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Sexual Harrassment

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Joel, I agree with Vern that this is first and foremost an issue for which August's customer has primary responsibility. If you can't point to terms and conditions in the contract that are not being met, the CO's role is secondary. That said, the CO's participation in assisting the customer in resolving the issue is vital.

August, most federal government labor law attorneys also have access to a copy of Ernest C. Hadley, A Guide to Federal Sector Equal Employment Law and Practice. Chapter 12 has a section entitled, "Harassment by Third Parties" which appears at 740 of the 22nd Edition, published in 2009. The courts look to see the extent to which the agency had day-to-day control over the third party (here, the contractor), and whether the agency knew or should have known of the offending conduct and failed to take prompt and effective remedial action.

This analysis easily blurs into a question as to whether the contractor is truly independent; so here, where the contractor is a one-person shop performing at the government's place of business, the labor law attorney is going to look at the factors laid out in Sprides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979) to consider where on continuum this contract falls between independent and personal. That attorney is going to need to know both what the contract says and how it is managed on a day-to-day basis.

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Everyone should be aware that EEOC and Federal court decisions about complaints of harassment of Government employees by contractor employees are exceedingly rare. On the other hand, decisions about complaints of harassment of contractor employees by Government employees are relatively common. As for a hostile work environment, that is an exceedingly complex issue that is far beyond the qualifications of most COs to determine. See, e.g., Barbour v. Browner, 181 F.3d 1342, 1347-48 (DC Circuit, 1999):

Barbour's claim that the [Environmental Protection Agency] failed adequately to protect her from harassment by employees of [a contractor] requires us to examine the second mixed question of law and fact raised by this case, namely, whether the behavior of which she complains was sufficiently egregious to violate Title VII. Not all abusive behavior, even when it is motivated by discriminatory animus, is actionable. Rather, a work-place environment becomes ?hostile? for the purposes of Title VII only when offensive conduct ?permeate [the workplace] with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."

That decision was written by Supreme Court Justice Ruth Bader Ginsburg when she was on the Court of Appeals for the DC Circuit.

Egregious. Permeates. Severe. Pervasive. Can behavior by a single contractor employee rise to that level? This is a matter best left to qualified officials. COs should not act in haste or overreact. Contractors have rights, too. As Jacques says, the CO should back up the cognizant officials in a manner that is consistent with the terms of the contract. Of course, the contract can always be terminated for convenience, even if the behavior does not rise to the level of default.

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Guest carl r culham

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

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I agree with Vern in this, but the reality of the situation is that the issue of sexual harrassment is also a political and public affairs issue should senior officials and the media get involved. Once that happens, the prudent and measured rules of contract adminstration will get run over by leaders and managers who will do whatever they think will turn off the heat and pressure they will be under.

In the end, those leaders and managers may well decide the KO is responsible for dealing with sexual harrassment from a a contractor the same as a supervisor would be for his or her employee. I have seen similar situations where executives have expected the KO to either treat a contractor as an employee or did so themselves in a non-personal services contract.

In 1 case I am aware of, some personal items were stolen in an office where a contractor worked. I was not the KO, so I do not know the details, but I do know the KO was pressured to "counsel" the contractor, and when he refused, the executive did it herself. The KO was not in good graces with the agency for some time after that.

Was that the correct way to handle the problem? I think not, but I also do not get to decide when those problems arise, I just get to advise my managers and leaders and hope they make the right decisions. In cases like sexual harrassment, I fear they might make the wrong decisions because they are listening to the wrong people and fearful of those people more than they are concerned about proper contract management.

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Carl,

I appreciate your comment that the process must run its course. Part of my point is that that process first and foremost is not a contracting one. If the customer ultimately concludes that it is in the best interest of the government to terminate the contract for convenience, then the CO takes on a primary role. Until that time, the CO's responsibility is to provide advice and assistance to his customer.

