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Sexual Harrassment

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A contractor who is a sole proprietor, and performs services in a government facility has acted inappropriately towards government employees.

We have 52.222-26 in the contract, but I'm not sure that helps because this is behavior towards a government employee, not an employee of the contractor.

Are there any regulations that provide for our ability to terminate the contract for default?

Are there any court cases that could provide us with precidence?

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I am not sure what you mean by "sexual harrassment" and "acted inappropriately." I do not know of any regulations or decisions off hand and I haven't looked for any.

My practical (not legal) advice is that if you are talking about a contract with an individual, and if you do not want that person around any longer, then terminate the contract for convenience. Termination for default is likely to be unpleasant, uncertain, and may end up being costly. If you go to court and lose, then the government will have breached the contract.

T for C will be relatively fast and easy. The cost of a T for C is not likely to amount to much if you're talking about a contract with an individual and, in any case, is likely to be less than the cost of a T for D. Among other things, you won't need a lot of ugly personal documentation and testimony. Just write a memo explaining the situation in noncommittal terms and say that the CO decided that it would be best for all involved to end the relationship.

Be careful about what you say in any past performance rating. Stick to facts that you can prove.

And the proper word is precedent, not "precidence" or precedence.

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IMO it's prudent to seek advice from your legal advisor. Depending on the severity of the contractor's conduct, other types of actions may be warranted, such as in informal inquiry or investigation. Although this forum by its nature would most likely provide you a contractual remedy the legal advisor may opine other courses of action not found in contract law.

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Guest carl r culham

August - The matter is very serious. For the protection of all parties concerned this has to be handled properly. T4D/T4C might be the end result but the first steps I would take if I were you are as follows.

I would contact the Department of Labor, the Employment Standards Administration's Office of Federal Contract Compliance Programs (OFCCP) for appropriate advice and suggested actions. This is DOL's area and they should be your go to source for advice and counsel.

I would also advise the offended Federal employee that they may have recourse through the Federal EEO process if the contractor is classified as a "contingent worker" and let the employee decide on their own as to whether this is a route they want to take.

I would advise the contractor of the allegations and the steps being taken regarding the matter.

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While I do not entirely disagree with Charles and Carl, I say this:

First, the COs primary concern is the contract, the contractual relationship, and the requisite contractual action, not "other types of actions."

Second, I would not advise the offended employee to do anything. However, I would refer them to the agency personnel office.

Third, what I would tell the contractor depends on what I know, but I would be very careful in that regard. If the offended employee has filed a formal complaint, and if I have been given official notice of the complaint, I would tell the contractor that I have received such notice, but I would provide no details, referring them instead to the office that is handling the complaint for any additional information they may want. The problem is more delicate if the offended employee has complained to me or to the COR, but has not filed a formal complaint. I would talk to legal and ask for advice, but I would say nothing until I have been so advised.

Fourth, I would not contact the Department of Labor unless (1) legal tells me that the issue is covered by the contract, (2) a formal complaint has been filed with the appropriate office, and (3) the contract, FAR, or my agency supplement tells me to contact the Department of Labor.

Fifth, I would do absolutely nothing based solely on word of mouth.

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Guest carl r culham

Post deleted...subsequent post corrects information I provided based on further research.

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A protracted debate on such a serious matter without all the facts and actions to date is just guess work on my part. My concern and suggested advice is based the limited information in the post and my experience of dealing with such matters specific to a contract and as a trained EEO counselor for an agency. Admittedly experience as a EEO counselor is from many years ago but the processes of EEO as related to the EEOC and OFCCP have not changed drastically. My experience suggests that general agency legal counsel will not be as well versed in matters of EEO as either an EEO office or the OFCCP. Some may find the following support to my advice to be weak but I do want to note that the EEO poster to be placed at a Federal worksite references both EEOC and OFCCP as the contacts for issues related to EEO not ?legal counsel?.

