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Boof

Sexual and other Harassment provisions or clauses

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All,

I am trying to research what provisions or clauses are in Federal contracts that address sexual harassment but also other types of harassment (e.g. race, religion, age, etc) by members of the the contract workforce. I researched the FAR and only found equal opportunity provisions and clauses concerning the contractors own hiring practices.

The specific question from my front office asked what we put in our contracts to force the contractor to provide sexual harassment and/or other harassment training to their employees?. I thought that the FAR would have addressed this by now buy my searcch isn't turining up anything. I am still searching some of our contracts for verbiage in SOW, PWS, etc but that is also coming up with zero. I am thinking there may be some agency or locally written clauses available at other agencies that could be shared to save me time.

This is a big issue in an organization that may have over half the professional personnel in an office as contract hires. In one case we have 17 Direct Hires managing the workload distribution to over 350 contract personnel. Feds have rules, training, disciplanary processes and appeal processes. What does the contract hire workforce, which may be a conglomeration of employees from a dozen companies in one cube farm have?

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There are plenty of laws already on the books addressing sexual and other harrassment, and your contractors already have to comply with those laws as a fact of doing business in the United States. A contract clause requiring contractors to "train" employees on sexual and other harrassment will be worthless, not even worth the value of the ink to print it on the paper.

Here is text we use in our attachment to contracts where contractor employees require access to our facilities or automated systems--

[The Government] reserves the right and prerogative to deny and/or restrict the facility and information access of any Contractor employee whose actions are in conflict with the standards of conduct or whom [the Government] determines to present a risk of compromising sensitive but unclassified information and/or classified information.

But here is a more important note for the original poster -- those contractor employees are contractor employees, not Government employees -- whatever "rules, training, disciplanary (sic.) processes and appeal processes" cover those contractor employees is a matter between those employees and the contractors whose employees they are. Why would a Government employee care?

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This won't answer your question directly, but see previous thread dealing with instances of sexual harassment by contractor employees ( in this case, the sole proprietor contractor, itself). http://www.wifcon.com/discussion/index.php?/topic/843-sexual-harrassment/?hl=%2Bsexual+%2Bharassment#entry7025

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Boof has touched on an interesting issue. Sexual harassment is a form of sex discrimination that is prohibited by the Civil Rights Act of 1964. As interpreted by the courts, employers, including both the government and contractors, have an obligation to protect their employees from an offensive or intimidating workplace. This requirement raises some unique issues when government employees work side by side in the workplace. In this situation, it is fairly easy for the government to protect its employees who may be subject to harassment from a contractor employee. However, contractors are placed in a sensitive position in regard to protecting their employees from harassment by government employees regardless of whether the workplace is the contractor's or a government site.

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Boof has touched on an interesting issue. Sexual harassment is a form of sex discrimination that is prohibited by the Civil Rights Act of 1964. As interpreted by the courts, employers, including both the government and contractors, have an obligation to protect their employees from an offensive or intimidating workplace. This requirement raises some unique issues when government employees work side by side in the workplace. In this situation, it is fairly easy for the government to protect its employees who may be subject to harassment from a contractor employee. However, contractors are placed in a sensitive position in regard to protecting their employees from harassment by government employees regardless of whether the workplace is the contractor's or a government site.

Sensitive position, yes. But that doesn't negate an employer's duties to take steps to prevent the sexual harassment of its employees by the government or sexual harassment of others (gov't, it's own or outside) by its own employees. That includes direct harassment or by toleration of a threatening work environment. The contractor should not fear discussing the situation with the appropriate government chain of command.

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All,

I am trying to research what provisions or clauses are in Federal contracts that address sexual harassment but also other types of harassment (e.g. race, religion, age, etc) by members of the the contract workforce. I researched the FAR and only found equal opportunity provisions and clauses concerning the contractors own hiring practices.

The specific question from my front office asked what we put in our contracts to force the contractor to provide sexual harassment and/or other harassment training to their employees?. I thought that the FAR would have addressed this by now buy my searcch isn't turining up anything. I am still searching some of our contracts for verbiage in SOW, PWS, etc but that is also coming up with zero. I am thinking there may be some agency or locally written clauses available at other agencies that could be shared to save me time.