I do not understand your statement, "It is stated that FAR 52.222-26 is in the contract and therefore the instance is covered by the contract." Are you suggesting that if the allegations are true the contractor has somehow failed to comply with this clause? If so, how?

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Guest carl r culham

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

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Carl, please connect the dots. How does his alleged conduct violate EO 11246 or the relevant regs? The regulations govern the conduct of employers as employers, don't they? This guy has no employees.

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Part of my point is that that process first and foremost is not a contracting one. If the customer ultimately concludes that it is in the best interest of the government to terminate the contract for convenience, then the CO takes on a primary role. Until that time, the CO's responsibility is to provide advice and assistance to his customer.

This is what I would do.

Termination of the contract for convenience makes sense - it ends the working relationship, it doesn't add a blemish to the contractor's record for potentially unproven allegations, it gets the situation back to normal, and it's quick. A prolonged investigation doesn't help anyone.

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Guest carl r culham

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

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Carl, I disagree with your suggestion that a contractor's unwanted sexual advances to a government employee violates either EO 11246 or 41 CFR 60. EO 11246 is entitled, "Equal Employment Opportunity," and the first bullet of section 202 provides, "The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin." Likewise, 41 CFR 60.1-4(1). 41 CFR 60-1.1 provides that the regulations are aimed an insuring "equal opportunity for all persons...employed or seeking employment with Government contractors or with contractors performing under federally assisted construction contracts." The contractor is not discriminating against his employee or applicant. However, if the CO has any question, he should look to FAR 22.808 and refer the allegation to the OFCCP regional office (preferably after asking his own agency's labor advisor, if any).

While we're on the topic of FAR 22.808, if you believe this falls within the Equal Opportunity clause, your suggestion to contact the contractor seems inconsistent:

And yes you do tell the contractor and by this statement I mean the proper contractor representative what you are doing and remind the representative proper performance is required by the contract.

FAR 22.808 provides in part, "The contractor that is the subject of a complaint shall not be advised in any manner or for any reason of the complainant's name, the nature of the complaint, or the fact that the complaint was received."

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Carl, I disagree with your suggestion that a contractor's unwanted sexual advances to a government employee violates either EO 11246 or 41 CFR 60. EO 11246 is entitled, "Equal Employment Opportunity," and the first bullet of section 202 provides, "The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin." Likewise, 41 CFR 60.1-4(1). 41 CFR 60-1.1 provides that the regulations are aimed an insuring "equal opportunity for all persons...employed or seeking employment with Government contractors or with contractors performing under federally assisted construction contracts." The contractor is not discriminating against his employee or applicant. However, if the CO has any question, he should look to FAR 22.808 and refer the allegation to the OFCCP regional office (preferably after asking his own agency's labor advisor, if any).

While we're on the topic of FAR 22.808, if you believe this falls within the Equal Opportunity clause, your suggestion to contact the contractor seems inconsistent:

FAR 22.808 provides in part, "The contractor that is the subject of a complaint shall not be advised in any manner or for any reason of the complainant's name, the nature of the complaint, or the fact that the complaint was received."

I couldn't find any direct mention of "sexual harassment" in Section 703 of Title VII (EEO) of the Civil Rights Act, either. The Courts have developed and refined the application of sexual harassment under Section 703 and have developed the second type of harassment: "behavior which creates a hostile working environment". I believe I mentioned that in a reference in an earlier post.

I don't know if one can stretch the contract's EEO clause to cover sexual harassment of an outside employee even if you can read in sexual harassment of the contractor's own employees. That would be a matter for an EEO expert to determine.

The Act and the Regulations actually discuss EEO treatment of one's own employees. It doesn't discuss harassing outside individuals. For instance, it isn't illegal for construction workers to whistle at and tease female passersby on the street even though it is often embarrassing and offensive to many of the "whistlees". I think the Congress and courts have been very careful at limiting the application or prevention and responsibility of sexual harassment to the internal employees' organization or firm.