I am bailing out of this discussion and will let my suggested actions stand.

Under Title VII of the Civil Rights Act, the organization could be held liable for sexual harassment if it continues to allow a hostile environment exist, even though the alleged harassment is by an outside entity or outside person. It would behoove the supervisor to contact the EEO office and the COR or KO to have direct discussion with the offending contractor ASAP to stop the behavior.

.

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So, now we have a layman, not a lawyer, telling us about Title VII of the Civil Rights Act. This is exactly the kind of thing that worries me. How do we know that there was an "offending contractor"? We don't know what happened. We don't know where it happened. We do not know whether there has been a complaint from an offended person or from somebody who witnessed something or part of something that they did not fully understand. Should we ask the contractor employee for his or her side? If we do, what do we do with that information?

Many years ago, I taught a class at a government training facility. On one occasion I used the word "ejaculation" in class, not with reference to sexual activity, but to a word uttered suddenly, like "Yikes!" Some young women in the class were in the club that night, giggling about it. Some guy who teaches classes overheard them and called the agency to say that I had engaged in inappropriate sexual speech. Fortunately, the chief of the contracting office was also in the class, had witnessed my comment, and knew the full context. The agency told the jackass to get lost.

Sexual harrassment is a serious charge. It can ruin a career. COs should not overreact. Let qualified people handle the matter. Don't call outside your agency or read the riot act to anyone until you know the facts and have been given legal advice and higher-level instruction. If a COR witnesses what he or she consider to be inappropriate behavior, they should take note and report what they heard or saw to cognizant officials within their agency. They should not intervene unless immediate intervention is necessary to protect someone.

Don't take it upon yourself to destroy someone. Report what you know and let qualified officials handle the matter. Remember, it could happen to you.

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So, now we have a layman, not a lawyer, telling us about Title VII of the Civil Rights Act. This is exactly the kind of thing that worries me. How do we know that there was an "offending contractor"? We don't know what happened. We don't know where it happened. We do not know whether there has been a complaint from an offended person or from somebody who witnessed something or part of something that they did not fully understand. Should we ask the contractor employee for his or her side? If we do, what do we do with that information?

Many years ago, I taught a class at a government training facility. On one occasion I used the word "ejaculation" in class, not with reference to sexual activity, but to a word uttered suddenly, like "Yikes!" Some young women in the class were in the club that night, giggling about it. Some guy who teaches classes overheard them and called the agency to say that I had engaged in inappropriate sexual speech. Fortunately, the chief of the contracting office was also in the class, had witnessed my comment, and knew the full context. The agency told the jackass to get lost.

Sexual harrassment is a serious charge. It can ruin a career. COs should not overreact. Let qualified people handle the matter. Don't call outside your agency or read the riot act to anyone until you know the facts and have been given legal advice and higher-level instruction. If a COR witnesses what he or she consider to be inappropriate behavior, they should take note and report what they heard or saw to cognizant officials within their agency. They should not intervene unless immediate intervention is necessary to protect someone.

Don't take it upon yourself to destroy someone. Report what you know and let qualified officials handle the matter. Remember, it could happen to you.

My response is based upon my yearly Army training in Prevention of Sexual Harassment. I was an Army supervisor for over 20 years and recieved yearly POSH refresher training and still recieve it as a rehired annuitant. I dont know what your current background is and dont really care.

If a supervisor becomes aware of complaints by his/her employees that an outside person, such as a contractor or client, is acting inappropriately as to cause a "hostile work environment" (you can read the laws yourself), they must take some quick action to stop the offensive behavior. They should contact the organization's EEO office - as I stated - for guidance. In addition, whomever is responsible to oversse the activities of the alleged "violator" should talk to the person ASAP and advise them that their behavior is offensive to various government employees, is unacceptable in the office and advise them to cease immediately. That is the minimum action required.