This is a big issue in an organization that may have over half the professional personnel in an office as contract hires. In one case we have 17 Direct Hires managing the workload distribution to over 350 contract personnel. Feds have rules, training, disciplanary processes and appeal processes. What does the contract hire workforce, which may be a conglomeration of employees from a dozen companies in one cube farm have?

Why not informally ask a couple of your current contractors what policies, training and procedures they have?

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The specific question from my front office asked what we put in our contracts to force the contractor to provide sexual harassment and/or other harassment training to their employees?. I thought that the FAR would have addressed this by now buy my searcch isn't turining up anything. I am still searching some of our contracts for verbiage in SOW, PWS, etc but that is also coming up with zero. I am thinking there may be some agency or locally written clauses available at other agencies that could be shared to save me time.

Boof,

I don't think you have the authority to write your own clause and start inserting it in your contracts. 41 U.S.C. 1707 would require you to go through the rulemaking process. See also FAR 1.301( b ).

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Boof,

I don't think you have the authority to write your own clause and start inserting it in your contracts. 41 U.S.C. 1707 would require you to go through the rulemaking process. See also FAR 1.301( b ).

Nor does the agency need to add clause or clauses when conduct by contractor employees affect the workplace environment of gov't employees or possible gov't liability to contractor employees per the referenced WIFCON thread above. Read it ALL the way through. If you have an EEO office or attorney, they should be able to advise you. I see that BOOF is in the Capitol area.

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Based on this CBCA case and the conclusions that CBCA at page 14 does not have jurisdiction with regard to civil rights matter I wonder if putting a clause in a contract is a good idea as there may be standards and course of action that already apply?

http://www.cbca.gsa.gov/files/decisions/2007/SHERIDAN_09-27-07_12-33-365-366-367__INNOVATIVE_(PBX)_TELEPHONE_SERVICES,_INC._508.pdf

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I would think that any Army military or civilian supervisor here should be able to chime in as it applies to the Army. As a supervisor for 18 years with the Army, my performance evaluation included an EEO factor and all Army employees are requied to take annual EEO training As of two years ago that training included maintaining a non-threatening workplace environment.

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Joel, going back to your post #5, what should/can a contractor do if the government refuses to take action against the offending government employee? If the conduct is occurring at a government site, unilaterally reassigning the contractor employee may be considered an adverse action by the contractor. More importantly, if the conduct is occurring at a contractor site, can the contractor bar the government employee from its premises?

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[Format edited] Joel, going back to your post #5, what should/can a contractor do if the government refuses to take action against the offending government employee?

If the conduct is occurring at a government site, unilaterally reassigning the contractor employee may be considered an adverse action by the contractor.

More importantly, if the conduct is occurring at a contractor site, can the contractor bar the government employee from its premises?

Retreadfed, I'm not a lawyer and we don't know the hypothetical or actual facts. You didn't say 'who' with "the government" refuses to take action. However, regarding your second question - if the Contractor has a legal duty to maintain a workplace free from the threat of sexual discrimination and sexual harassment and thereby cannot tolerate such behavior, I think that it has some legal-contractual leverage with the Government. It is the Contractor's property. and workplace and - by law - must take appropropriate action to avoid such behavior ocurring in its workplace. If the company has a lawyer, consult with them as to whether it could bar the employee from your premises. There may be other, lessor actions that could be taken to resolve the situation, depending upon the nature of the offense.

Regardless of where the behavior takes place, there is apparently an alleged threatening work environment, no? I would probably go back to "the government" (who?) and explain to the KO that the company is at risk and that the government employee is(?) affecting the morale, safety and even the efficiency of the work force. The Government has the good faith duty to cooperate with the contractor in the performance of its contract. The government might be found liable for increased costs. It might possibly also be liable to the threatened employee(s) as a"co-employer", if the action is taking place in a government office. You should demand, as the right of an employer, that immediate action be taken to resolve the situation. I would think that the KO would then consult with the appropriate government offices and get the problem resolved - not bury their head in the sand using the excuse that it isn't their employee or other such nonsense.