Under the law and the rules, the organization might be held responsible if it doesn't do something to stop recurring instances of sexual harassment of its employees by outside parties. So, regardless of what specific contract requirement may or may not be involved, the ORGANIZATION must do something to enforce decorum by others amidst its own employees. Unacceptable behavior which creates a hostile work environment for government employees cannot be tolerated, ignored and should not be pushed off to somebody outside the agency. If this contractor is expected to abide by local rules, that ought to be enough grounds for SOMEONE in the government organization to discuss and request corrective behavior with this contractor, after consultation with the EEO officials, if necessary. I personally don't think that the DOL will do this. They get involved when there are formal complaints. If the situation is still informal, I'd bet they advise the organization to handle it. Besides, that's good management.

And certainly, nobody has to describe who the offended parties are, if describing the problem to this contractor (the offender).

If the offended persons don't submit formal EEO complaints, would you start one by reporting it to the DOL? Depending upon the circumstances, it might be possible to resolve informally and certainly a lot less costly and time consuming than a formal EEO case investigation. However, the present case might not allow resolution without removing the person, thus terminating the contract. But, during the time it takes to do that, I'd think someone better look out for the alleged victims.

And yes, get the facts straight before taking any drastic action.

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I don't know if one can stretch the contract's EEO clause to cover sexual harassment of an outside employee even if you can read in sexual harassment of the contractor's own employees. That would be a matter for an EEO expert to determine.

OFCCP certainly believes that sexual harassment generally is a form of sex discrimination under EO 11246. Click here and search for "harassment."

However, the class folks protected by EO 11246 has been discussed at the OFCCP. While I couldn't find a decision involving sexual harassment, I did find OFCCP v. Keebler Co., ARB No. 97-127, ALJ No. 87-OFC-20 (ARB Dec. 21, 1999), slip op. at 9:

Executive Order No. 11246 prohibits employment discrimination by Federal contractors based on race, creed, sex, color or national origin. And it expressly requires that covered contracts include the following provision. ?During the performance of this contract, the contractor agrees as follows: (1) The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin.? E.O. 11246 at ?202; 30 Fed. Reg. 12,319 (1965). By this particular formulation, the Executive Order is made to apply to all employees of the Federal contractor but only during the life of the contract.

While this decision involves a different statute, I think it makes fairly clear that those protected by EO 11246 are the employees and applicants of the Federal contractor. (I'm not asking anyone to rely on my conclusion, this is just my prediction of what your labor advisor would tell you.)

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Hopefully, everyone agrees that a complaint of sexual harassment is an accusation, not a finding or conviction.

Everyone seems to agree that sexual harassment is a bad thing.

Everyone seems to agree that if someone accuses a contractor employee of sexual harassment the CO must do something.

Everyone seems to agree that the CO should notify the cognizant authorities, whomever they may be, and seek instruction.

Everyone (now) seems to agree that the CO should not directly "admonish" or "discipline" or "talk to," or demand anything from, or kick the butt of the contractor until properly instructed by the cognizant authorities. The obvious exception would be a case in which immediate intervention is obviously necessary to protect someone from harm.

Finally, at least some agree that if the contractor is found to have acted badly, or if the situation is otherwise untenable, then T4D may be possible, but a no-cost T4C would be easier and more expeditious.

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Carl, please connect the dots. How does his alleged conduct violate EO 11246 or the relevant regs? The regulations govern the conduct of employers as employers, don't they? This guy has no employees.

I'm with Jacques on this one. I don't think that FAR clause 52.222-26, Executive Order 11246, and FAR 22.808 have any bearing on the matter of contractor harassment of a government employee, and I don't think that the OFCCP is the right organization to talk to about the problem at hand. The clause, the E.O., and FAR 22.808 apply to contractor treatment of employees and applicants for employment. If there has been a breach of contract, it would not be on the basis of violation of the clause or the E.O.