If the office allows the behavior to continue, the employees pusue an official sexual harassment complaint and some jurisdiction ultimately agrees that sexual harassment has and/or is still on-going, the agency may be held liable. Their supervisor and the pertinent contracting officials might all be disciplined or admonished for allowing this to occur and for doing nothing to stop it. Note that offensive behavior is in the eyes of the receiver, regardless of the intent or whether it technically qualifies as sexual harassment.

I assume here that the contracting office is trying to do something about it. Good. I hope that they have spoken with the alleged violator.

Bottom line is that, under the law, sexual harassment in the workplace can be caused by other than the victim's employer or co-workers. It can be caused by outside individuals, such as client, visitors or by contractors where such behavior affects the quality or environment of the workplace. Employers are responsible to not allow such objectionable behavior to continue.

I wont advise the contracting office beyond that.

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Many years ago, I taught a class at a government training facility. On one occasion I used the word "ejaculation" in class, not with reference to sexual activity, but to a word uttered suddenly, like "Yikes!" Some young women in the class were in the club that night, giggling about it. Some guy who teaches classes overheard them and called the agency to say that I had engaged in inappropriate sexual speech. Fortunately, the chief of the contracting office was also in the class, had witnessed my comment, and knew the full context. The agency told the jackass to get lost.

"Many years ago", one of the women in my office gave me a sketch to help emphasize a point I was trying to make in a class. I was teaching classes in cost analysis of construction contract proposals for preparation of price negotiation objectives. The point was related to eliminating ambiguities. When viewed upright, one could see a beautiful princess; when turned upside down, the sketch was of an ugly hag. The women in the office "all" thought it would be a great attention getter so I used it. During the subsequent break in one session, two female attendees approached me to say that I had offended them - that I was equating success with female beauty and failure with a homely female. They said that they would file a complaint with the Corp's training office. Well, I was really flabergasted and humbled by their complaint, as I had no intention of belittling anyone. I apologized and said that I wouldnt repeat showing the slide.

I altered the slide to show an ugly man vs. the princess, used it for 10 more years and never recieved another complaint. I now have newer, better examples to use, but I saw the original slide a couple of years ago in an email, so it is still out there. At any rate, when I got back to the office after that session, all my female employees were shocked that someone had gotten uptight about the slide. But the damage had been done and my awareness of the sensitivity of certain images to some people was greatly increased.

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My response is based upon my yearly Army training in Prevention of Sexual Harassment. I was an Army supervisor for 17 years and recieved yearly POSH refresher training and still recieve it as a rehired annuitant.

And that annual training satisfied a regulatory requirement for annual training. It does not qualify you to give CONTRACTING advice about such matters.

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"Many years ago", one of the women in my office gave me a sketch to help emphasize a point I was trying to make in a class. I was teaching classes in cost analysis of construction contract proposals for preparation of price negotiation objectives. The point was related to eliminating ambiguities. When viewed upright, one could see a beautiful princess; when turned upside down, the sketch was of an ugly hag. The women in the office "all" thought it would be a great attention getter so I used it. During the subsequent break in one session, two female attendees approached me to say that I had offended them - that I was equating success with female beauty and failure with a homely female. They said that they would file a complaint with the Corp's training office. Well, I was really flabergasted and humbled by their complaint, as I had no intention of belittling anyone. I apologized and said that I wouldnt repeat showing the slide.

I altered the slide to show an ugly man vs. the princess, used it for 10 more years and never recieved another complaint. I now have newer, better examples to use, but I saw the original slide a couple of years ago in an email, so it is still out there. At any rate, when I got back to the office after that session, all my female employees were shocked that someone had gotten uptight about the slide. But the damage had been done and my awareness of the sensitivity of certain images to some people was greatly increased.

And that story proves my point.

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And that annual training satisfied a regulatory requirement for annual training. It does not qualify you to give CONTRACTING advice about such matters.

"Employers are responsible to not allow such objectionable behavior to continue." I'll stand by that and it includes those who hire government contractors when the contract employee interacts with government employees.

