an inquiry regarding your statement on page 2, "Nevertheless, since July we have directed resources toward acertaining whether or not there is validity to these allegations," has consisted of what, your personally doing interviews?
Mr. MEDINA. Myself, the Director of Personnel, and the Inspector General in our organization. So I am saying that it is not just a personal situation. It involved our staffs as well.
Mr. CAVANAUGH. And the results of those were ambiguous, did you say?
Mr. MEDINA. Well, there were very few. We looked back and looked in our data bases to see if there were a lot of cases there that had been reported. In fact, we found there were very few cases.
Mr. CAVANAUGH. There were four?
Mr. MEDINA. Yes, I believe that is the number of contracts with EEO counselors. Only one resulted in a formal EEO complaint being filed. That is quite small.
Mr. CAVANAUGH. That is formal complaints?
Mr. MEDINA. Formal complaints.
Clearly, there are many more situations where people have felt themselves to be sexually harassed and have not taken advantage of the complaint processes.
Mr. CAVANAUGH. You were able to verify that through your other activities?
Mr. MEDINA. Well, by verify, do you mean in terms that there was other activity that had been unreported?
Mr. CAVANAUGH. Yes.
Mr. MEDINA. I was able to verify it in the sense that I was able to talk with women. For example, the head of the Women's Caucus came in and met with me and brought about five of her colleagues and we spent about an hour and a half discussing it.
They also said that there were symptoms of that that were being reported to the nurse.
So I had a report from the nurse where she -- -
Mr. CAVANAUGH. Symptoms of what?
Mr. MEDINA. Symptoms of women under stress who came into the health unit.
Mr. CAVANAUGH. Because of the sexual harassment in the Department?
Mr. MEDINA. That is correct. They alleged that to the nurse, but they would not take advantage of any formal complaint systems. So the thrust of your question is, how do I know there was other harassment that was not in the formal system?
The answer to that was by checking into the informal system and in fact there were many individuals who said, although not by name, that they had witnessed or seen evidence of harassment in the Department.
It would be very difficult for me to put any number on that and say with any degree of certainty that it was high or low, but there were other instances that were not being reported.
I think that is a factual statement.
Mr. CAVANAUGH. Then you have been unable to verify the allegations or the conclusions of the informal survey which we have had previous testimony on?
Mr. MEDINA. We did not attempt to verify those numbers per se. We attempted to verify whether there was harassment in the Department that was not being reported in the formal system.
Mr. CAVANAUGH. To quote your testimony, the validity of the allegations, you have determined that the allegations are valid and that there is sexual harassment within the Department of Housing and Urban Development that goes beyond the level reflected in the formal complaint process?
Mr. MEDINA. That is correct, sir.
It is difficult for me to characterize it, however, in terms of some rating to say it is widespread, minimal or anything else. I am saying that the data does not suggest our ability to put a characterization on that.
Mr. CAVANAUGH. The four cases that were made as formal complaints, how were they resolved?
Mr. MEDINA. I believe that was in my testimony.
Mr. CAVANAUGH. Well, you say the one -- on page 3, "Four individuals have spoken to EEO counselors concerning sexual harassment; one of these contacts has resulted recently in an individual filing a complaint of discrimination."
What happened to the others?
Mr. MEDINA. They did not press charges.
Mr. CAVANAUGH. Well, what happens here? Do you mean it is solely up to the employee to, after they made a complaint, then to press the matter?
Ms. ARMSTRONG. Well, I don't have the specifics on these three complaints, but what has happened is that because of defining sexual harassment, it is difficult for us to quantify it.
When we went to the Women's Caucus and when we went to the nurse, we found that there were varying degrees. There were perceptions of sexual harassment that I don't think any of us in this room would really think of as being any kind of sexual harassment. There were others that looked as though they could be.
When you try to press for details of time, place, who, so that you can actually do something other than the things we are trying to do to prevent if from occurring in the future, you will get ambiguous and different kinds of allegations to look into. It is impossible.
Now they talked to the counselors and they very often say they don't want to go any further and they have a right to their privacy and anonymity. We cannot violate that from the EEO counselors, and I would not want to.
Mr. DEMPSEY. Mr. Cavanaugh, may I say since 1972 we have had procedures within the Department where HUD employees can come to the Inspector General's office and make allegations and bring information to me and from that I will open investigations.
We open approximately 2,000 investigations each year. I would say close to 50 percent of those come through the HUD system, in other words are referred by field personnel.
During this last year there have been three cases, three instances alleging sexual harassment. They were investigated by my office. One received a reprimand; one received a letter of warning,
and the other is in the hands of an administrative official for adjudication right now.
There is a procedure within the Department to do this. It is just that we need specifics. We need names. We need someone to come forward and say, this is what happened to me and help me.
We would be happy to investigate those and have in the past. Perhaps the best thing that could come out of hearings like this is that these poor people will come out of the closet and come to us and say, this is what happened to me, please investigate it.
So far this year there have been just three.
Mr. CAVANAUGH. These three are in addition and outside of the EEO process?
Ms. ARMSTRONG. Yes.
Mr. CAVANAUGH. Thank you, Mr. Chairman.
Mr. HANLEY. Thank you, Mr. Cavanaugh.
It would appear to me that there is an inconsistency in the number of complainants that you advised the committee of and, the number of people who have responded to the phone number that was published for the last several months by this committee with regard to the subject matter.
That is not your fault. But apparently there has been a reluctance on the part of people who have been harassed to come forth and file their complaints.
We are very hopeful that resulting from the procedures that are now underway, that people who are subjected to harassment will not be reluctant to immediately let it be known.
Mr. CAVANAUGH. Mr. Chairman, I would agree with that. I would like to add to that, though. It seems to me that your testimony and your approach is a little tilted, that the whole responsibility here, I don't think that it can rest with the employee.
Understanding the natural human reluctance here, but more than that, I think that there is a personnel management responsibility here that you have to be concerned about your supervisors. Here we are talking about responsible people in authority in Federal agencies not acting responsibly and not acting decently. That is a whole separate problem from the problems from the point of view of those who are afflicted. It is a management problem.
I would think that you would, once you have determined that there is some considerable extent to sexual harassment within your supervisory structure, that you would move aggressively to direct, influence, and contact those managers in an affirmative way and to clearly impose upon them the understanding that it is not acceptable and tolerable conduct within the Department.
Mr. MEDINA. We agree completely with you, sir. That is why we are adding information in our new employee employment programs and why we are building models into our supervisory management training and why we are holding staff meetings on it.
I met with the Secretary and the executive staff within the last 2 weeks. We had full discussion on it and we agreed that all the Assistant Secretaries, General Counsel, et cetera, would go back and have the very type of meeting that you are talking about in terms of their management staffs because we do regard it as a management problem.
I would conclude that the abuse of authority for managers, for whatever purpose, this purpose or other purposes, constitutes bad management and we clearly don't want managers to abuse their authority. We agree completely with that.
I would add also one other thing that, if I might, Mr. Chairman, for the record, but also as an additional way of dealing with the problem long term and that has to do with the degree to which women are allowed or hired into professional positions in the organizations and the rate at which they are promoted.
I might say we take great pride in the EEO statistics that we have in the Department and the tremendous increase that we have had in the number of women in senior executive service positions and positions above a grade 12.
We have set very ambitious goals for ourselves and we have met those goals and exceeded them. I will be glad to provide that data for the record.
If you look at the record, I think part of the alternative is going to have to be a different work force. We are going to have more women in positions of authority and they clearly set a tone for the organization that that behavior is unacceptable as well.
Mr. HANLEY. Your report is indeed commendable. Keep up the good work.
I think Mr. Ripskis is to be commended, especially for the formality of his survey, because the survey he conducted was the catalytic force that compelled this subcommittee to move with its investigation. I have commended him for it.
I note the spinoff that is occuring around the country resulting from what we are doing. For instance, in the State of Michigan last week the Michigan Task Force on Sexual Harassment conducted a conference. They registered better than 600 people at that conference. That gives you a little idea with respect to the interest in the subject matter and the apparent scope of the problem, even though it has not been visible with respect to people coming forward and filing complaints.
I would urge other States to follow suit and begin the same type of conferences on the subject matter.
I am going to pose one more question about Mr. Ripskis because that puzzles me just a bit. Was there any conference? Was there any talk about conferring with him at all by your agency?
Mr. MEDINA. Well, we have a long relationship with Mr. Ripskis in the Department. He does not consult with us ahead of time in terms of his findings and he brings them to our attention through his newspaper.
Every month I go in front of the building and buy one of his newspapers so I can find out what he has discovered in that month. That is the relationship.
Mr. HANLEY. Perhaps we should put him on the payroll.
Mr. MEDINA. He is on the payroll. He is a HUD employee and fully paid for his work in housing relations.
Mr. HANLEY. So apparently what he performed in this regard was kind of, if I might use the phrase, kind of taken with a grain of salt?
Mr. MEDINA. No, sir, I don't believe that at all. We take his allegations very seriously. Some of them tend to be very positive,
as they have in this case, and others tend not to be so verifiable. But that is another subject.
The point is that what he prints we take very seriously and look at it each time.
Mr. HANLEY. Well, again, he did what Government itself failed to do and that was to attempt to get a handle on this problem.
Mr. MEDINA. In fact that, as you well know, is the intent of the Civil Service Reform Act, particularly as it relates to whistleblowing. We have had that kind of relationship within the Department. He operates very freely within the Department.
I think if you were to put him on the stand and talk to him on this basis, you will find that he has not been harassed by the Department for his activities.
So we take his work very literally every time he publishes it. As far as I know, he has not been discriminated against.
Mr. HANLEY. Are there any further questions?
Well, again, gentlemen and Ms. Armstrong, we deeply appreciate your appearance here this morning.
Mr. MEDINA. Thank you very much.
Mr. HANLEY. Our next witness is Mr. Joseph A. Sanches as Director of the Equal Employment Programs, the Justice Management Division of the U.S. Justice Department.
I understand Mr. Sanches is accompanied by Mr. Squire Padgett as Chief Adjudication Officer.
Gentlemen, we are pleased to have you with us this morning. We appreciate your time.
STATEMENT OF JOSEPH A. SANCHES, DIRECTOR, EQUAL EMPLOYMENT PROGRAMS, JUSTICE MANAGEMENT DIVISION, U.S. JUSTICE DEPARTMENT, ACCOMPANIED BY SQUIRE PADGETT, CHIEF ADJUDICATION OFFICER
Mr. SANCHES. Mr. Chairman, I appreciate on behalf of the Department of Justice this opportunity to appear before the Subcommittee on Investigations of the Committee on Post Office and Civil Service to testify on the equal opportunity program of the Department of Justice, and also to underscore the fact that the Department of Justice policies and programs also abhors any type of sexual harassment for any of its employees.
As you indicated, Mr. Padgett is with me, the senior trial attorney for the Civil Rights Division, who serves as the Department's complaints adjudication officer. It is he, Mr. Padgett, who renders the Department's final decision on complaints of discrimination.
I would like to describe a little bit about the Department's EEO program and its complaint system before I begin.
Our current EEO program was established by an order of the Attorney General on July 17, 1979. The basic structure of the program is reflected in title 28 of the Code of Federal Regulations, part 42A. That part delegates to the Assistant Attorney General for Administration the responsibility to publish, implement, and administer programs to guide positive EEO actions toward the elimination of the causes of discrimination and to establish procedures for processing complaints of discrimination.
Part 42A also delegates to the Assistant Attorney General for Civil Rights the responsibility for appointing a complaints adjudication officer to render final decisions for the Department on employee and applicant complaints of discrimination because of race, color, religion, sex, national origin, age, or physical limitation.
The Department's first EEO regulations established policy guidance for EEO program formulation, management, and evaluation. The regulations also provided detailed procedures for processing discrimination complaints.
The administrative procedures that are followed when processing a complaint of discrimination filed by employees or applicants are consistent with Equal Employment Opportunity Commission (EEOC) Regulation 29 CFR 1613. The administrative procedures I will discuss are outlined on the attached chart.
