Jump to content
The Wifcon Forums and Blogs

August

Sexual Harrassment

Recommended Posts

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.

Thanks, Joel. I've assumed throughout that the question was, "If the 'inappropriate actions' met some applicable threshold (e.g., created a hostile work environment), what, if any recourse does the Contracting Officer have against the contractor under the contract?" "Inappropriate action" just seems to wishy-washy to me, so I used "unwanted sexual advances" as an example for severe enough "inappropriate action" to warrant action, if the government employee was in the class of folks protected by the EEO clause. I think I've been fairly consistent throughout this thread to suggest that the EEO clause does not provide grounds for adverse action under the contract for "inappropriate actions" (regardless of severity) toward a government employee. Carl at one point disagreed, and (while this may be an unrealistic hope or irrelevant concern) I'm trying to close the loop in case someone comes back to this thread later.

Share this post


Link to post
Share on other sites
Thanks, Joel. I've assumed throughout that the question was, "If the 'inappropriate actions' met some applicable threshold (e.g., created a hostile work environment), what, if any recourse does the Contracting Officer have against the contractor under the contract?" "Inappropriate action" just seems to wishy-washy to me, so I used "unwanted sexual advances" as an example for severe enough "inappropriate action" to warrant action, if the government employee was in the class of folks protected by the EEO clause. I think I've been fairly consistent throughout this thread to suggest that the EEO clause does not provide grounds for adverse action under the contract for "inappropriate actions" (regardless of severity) toward a government employee. Carl at one point disagreed, and (while this may be an unrealistic hope or irrelevant concern) I'm trying to close the loop in case someone comes back to this thread later.

I'm somewhat curious as to what response, if any, the EEOC will offer Carl, if he more directly crafts his question. I do have some doubt that they will directly address it in an e-mail.

Share this post


Link to post
Share on other sites
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 & Vern,

I am happy to learn something new. Thanks.

H2H

Share this post


Link to post
Share on other sites
Guest carl r culham

Joel - Thanks for the suggestions but like you I do not think framing the question another way would result in a more direct response to the CO question.

Jacques - I do not think they ignored the question as I did get an answer. Yes I have reached a conclusion and that conclusion is that it could be a violation of the EEO Clause in a case of where actual discrimination is found to have occurred. I will say that I do have a different perspective on what actions I might take if I were a CO and a allegation of sexual discrimination is raised to me by a Federal employee regarding a Federal contractor and their employee or the contractor (sole proprietorship). I have concluded that my first step would be to contact the agency's own office that oversees Equal Opportunity for advice and counsel and go from there based on facts and circumstances. I imagine the "go from there" route would be very complicated and might include all the possibilities discussed in this thread.

Share this post


Link to post
Share on other sites

Carl, I'm curious how you concluded that inappropriate behavior by an outside entity, in this case, a contractor, violates the EEO clause in the contract.

The EEOC response to your question referred to employment discrimination by an employer.

Share this post


Link to post
Share on other sites

A timely and somewaht related Washington Post article:

http://www.washingtonpost.com/wp-dyn/conte...0102403060.html

The issue is becoming increasingly important as to whether a federal agency or a contractor is responsible when disputes emerge over pay, workers compensation, harassment complaints, discrimination claims and other workplace issues. Contractors aren't entitled to the same grievance processes as federal employees and typically have to go through outside agencies such as the U.S. Equal Employment Opportunity Commission or get private lawyers and file lawsuits, whereas federal employees have a range of mediation services and appeals available to them.

In the last decade, the EEOC has ruled in 90 cases that a federal agency and a private contractor are "joint employers" of a person, meaning their case has to be processed as if they were a civil servant.

And:

One case that involves the EEOC's ruling of a "joint employer" goes beyond the typical office cubicle in Washington's suburbs. It involves a 35-year-old Northern Virginia man who worked as an intelligence analyst for CACI International of Arlington under a contract it had with the Central Intelligence Agency to do work in Afghanistan.

When contacted, the man, who was given an alias of Nicolas R. Brewster by the CIA, didn't comment, citing an agreement he signed with the government. The CIA also wouldn't comment on his case, saying it "doesn't as a rule comment on personnel matters." CACI did not respond to requests for comment. The following account is based on documents and filings with the CIA and the EEOC.

Brewster alleges that while in Afghanistan in the fall of 2009 he was sexually harassed by a female CIA supervisor. After he filed a complaint with the agency, it dismissed his complaint on the grounds that he was not a CIA employee but a contractor. That meant he didn't come under the same complaint process as an employee of the agency.

Brewster took his case to the EEOC, arguing that while he may technically have been a contractor on paper, he was, for all intents and purposes, working not only for CACI but also for the CIA. Before he went to Afghanistan, the CIA trained Brewster on how to survive in a battle zone and how to use its classified databases.

"Because the CIA controlled the manner and means of [brewster's] employment, the CIA must be deemed [as his] joint employer," according to Brewster's filing to the EEOC.