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In addition, whomever is responsible to oversse the activities of the alleged "violator" should talk to the person ASAP and advise them that their behavior is offensive to various government employees, is unacceptable in the office and advise them to cease immediately. That is the minimum action required.

The person responsible to oversee the activities of the accused is the contractor employee's supervisor, NOT the CO or the COR. The CO oversees the activities of the contractor and speaks only to the contractor's representative.

I assume here that the contracting office is trying to do something about it. Good. I hope that they have spoken with the alleged violator.

I hope that they have not spoken to the alleged violator, but to the contractor's representative.

Bottom line is that, under the law, sexual harassment in the workplace can be caused by other than the victim's employer or co-workers. It can be caused by outside individuals, such as client, visitors or by contractors where such behavior affects the quality or environment of the workplace. Employers are responsible to not allow such objectionable behavior to continue.

You are not an attorney and you are not qualified to say what the law requires in this situation, but that is exactly what you are doing.

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"Employers are responsible to not allow such objectionable behavior to continue." I'll stand by that and it includes those who hire government contractors when the contract employee interacts with government employees.
Emphasis added.

Prove that. Show us the law.

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Emphasis added.

Prove that. Show us the law.

Sorry for the delay. Wife installed new computer and we had to reinstall the Internet to the wireless router.

See : http://edocket.access.gpo.gov/cfr_2009/jul...9cfr1604.11.htm

"[Code of Federal Regulations]

[Title 29, Volume 4]

[Revised as of July 1, 2009]

From the U.S. Government Printing Office via GPO Access

[CITE: 29CFR1604.11]

[Page 198]

TITLE 29--LABOR

CHAPTER XIV--EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

PART 1604_GUIDELINES ON DISCRIMINATION BECAUSE OF SEX--

Table of Contents

Sec. 1604.11 Sexual harassment.

(a) Harassment on the basis of sex is a violation of section 703 of

title VII. \1\ Unwelcome sexual advances, requests for sexual favors,

and other verbal or physical conduct of a sexual nature constitute

sexual harassment when (1) submission to such conduct is made either

explicitly or implicitly a term or condition of an individual's

employment, (2) submission to or rejection of such conduct by an

individual is used as the basis for employment decisions affecting such

individual, or (3) such conduct has the purpose or effect of

unreasonably interfering with an individual's work performance or

creating an intimidating, hostile, or offensive working environment....

(e) An employer may also be responsible for the acts of non-

employees, with respect to sexual harassment of employees in the

workplace, where the employer (or its agents or supervisory employees)

knows or should have known of the conduct and fails to take immediate

and appropriate corrective action. In reviewing these cases the

Commi'ssion will consider the extent of the employer's control and any

other legal responsibility which the employer may have with respect to

the conduct of such non-employees.

(f) Prevention is the best tool for the elimination of sexual

harassment. An employer should take all steps necessary to prevent

sexual harassment from occurring, such as affirmatively raising the

subject, expressing strong disapproval, developing appropriate

sanctions, informing employees of their right to raise and how to raise

the issue of harassment under title VII, and developing methods to

sensitize all concerned."

SEE: http://www.eeoc.gov/eeoc/publications/fs-sex.cfm

"Facts About Sexual Harassment

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

* The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.

* The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.

* The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.

* Unlawful sexual harassment may occur without economic injury to or discharge of the victim.

* The harasser's conduct must be unwelcome.

It is helpful for the victim to inform the harasser directly that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available."

SEE: http://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964

"In the late 1970s courts began holding that sexual harassment is also prohibited under the Act. Chrapliwy v. Uniroyal is a notable Title VII case relating to sexual harassment that was decided in favor of the plaintiffs. In 1986 the Supreme Court held in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that sexual harassment is sex discrimination and is prohibited by Title VII. Same-sex sexual harassment has also been held in a unanimous decision written by Justice Scalia to be prohibited by Title VII (Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), 118 S.Ct. 998). Title VII has been supplemented with legislation prohibiting pregnancy, age, and disability discrimination (See Pregnancy Discrimination Act of 1978, Age Discrimination in Employment Act,[33] Americans with Disabilities Act of 1990)."