[The chart follows:]
Mr. SANCHES. An employee or applicant must consult an EEO counselor within 30 days when he believes he has been discriminated against before a formal complaint can be filed. The Department has 415 trained counselors to provide precomplaint counseling to persons who believe they have been the victims of discrimination.
That is a ratio of one counselor for every 130 departmental employees.
Our counselors are appointed, trained and assigned geographically by subordinate organizations or bureaus EEO program officials.
Twenty-one days are allowed -- complainant may extend time limit -- for the EEO counselor to make appropriate inquiry into the allegations raised by the complainant.
Prior to the expiration of the 21-day time period, the EEO counselor must advise the complainant of the results of these actions and of the right to file a complaint. It should be noted that less than 30 percent of persons counseled file formal complaints of discrimination.
A complaint must be filed within 15 days of the final counseling interview. The formal complaint must be in writing and filed with the Attorney General, Bureau Director, EEO Officer, Federal Women's Program Manager, or other authorized EEO officials.
Formal complaints are considered filed on the date mailed, postmarked, or on the date of delivery when the complaint is presented -- hand delivered -- to the EEO officer.
The Bureau EEO officer must inform the complainant of acceptance of the formal complaint within 15 days of receipt of the complaint.
Rejection: Formal complaints may be rejected only with the prior approval of the Direction of EEO who is the Assistant Attorney General for Administration.
Complaints may be rejected because:
The time limits for filing were not met;
The Department lacks jurisdiction to resolve the matter;
The complaint is made up of an allegation identical to an allegation contained in a previous complaint filed by the same complainant which is pending in the Department or which has been settled or decided by the Department;
The issue of a complaint is not within the purview of EEOC Regulation 29 CFR 1613, or Justice EEO Order 1713.1;
When the issues of the formal complaint have not been discussed with the EEO counselor.
Investigations are for the sole purpose of determining whether discrimination because of race, color, religion, sex, age, national origin, or physical handicap has occurred. Investigations are conducted by trained EEO investigators from a different bureau, that is, regions, sectors, section, et cetera, than that in which the complaint arose.
After the investigation has been completed, the Bureau EEO officer sends the investigative file to the appropriate bureau official for review. Then, the agency provides an opportunity for adjustment of the complaint on an informal basis, after the complainant has reviewed the investigative file. As of September 1978, 169 complaints out of 324 filed were finalized at the informal adjustment stage.
If a settlement is not reached through meetings between complainant and appropriate Bureau officials, the EEO officer notifies the complainant in writing of the Bureau's findings or decision on the allegations of discrimination.
The proposed disposition letter also advises the complainant about rights to a hearing by an EEOC complaints examiner, followed by a review and final decision by the CAO or a review and final decision by the CAO without a hearing.
The hearing is an adjunct to the investigation. The hearing is an administrative proceeding designed to provide additional evidence on matters of dispute and to enable the complaints examiner to make finding of fact and make a recommended decision.
After the hearing is completed, the complaints examiner issues a recommended decision based on the findings at the hearing. The recommended decision is forwarded to the CAO.
The CAO renders the Department's final decision on complaints of discrimination based on a thorough review of the complaint file, which includes precomplaint counseling records, investigative file, verbatim hearing transcript, and the findings and recommended decision of the complaints examiner.
If the CAO's decision has not been in the complainant's favor, the complainant may file a written notice of appeal to the EEOC's Office of Review and Appeal within 20 days of receipt of the CAO's decision. Statements in support of the notice of appeal must be submitted to the EEOC's Office of Review and Appeals within 30 days of filing the notice of appeal.
A complainant may file a civil action in an appropriate U.S. district court if not satisfied with the EEOC decision.
Mr. Chairman, that concludes the outline of the procedure of the Department of Justice for administering the complaint processing system.
Mr. HANLEY. Thank you very much, Mr. Sanches.
Your testimony suggests that less than 30 percent of the persons counseled actually file formal complaints. To what would you attribute the rather low percentage of people who actually follow through?
Mr. SANCHES. Mr. Chairman, I would indicate that I think part of the reason, at least, or a substantial part of the reason is the counseling system that we have and continue to develop in the Department.
I think the ratio is fairly good and we have continued to solicit new counselors and train new counselors from various sectors in the Department.
Mr. HANLEY. Would you say that once explained to the potential complainant that it is a rather frightening prospect and the employee would become discouraged?
Mr. SANCHES. I can imagine that there would be that attitude, sir, but I am not personally aware of it.
As I say, from the Department level, from the headquarters level, we provide trained counselors who would advise a potential complainant and the matter would then be referred to a Bureau level EEO officer who would deal with the complaint in an official level.
But at the precomplaint stage, I don't think that a person would or must necessarily feel threatened in any way because his or her privacy would be maintained in the precomplaint stage.
Mr. HANLEY. Do the counselors in the course of their counseling maintain a completely neutral posture and do nothing that might suggest a negative attitude?
Mr. SANCHES. That is the stated purpose of the counseling procedure. Quite often it has been -- my most recent experience has been that counselors are more often than not an advocate for complainants rather than maintaining an absolute neutral type of attitude.
Mr. HANLEY. As you know, in one case it took 7 years. Now certainly that message went out and many, many people became aware of it. Wouldn't you suggest that that in and of itself would be a major deterrent to proceeding with the complaint?
Mr. SANCHES. That is true. I would think that the complaint process itself might possibly deter a potential complainant.
Mr. HANLEY. Would you say that the 7-year example that I alluded to is pretty much the exception?
Mr. SANCHES. That is very much the exception.
Mr. HANLEY. What is the average length of time it takes to process an EEO complaint?
Mr. SANCHES. The total processing would be, I would say, 500 days, in excess of 500 days for the total processing.
Mr. HANLEY. That is the average length of time?
Mr. SANCHES. Yes, sir.
Mr. HANLEY. That is an awful long time, isn't it?
Mr. SANCHES. It is.
Mr. HANLEY. That in and of itself, again, though far short of 7 years, is sufficient to discourage many.
Mr. SANCHES. We have been attempting to inaugurate programs to change or to limit that time that we have thus far spent.
But in behalf of that time, I would say that in the Department of Justice that whereas the time limit has been excessive, that we have truly worked hard for the rights of the complainant and in most cases, I would think, the complainants are indeed satisfied even though we have breached a time limit.
Mr. HANLEY. Do many contested complaints take as long as 7 years?
Mr. SANCHES. No, sir, not to my knowledge they don't take that length of time.
Mr. HANLEY. Are there many that have?
Mr. SANCHES. I don't think there are many. I don't have any specific number for you, Mr. Chairman. I could research it for the record and present the number of extraordinary cases, but I don't believe that they are many.
Mr. HANLEY. Is it the normal thing for Justice to settle a case informally and then change its mind and proceed with litigation?
Mr. SANCHES. I don't know of an instance of that happening, Mr. Chairman.
Mr. HANLEY. That has never occurred?
Mr. SANCHES. Not to my knowledge, sir.
Mr. HANLEY. Do you feel that the 30-day period is a sufficient period of time for an employee to file a complaint? May I add to that question, in particular in a case of sexual harassment, isn't it possible that a victim might not realize that her refusal would provoke some kind of adversary action which quite possibly may not occur for a period in excess of 30 davs?
It might dawn on her several months later that something might go into her personnel record that was going to be negative.
Mr. SANCHES. Even if it were difficult for a complainant to file and therefore filed beyond the 30-day limit, the complainant may also directly appeal to the EEOC, could go beyond the Department and has another level of review other than the Department and that 30-day time period.
Mr. HANLEY. What about the necessity of an attorney? Would you agree that it is almost essential that a complainant employ the services of an attorney to file?
Mr. SANCHES. It is not demanded by regulations. The Department does have a network of EEO volunteers, 433 volunteers, who are capable of and can be called upon to represent any complainant at any stage from the very beginning to the very end of the complaint processing system.
Mr. HANLEY. And these attorneys are readily available to the complainant?
Mr. SANCHES. Yes, sir. There is a list of them and they are made available.
Mr. HANLEY. Thank you.
Mr. CAVANAUGH. Thank you, Mr. Chairman.
In your formal testimony you outlined procedures available for utilization of the equal opportunity programs. I take it it is your feeling that these procedures are working well?
Mr. SANCHES. Yes, Mr. Cavanaugh, I do. I think that there are obvious problems that can be seen, especially in the amount of time that we take.
Mr. CAVANAUGH. You said that the average time is 535 days?
Mr. SANCHES. About 560 days for the total processing of the complaint.
Mr. CAVANAUGH. I totaled up the procedures, the time on the procedures in your addendum, and it comes to 296 days; is that correct?
Mr. SANCHES. That is true, but the time allotted for the complaint processing, the filing of the formal complaint to the end, should be 180 days.
Mr. CAVANAUGH. Where is that?
Mr. SANCHES. On the extreme left side of the chart, written on the lefthand margin. There are 180 calendar days allowed from the filing of the formal complaint to the conclusion of that complaint.
Mr. CAVANAUGH. Where it says "problem solved?"
Mr. SANCHES. No, sir, on the side.
Mr. CAVANAUGH. Final agency decision?
Mr. SANCHES. This is the period allowed us.
Mr. CAVANAUGH. I see, within 180 days. Is that the total of all of those days inside there?
Mr. SANCHES. That is the total of the days allowed for the filing of the formal complaint and to bring the formal complaint to a conclusion. That would exclude the 30 days that a complainant has to file the complaint and the 21 days for counseling, and then the actual filing of a complaint.
Mr. CAVANAUGH. All the times I calculate on this sheet come up to 296 days. So why does it take 535 days?
Mr. SANCHES. There are several programmatic reasons I think. Part of it is that we have a network of collateral duty people, parttime investigators. There are not full-time investigators in the Department's bureaus who do the investigative type of work. That protracts the time spent in doing it.
Mr. CAVANAUGH. Well, they have 45 days to do their investigation. They don't get it done in that time?
Mr. SANCHES. No, sir.
Mr. CAVANAUGH. Don't you think you should have told us that in your testimony?
Mr. SANCHES. I guess because -- -
Mr. CAVANAUGH. It might be helpful to know that when it says 45 days it doesn't mean that.
Mr. SANCHES. I was anticipating and I expected the inquiry as to the length of time.
Mr. CAVANAUGH. I am glad we were astute enough to ask.
Mr. SANCHES. I don't believe we are the only agency that goes beyond the 180-day time limit. It is widespread.
Mr. CAVANAUGH. None of the figures, we can rely on it.
Mr. SANCHES. Those are the figures that we have to work with.
Mr. CAVANAUGH. But that is not the way it works?
Mr. SANCHES. That is correct.
Mr. CAVANAUGH. You are familiar with the testimony of Diane Williams who testified before this committee?
Mr. SANCHES. Yes, sir.
Mr. CAVANAUGH. Did you read that on October 23?
Mr. SANCHES. No; I have not, Mr. Cavanaugh.
Mr. CAVANAUGH. Did you receive a letter from the chairman inviting you to testify here about a copy of the letter to Attorney General Benjamin Civiletti?
Mr. SANCHES. Yes, sir.
Mr. CAVANAUGH. It read:
I believe the testimony of the Department of Justice relating to the Williams case would be useful in developing a balanced hearing record. I do not wish to discuss the merits of the case, but rather the administrative and judicial procedures filed in the Williams case.
Mr. SANCHES. I am familiar with the administrative procedures, Mr. Cavanaugh, and the time schedule of the Diane Williams case.
Mr. CAVANAUGH. I am a little surprised that you would not have taken the time to read her testimony, but she outlined in her testimony from her perspective what occurred.
She stated, "In September 1972, I filed a sex discrimination complaint against the Community Relations Service of the Department of Justice."
Is that right?
Mr. SANCHES. Yes, sir.
Mr. CAVANAUGH. "After trying to resolve informally problems I was having with my supervisors, 9 days later I was fired."
Is that accurate?
Mr. SANCHES. Yes, sir.
Mr. CAVANAUGH. She was fired 9 days after filing her complaint?
Mr. SANCHES. Yes.
Mr. CAVANAUGH. Then she adds, the Justice Department tried to dismiss my complaint on the grounds that I was no longer a Federal employee. Is that accurate?
