Handling Sexual Harassment Complaints

Handling Sexual Harassment Complaints MAJ Chris Jacobs Chapter 12 29th ALMI • • • • • Tailhook Aberdeen SMA McKinney Bill Clinton/Paula Jones MG Hale 29th ALMI • Marine Corps Instructors at Ft. L. Wood • Rear Admiral Mitchell • LTG Claudia Kennedy • Air Force Academy • MG Fiscus, Judge Advocate General, United States Air Force 29 ALMI th Commander’s Responsibility • Ensure soldiers & civilian employees understand: –What sex harassment is –How to recognize & prevent it –How to report it –Consequences for doing it 29th ALMI Mandatory Training • POSH Training – 2 quarters per year –Per Army EO Policy (AR 600-20) 29th ALMI Our Agenda • Define Sexual Harassment • Handling SH Complaints – Three Complaint Processes • What To Do With Sexual Harassers • Agency and Personal Liability Issues 29th ALMI What is Sexual Harassment? • Three Sources Attempt to Define It: – DOD Directive & Army Policy • (AR 600-20) – Title VII, Civil Rights Act – 10 U.S.Code 1561 • Fairly similar definitions Outline pgs. 2-4 Two Types of Sexual Harassment • Quid Pro Quo (“tangible”) – Usually supervisor/subordinate – “This for That” – Key = tangible employm’t action Outline p. 5 Two Types of Sexual Harassment • Sexually Hostile or Offensive Environment Harassment – Adverse employment action not necessary – Verbal, physical, visual – “Severe or pervasive” – Conduct must be unwelcome Outline p. 6-8 DOD & Army’s Definition • The broadest definition – Applies on & off duty – On & off post – Military, DA civilians, family members • Requires EO policy memos – Including separate SH policy memo Outline p. 2-3 Title VII Definition (EE0) • Civilian employees only • N/A to allegations by soldiers • Somewhat more narrow – Liability based upon workplace misconduct only • Definitions developed by courts • Implemented through EEOC regs Outline p. 3 10 USC 1561 Definition • Applies to SH complaints by personnel “under supervision of” CO or OIC • Combo of DoD & Title VII definitions • Imposes timeline & reporting requirements Outline p. 3-4 How Are Sex Harassment Complaints Processed? • Three Systems: • EO (Military) complaint process • EEO (Civilian) complaint process • 10 USC 1561 complaint process 29th ALMI EO (Military) Complaint Process • CDR’s Program • Usually Military Complainants – Civilian employees encouraged to use EEO process • Military or Civilian Perpetrator • EO Advisors & EO Reps • Your “sword”? Outline p. 8-11 EO (Military) Complaint Process • Informal complaint: no timelines • Formal complaints – Report to GCMCA 72 hrs – 14 days to investigate – Extensions – one for up to 30 days (higher CDR approves) – Report to GCMCA w/in 20 days & every 14 thereafter Outline p. 8-11 EO (Military) Complaint Process • Alternative Places to File Complaint – Is the CDR the problem? • Written feedback to Complainant required Outline p. 8-11 EEO (Civilian) Complaint Process • • • • Civilian employees only Military or Civilian Perpetrator Only Workplace Misconduct Process laid out in EEOC regs – Less CDR Control over process – Informal & Formal Complaints – EEO Elective (Thursday) Outline p. 13-17 10 USC 1561 Process • Statute says: – Report allegations ASAP to GCMCA – Start investigation w/in 72 hrs – Finish in 14 days – If not done, report progress to GCMCA in 20 days & every 14 days thereafter – Final report to GCMCA – Notify complainant of decision w/in 6 days Outline p. 18-19 10 USC 1561 Process • DOD guidance (Military Complainants): – 1561 only applies to FORMAL S.H. complaints – By active duty personnel • My guidance (Military Complainants): – Follow EO procedures & timelines Outline p. 18-19 10 USC 1561 Process • DOD guidance: Civilian Complainants – Establish separate “1561 POC” – If civilian raises S.H. complaint w/ 1561 POC: • Investigate, notify GCMCA, & follow timelines – Rare Outline p. 18-19 10 USC 1561 Process • If civilian raises complaint w/ EEO office: – Is civilian directly supervised by CO/OIC? – If no: EEO Officer processes under EEO procedures – If yes: EEO Officer • Advises that 2 statutes apply (1561 & EEO) • Identifies the 1561 POC • Continues with EEO procedures Outline p. 19 What If I Have A Sexual Harasser? • Civilian Employee • Administrative Discipline • Ex: Reprimand, Suspension, Removal • Military Members • UCMJ (Art 15, Court-Martial) • Administrative Action (Reprimand, Admin Separation) Outline p. 19-20 Sex Harassment as UCMJ Violation • Cruelty & Maltreatment • Other Ways to Charge It… – Extortion, Bribery, Communicating Threat – Adultery, Assault/Battery, Frat – Indecent Language/Acts, Conduct Unbecoming, Dereliction of Duty 29th ALMI Agency Liability $$ • Context = Civilian employees only (EEO) • Title VII = Potential for money damages • Liability linked to who commits harassment – Supervisor? – Non-supervisor? • Command “knew or should’ve known” and • Failed to take prompt & effective remedial action Outline p. 20-21 Agency Liability $$ • Management’s response is key! • Must immediately and effectively end the conduct • How to limit our liability? – Publish SH, EO, EEO policies after JA review – Active POSH training program – Command climate, open door 29th ALMI Limiting Our Liability • Contact JA for any informal or formal complaint • Investigate immediately & thoroughly – IO must have legal advisor • Substantiated? Take prompt, effective action 29th ALMI Personal Liability • Scope of employment issues • SH is conduct “outside scope” • Potentially subjects you to personal liability 29th ALMI Who Can Help the Most • EEO Sex Harassment Complaint: – Installation EEO Officer – OSJA Labor Counselor • EO Sex Harassment Complaint: – Unit EO Advisors or Reps – Investigating Officer – OSJA Legal Advisor/Reviewer 29th ALMI Sexual Harassment What are Questions? Questions? Questions? Questions? Questions? Questions? 29th ALMI your. . .