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Sorry for the delay. Wife installed new computer and we had to reinstall the Internet to the wireless router.

See : http://edocket.access.gpo.gov/cfr_2009/jul...9cfr1604.11.htm

"[Code of Federal Regulations]

[Title 29, Volume 4]

[Revised as of July 1, 2009]

From the U.S. Government Printing Office via GPO Access

[CITE: 29CFR1604.11]

[Page 198]

TITLE 29--LABOR

CHAPTER XIV--EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

PART 1604_GUIDELINES ON DISCRIMINATION BECAUSE OF SEX--

Table of Contents

Sec. 1604.11 Sexual harassment.

(a) Harassment on the basis of sex is a violation of section 703 of

title VII. \1\ Unwelcome sexual advances, requests for sexual favors,

and other verbal or physical conduct of a sexual nature constitute

sexual harassment when (1) submission to such conduct is made either

explicitly or implicitly a term or condition of an individual's

employment, (2) submission to or rejection of such conduct by an

individual is used as the basis for employment decisions affecting such

individual, or (3) such conduct has the purpose or effect of

unreasonably interfering with an individual's work performance or

creating an intimidating, hostile, or offensive working environment....

(e) An employer may also be responsible for the acts of non-

employees, with respect to sexual harassment of employees in the

workplace, where the employer (or its agents or supervisory employees)

knows or should have known of the conduct and fails to take immediate

and appropriate corrective action. In reviewing these cases the

Commi'ssion will consider the extent of the employer's control and any

other legal responsibility which the employer may have with respect to

the conduct of such non-employees.

(f) Prevention is the best tool for the elimination of sexual

harassment. An employer should take all steps necessary to prevent

sexual harassment from occurring, such as affirmatively raising the

subject, expressing strong disapproval, developing appropriate

sanctions, informing employees of their right to raise and how to raise

the issue of harassment under title VII, and developing methods to

sensitize all concerned."

SEE: http://www.eeoc.gov/eeoc/publications/fs-sex.cfm

"Facts About Sexual Harassment

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

* The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.

* The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.

* The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.

* Unlawful sexual harassment may occur without economic injury to or discharge of the victim.

* The harasser's conduct must be unwelcome.

It is helpful for the victim to inform the harasser directly that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available."

SEE: http://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964

"In the late 1970s courts began holding that sexual harassment is also prohibited under the Act. Chrapliwy v. Uniroyal is a notable Title VII case relating to sexual harassment that was decided in favor of the plaintiffs. In 1986 the Supreme Court held in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that sexual harassment is sex discrimination and is prohibited by Title VII. Same-sex sexual harassment has also been held in a unanimous decision written by Justice Scalia to be prohibited by Title VII (Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), 118 S.Ct. 998). Title VII has been supplemented with legislation prohibiting pregnancy, age, and disability discrimination (See Pregnancy Discrimination Act of 1978, Age Discrimination in Employment Act,[33] Americans with Disabilities Act of 1990)."

SEE: http:http://www.bc.edu/bc_org/avp/law/lwsch/journals/bclawr/42_2/05_TXT.htm for discussion as to whether a supervisor may be held personally liable under Title VII of the Civil Rights Act for sexual harassment under the "hostile environment" scenarios.

Regardless, if the employer has rules regarding POSH - and I think all federal government agencies do - the agency can discipline or admonish the supervisors or other personnel for allowing this behavior to continue, once it comes to their attention that it is going on.

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The person responsible to oversee the activities of the accused is the contractor employee's supervisor, NOT the CO or the COR. The CO oversees the activities of the contractor and speaks only to the contractor's representative.

I hope that they have not spoken to the alleged violator, but to the contractor's representative.