Mr. SANCHES. Yes.
Mr. CAVANAUGH. Is that a normal procedure in the handling of a discrimination complaint?
Mr. SANCHEZ. To the best of my knowledge it has not been my experience.
Mr. CAVANAUGH. Are there other instances where the employee is fired and then the Justice Department adopts the position that since they are no longer employed, their complaint is invalid?
Mr. SANCHES. I don't know of other instances.
Mr. CAVANAUGH. This is the only instance that you are aware of?
Mr. SANCHES. Yes, sir.
Mr. CAVANAUGH. It is not a normal, regular procedure?
Mr. SANCHES. No, sir.
Mr. CAVANAUGH. It would be an exceptional procedure?
Mr. SANCHES. Quite so.
Mr. CAVANAUGH. What was the justification for that?
Mr. PADGETT. I would like to respond.
What happens, Mr. Cavanaugh, is that that was more of a, say the particular facet of the Department of Justice that was -- whose neck was in the noose. By that I mean Community Relations Service took that position. That was not the position of the Justice Department.
Mr. CAVANAUGH. I am sorry, I do not understand.
Mr. PADGETT. That was the particular position of the Community Relations Service who the complaint was filed against. That was not the Department of Justice position.
Mr. CAVANAUGH. What does that mean?
Mr. PADGETT. All right, the distinction being, during the administrative process they were attempting to take the position that obviously was advantageous to them, not necessarily a position that they thought would win or was in the best interest of Miss Williams. But that is not the position of the Department of Justice.
Mr. CAVANAUGH. What was the position of the Department of Justice?
Mr. PADGETT. The Department of Justice position in this particular case was the position as taken by the Complaint Adjudication Office.
Mr. CAVANAUGH. Which was?
Mr. PADGETT. It was their position that there was no discrimination in Miss Williams particular case or there was no sexual harassment -- that is the question you are asking.
Mr. CAVANAUGH. I have not gotten to that at all. Right now I am concerned about the procedure.
An employee files a discrimination complaint and is fired 9 days later, and then the department adopts the position that the complaint is invalid because the employee is no longer an employee.
Mr. PADGETT. All right. What I said was that that was not the position of the Department.
Mr. CAVANAUGH. What was the position of the Department on that issue?
Mr. PADGETT. The Justice Department didn't take the position on that issue; OK.
Mr. CAVANAUGH. They took no position?
Mr. PADGETT. The Community Relations Service which is a branch of the Justice Department took that position.
Mr. CAVANAUGH. How do we find out what the position of the Department of Justice was if that was not the position of the Department of Justice, the position taken by the Community Relations Service?
Is there someone else where we can go to find out?
Mr. PADGETT. I guess part of what is going on here is a misunder- standing of the administrative procedures. The Department of Justice does not take the position until the final agency decision. During the interim, it is all a process by which the agency or the alleged discriminating officials are taking positions as they view it, not as the Department of Justice views it.
It doesn't come together until the final agency decision; OK.
Now what happens in this particular situation, so you should understand, was Mrs. Williams was a probationary employee and unless they were going to take her on to a permanent status, they were obligated to take some kind of position on her particular status which they did.
Now, through a series of unfortunate circumstances it was 9 days after she had filed her EEO complaint. That is what happened.
Mr. CAVANAUGH. Well, I am not sure you cleared it up for me. So actually the Department was on her side?
Mr. PADGETT. Well, the Department was neutral. The Department was totally unaware that she had filed a formal complaint other than the administrative process. Now she filed a complaint alleging discrimination; OK.
Mr. CAVANAUGH. Yes; and then she was fired by the Department?
Mr. PADGETT. Nine days later she was dismissed by the Community Relations Service; all right?
Mr. CAVANAUGH. Not by the Department?
Mr. PADGETT. To the extent that the Community Relations Service is part of the Department of Justice; yes, but other than that, no.
Now what happens is once she was dismissed and it became apparent that the Community Relations Service was taking this position, she filed with the Civil Service Commission and they said that the Community Relations Service or the Department of Justice had to investigate her complaint.
Mr. CAVANAUGH. And they did?
Mr. PADGETT. They did.
Mr. CAVANAUGH. And the investigative officer concluded what?
Mr. PADGETT. The investigative officer made a record that there was some evidence of discrimination.
Mr. CAVANAUGH. Then that was reviewed by the --
Mr. PADGETT. Hearing examiner.
Mr. CAVANAUGH. By the hearing examiner who concluded what?
Mr. PADGETT. The initial hearing examiner concluded there was no discrimination.
Mr. CAVANAUGH. Then what happened?
Mr. PADGETT. Then it came to the Department of Justice and the Department of Justice or the final agency decision was to adopt the hearing examiner's recommendations that there was no discrimination.
Mr. CAVANAUGH. That is the Justice Department adjudicative hearing officer? When did that happen?
Mr. PADGETT. In June 1973.
Mr. CAVANAUGH. This was in a complaint filed in June 1972, a year later?
Mr. PADGETT. September 1972.
Mr. CAVANAUGH. The position of the Department of Justice, then, was that her complaint under title VII was not valid because title VII did not include sexual harassment within its definition?
Mr. PADGETT. No; that is not what happened. Her sexual harassment allegations were investigated at a subsequent time after the initial decision by the Department of Justice.
I see I am not helping you. Let me explain further.
There were two administrative hearings before hearing examiners in this case. The initial hearing on the decision that was made in June of 1973 concerned a number of allegations, including discriminatory promotion and dismissal.
At that point in time she had also filed a complaint in Federal district court; all right. Once the initial decision was made by the Department of Justice and it was taken before the Federal District Court judge, he took a look at it and said, there are some additional issues here which need to be looked at in the administrative process. It was sent back.
At that point in time a second hearing was held where additional testimony was brought in. The Department of Justice or the complaint adjudication issued a second decision. That also went before the judge; OK.
Then at that point in time the judge made his ruling. Also, in the second Department of Justice decision no discrimination was found.
Mr. CAVANAUGH. Did the Department of Justice in the course of this case ever maintain the position that sexual harassment does not fall within the definition of discrimination under title VII?
Mr. PADGETT. Not that I am aware of.
Mr. CAVANAUGH. That was not the position?
Mr. PADGETT. That was not the position. They said the evidence did not support that conclusion.
Mr. CAVANAUGH. In all of your testimony today I don't find any reference to sexual harassment. Does the Department of Justice now consider sexual harassment to fall within the protections?
Mr. SANCHES. Yes, sir.
Mr. CAVANAUGH. Why did you fail to mention it in your testimony?
Mr. SANCHES. It was an oversight.
Mr. CAVANAUGH. Did you know this hearing was on sexual harassment?
Mr. SANCHES. Yes, sir, I did.
Mr. CAVANAUGH. Did you know that nowhere in your testimony did you mention sexual harassment?
Mr. SANCHES. I meant by the conclusion of the elaboration of the factors that were discriminatory that sexual harassment was included.
Mr. CAVANAUGH. You are unaware that that has been a legal issue in the past?
Mr. SANCHES. No, sir, I am not unaware.
Mr. CAVANAUGH. It has been a problem. Sexual harassment has not always been considered within the definition.
Has the Department of Justice always maintained that position?
Mr. SANCHES. Not to my knowledge.
Mr. CAVANAUGH. The Department has maintained that sexual harassment has always fallen within that section 28?
Mr. SANCHES. Yes, sir.
Mr. CAVANAUGH. I don't want to take all our time, Mr. Chairman.
Mr. HANLEY. Thank you, Mr. Cavanaugh.
With regard to the Williams case, would it be your opinion that the complaint was filed as a result of her being fired?
Mr. PADGETT. Why people file complaints comes up for a variety of reasons. I believe part of the reason Mrs. Williams filed the complaint was that she was about to be dismissed. I think the record clearly shows that.
Mr. HANLEY. The revelation by Mr. Cavanaugh in the questioning with respect to the procedure used by Justice is rather disappointing.
If I understood you correctly, you are telling us that this is but a guideline. In fact it doesn't occur that way.
Is my interpretation correct?
Mr. SANCHES. Mr. Hanley, it comes out of the EEO Act, that 180 days for the processing of formal complaints. I believe that there are current attempts to have that matter reviewed because the experience from the time of that action in 1972 has demonstrated that it becomes relatively impossible to complete an investigation and to do an employee good service within that period of time.
It is not just the Justice Department's experience. I believe some- one from EEOC could verify that.
Mr. HANLEY. Then you would suggest, that we not rely on the time frame suggested by this paper?
Mr. SANCHES. No. The only thing I wanted to suggest for that was to review for you our process to tell you that we have not maintained it, but for the most part our own experience within the Department of Justice is that even if we have not maintained the 180-day period, that the employees or that the administrative process has been favorable to the employees who have raised complaints, at least in the experience that I can relate to you.
Mr. HANLEY. With regard to a grievable offense under title VII, Eleanor Norton as Chair of the EEOC believes that sexual harassment is indeed a grievable offense.
Would that concur with the position of Justice?
Mr. PADGETT. Yes, Mr. Hanley. It has always been the position of the Department of Justice that sexual harassment is included title VII.
Mr. HANLEY. So you are in agreement with Miss Holmes
Mr. PADGETT. Yes.
Mr. HANLEY. How many Federal employees has the Civil Rights Division represented in sexual harassment cases?
Mr. PADGETT. Through the complaint adjudication office -- well, in the time that I have been there, there have been a total of three complaints that have come before me relating to sexual harassment.
Mr. HANLEY. Only three?
Mr. PADGETT. Only three. Let me even correct that. Miss Williams' case was handled prior to my tenure as Complaint Adjudication Officer. But in the 3 years that I have been doing it, there have been a total of two.
Mr. HANLEY. Two cases in 3 years?
Mr. PADGETT. Yes.
Mr. HANLEY. In the cases that you have handled, do you feel that the agencies have been unwilling to discipline supervisors who are found to have sexually harassed their employees? Have you been able to point out where supervisors actually have been disciplined?
Mr. PADGETT. Well, let me answer it this way: In both instances where the complaint was filed, I found on behalf of the complainant; OK.
Now in terms of the relief I recommended, one case was so recent that the relief is in the process of being carried out and on the second one, it was, the relief was carried out.
So I don't think so far there has been any reluctance to do it, once it has been established.
Mr. HANLEY. Mr. Stenholm?
Mr. STENHOLM. No questions.
Mr. HANLEY. Mr. Cavanaugh?
Mr. CAVANAUGH. I was mistaken in my understanding of Miss Williams' specific testimony. She maintained that the Department of Justice had adopted the position in the Federal district court that she had not been a victim of discrimination because she, "she had decided not to furnish the sexual consideration claim that had been demanded."
Is that the position of the Department?
Mr. PADGETT. Would you repeat the last part of that?
Mr. CAVANAUGH. Her testimony ostensibly quotes the position of the Department of Justice. The Department of Justice position was: "That she had not been a victim of discrimination because she had decided not to furnish the sexual consideration claimed to have been demanded."
Mr. PADGETT. I cannot legitimately say whether that was the position of the Department of Justice. I do not believe that it was. No, I don't. I probably should say this: The Civil Division represented' the Department of Justice in this. I cannot tell you what the legal position was once it left the Department of Justice, OK, since they were the legal arm representing the Department of Justice, but I do not know if that was the position that they took.
Mr. CAVANAUGH. Now you have only had two complaints of sexual harassment since the Williams case in the entire Department of Justice?
Mr. PADGETT. There have been only two that have come to my office. If there are some in the pipeline coming up through the process. I would not be aware of it as of this juncture.
Mr. CAVANAUGH. Do you think that the handling of the Williams case in any way would contribute to discouraging an individual from filing a complaint based on sexual harassment within the Department of Justice?
Mr. PADGETT. I would think any complaint that took the length of time that this one took would probably discourage somebody from doing this.
Mr. CAVANAUGH. Whose fault is it that this case has taken '7 years and it is still unresolved?
Mr. PADGETT. It is hard to say. There is an adversary relation- ship and any time there is an adversary relationship where there is no meeting of the minds, I think both sides contribute to that.