I think that the language of the clause referring to "any rule, regulation, or order of the Secretary of Labor" refers to matters pertaining to the E.O, not literally to "any" rule of the Secretary. That language does not cover sexual harassment of a government employee by a contractor employee. The discrimination involved in such a situation would be that by the government allowing the harassment to continue. What OFCCP would do is determine whether the government has discriminated by allowing a hostile work environment to continue in existence. I don't think OFCCP would have any authority over the contractor in such a matter.

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I would be interested in knowing whether the original poster, August, has found this discussion to be helpful.

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I'm with Jacques on this one. I don't think that FAR clause 52.222-26, Executive Order 11246, and FAR 22.808 have any bearing on the matter of contractor harassment of a government employee, and I don't think that the OFCCP is the right organization to talk to about the problem at hand. The clause, the E.O., and FAR 22.808 apply to contractor treatment of employees and applicants for employment. If there has been a breach of contract, it would not be on the basis of violation of the clause or the E.O.

I don't think that the language of the clause referring to "any rule, regulation, or order of the Secretary of Labor" refers to matters pertaining to the E.O, not literally to "any" rule of the Secretary. That language does not cover sexual harassment of a government employee by a contractor employee. The discrimination involved in such a situation would be that by the government allowing the harassment to continue. What OFCCP would do is determine whether the government has discriminated by allowing a hostile work environment to continue in existence. I don't think OFCCP would have any authority over the contractor in such a matter.

I agree with everything in your last 2 posts.

I always believed that a KO should consult with the EEO experts and anyone else necessary before discussing such a problem with the contractor, but should have been clear about that. I felt that it goes without saying that you check first. Apparently, that isn't clear. Sorry.

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I would be interested in knowing whether the original poster, August, has found this discussion to be helpful.

I would be too, but I doubt if august will or should elaborate on the actual situation.

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Yes, the postings have been helpful.

While my question was more narrow than the discussion that has evolved, it does reflect the internal debate I have had about the situation we have here.

It is a very sensitive issue and one I have not had to deal with before, and I feel unprepared for it.

I have appreciated all the voices that have participated in this discussion.

Thanks.

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Guest carl r culham

I apologize if there are gaps in the discussion related to my posts and comments made by others regarding what I had previously posted.

First with regard to the original question posted by August with regard to default termination both termination for convenience as suggested by some and default as proposed by August are available alternatives. Knowing all the facts would help determine which is the most appropriate route. I still remain concerned that a Termination for Convenience seems to be simply brushing the issue aside rather than holding a contractor responsible for actions not appropriate that appear to fall under the contract performance.

In previous posts I suggested action items that August may want to consider that then raised further debate and that others questioned whether my advice was proper. Noting the comments of others I started to question my advice as well. In response I sent the following question to the OFCCP contact email address found on the EEO poster to be posted by a contractor at worksites. It appears that OFCCP then referred the question to the EEOC as I received a response from EEOC and not OFCCP. I conclude from this route of my question that the issue is not under jurisdiction of OFCCP but EEOC as far as what the Federal employee might consider. Being a EEO matter handled by EEOC may also dictate, again based on the facts, what the CO should be doing with regard to the employee lodging the complaint and the contractor.

Again I apologize for any confusion I may have created on this matter.

Question to OFCCP -

If a Federal contractor is alleged to have sexually discriminated

against a Federal employee working at the same site as the Federal

contractor who should the Federal Contracting Officer refer the matter

to?

The response from EEOC -

Thank you for contacting the US Equal Employment Opportunity Commission. I apologize for the delay in responding to your email.

If a federal employee or an applicant for a federal job believes he or she has been the victim of discrimination, they generally have 45 days from the day the discrimination occurred to contact an EEO Counselor where they work or where they applied for a job. If the discrimination involved a personnel action (for example, a demotion or firing), they generally must contact the EEO Counselor within 45 days of the day the personnel action takes effect.