You are not an attorney and you are not qualified to say what the law requires in this situation, but that is exactly what you are doing.

Vern, I suggest re-reading the original post. The contractor is a sole proprietor. I'm probably not qualified to interpret that post. However, I think it meant that the contractor employee's supervisor is the employee himself.

So yes, absolutely, definitely, undeniably speak with the contractor's supervisor and let him or her know that the employee's conduct is unacceptable. I'm glad we two non-attornies can agree on this point. In fact, if the original poster has access to an attorney or EEO office, I suggest they consult with them first.

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Joel:

If only you would learn to be more careful about the advice you give.

The point that I asked you to prove was your assertion that the contracting officer is responsible for preventing a hostile workplace:

[That responsibility] includes those who hire government contractors when the contract employee interacts with government employees.

Your lengthy quote does not prove your assertion. I say that the relationship between the Government and a contractor is not employer-employee, it is contractual. The contracting officer is responsible for enforcing the terms of the contract. When a contractor employee is accused of sexual harassment, several procedural issues arise, two of which are critically important.

The first issue is whether the accusation is true. I say that the CO should rely on the findings of qualified officials for that determination. Pending such a determination, the CO should do no more than tell the contractor's representative to remove the employee from the jobsite. Government service contracts should include a clause that permits the Government to make such a demand without explanation, but if an explanation is necessary, the CO should be very careful about what he or she discloses and seek legal advice in that regard. The CO should not accuse the employee of anything. The CO should point out that the removal demand is for the protection of both the Government and the contractor. The CO must be very careful if the complaint is informal or word-of-mouth, in which case the CO does not know the truth of anything and must not accuse the employee of anything on that basis. The CO or COR should absolutely not approach the contractor employee in an attempt to "counsel" that person or seek their side of the story.

If the accusation is found to have merit, the second issue is what further action should the CO take. Unless the contract provides otherwise, the CO may have to provide an explanation. There are privacy issues, so he or she should seek legal advice about how much can be disclosed to the contractor. The CO should be careful about demanding that the contractor take any further action, since any such demand might properly be construed as a change to the contract obligating the Government to cover the contractor's costs. Any demands for a cure should be given in writing, worded very carefully, and submitted for legal review before transmission to the contractor.

I don't need to re-read the original post. I gave a practical response to it in Post #2 without going off the deep end about Title VII of the Civil Rights Act, quoting at insufferable length and irrelevantly from 29 CFR, or telling anyone to "have direct discussion with the offending contractor ASAP to stop the behavior" or to "discipline or admonish" contractor personnel. Besides, if the contractor employee has, in fact, engaged in improper behavior, why "admonish" them? Why would you want to keep them around under any circumstances? In the case of the contractor mentioned in the original post, the best way to do that would be to terminate the contract for convenience.

Knowledgeable contracting practitioners know that Government service contracts are usually nonpersonal services contracts, and that the relationship between the parties is contractual, not employer-employee. They know better than to "talk to the [accused] person ASAP and advise them that their behavior is offensive to various government employees, is unacceptable in the office and advise them to cease immediately." They know better than to "discipline or admonish" contractor personnel, as have you suggested. They know to act prudently and contractually and within the bounds of their qualifications and authority.

Now, I've said what I have to say. I'll trust the readers to decide who has taken the more sound and prudent position in this matter.

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August,

If I were you, I would set up a meeting with my customer, my contracts attorney, and my customer's labor law attorney. Your customer is potentially at some risk here, and you may be able to help mitigate that risk. Point your legal team to 29 CFR 1604.11(e) [Thanks Joel] and Lori A. Tetreault, Liability of employer, under Title VII of Civil Rights Act of 1964 for sexual harassment of employee by customer, client, or patron, 163 A.L.R. Fed. 445, which discusses employer liability for the harassment of independent contractors.