What would a contractor do if the KO or its organization refused to comply with other contractual or legal duties? I'm sure that at least one or a few of the hundreds of Forum members here who are current government employees should be able to help answer your question. Or perhaps other contractor employees have faced such situations.

Answeres to "what if" questions depend up on the specific facts of the situation and the resources available to the contractor. Small firms sometimes can't afford extensive legal or cionsulting fees. Is there an ADR or other informal method available under the contract to work out differences, short of a claim? I don't have direct access to government EEO office or legal counsel to answer your general questions.

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Wow, Big response in a short time.

The issue is that our agency provides mandatory harassment training to all Government Employees. Our Office of Civil Rights wants to know how we mandate this training on contractors. We haven't in the past and some of you would say we should never try. I agree that we have no legal requirment to provide this training to contractor employees as they do not work for us. I also know that we can request the replacement of anyone who we find out is violating any of our workplace rules and the contractors have done so for various reasons without major protest.

However, everyone inside the Beltway knows that there is the legal answer and the political answer. How we deploy and protect our contract hires is a common Congressional inquiry theme and we get a lot of FOIA from the press about contractor treatment too. I was just curious what others may have done to provide top cover on this issue.

Don,

I agree about not being able to just write my own clause per se, but we could use standard verbiage in the statement of work or as an added requirment in section H like on many other topics. We could also have our policy shop go through the Agency clause approval process.

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Boof - Reading your most recent post started dragging me back into recollections of having conversations with folks about whether their contract is for personal versus non-personal services. If I were the one having the conversation with the front office and even acknowledging that they probably want the matter cussed and discussed the quick of it is there is a reason the Government has defined personal versus non-personal services. This is brought up the Wifcon thread that Joel referenced as well.

And to support my quick response to the front office I would quote this from FAR 37.101...."“Nonpersonal services contract” means a contract under which the personnel rendering the services are not subject, either by the contract’s terms or by the manner of its administration, to the supervision and control usually prevailing in relationships between the Government and its employees"..and then state that there are other terms and conditions in contracts prescribed by the FAR that address the responsibilities of the contractor.

No wonder the rank and file gets confused everyday about whether the contracted resource is an employee or not!!!!!!!!! Geez.

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Carl,

I read the case you linked -- thanks!

Boof,

You really should read the case cited by C Culham above. Harrassment between a Government employee and a contractor employee is a matter of tort between thecontractor (and/or its employee) and the Government (and/or its employee) -- it is not a matter than should be resolved within the contract. In that case, a Government employee used curse words and racial epithets to a contractor employee, and a claim resulted (such as Joel suggested might happen), but the CBCA said the matter was nonjusticiable as a claim under the Contract Disputes Act because the harrassment was a tort, not a breach of contract.

EVERY contractor doing business with the Government or not is fully aware of liabilities that arise for harrassment matters -- EVERY contractor in your facility probably already provides training to its employees. The text I recommend in my comment above is not a "clause" but is a blurb in the standard attachment we use in all of our contracts where contractor employees have access to Government facilities.

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Thanks for the information. This is a case where the Government is worried the contract hire will violate the harassment laws because they have not been trained on the subject by their company management.and it will end up being blamed on the Government managers in the court of public opinion for not doing enough to prevent it.

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I suppose you could include a blurb in your SOW that before the contractor shall provide two hours of sexual harrassment training to every employee working in a Government facility within two months of reporting and again in every calendar year of that employee's tenure. Generally, I prefer for contractor training of contractor employees to occur on contractor time and at contractor expense -- but if an agency wants to shift all of this to the Government side, I suppose it can do so.

It sounds like your Government organization has already decided that it will be liable if a contractor employee harrasses other contractor employees or Government employees. It also sounds like your organization has decided that mandating "training" will address the liability problem. I think your organization errs on both points.

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EVERY contractor doing business with the Government or not is fully aware of liabilities that arise for harrassment matters -- EVERY contractor in your facility probably already provides training to its employees. The text I recommend in my comment above is not a "clause" but is a blurb in the standard attachment we use in all of our contracts where contractor employees have access to Government facilities.

What is the difference between a "blurb" and a clause?