Mr. CAVANAUGH. The process has not worked.
Mr. PADGETT. I would agree with that.
Mr. CAVANAUGH. And the process still exists.
Mr. PADGETT. Yes.
Mr. CAVANAUGH. There is nowhere in your testimony that indicates that this doesn't work.
Mr. PADGETT. In the bulk of cases it does work. In this case it has not. There are cases that come through the system where it doesn't work.
Mr. CAVANAUGH. You have been at the Department for 3 years?
Mr. PADGETT. No; I have been there for 9 years.
Mr. CAVANAUGH. You have been in this position for 3 years?
Mr. PADGETT. Yes, I have been in this position for 3 years.
Mr. CAVANAUGH. But do you think the cases you have before you reflecting sexual harassment adequately reflects the level of that activity within the Department of Justice?
Mr. PADGETT. I think that is a very difficult question to answer.
Mr. CAVANAUGH. Do you think that in the past 3 years there have been more than two persons who may have suffered from sexual harassment in the Department of Justice?
Mr. PADGETT. There may be.
Mr. CAVANAUGH. And they have not sought the remedy?
Mr. PADGETT. That is probably true; yes.
Mr. CAVANAUGH. And they feel the remedy is not adequate?
Mr. PADGETT. That is possible; yes.
Mr. CAVANAUGH. If that is a possibility, why didn't you people come here and testify that that was a possibility?
Mr. Chairman, I think that this testimony is among the most inadequate that I have experienced since I have been a Member of Congress. You come to testify on the issue of sexual harassment and specifically on a case that has taken 7 years.
You, first of all, don't mention sexual harassment in your testimony. You give us a table of dates ostensiyely that represent the adjudication process that actually don't represent it at all, that are not even close to representing it in terms of the time that it actually takes to use that process.
I think that this testimony wholly fails to meet the needs of this committee in addressing the issues before it and reflects sadly on our Department of Justice.
If this is your sense of how the Department of Justice and Congress can work together to address a serious problem, I think the serious problem is in the Department of Justice.
I really don't know what we can do, Mr. Chairman, other than to ask for some new testimony that addresses the issues before this committee.
Mr. HANLEY. Well, if the gentleman will yield, the gentleman's criticism is well taken. It is most unfortunate that, as you point out, the subject matter is not even referred to in the text of your testimony. So we must agree with the criticism offered by the gentleman from Nebraska.
That being the case, we will review what you and your associate have said, this morning. We will review the content of your testimony and determine what further action we may take as far as the Justice Department is concerned.
Mr. Padgett, in regard to the case that we have been talking about, would it be your judicious opinion that this should have been settled administratively and opposed to through the litigation route?
Mr. PADGETT. Based on what I know about the case file from the review that I have had of it, I do believe that the facts were enough in dispute that there was a legitimate basis for the Department saying, no; they would not settle. I would say that.
Mr. HANLEY. Would you want to expand upon the basis of your opinion?
Mr. PADGETT. What I am saying is that from my review of the facts it was a situation that would appear to have been that there was a legitimate basis for saying that the employee was unsatisfactory and that she should not have been brought on on a permanent basis after the probationary period. That was the initial question.
Mr. HANLEY. Mr. Sanches, can you tell the committee how many complaints are pending at Justice at this time?
Mr. SANCHES. Approximately 300 complaints, Mr. Hanley.
Mr. HANLEY. How long back do these complaints go? What would be the older of the complaints?
Mr. SANCHES. The older would be approximately 2 years. Those are for many reasons. In one case I can remember, an employee who did leave the Department was just gone for a long period of time, over a year, and could not be reached. The process extended.
There were several types of factors that would be extraordinary and contribute to the delaying of the case. We don't delay the cases because we want to delay the cases. As Mr. Padgett indicated, it is worthwhile to try and solve them administratively and that is our major intent, to solve them in the beginning before they become a formal case. It is better for the employee and it is better for management in general.
Mr. HANLEY. What percentage of the complainants take advantage of the voluntary legal services available to them?
Mr. SANCHES. I don't have a figure. I would say the majority would seek some sort of representation along the way.
Mr. HANLEY. And I assume that a good number of them employ private counsel?
Mr. SANCHES. Yes.
Mr. HANLEY. Mr. Stenholm?
Mr. STENHOLM. No questions.
Mr. HANLEY. Mr. Cavanaugh?
Mr. CAVANAUGH. Was there any determination ever made on the supervisor in the Williams case?
Mr. PADGETT. At this juncture I am unaware of any because the supervisor is one of the parties in the Federal district court.
Mr. CAVANAUGH. Was his conduct ever investigated?
Mr. PADGETT. I am unaware of any, but I am not the person who would be totally aware of that.
Mr. CAVANAUGH. Who would be?
Mr. PADGETT. On the other side of the EEO process or the review of his work performance by his superiors.
Mr. CAVANAUGH. Wasn't the complaint originally filed by Miss Williams, didn't that relate to his conduct?
Mr. PADGETT. Yes.
Mr. CAVANAUGH. You are saying his conduct, then, was never investigated by the Department?
Mr. PADGETT. In the investigation of the complaint, yes, his conduct was at issue at all times; OK.
Mr. CAVANAUGH. And it was resolved in his favor?
Mr. PADGETT. It was resolved in his favor; yes.
Mr. CAVANAUGH. And he has never engaged in sexual harassment in the course of his supervisory activities?
Mr. PADGETT. Yes; that was the conclusion.
Mr. CAVANAUGH. Has any member of the Department ever been disciplined for abuse of their supervisory authorities regarding sexual harassment?
Mr. PADGETT. My testimony before was that I had decided two cases. One was just so recently decided that the discipline has not been carried out, but in the initial one there was a recommendation that actions be taken.
Now if I remember correctly, I think this was a U.S. marshal who had left the service of the Government at the point in time the case was decided, but a recommendation was made that disciplinary action be taken against that person; yes.
Mr. CAVANAUGH. Are you satisifed with the record of the Department regarding sexual harassment and the fact that you are protecting your employees adequately?
Mr. PADGETT. Are you asking me that personally or more in the general sense?
Mr. CAVANAUGH. I ask you that as the Department, as a division leader, or as you personally. However you want me to ask, you are the only person I have to ask the question of.
Mr. PADGETT. I always think we can do things to improve the EEO system, there is no question. That is why you are having these hearings. I do think there are strides being made, but I think there are steps we can take to improve the system.
Mr. CAVANAUGH. You are generally satisfied?
Mr. PADGETT. I am not saying that from a personal point, but I think there are steps that can be taken to improve the system.
Mr. CAVANAUGH. With regard to sexual harassment?
Mr. PADGETT. Particularly about sexual harassment. I think there are some very, very difficult areas in this problem as you are finding out here.
First of all, it is identifying and, second, is it actionable.
Mr. CAVANAUGH. Is it actionable?
Mr. PADGETT. Yes, in the sense that there is no question there is sexual harassment in the Justice Department.
First of all, was it brought to our attention. I gave you as an example, there have been only two in the 3 years I have been there and they have been acted upon very vigorously. The ones not brought to our attention, I can't do anything about or I don't think the Department can do anything about unless there is some method established where it can more easily be brought to our attention. I think there will always be the problem.
Mr. CAVANAUGH. Do you have a method to recommend to us?
Mr. PADGETT. No; not right off the top of my head.
Mr. HANLEY. Thank you, Mr. Cavanaugh.
Mr. Padgett, are you pleased or displeased with the way the Justice Department has handled the Diane Williams case?
Mr. PADGETT. In what case, in the courts or administrative process?
Mr. HANLEY. Generally speaking.
Mr. PADGETT. I do think the case has taken much too long. Now whoever is responsible for that, therein the fault lies.
Mr. HANLEY. You started to define one or the other. Was there one or the other that was the culprit?
Mr. PADGETT. I think I said earlier that it was an adversary process. So there are some concerns on both sides that would lead it to the conclusion that it has reached and that is that it has not been resolved.
Mr. HANLEY. If there are no further questions, we will express our appreciation to you gentlemen, along with our disappointment. We will be in contact with your Department.
Mr. PADGETT. Thank you, Mr. Chairman.
Mr. HANLEY. Our next witness is the Honorable Alan K. Campbell, Director of the Office of Personnel Management.
Director Campbell, as always it is a pleasure to have you with us.
We look forward to your testimony with great interest.
For the purpose of the record, would you be good enough to introduce your associate?
STATEMENT OF ALAN K. CAMPBELL, DIRECTOR, OFFICE OF PERSONNEL MANAGEMENT, ACCOMPANIED BY MARGERY WAXMAN, GENERAL COUNSEL, OFFICE OF PERSONNEL MANAGEMENT
Mr. CAMPBELL. Yes.
I am pleased to be here, Mr. Chairman and members of the committee. Since the committee and the witnesses on this subject have had a good number of legal questions, I have asked the general counsel of the Office of Personnel Management, Margery Waxman, to join me today so we may respond more fully to your questions.
Mr. HANLEY. Thank you. We are delighted to have you with us.
Mr. CAMPBELL. I have a brief statement, Mr. Chairman.
Mr. HANLEY. You may proceed.
Mr. CAMPBELL. As I say, we appreciate this opportunity to appear before you today on the issue of sexual harassment in the. Federal Government. The Office of Personnel Management has a major
responsibility in assuring that the Federal Civil Service maintains a working environment that is free of any kind of discrimination.
We are very concerned about incidences of sexual harassment which affect the economic, physical, and emotional status of its victims. Sexual harassment is an employment issue with serious and sometimes tragic consequences. All Federal employees should be able to work in an environment free from sexual pressures and we support your initiative in examining the problem.
We commend the efforts already taken by some agencies in dealing with the problem. Policy statements and definitions have been issued by the General Services Administration, Department of Commerce, and the Department of Health, Education, and Welfare. However, we believe that any policy and definition regarding the subject of sexual harassment should be consistent and applicable to all Federal agencies and departments.
Solutions should be implemented government wide, with each Federal agency and department taking positive steps to implement this policy, thereby assisting in improving the work environment for all employees.
You have requested OPM to assist in the effort to curtail sexual harassment by issuing a policy that clearly defines it as a prohibited personnel practice and a violation of merit system principles. We have drafted such a policy statement that I would like to share with you at this time.
Federal employees have a grave responsibility under the Federal Code of Conduct and Ethics to maintain high standards of honesty, integrity, impartiality, and conduct to assure proper performance of the Government's business and maintain the confidence of the American people. Any employee conduct which violates this code cannot be condoned.
Sexual harassment is a form of employee misconduct which undermines the integrity of the employment relationship. All employees must be allowed to work in an environment free from unsolicited and unwelcome sexual overtures. Sexual harassment debilitates morale and interferes in the work productivity of its victims and coworkers.
Sexual harassment is a prohibited personnel practice when it results in discrimination for or against an employee on the basis of conduct not related to performance, such as the taking or refusal to take a personnel action, including promotion of employees who submit to sexual advances or refusal to promote employees who resist or protest sexual overtures.
Specifically, sexual harassment is deliberate or repeated unsolicited verbal comments, gestures, or physical contact of a sexual nature which are unwelcome.
Within the Federal Government, a supervisor who uses implicit or explicit coercive sexual behavior to control, influence, or affect the career, salary, or job of an employee is engaging in sexual harassment. Similarly, an employee of an agency who behaves in this manner in the process of conducting agency business is engaging in sexual harassment.
Finally, any employee who participates in deliberate or repeated unsolicited verbal comments, gestures, or physical contact of a
sexual nature which are unwelcome and interfere with work productivity also is engaging in sexual harassment.
It is the policy of the Office of Personnel Management (OPM) that sexual harassment is unacceptable conduct in the workplace and will not be condoned. Personnel management within the Federal sector shall be implemented free from prohibited personnel practices and consistent with merit system principles, as outlined in the provisions of the Civil Service Reform Act of 1978.
All Federal employees should avoid conduct which undermines these merit principles. At the same time, it is not the intent of OPM to regulate the social interaction or relationships freely entered into by Federal employees. Complaints of harassment should be examined impartially and resolved promptly.