While T4C may be the way to go, look for other requirements of the contract. For instance, sexual harassment by independent contractors often comes up in the health care arena, where the credentialing function, expressly required in the contract, often prohibits unwelcome sexual advances. (While contract physicians are often personal service contractors, this would apply under even a non-personal services contract.)

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I'm sure that the labor law attorney will welcome the reference to 29 CFR and a law review article from a CO. The the CO will have done well to have read the FAR and the contract that he signed.

August, don't bother boning up on the law of sexual harassment, unless you are interested for other reasons. Have the meeting that Jacques suggests and get advice, but don't tell the labor law attorney what to read. Remember that your responsibility is to ensure compliance with the terms of the contract. Other officials of the agency will tell you what must be done in order to protect the agency from a hostile work environment accusation.

I will tell you that if a Government employee has made such a complaint, it is doubtful that the contractor employee can be kept around. It has been my experience as a Federal manager that once these things start the only way to stop them is to separate the parties. That's hard when both parties are Government employees, because both employees are entitled to protection and due process. That is why the Government's EEO process is so cumbersome. It's also hard when the accused person is a Government employee and a contractor employee is the victim. (There is a lot of case law about that situation.) It's much easier when the accused is a contractor employee, because they usually can be removed upon request and without explanation, But it is not necessary to make unsubstantiated accusations in order to remove the accused.

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Joel:

If only you would learn to be more careful about the advice you give.

The point that I asked you to prove was your assertion that the contracting officer is responsible for preventing a hostile workplace:

Your lengthy quote does not prove your assertion. I say that the relationship between the Government and a contractor is not employer-employee, it is contractual. The contracting officer is responsible for enforcing the terms of the contract. When a contractor employee is accused of sexual harassment, several procedural issues arise, two of which are critically important.

The first issue is whether the accusation is true. I say that the CO should rely on the findings of qualified officials for that determination. Pending such a determination, the CO should do no more than tell the contractor's representative to remove the employee from the jobsite. Government service contracts should include a clause that permits the Government to make such a demand without explanation, but if an explanation is necessary, the CO should be very careful about what he or she discloses and seek legal advice in that regard. The CO should not accuse the employee of anything. The CO should point out that the removal demand is for the protection of both the Government and the contractor. The CO must be very careful if the complaint is informal or word-of-mouth, in which case the CO does not know the truth of anything and must not accuse the employee of anything on that basis. The CO or COR should absolutely not approach the contractor employee in an attempt to "counsel" that person or seek their side of the story.

If the accusation is found to have merit, the second issue is what further action should the CO take. Unless the contract provides otherwise, the CO may have to provide an explanation. There are privacy issues, so he or she should seek legal advice about how much can be disclosed to the contractor. The CO should be careful about demanding that the contractor take any further action, since any such demand might properly be construed as a change to the contract obligating the Government to cover the contractor's costs. Any demands for a cure should be given in writing, worded very carefully, and submitted for legal review before transmission to the contractor.

I don't need to re-read the original post. I gave a practical response to it in Post #2 without going off the deep end about Title VII of the Civil Rights Act, quoting at insufferable length and irrelevantly from 29 CFR, or telling anyone to "have direct discussion with the offending contractor ASAP to stop the behavior" or to "discipline or admonish" contractor personnel. Besides, if the contractor employee has, in fact, engaged in improper behavior, why "admonish" them? Why would you want to keep them around under any circumstances? In the case of the contractor mentioned in the original post, the best way to do that would be to terminate the contract for convenience.

Knowledgeable contracting practitioners know that Government service contracts are usually nonpersonal services contracts, and that the relationship between the parties is contractual, not employer-employee. They know better than to "talk to the [accused] person ASAP and advise them that their behavior is offensive to various government employees, is unacceptable in the office and advise them to cease immediately." They know better than to "discipline or admonish" contractor personnel, as have you suggested. They know to act prudently and contractually and within the bounds of their qualifications and authority.