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I agree we should stay out of it and right now only only one office is requesting something be done but that office is high up the chain. So I am putting together the reasons we should not perform training ourselves or force it on the contractor since Federal Law already requires they comply with EEO statutes. We shall see if we can avoid it or not.

It is stuff like this that frustrates the contact specialists and causes more work for everyone than required by law.

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A blurb, as I used it, is a brief statement inside of something larger.

A contract clause has a definition in FAR 2.101.

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jj20874: In post #15, you recommend a “blurb” of general applicable (used in a “standard attachment”). How does this not meet the definition of a “clause" in FAR Part 2? How does it not represent a term of the contract? Put differently, why should it matter where in the contract the requirement is placed, if someone somewhere in the agency is making it a policy that the requirement be included in all contracts (or all contracts meeting certain conditions)? Wouldn’t FAR Subpart 1.3 have something to say about this policy?

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Boof, in reference to you Post #19:

Don't train contractor employees. The government training is based upon application of govt regulations and processes that apply to govt employees and and you'd have to research and adapt it for application to nongovernment employees. In addition, the company should have processes and procedures and tell its employees how avoid, report incidents, etc.

Then the question is why should the government directly bear the cost of training that should apply across the company's business.

EDIT - ADD: Why repeat the existing requirement to avoid sexual harassment (unless simply to stress the importance of complying with law)? The contract normally requires that the Contractor comply with all applicable laws doesn't it?

This is a matter of expected compliance with the law - a performance requirement. It is something that should be routinely discussed with everyone after contract performance commences. As a supervisor, I was expected to express my personal policy regarding support for Army and Organizational policies and to make my own expectations and non-toleration clear to my employees. I also expressed an open door policy if anyone felt threatened or observed inappropriate behavior. It seemed to work well. If I had a situation where there were a mix of government and contractor employees, I would discuss a coordinated approach with the supervisor of the contract employees. Since the government can be held liable for tolerating an unsafe work environment, the government can make clear to the contractor that it won't tolerate sexual harassment or unwelcome behavior, pictures, jokes and the like by its employees in the government workplace, even if the employer is personally exempt from the law due to size or other exemptions.*

I offer this practical application approach as an alternative to prescribing additional requirements for training, etc.

*See, for instance: http://www.eeoc.gov/laws/practices/index.cfm

"The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone 👏who is not an employee of the employer, such as a client or customer."

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Jacques,

A contract attachment is not a contract clause.

A brief statement inside an attachment is not a contract clause.

However, all three are enforceable in a contract -- clauses, attachments, and brief statements inside attachments.

If someone wants to use the term "clause" to describe a brief statement inside an attachment, that's okay with me.

The brief statement I mentioned (see below) is included in the security attachment of my agency's contracts involving contractor access to Govenrment facilities or automated systems. It could be, perhaps, included as a contract clause instead. Sometimes, it is easier to deal with a need as a brief statement inside an attachment, rather than as a contract clause. Because the blurb is included as a matter of contracting officer practice rather than agency head direction and regulation, FAR Subpart 1.3 doesn't apply.

[The Government] reserves the right and prerogative to deny and/or restrict the facility and information access of any Contractor employee whose actions are in conflict with the standards of conduct or whom [the Government] determines to present a risk of compromising sensitive but unclassified information and/or classified information.

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jj20874: If no policy prescribes the use of the language, then I can accept your argument that FAR Subpart 1.3 does not apply. I don't think that is the original poster's context, though.

To the extent you are suggesting that something that would otherwise qualify as a contract clause under FAR Part 2 (i.e., a term or condition) is no longer a contract clause for purposes of FAR Subpart 1.3 by including it in an attachment, I haven't seen any support in any statute, regulation, case, or decision for the proposition. If you can cite any authority for your conclusion, I would love to see it.

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Jacques,

There's nothing for me to prove. Similarly, no one else can prove that every term and condition in a contract must be part of a contract clause, or that terms and conditions may be only in contract clauses. We have contract clauses in our contracts, and we also have special contract requirements, attachments, exhibits, schedules, specifications, and so forth, all of which contain terms and conditions and all of which collectively form the contract.

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