The Equal Employment Opportunity Commission will be issuing a directive that will define sexual harassment prohibited by title VII of the Civil Rights Act and distinguish it from related behavior which does not violate title VII. That is the end of the policy statement.
We believe that this policy will assist agencies in the development of internal directives and the adoption of solutions for decreasing incidences of this form of behavior.
Several considerations were made in arriving at this definition of sexual harassment. The definition is as broad as possible to cover many forms of sexual harassment, yet we hope not so broad as to allow frivolous complaints. We attempted to develop a definition which would put some burden on the victims of informing the alleged harasser that the behavior as defined is unwelcome.
OPM does not believe it is practical to link specific penalties, that is, admonishment, reprimand, suspension, removal, with a given set of sexual harassment behaviors.
It is our view that the definition of sexual harassment which we have developed will not be so precise as to allow direct translation between a particular behavior and the seriousness of its impact on the individual who is subjected to such behavior.
Certainly, the facts and circumstances of every situation will have to be carefully weighed as cases are adjudicated. We would hope that the weighing of individual cases would lead to certain commonly accepted principles of equity for the complainant and for the accused. We believe it would be premature and perhaps even irresponsible to prejudge what particular penalty is appropriate to a particular kind of behavior.
We have conducted a telephone survey of the departments to learn the extent of disciplinary actions which had resulted from complaints of sexual harassment. Of the 12 departments surveyed, four, Interior, HUD, Labor, and Treasury, reported instances of discipline for sexual harassment.
Over the last 2 years a total of 13 cases of discipline were reported ranging in severity from one public apology to six removals. In the cases reported, 10 of the employees disciplined held supervisory positions and 3 were employed in nonsupervisory positions.
I am aware of surveys of Federal employees that have been conducted by private consultants and other nonprofit organizations such as New Responses, Inc., and Federally Employed Women, Inc.
Although the statistics cited were high, the sample population Was not inclusive of a representative number of Federal employees for the purpose of determining the prevalence of sexual harassment in the Federal sector.
Even data cited by the EEOC in which only 0.6 percent of complaints filed alleging sexual discrimination actually involved allegations of sexual harassment are probably not an accurate indicator of the number of occurrences.
The Merit Systems Protection Board will be conducting a survey on sexual harassment. The results of that survey will be extremely useful in determining the scope of the problem and impact on work productivity. The survey results will also assist us in assessing training needs for the Federal sector.
Although there is as yet no reliable data to determine the extent of the problem in the Federal sector, we are beginning now to take several actions for effectively dealing with this issue.
Prevention of sexual harassment from occurring in the first place is critical in the improvement of the workplace.
Training should be made available for all employees in both supervisory and nonsupervisory positions and we will be giving this issue coverage in existing courses in our personnel management, EEO, and supervisory curriculums.
The depth of training coverage will increase as more information and experience is developed on the magnitude of the problem and appropriate management and administrative remedies that will eliminate this type of on-the-job behavior.
Our information will be drawn from a variety of sources and not limited to public sector experience. Many of our existing interagency courses lend themselves to coverage of the topic.
Courses on performance and conduct deficiencies, grievance handling, employee relations and code of conduct, supervisory skills, merit principles, Federal women's programs, and adverse actions are among our courses that provide an excellent opportunity to emphasize the Government's commitment to protect employees from sexual harassment and to institutionalize systems and behaviors to eliminate these practices.
We have examined how the issue of sexual harassment can be incorporated into current OPM training courses. Rather than develop a separate course, a more constructive approach would be to emphasize coverage in existing courses.
Approximately 50,000 employees would be reached annually by including coverage on sexual harassment in our supervisory, managerial, and personnel courses.
Our plans include development of a 3- to 4-hour training module for inclusion in supervisory and interpersonal relations courses. The module would include the Federal policy on sexual harassment, impact on worker productivity, and courses of action to be taken by employees if sexual harassment is experienced or observed.
The modules will be developed in-house by OPM and we plan to make it available to agencies as part of our technical assistance program. Training will be provided to OPM staff trainers to better equip them to handle coverage of sexual harassment in the courses they teach.
We will also modify existing courses that address agency grievances, appraisal systems, adverse actions, and other similar courses. The modifications would be continuous in nature based on changes in Federal policy and regulations on this issue.
Many large departments and agencies currently conduct in-house supervisory and interpersonal relations training that is similar to courses we offer on an interagency basis. We share our course materials and modules with agencies for their internal use.
Modules on sexual harassment will be made available to these agencies. Although OPM does not dictate the content of agency programs, we will actively encourage agencies to include coverage of this subject as a high priority topic in their training.
OPM will also continue to assist Federal agency officials in the accomplishment of their missions by evaluating and recommending improvements in the way agencies manage human resources in compliance with civil service laws, rules, and regulations.
Specifically, we will assess Federal agency compliance with civil service laws, rules, and regulations to cover sexual harassment, provide technical advice to Federal agencies, when requested, on internal evaluation methodology to address sexual harassment and program requirements related to the subject, and include appropriate sexual harassment material in training programs conducted by OPM for Federal personnel management evaluators.
Finally, we will be recommending that each Federal agency and department take a leadership role by initiating the following actions:
One: Issue a very strong management statement clearly defining, following OPM guidelines, the policy of the Federal Government as an employer with regard to sexual harassment.
Two: Emphasize this policy as part of new employee orientation covering the merit principles and the code of conduct; and
Three: Make employees aware of the avenues for seeking redress, and the actions that will be taken against employees violating the policy.
In conclusion, I would like to thank you for the opportunity to appear here to discuss OPM's role with respect to the elimination of sexual harassment in the Federal sector. Ms. Waxman and I will be happy to answer any questions that you or any other member of the committee may have.
Mr. HANLEY. I am indeed delighted with what you have told the committee here this morning. I feel confident that every member of the committee would applaud the program that you have outlined.
I commend you and your agency's response to the problem of sexual harassment. Essentially what you are suggesting are pretty much the things that we had hoped would result from this activity.
I believe that once your program is in place, a very firm message will have been transmitted throughout the Federal Government that sexual harassment will not be tolerated.
I personally thank you for what you are doing. I feel confident that we can get this type of program off the ground. That is the intent of this committee and certainly with the splendid cooperation you are providing there is no reason at all that it cannot get off and running quickly.
May I ask, what is the time limit that you foresee from the standpoint of implementing the program?
Mr. CAMPBELL. In relation to the issuance of the policy guidance as a definition of sexual harassment, we wish to consult with some other agency people before we finally issue it. But it will be done in a matter of weeks.
Second, on the training side, we are now in the process of developing the modules for training in this area. They certainly will be ready for our use for interagency training and will be made available to departments and agencies for their use within a matter of a few months.
So we are moving as rapidly as we think the knowledge we have permits us to move.
Mr. HANLEY. The committee and the staff will be delighted to work along with your people to finalize your proposal and will be helpful in any way so it will be a cooperative venture.
I am confident that once the program is implemented, we are going to be able to look back and say that this is indeed a noteworthy achievement.
Mr. STENHOLM. Mr. Campbell, I, too, congratulate you on a fine statement addressing the question that is before this committee this morning. I noticed -- and I also agree with you -- that you said that any policy and definition regarding the subject of sexual harassment should be consistent among all agencies.
What can your agency do if another agency chooses not to be consistent?
Mr. CAMPBELL. Well, we could assert regulatory authority, but I do not think it will be necessary. We are working closely with the people that are involved with this in the other departments and agencies. I am satisfied that there will be a general agreement on what the policy should say and, in fact, the statement that I have read to you has already been one that we have worked closely not only with the staff of this committee on but with several of the departments.
Mr, STENHOLM. Do you anticipate that your policy statement that you mentioned would also cover contractual arrangements?
Ms. WAXMAN. What do you mean by that?
Mr. STENHOLM. I mean as regards employees who are under contract with the various agencies?
Mr. CAMPBELL. Do you mean where we have contracted out to work?
Mr. STENHOLM. Yes.
Ms. WAXMAN. I think as a policy matter we would encourage contractors to adopt those policies. As a legal matter, I am not sure that we could impose the policy statement at least to the extent that we could not bring a prohibitive personnel practice, for example, before the Merit Systems Protection Board against a contractor.
But we certainly would encourage them to adopt it, and with Chairman Norton's definition of sexual harassment being included within sexual discrimination they would be covered by the Civil Rights Act.
Mr. STENHOLM. Thank you. I have no further questions.
Mr. HANLEY. Thank you, Mr. Stenholm.
Mr. ALBOSTA. Thank you very much.
I, too, want to commend you on the actions that you are proposing to take here to the agencies, but I do have some question about one particular statement in your prepared statement here. I will reread it to you. It says:
"OPM does not believe it is practicable to aim specific penalties, reprimand, suspension, removal, or whatever the case may be."
How do you propose that people are going to take this seriously if we don't have any type of action that is proposed by OPM to take action against those employees? How do you propose to address this issue?
Mr. CAMPBELL. Well, we certainly do not intend to imply by that statement that actions should not be taken. What we are saying is that we do not have enough knowledge to relate a specifically prohibited practice in terms of sexual harassment to a specific penalty, be it a suspension or a demotion or a removal from the service.
I am satisifed that the process will over time in the normal common law practice produce a set of precedents on which we can build in the future perhaps greater, more specific kinds of penalties directly related to specific actions.
The effort here is to not try to put that in concrete until we have had greater experience.
Mr. ALBOSTA. But wouldn't it seem to you, it would certainly seem to me that if somebody was convicted or some sort of action was brought against them where they had threatened the employee with some sort of discharge, hadn't there ought to be some type of specific penalty against that person? Wouldn't that make it very clear when you are going through your training process of sending this out to other agencies that there are penalties involved?
It would seem to me that it would clear it up, maybe not on the minor things but on the major things it would seem that that would clear that up.
Ms. WAXMAN. The Merit Systems Protection Board is the agency responsible for deciding when an action is a prohibited personnel practice. They have a panoply of remedies available to them. They can overturn an action as, for example, if someone has been fired because of refusal to submit to sexual advances.
The Merit Systems Protection Board can order that person reinstated, discipline the supervisor, such discipline ranging from suspension to removal.
So there is a wide variety of actions that the Merit Systems Protection Board can take. It is very hard at this time to say in a particular case there should be particular action. You really have to wait and see each case as it comes along. MSPB will be developing remedies for these cases as they come along.
Mr. ALBOSTA. It would seem to me -- again, I don't want to belabor this, but that the Office of Personnel Management ought to be recommending that certain penalties be taken.
Ms. WAXMAN. It is very hard to link specific remedies to hypothetical facts. It will really depend on individual situations and that is true for all allegations of prohibited personnel practices.
MSPB will have to look at each case and see what particular remedy is suited to the injury that has occurred.
Mr. ALBOSTA. Thank you.
Mr. HANLEY. Thank you, Mr. Albosta.
Mr. CAVANAUGH. Thank you, Mr. Chairman.
Mr. Director, I want to add my congratulations to your testimony. I think it is an excellent compilation. I want to commend the chairman because I think that in many respects your testimony is a response to his hearings and the initiative that he has taken to bring this issue into public focus and to stimulate you and the other Federal agencies to respond to a problem that has for too long been silent.
So, Mr. Chairman, I think that you should take some of the credit for the excellent testimony that the Office of Personnel Management has presented here today because I see your fine hand in its drawings.
Mr. CAMPBELL. May I join, Mr. Congressman, in that commendation of the Congressman. It is clear that the actions of this committee have prompted attention to this problem that would not have occurred if it were not for the actions of this committee.
Mr. CAVANAUGH. How soon can you get over to the Department of Justice?
Mr. CAMPBELL. I am sure we will have conversations with the Department of Justice.
Mr. CAVANAUGH. I think the very rewarding thing about your testimony is its comprehensiveness and its sensitivity to the difficult nature of the issue in many respects. It requires a great number of sensitivities. I think that you have inculcated those and absorbed those. I think that it can only reflect favorably on the hopeful eventual resolution of this issue.