Each agency is required to post information about how to contact the agency?s EEO Office. The information will include the EEO Office location and what number to call to reach someone there.

To learn more information about the Federal EEO Compliant Process you can visit our website at: http://eeoc.gov/federal/fed_employees/complaint_overview.cfm.

Non-federal employees who wish to file a charge can begin the process by using our online assessment tool at https://egov.eeoc.gov/eas/. After completing Part One of the assessment, they will be instructed to print and complete an Intake Questionnaire. Once they have completed the printed questionnaire, they can mail, fax or take it to the EEOC office nearest them. The online assessment tool will provide them with the address of the nearest office.

To find more information about the laws we enforce and our charge-filing procedures on our website at www.eeoc.gov.

Also, please note that there are time limits to file the charge. In many States that limit is 300 days from the date they knew about the harm or negative job action, but in other States it is 180 days. To protect their rights, it is important that they fill out the questionnaire and send it to us right away.

Alternatively, you may call us at 1-800-669-4000 (TTY: 1-800-669-6820) to discuss your situation.

Sincerely,

U.S. Equal Employment Opportunity Commission

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Question to OFCCP -

If a Federal contractor is alleged to have sexually discriminated

against a Federal employee working at the same site as the Federal

contractor who should the Federal Contracting Officer refer the matter

to?

Carl, not being a female my judgment may be questionable. But I do NOT believe that "sexual harassment" and "sexual discrimination" are the same thing. Discrimination based on gender, sexual preference, or other characteristic protected by law is one thing. Actual harassment (i.e., attempting to obtain sexual favors based on force, position of authority, etc.) or creation of a hostile work environment is something entirely different.

H2H

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I don't know about your judgment, but your assertion that sexual harassment and sexual discrimination are not the same thing is wrong. In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) the Supreme Court found sexual harassment to be a form of sexual discrimination, thereby confirming earlier district court decisions. http://caselaw.lp.findlaw.com/cgi-bin/getc...77&invol=57 See also 29 CFR 1604.11, "Guidelines on discrimination because of sex":

Sec. 1604.11 Sexual harassment.

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

title VII. 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.

By the way, men can also be the victims of sexual harassment, so the fact that you are not a woman is not relevant to the quality of your judgment in this matter.

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H2H - As usual no need to echo Vern as he has provide ample support but here is a EEOC reference for you as well.

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

Carl, did you happen to notice that the EEOC did NOT directly answer your question, as it relates to the referenced situation? It may have something to do with the way you phrased it.

I suggest rephrasing your question and asking them again:

Suggested New Question to OFCCP -

If a Federal contractor who performs services in a government facility has acted inappropriately towards government employees working at the same site as the Federal contractor, who should the Federal Contracting Officer refer the matter to?

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I apologize if there are gaps in the discussion related to my posts and comments made by others regarding what I had previously posted.

First with regard to the original question posted by August with regard to default termination both termination for convenience as suggested by some and default as proposed by August are available alternatives.

...

In previous posts I suggested action items that August may want to consider that then raised further debate and that others questioned whether my advice was proper. Noting the comments of others I started to question my advice as well.

...

Again I apologize for any confusion I may have created on this matter.

Carl,

Sounds like OFCCP & EEOC ignored your question. Have you come to any conclusions as to whether unwanted sexual advances by a contractor to the government employee violates the EEO clause?

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Carl,

Sounds like OFCCP & EEOC ignored your question. Have you come to any conclusions as to whether unwanted sexual advances by a contractor to the government employee violates the EEO clause?

Jacques, we don't know if there were any" unwanted unwanted sexual advances by a contractor to the government employee". The allegations involve inappropriate actions towards government employees working at the same site as the Federal contractor.

This could refer to offensive jokes, offensive language or gestures, whistling, posting pictures in a cubical, who knows? It doesn't necessarily involve unwanted sexual advances.

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