Now, I've said what I have to say. I'll trust the readers to decide who has taken the more sound and prudent position in this matter.

Vern, my advice was directed to the situation at hand. The employee IS THE CONTRACTOR.

Obviously the KO or COR must ascertain the relative facts - that is a no brainer. You have simply decided that the employer must be told to remove himself from the jobsite. Then what? There is no contractor.

I didn't go that far.

The contract should require that the contractor comply with laws and rules . The KO and COR should require compliance with the organization's rules against harassing employees or acting in a way that creates a hostile working environment for others in the office. I never said that the contractor violated Title VII of the Civil Rights Act.

The government officials should, as a minimum, discuss the unacceptable behavior with this person and advise that it must stop - immediately. The concerned government employees' supervisor needs to do his or her job. They need to contact the EEO office for advice.

This isn't legal advice . The EEO office consults with lawyers but they were not lawyers in my organization.

Whether they need to go beyond this depends upon more information than I have.

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The government officials should, as a minimum, discuss the unacceptable behavior with this person and advise that it must stop - immediately.

A CO absolutely should not do that, unless and until advised to do so by people who know what they are doing. For one thing, it assumes that the accusation is true, which might not be the case. For another thing, it might disclose the identity of the person making the complaint, which might not be appropriate for a CO to do.

August asked if he could T4D. I answered that if the agency wants to get rid of the contractor, the better way to go would be T4C. I did not go into all the EEO business that you and others have immersed yourselves in. What August does for a replacement contractor after termination is not my concern, since he did not ask about that. Poor August. He comes with a simple question and he gets the Wifcon over-the-top treatment. including incredibly bad advice from you, Joel. Why is it that some of you guys cannot just answer a question without going further than you need to go or are qualified to go? What is up with that? Title VII, for Pete's sake.

It doesn't matter that the accused is the contractor. The same rules apply. If I were notified of a formal complaint, i would make no accusation and would not admonish anybody. If it were necessary to keep the contractor around, I would take a formal, contractual approach. I would tell the contractor what my lawyer told me that I could and should tell them. I would not give a sexual harassment lecture. I would instruct the contractor about what I want him or her to do or to refrain from doing pending the outcome of the investigation.

If a person came into my office to complain that he or she had been harassed by a contractor employee, and had not filed an official complaint, I would tell them that I will contact the legal office and the EEO office for advice. I would suggest that they consider doing the same. I would make it clear that my authority is strictly contractual and that I would rely on instructions from other officials. I would notify my boss. I would not tell the contractor anything until I had been advised by cognizant officials about what I could tell them. I would confirm all oral instructions from the cognizant officials in writing. Pending further instructions, I would separate the parties, if possible. and keep my eye on the situation in order to be sure that they remained separated or were never alone together.

I would not read the Civil Rights Act, 29 CFR, or law review articles.

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Quote: 'Vern Edwards' date='Oct 12 2010, 08:19 AM' post='7038']

"...The point that I asked you to prove was your assertion that the contracting officer is responsible for preventing a hostile workplace:

Your lengthy quote does not prove your assertion."

Vern, per the references I cited, it is the responsibility of not only the affected employees' (the alleged victims here) supervisor but of all "officials" related to the situation to ensure that the government's working environment is not "hostile"

to their employees, whether from internal or external sources. The references I cited and many other references easily reached via a GOOGLE Search point that out. If you don't understand that, then I'm sorry.

Inasmuch as the KO and COR are charged with enforcing the contract as well as ensuring that the worksite is not hostile toward the people who must deal with the contractor, it should also be evident that they are charged with using sound judgement and should, as a minimum, discuss the problem with the contractor (WHO IS THE EMPLOYEE).

What they do beyond that depends to a great deal upon the facts of the situation and whether the other employees can still work with the person, assuming he corrects his behavior, etc.

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Joel:

Anybody who follows your advice in this matter, or who thinks that you know what you are talking about, is very foolish indeed. As usual, you have gone too far.

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