I am serious in exhorting you to move aggressively with the agencies because as we have seen, there are many agencies, I think, that have responded positively. We have seen also in our testimony that there are those who simply have not developed the sensitivity. That is the basic groundwork that must be laid for the resolution of this issue.
But I have every confidence on the basis of your testimony that you are capable of spreading that sensitivity throughout the Federal Government, I simply offer all my encouragement to you.
Mr. CAMPBELL. We shall do our best.
Mr. CAVANAUGH. Thank you, Mr. Chairman.
Mr. HANLEY. Thank you, Mr. Cavanaugh.
With reference to Mr. Albosta's concern about the penalty factor, we would hope to put the problem to rest but maybe that is being too idealistic or overly optimistic.
But in the event of a complaint, that complaint will immediately be channeled into either EEO or the Merit Systems Protection Board for expeditious action.
Along with that determination they will set a penalty that I would assume would range anywhere from demotion to out and out dismissal and perhaps beyond that with reference to civil enforcement agents. That is the scenario that I envision as unfolding as we complete this program.
Mr. ALBOSTA. Mr. Chairman, I might just respond to that. Perhaps we would be correct in trying to let the wheels of justice turn before we try to make any determination as to what ought to be done. Maybe we could then, after we have a few of these cases tried, make sure that some statement comes from your office, Mr. Campbell, that would say that these are the penalties that are being leveled against those people that are being charged and convicted of those particular types of offenses.
Mr. CAMPBELL. Yes, sir, certainly.
Mr. HANLEY. One of the problems called to this committee's attention has been lack of understanding with respect to where a woman might file a complaint.
So I can only conclude that in the course of putting your program together great emphasis is going to be put on the matter of information so that every employee will be well versed with respect to the route that she may take.
Mr. CAMPBELL. You can be sure, Mr. Chairman, that in our training courses we will do that. Obviously, with the reorganization and the creation of the Merit Systems Protection Board and the movement of Federal matters in the discrimination area to the EEOC, we are going through a state of change. We are doing our best to get everybody as informed as we can as to what this means for changes in procedures and in institutions to which one appeals. This would only cause us to try even harder to do that effectively.
Mr. HANLEY. Mr. Albosta, EEO and the Merit Systems Protection Board have indicated that they hope to shorten the length of time it takes to process a complaint so that the history of 441 days will indeed be history.
Mr. ALBOSTA. That in itself, Mr. Chairman, I think is going to be a pretty good warning to those people that have been practicing that to realize that action will be taken very swiftly and that will also be beneficial I think.
Mr. HANLEY. Thank you very much.
If there are no further questions, Mr. Campbell, again our deep appreciation to you and Ms. Waxman for your appearance here this morning.
Again, our great delight with your testimony and the program that you have proposed. Thank you very much.
Mr. CAMPBELL. Thank you very much, Mr. Chairman.
Ms. WAXMAN. Thank you, Mr. Chairman.
Mr. HANLEY. Our next witness is Mrs. Ruth T. Prokop, Chair woman of the Merit Systems Protection Board.
Mrs. Prokop, it is a pleasure to have you with us this morning If, for the record, you would introduce your associate.
STATEMENT OF MRS. RUTH T. PROKOP, CHAIRWOMAN, MERIT SYSTEMS PROTECTION BOARD, ACCOMPANIED BY PATRICIAL MATHIS, DIRECTOR, OFFICE OF MERIT SYSTEMS REVIEW AND STUDIES
Mrs. PROKOP. Mr. Chairman, accompanying me today is Ms. Patricia Mathis, the Director of our Office of Merit Systems Review and Studies.
Mr. HANLEY. Welcome, Ms. Mathis. It is nice to have you with us.
Mrs. PROKOP. Chairman Hanley, distinguished members of the subcommittee, I appreciate the opportunity to appear today to testify on the issue of sexual harassment in the Federal workplace.
On behalf of the Merit Systems Protection Board, I want to commend this subcommittee for its courage and sensitivity in conducting these hearings and bringing attention to bear upon this significant employment issue.
There can be no question that sexual harassment has a debilitating impact on each of its individual victims as well as on the workplace as a whole. It creates an environment of threat and coercion which negatively affects the ability of employees to perform and impairs the quality of their work.
Moreover, it is an outrage to our citizens who as taxpayers and recipients of Government services have a right to expect that employee participation in the Federal work force will be rewarded or punished on the basis of merit performance.
This objective, of course, cannot be achieved where those employees are subjected to sexual intimidation by their superiors. Sexual harassment in any form cannot be tolerated and it is the responsibility of all public officials to assure that it is not.
As Chairwoman of the Merit Systems Protection Board I am charged with the duty of promoting the implementation and application of merit system principles by guarding against prohibited personnel practices.
When sexual harassment is permitted to dictate which employee is promoted or demoted, which employee is retained or dismissed, or whether an employee can effectively perform the job, there has been a failure to protect these merit principles. Notions of merit forbid consideration of who rejects and who submits to the unwanted advances of a supervisor.
Mr. Chairman, you opened these hearings with a very simple, yet forceful, directive: "It is time the Federal Government took affirmative steps so that federally employed women can work in an atmosphere free from sexual harassment."
In response to that directive I would like to focus my testimony on certain affirmative steps which I believe can be taken by the Merit Systems Protection Board and the Special Counsel of the Board.
Specifically, I will describe the Board's plan to conduct a survey on the nature and extent of sexual harassment in the Federal work force and its impact on office productivity. Then I will discuss those statutory authorities included in the Civil Service Reform Act of 1978 that can be used to provide expeditious relief to the victims of sexual harassment.
In a letter dated September 18, 1979, you requested that the Board initiate a comprehensive survey of the Federal work force to determine the extent of sexual harassment within the Federal Government. You stated that the results from such a survey were urgently needed and asked that the Board make this a priority project.
In response to your request, the Board's Office of Merit Systems Review and Studies undertook a review of all existing literature and surveys on the subject of sexual harassment. That preliminary inquiry revealed that the modest number of surveys which have
been conducted found that sexual harassment in one form or another is widespread.
The results of those surveys are of somewhat limited value; each survey contained one or more problems in sampling techniques or overall survey design. These drawbacks resulted in studies that offered a look at the general nature of sexual harassment as opposed to a definitive analysis of the problem.
In brief, our preliminary research indicated that no scientifically constructed survey on sexual harassment had ever been administered within the Federal workplace or within any other organization in the private sector. This means that no reliable data will be available to assist the Board in gauging the nature and extent of sexual harassment in the Federal work force or in comparing the Federal Government with other workplaces.
It is clear then that the Board's survey on sexual harassment will represent the first effort to provide a definitive study on this subject. It is also clear that such a major undertaking will place considerable demands on the limited resources of the Board's Office of Merit Systems Review and Studies.
During the next few months this project will engage the efforts of the entire staff of that Office. Nonetheless, it was the Board's view that the issues to be addressed in the study were inextricably tied to the effective implementation of its statutory mandate.
As the Nation's single largest employer, the Federal Government has an obligation to demonstrate exemplary conduct to other employers. This is particularly true given the large number of women who are employed by the Federal Government.
The most recently available statistics indicate the Federal Government employes 2.4 million full-time civilian employees, of whom more than 750,000 or 31 percent are women. If sexual harassment in the Federal Government is found to be as pervasive a practice as informal studies indicate, the potential for abuse is enormous. For these reasons we particularly appreciate the opportunity you have afforded us to conduct such a survey.
The first step in this task is, of course, the design of the survey instrument. Of primary importance to the Board are the reliability, adequacy and integrity of the survey. The survey instrument must be able to withstand the close scrutiny of any critic, both inside and outside the Government. Prior to the final dissemination of the survey a pretest of the population to be sampled will be conducted.
We propose to conduct a random sample of male and female employees who represent a cross section of the Federal work force. While specific questions have not yet been framed, we anticipate that the survey will address certain critical issues including:
The degree to which sexual harassment is occurring within the Federal workplace, its manifestations and frequency;
Whether the victims or perpetrators of sexual harassment are found in disproportionate numbers within certain agencies, job classifications, geographic locations, racial categories, age brackets, educational levels, grade levels, et cetera;
What kinds of behavior are perceived to constitute sexual harassment and whether the attitudes of men and women differ in this respect;
What forms of express or implied leverage have been used by harassers to reward or punish their victims;
Whether victims of sexual harassment are aware of available remedies and whether they have any confidence in them;
The impact of sexual harassment on its victims in terms of job turnover, work performance, their physical or emotional condition, and their financial or career well-being; and
The effect of sexual harassment on the morale or productivity of the immediate work group.
In formulating the specific survey questions the Board will be guided by two basic considerations:
First, we must develop a definition of sexual harassment that is applicable on a governmentwide basis. The absence of such a definition would permit interpretation of survey questions based totally on the widely varied experiences and attitudes of the respondents and thus seriously undermine the validity of the survey. In this regard, we propose to adopt the definitions provided today by the Office of Personnel Management which will be distributed to Federal agencies.
Second, the distribution and collection of the survey must be completed in such a fashion so as to assure respondents that their anonymity and privacy will be protected.
When the survey responses have been collected, we will then begin the task of analyzing them. The analysis of responses will be performed largely by computer. The resulting data can be used for two major purposes.
First, the data will yield quantitative information which will help describe the magnitude of the sexual harassment problem in the Federal work force.
Second, the data will yield descriptive information such as age, sex, et cetera, about persons who have been subjected to or who have engaged in sexual harassment. We may then be able to compare trends in the occurrence of sexual harassment to patterns of promotion and other benchmarks of job advancement or security. Thus, we expect to learn from these comparisons more about the circumstances and effects of sexual harassment.
The findings of the survey will comprise the major portion of our report. In addition, we expect to include in the report:
A summary of legal aspects of the sexual harassment issue;
A summary of remedies currently available within the Federal Government, with recommendations for change, where appropriate; and
A detailed appendix of statistical charts and other useful data derived from the survey results.
We anticipate that it will take the Board 4 to 6 months to complete this survey. During this time the Board will develop and administer the questionnaire, quantify and analyze the results, and prepare the final report. Now that OPM has released its policy paper which provides definitions of sexual harassment to be used by all agencies, we can begin the actual design of the survey instrument.
Unquestionably the Board's survey will provide us with some previously unavailable data on the extent and nature of the problems associated with sexual harassment within the Federal work
force. At the same time we need not await the results of that survey to recognize that incidents of sexual harassment are occurring now and that expeditious corrective action should be made available to the victims of such practices.
I was extremely concerned to read the testimony of witnesses before this subcommittee who expressed a lack of confidence that existing procedures could provide adequate and timely remedies against sexually harassing conduct.
As one who has devoted almost a year to correcting unconscionable delays and breakdowns in our administrative processes, I was disturbed by the fact that the few who came forward to challenge sexual harassment in the workplace have encountered long delays in the administrative process.
Clearly those experiences have and will continue to send signals to others that it is futile to come forward since relief is not available for months or even years. Such delays provide further opportunities for harassment and can even result in retaliation against the complainant.
The old axiom, "Justice delayed is justice denied" is especially applicable to these cases.
This concern is shared by Eleanor Holmes Norton, Chair of the Equal Employment Opportunity Commission, who has responsibility for overseeing the administration of employment discrimination complaints of Federal workers under the terms of the 1978 Reorganization Plan No. 1.
She testified before this subcommittee that EEOC recently initiated a pilot program to develop ways to address the problems associated with lengthy delays encountered in the processing of EEO complaints. The Board commends Chair Norton for her efforts to reduce the time for processing complaints and hopes that the pilot project will be successful.
Turning now to the jurisdiction of the Merit Systems Protection Board, it is my belief that the Reform Act provided some useful statutory tools to address many of the problems closely linked to sexual harassment. Moreover, the expeditious procedures currently being employed by the Board can provide relief in a timely fashion.
Cases involving incidences of sexual harassment can come before the Board primarily in two ways: first, in appeals to the Board from an agency's adverse action against an employee; and second, in actions brought before the Board by the Special Counsel.
With respect to appeals from agency actions, the Board is required to give the employee an opportunity to show that the action was based on a prohibited personnel practice, which may include sexual harassment. Upon such a showing, the agency action will be overturned.
For example, a female employee who was fired for refusing to succumb to the sexual advances of her supervisor could assert that this was the reason for her firing. If her allegations were proven, then the Board would overturn the action of the agnecy and reinstate the employee.
With regard to the use of sexual harassment as a defense against any agency action, however, the Board's experience to date is non-existent. Although some 3,400 appeals have been filed at the Board
by employees under the Reform Act, no appellant has asserted sexual harassment as a defense.
On the other hand, we have some evidence that agencies are disciplining the perpetrators of sexual harassment. The Board has pending before it three cases that involve instances where agencies have either demoted or removed male employees for engaging in the sexual harassment of female employees.
I do not believe that such a small number of cases involving specific allegations of sexual harassment are reliable indicators of actual occurrences. In fact, such small percentages are probably more indicative of the fact that we have not been successful in creating a climate in which employees feel that their complaints about sexual harassment will be handled in a fair and expeditious fashion.
In addition to its appellate jurisdiction, the Board was given additional responsibilities under the Reform Act. At the request of the Special Counsel, the Board may take action to terminate the commission of prohibited personnel practices and grant such corrective and disciplinary action as appropriate under the circumstances.
As you know, sex discrimination in violation of title VII of the Civil Rights Act of 1964, as amended, is specifically designated as a prohibited personnel practice under the Reform Act. It has been held that some forms of sexual harassment are considered sex discrimination within the meaning of title VII.
Additionally, the Reform Act forbids, as prohibited personnel practices, other types of behavior which could occur as a result of sexual harassment, including: Considering any recommendation unless that recommendation is based on the merits of an individual's performance;
Granting any preference not otherwise available by law for the purpose of improving or injuring the prospects of any particular person for employment;
Taking or failing to take a personnel action in reprisal for revealing a violation of law, rule, or regulation, including sexual harassment; and
Discriminating on the basis of conduct which does not adversely affect performance.
The Reform Act provides the Special Counsel of the Board with a wide range of investigatory and prosecutorial tools to uncover and prosecute those who engage in prohibited personnel practices, including sexual harassment.
First, the Special Counsel is directed to investigate allegations of sexual harassment which have occurred in connection with a personnel action. He may require an agency to investigate such harassing practices within it, as well as conduct his own independent investigation. As an investigator of sexual harassment within the Federal Government the Special Counsel occupies a uniquely neutral position.
Since he is not subject to the office politics or pressures which may exist within an agency, his own investigation is likely to be independent and thorough. In addition to his mandate to investigate such complaints of harassment, the Special Counsel is also
authorized to initiate such investigations even in the absence of such a complaint.
Second, the Special Counsel may request, during the course of his investigation, that the Board stay personnel actions which evidence sexual harassment. If the Board grants such a stay, an immediate cessation of sexual harassment can be secured.
Third, the Special Counsel may seek corrective action to eliminate sexual harassment practices in an agency. If the Special Counsel seeks corrective action of sexually harassing practices, he brings those practices to the attention of the head of the agency involved.
If the agency head is unwilling to correct these practices, the Special Counsel may request that the Board order the agency to take corrective measures. I noted that one witness before this subcommittee alleged the existence of widespread sexual harassment within one Federal facility.
The Special Counsel may seek correction not merely of single instances of harassment, but of patterns of such practices within an agency.
Finally, the Special Counsel may petition the Board for disciplinary actions against employees who engage in a prohibited personnel practice which includes sexual harassment. In bringing such a disciplinary action, the Special Counsel has a wide range of penalties that he may request and the Board may grant. He can request the Board to remove, reduce in grade, debar from Federal employment, suspend, reprimand, or fine a perpetrator of harassing practices.
In the event that the employee was appointed by the President with the advise and consent of the Senate, and hence not subject to these sanctions, the Special Counsel can report these appointees to the President for appropriate action. Such disciplinary actions and reports will serve notice on would-be harassers that the Federal Government will not tolerate their behavior.
In conclusion, it is my belief that the Board has considerable authority to impose sanctions against sexually harassing behavior that results in personnel actions, both through its authority to rectify prohibited personnel practices and its mandate to process employee appeals.
Working in cooperation with the other concerned agencies such as EEOC and OPM, I am confident that we can create a supportive climate in which the victims of harassment will come forward and invoke these sanctions. I might add that the attention given to the subject by this subcommittee is a very positive step in creating that climate.
Of course, imposing sanctions for sexually harassing behavior is no substitute for eliminating it. That is the next step.
It is my firm hope that the survey to be conducted by the Board will yield the necessary information to identify the sources of this problem. With that information, we can then work to fulfill the task before the Board and the Federal Government at large, elimination of personnel practices which lower morale and impede productivity.
This concludes my prepared statement.
I will be happy to respond to any questions which the subcommittee may have.
Mr. HANLEY. Well, thank you, Mrs. Prokop. Your testimony is indeed heartening to this committee. The cooperation which you suggest is parallel to that of the previous witness. You are responding to what this committee had in mind when it initiated this activity in response to what apparently is a widespread problem, not only in the Federal Government but perhaps in the private sector and in State governments throughout the country.
Someone called to my attention a program underway in the State of Michigan, a statewide conference on sexual harassment, where they assembled in excess of 600 people who registered to participate in that conference.
Hopefully what we are doing will prove to be a catalyst to the private sector and State governments.
I judge by your testimony that the Merit Systems Protection Board will be a major contributor to the solution of the problem.
May I ask, how many Federal employees do you plan to survey?
Mrs. PROKOP. Our initial thought on that was that we would attempt to survey in the neighborhood of 20,000. We have been talking and working on a daily basis during the last 10 days with statisticians to see if our survey has to reach that deep to be accurate.
The concern here, of course, is one of expenditure of funds. If we feel that our survey can be accurate and interview a lesser number, we, of course, will do that.
But our major concern here, and that is why we first thought of 20,000, is to go as deep as possible to assure the accuracy of our study.
But as I stated, we have been working now for the past 10 days with statisticians in an effort to determine the precise number.
Mr. HANLEY. In your testimony you have referred rather extensively to the potential relief available for employees who have been sexually harassed and you have discussed that relief in terms of the role of the Board's Special Counsel.
Would you explain to the committee your own role in that regard? What I am asking is how does the Board relate to the Special Counsel?
Mrs. PROKOP. Thank you, Mr. Chairman.
The Special Counsel, by statute is a part of the Board and that is why I have made such extensive reference today to the authorities vested in the Special Counsel.
At the same time, also by virtue of statute, he has investigatory authorities. The Board has not and certainly will not attempt ever to interfere with those investigatory authorities that are placed in the Special Counsel.
The relationship can perhaps best be analyzed as to the prosecutor and an adjudicator. He investigates and prosecutes and brings the cases to the Board. Most of the authorities that I have referred to today are rather double edged.
I spoke to the authorities he has to investigate and to prosecute. At the same time, it is the results of those investigatory and prosecutorial tools that come to the attention of the Board. The authority to rule on those results is vested in the Board.
So I think that we might best analogize this to the prosecutor and an adjudicator. But the tools are there to be utilized by the
special Counsel in the first instance, and if he utilizes them and brings them to the attention of the Board, it is then up to the Board to rule on them.
Mr. HANLEY. I see.
Now the 20,000 employees that you intend to survey, do you intend to touch every agency or will you be selective with respect to the agencies surveyed?
Mrs. PROKOP. We would hope to get a cross section of Government employees. I am not certain we could tell you at this point that the employees will come from each and every agency. We will hopefully be able to pull together a scientifically constructed survey that will test a number of employees.
I don't think we can say at this time whether they will come from every agency or from concentrations and clusters. I think that that will be up to the people designing the survey instrument and making a determination as to the validity of that instrument as a testing technique.administered completely by the Board or would you also enlist the aid of other entities in the agency?
Mrs. PROKOP. That is a question that we are giving considerable attention to right now. We have considered enlisting the support of the agencies. That, of course, will have to be balanced with whether in the final analysis we feel that the confidentiality and the privacy of those individuals can be protected and still use the help of the agencies.
But to the extent that we can within those confines, I believe we would be prudent to attempt to use the mechanisms that are already in place.
Mr. HANLEY. Certainly the Reform Act did give the Special Counsel powers with regard to personnel actions to assist a victim of sexual harassment.
However, also we have been told that sexual harassment cases brought to the attention of the Special Counsel are routinely referred to EEOC. Could you comment on that?
Mrs. PROKOP. I did read the testimony of witnesses before this subcommittee that testified to that effect. I would like to start back and say that I cannot comment with any degree of certainty on what investigatory matters are before the Special Counsel and have or have not been before the Special Counsel.
I would be distressed to learn, however, that as a routine basis such cases which I consider to be terribly important are being routinely referred somewhere else.
I think in defense of the Office of Special Counsel, they have been existing during the past year on an extremely limited budget and lack of personnel resources. They have, thanks to this committee's work and the work of the Appropriations Committees, now been given what I consider an adequate level of staffing with an increase from somewhere in the neighborhood of 25 personnel on board last year reaching up to 140 this year.
I would only hope that if there were past negative experiences with the investigatory tools being used by the Special Counsel that, now that adequate staff is available, they will be able to investigate what I prerceive the statute tells them to investigate.
Mr. HANLEY. Well, thank you.
Mr. TAYLOR. Thank you very much, Mrs. Prokop, for your testimony. I think it is very encompassing and I am very glad that you are embarking upon the survey. I know that this committee will be quite anxious to have the results of that survey once it is completed so we will have a better knowledge of the depth of this very important problem that is a great concern of this committee.
I think it is important that the system be devised where those that are guilty of sexual harassment can be punished immediately.
I am also concerned with the defender of the innocent, and in cases where people have actually not engaged in this, who are supervisors who are accused, that their reputation would be protected.
Mrs. PROKOP. Yes, sir.
Mr. HANLEY. Thank you, Mr. Taylor.
May I ask, what has the Board done to, if you will, advertise the new responsibilities so that Federal employees know of their rights?
Mrs. PROKOP. May I ask for a clarification, Mr. Chairman?
Does that mean with respect to this issue or with respect to their rights in general?
Mr. HANLEY. Their rights in general.
Mrs. PROKOP. We have made as many efforts to advertise our procedures as we had the funds to do so.
Again, we did come into being last January and have made an effort to the extent we had funds to do so during the first year in reaching out to agencies and telling them about our procedures.
I am not satisfied that that job is adequate or that, for example, the kinds of information that I gave to the committee today as to the rights that employees have to complain to the Special Counsel have been adequately explained to them.
So again I would state that during this first very difficult year of startup, I would not be satisfied to say to you that we have done an adequate job in telling Federal employees what their rights are, but we are very hopeful that during this next year we will have an opportunity and will have the funds to do the much more extensive job which is needed in this area.
Mr. HANLEY. I assume the same answer would apply to the subject matter that we are dealing with here.
Mrs. PROKOP. I believe that it would. I was really quite surprised when I called to see how many cases we have in our system where the issue of sexual harassment could be used as an affirmative defense and I found that it has never been used.
It is really quite startling to me. That said to me that we had not done a good enough job in announcing that this was available. So I think that it is particularly applicable to the problem of sexual harassment that there are rights that are not known and not utilized.
Again, I state I am very hopeful that with the increase of our funds recently we will have more of an opportunity to go out to the Federal sector and to make it known that these rights do exist and can be utilized and also we do have a Special Counsel who has statutory obligations in this area.
So I am hopeful we will be able to do a much better job on that, Mr. Chairman.
Mr. HANLEY. I have no further questions. I do reiterate my commendation to you for the fine job you are doing. I think you are certainly working very diligently in attempting to master your challenge. It is a great one.
I am aware of the obstacles that you have encountered. I am confident that you will succeed.
Again, it was especially heartening to note your response in this particular effort. I combined what you have said and what Director Campbell said a little earlier and I believe that we indeed have accomplished something highly productive through the course of these hearings.
We will contnue to maintain close contact with you and with Director Campbell so that all of us have the assurance that the intent of the committee is being fulfilled.
I think the only disappointing factor in our series of hearings was the testimony provided by the Department of Justice. As I mentioned earlier, we will be in contact informally with that Department. But, again, our deep appreciation to you and to your associate for your appearance here this morning.
Mrs. PROKOP. Thank you, Mr. Chairman.
Mr. HANLEY. Mr. Sombrotto was unable to testify today. Without objection, his entire testimony will be included in the record.
[The statement follows:]
STATEMENT OF VINCENT R. SOMBROTTO, PRESIDENT, NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO
Mr. Chairman and Members of the Subcommittee, for the record, I am Vincent R. Sombrotto, President of the National Association of Letter Carriers, AFL-CIO, the Union which represents approximately 225,000 active city letter carriers employed by the U.S. Postal Service throughout the nation of which 15 percent are women letter carriers. I am accompanied today by NALC's Executive Vice President, Tony Huerta and my Legislative Assistant, George B. Gould.
Mr. Chairman, I want to congratulate you on these very important and timely hearings. We have been monitoring your hearings and know what they have revealed. Frankly, assuming that your hearings are representative in showing the atrocities of sexual harassment, as you stated "not only epidemic, but pandemic -- an everyday, everywhere occurrence", I am shocked. The problem of sexual harassment appears to be very serious and widespread in the Federal establishment. It is my understanding that since you, Mr. Chairman, started investigating sexual harassment in our government, hundreds of women have complained to your staff of coercion, physical abuse, and prevention of deserved promotions from supervisors demanding sex.
Because of the national publicity you and your hearings have received, our Union has started to receive communications from some of our locals detailing instances of sexual harassment. One example of this is such a case in Houston, Texas. Local Branch 283, of the NALC, has been picketing the John Allen Post Office in Houston because of alleged sexual harassment of a woman letter carrier by a supervisor. According to a sworn affidavit, signed by the letter carrier, she has been repeatedly approached by her supervisor demanding that she participate in sexual acts with him or she would be fired. It is alleged that he has attempted to molest her after locking her in a room. She has stated that on a number of occasions he has made salacious remarks to her coupled with promises of days off or retribution.
Because of the postal supervisors unwarranted, insulting and demeaning suggestions, our Union's local in Houston is engaged in an informational picketing of the postal facility. In addition, the local has printed and distributed a notice to the public explaining the reasons for the picketing. We, of course, condemn such actions by postal supervisors against our female letter carriers. The sexual harassment of
female letter carriers, whether it is by verbal or physical sexual advances, sexually derogatory statements or sexual discrimination is unacceptable to me personally and unacceptable to our Union as a whole. We regret this type of humiliation to our women letter carriers and will do everything in our power to prevent it and correct it when found.
Mr. Chairman, in addition, I would like to praise you for asking the Merit Systems Protection Board, Office of Merit Systems Review and Studies, to develop and conduct a survey on sexual harassment in the Federal Government. It is my understanding that over 20,000 Federal employees through the next 6 months will be requested to answer a detailed, confidential questionnaire on sexual harassment. Hopefully, results of this effort will bring forth answers to the many questions that you, your Subcommittee and our Union are interested in finding answers to. It is important that we understand what really is happening concerning sexual harassment in the Federal system. Such areas of concern are how serious the problem of sexual harassment is, how do women and men define harassment, is there a pattern of sexual harassment throughout the system, how is sexual harassment applied, and of course, lastly and importantly, how do the victims of sexual harassment protect themselves and receive justice. The answers to these areas of concern need to be known and understood. Our Union, Mr. Chairman, of course, is vitally interented in the results of the survey to be conducted by the MSPB.
In conclusion, I want to thank you and the other Members of the Subcommittee for investigating this issue and for forcefully bringing it to the Nation's attention.
If we can be of any further assistance to you by supplying you with any additional information, please feel free to call on us.
Mr. HANLEY. With that, these hearings are adjourned.
[Whereupon, at 12:20 p.m. the subcommittee adjourned.]
[The following material was ordered placed in the record:]
RESPONSES TO QUESTIONS ON SEXUAL HARASSMENT POSED TO THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Question 1. What steps in the regular EEO process are eliminated or shortened in your pilot program? Are any important employee rights lost?
Answer. No steps are eliminated. There is a full investigation meeting evidentiary standards developed over our almost 15 years of experience; there is the opportunity for a hearing if desired by the complainant. The significant difference is the length of time required. Following the old procedures, an average complaint required 440 days to process. No pilot program case has yet taken more than 100 days and we do not expect that more than a very small percentage will. At present, 44 percent of the complaints processed have been settled with relief satisfactory to the complainant and an additional 8 percent have been withdrawn because the complainant received satisfactory relief, a composite 52 percent settlement rate.
An additional 29 percent have been voluntarily withdrawn by complainants, due, we are sure, to the program's practice of sharing documentation and evidence with the parties as it is adduced. This is approximately the same rate of withdrawal as occurs in the regular process, but it occurs, on the average, in 42 days from initiation of investigation rather than 250 days in the regular process. We counsel and query complainants before accepting a withdrawal request to assure that the withdrawal is not based upon coercion. We do not believe that any employee rights are lost; rather, that they are enhanced.
Question 2. In earlier testimony, witnesses discussed the matter of corroboration. We heard that as a procedural matter, those filing sexual harassment complaints are held to a higher standard of proof than those claiming other kinds of discrimination. Is this in fact the case?
Answer. No. The standard of proof is the same for all claims of discrimination under Title VII, i.e., the complainant must show by a "preponderance of the evidence" that discrimination has occurred. However, the charge alleging discriminatory sexual harassment is generally more difficult to prove or corroborate because of the nature of the conduct involved and the fact that it occurs most often out of the presence of witnesses.
Question 3. Does an employee have a legitimate EEO complaint if that employee's supervisor has not made sexual relations a term or condition of employment, but instead, merely refuses to stop making advances that the employee consistently turns down?
Answer. Under Title VII, an employer has an obligation to provide its employees with a working environment free of discrimination within its control. Thus, we have argued in litigation that an employer who permits harassment (sexual or otherwise)
of an individual on the basis of sex which creates an atmosphere of discrimination or otherwise affects an individual's employment is in violation of Title VII. Because of the obvious capacity of a supervisor to affect a subordinate's employment status or working conditions, such conduct on the part of a supervisor which is inherently coercive, is discriminatory under Title VII.
Question 4. Can the Commission protect an employee who files a complaint from reprisals while the employee's case is being processed?
Answer. In the case of private sector complaints, the Commission is authorized by Section 706(f)(2) of Title VII to seek immediate relief in the courts when acts of reprisal against a charging party are brought to its attention.
There is no similar provision respecting federal employee complaints as Congress apparently did not intend or contemplate that the Federal Government should have to resort to litigation against itself in order to effectuate the purposes of the Act.
We believe that the Commission can substantially deter acts of reprisal against federal complainants by issuing a strong and clear statement to federal agencies of the federal policy against sexual harassment in the workplace, encouraging training of federal personnel to sensitize them to the nature and seriousness of the problem and any subsequent reprisal action, and putting agencies on notice that the Commission intends to deal seriously with these matters. The Commission's Management Directive to Federal Agencies ill be such a statement.
However, the major prospect for immediate action by EEOC in such cases is our assumption of responsibility for the investigation of complaints and subsequent reprisal charges, where they occur.
Question 5. In several Federal agencies the Inspector Generals have stated that they have jurisdiction over sexual harassment cases. We have already heard of many EEO sexual harassment complaints whose fair resolution has suffered because their resolution was subject to internal agency pressures. In your opinion, should the Office of Inspector General be involved in the investigation of this type of complaint?
Answer. Conduct amounting to sexual harassment may constitute not only a violation of Title VII, but also of other federal rules and regulations. In order to eliminate sexual harassment from the workplace, agencies having responsibility for the administration and enforcement of these laws will have to exercise their respective authority aggressively. Because of their broad investigative authority, Inspector General involvement in this area may be particularly appropriate.
Question 6. Do you feel that agencies are committing enough resources to the handling of EEO complaints to ensure that complaints are handled promptly and effectively?
Answer. No. Agencies very definitely are not committing sufficient resources to handling complaints promptly and effectively. As previously stated, the average complaint is processed in 440 instead of the statutory limit of 180 days. Under the Commission's pilot program, we have been able to reduce the processing time to 100 days. I believe that if Congress were to adopt OMB's proposal for committing the resources to the EEOC to undertake all Federal sector investigations, we would begin to see this kind of increased efficiency throughout the federal complaint processing system.
Question 7. In your testimony, you do not mention the issue of sexual harassment by coworkers. Would such a situation be a grievable EEO complaint?
Answer. Yes, under certain circumstances an employer may be held liable for sexual harassment of an employee by a coworker. The Commission will determine whether such conduct constitutes a Title VII violation on a case-by-case basis after considering all of the facts presented by the specific situation.
Question 8. When do you plan to finish your review of present Federal EEO procedures?
Answer. Our review of present procedures has been completed and proposed revisions published for Notice and Comment. However, we are continuing to test alternate procedures through our pilot program and expect to have completed evaluation of that program by June 1, 1980. We expect to publish revised regulations to affect necessary changes by the end of the fiscal year.
NATIONAL ORGANIZATION FOR WOMEN, INC.,
Washington, D.C., October 29, 1979.
JAMES M. HANLEY,
Chairman, House Post Office and Civil Service Committee, Cannon House Office Building, Washington, D.C.
DEAR MR. CHAIRMAN: Having reviewed the testimony received to date on the subject of sexual harassment in the federal workplace, we have decided not to testify orally. We include two documents for the record and as staff resources:
(1) The policy directive issued by the Department of Commerce, the first of its kind to our knowledge, and (2) the table of cases included in a brief prepared by NOW Legal Defense and Education Fund, Inc., which sets forth the legal arguments for including peer harassment within the term "sexual harassment." We submit this as we are aware of testimony which would limit the term to harassment by supervisors.
Finally, we commend you for your extraordinary leadership regarding this difficult issue.
SANDRA L. JENKINS,
Chair, Federal Women's Committee.
U.S. DEPARTMENT OF COMMERCE,
ASSISTANT SECRETARY FOR ADMINISTRATION,
Washington, D.C., September 17, 1979.
Memorandum for: Secretarial officers, heads of operating units and departmental offices, EEO officers, personnel officers.
Subject: Sexual harassment.
The subject of sexual harassment in employment has received considerable attention recently from the media, from several human rights organizations, and from a Congressional Committee which is conducting inquiries into specific complaints of sexual harassment in Government agencies. It is timely to state clearly the Department's policy on this subject.
Sexual harassment does not refer to occasional compliments. It refers to behavior which is not welcome, which is personally offensive, debilitates morale, and interferes with the work effectiveness of its victims and their co-workers. Sexual harassment may include actions such as: Sex-oriented verbal "kidding" or abuse; subtle pressure for sexual activity; physical contact such as patting, pinching or constant brushing against another's body; and demands for sexual favors, accompanied by implied or overt promises of preferential treatment or threats concerning andividual's employment status.
It is possible to occur at two levels: among peers or co-workers, or at the supervisory level. Individuals who experience sexual harassment from co-workers should first make it clear that such behavior is offensive to them, and, if the harassment continues, bring the matter to the appropriate supervisor's attention. In fulfilling their obligation to maintain a positive and productive work environment, supervisors are expected to halt any harassment of which they become aware, by calling attention to this Department's policy or by more direct disciplinary action, if necessary. A form of sexual harassment which may be harder for employees to cope with occurs when people use the power of their office or position to control, influence or affect the career, salary, or job of another employee (or prospective employee) in exchange for sexual favors.
Complaints of sexual harassment involving misuse of one's official position may be made orally or in writing to a higher-level supervisor, to an appropriate personnel official, or to anyone authorized to deal with discrimination complaints. (Complaints to a higher-level supervisor would constitute the informal stage of the grievance procedure.) Individuals who instigate this type of harassment are also subject to disciplinary action, including suspension or removal.
Sexual harassment is not to be tolerated in the Department of Commerce. Please ensure that all employees are aware of this policy.
ELSA A. PORTER,
Assistant Secretary for Administration.
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