The EEOC agreed and ruled recently in his favor, reversing the CIA's decision.

Share this post


Link to post
Share on other sites

A timely and somewaht related Washington Post article:

http://www.washingtonpost.com/wp-dyn/conte...0102403060.html

QUOTE

"The issue is becoming increasingly important as to whether a federal agency or a contractor is responsible when disputes emerge over pay, workers compensation, harassment complaints, discrimination claims and other workplace issues. Contractors aren't entitled to the same grievance processes as federal employees and typically have to go through outside agencies such as the U.S. Equal Employment Opportunity Commission or get private lawyers and file lawsuits, whereas federal employees have a range of mediation services and appeals available to them.

In the last decade, the EEOC has ruled in 90 cases that a federal agency and a private contractor are "joint employers" of a person, meaning their case has to be processed as if they were a civil servant."

And:

QUOTE:

"One case that involves the EEOC's ruling of a "joint employer" goes beyond the typical office cubicle in Washington's suburbs. It involves a 35-year-old Northern Virginia man who worked as an intelligence analyst for CACI International of Arlington under a contract it had with the Central Intelligence Agency to do work in Afghanistan.

When contacted, the man, who was given an alias of Nicolas R. Brewster by the CIA, didn't comment, citing an agreement he signed with the government. The CIA also wouldn't comment on his case, saying it "doesn't as a rule comment on personnel matters." CACI did not respond to requests for comment. The following account is based on documents and filings with the CIA and the EEOC.

Brewster alleges that while in Afghanistan in the fall of 2009 he was sexually harassed by a female CIA supervisor. After he filed a complaint with the agency, it dismissed his complaint on the grounds that he was not a CIA employee but a contractor. That meant he didn't come under the same complaint process as an employee of the agency.

Brewster took his case to the EEOC, arguing that while he may technically have been a contractor on paper, he was, for all intents and purposes, working not only for CACI but also for the CIA. Before he went to Afghanistan, the CIA trained Brewster on how to survive in a battle zone and how to use its classified databases.

"Because the CIA controlled the manner and means of [brewster's] employment, the CIA must be deemed [as his] joint employer," according to Brewster's filing to the EEOC.

The EEOC agreed and ruled recently in his favor, reversing the CIA's decision."

Interesting, thanks, formerfed.

Share this post


Link to post
Share on other sites
A timely and somewaht related Washington Post article:

http://www.washingtonpost.com/wp-dyn/conte...0102403060.html

See Vern Edwards' Post #27 above.

For purposes of EEOC, contractor employees often allege that they are jointed employed by the contractor and the federal government. The present facts are different. Here, the alleged victim is undoubtedly a government employee. She would have no reason to allege she was jointly employed. The federal government is already responsible for ensuring her workplace is not a hostile work environment, not the contractor.

Share this post


Link to post
Share on other sites
Guest carl r culham

Joel - First I said "could" and not would. I have concluded that in the world of an alleged discrimintory act that is found to be actual that any number of statutes and contract clauses could be found applicable. In the case of this thread, as a result of everyone's comments, I removed my suggested actions and conclusions. Venturing back to the edge of offering a opinion it is up to the alleged victim to file a complaint. As the complaint unravels I conclude that the EEO clause could be found applicable based on the actual facts. Without the facts anything that is concluded otherwise is anyones guess and I am not guessing anymore.

I will use Jacque's latest post as an example. Jacque's has concluded that the alleged victim is "undoubtedly" a government employee and not jointly employeed. I would offer that only EEOC will determine this fact and in the end, if necessary, prove it in a court of law.

At the expense of repeating myself everything is possible and in a case of proven discrimination any contract relationship will depend on the facts. As such every opinion of appropriate contract application and remedy expressed in this thread is possible.

Share this post


Link to post
Share on other sites
A timely and somewaht related Washington Post article:

http://www.washingtonpost.com/wp-dyn/conte...0102403060.html

The article discusses discrimination and harassment from the perspective of the victim being a contractor employee who could be effectively considered a government employee, working under the government's supervision.

It doesn't specifically discuss the situation where the contractor is considered the perpetrator of improper behavior toward "coworkers", but I suppose that it could be stretched to cover that scenario. All the more reason for the Government's "officials" to quickly contact their EEO office and then put a stop to the behavior. If the victims (plural, per the original post) cannot abide having any further contact with the person, then he or she will have to go in order not to foster or foment the creation of a hostile work environment, for which the pertinent government agency could be held responsible.

Share this post


Link to post
Share on other sites
See Vern Edwards' Post #27 above.

For purposes of EEOC, contractor employees often allege that they are jointed employed by the contractor and the federal government. The present facts are different. Here, the alleged victim is undoubtedly a government employee. She would have no reason to allege she was jointly employed. The federal government is already responsible for ensuring her workplace is not a hostile work environment, not the contractor.

The point is whether the contractor is considered the same as a government employee.

Edit: Joel's previous post is more to the issue. I mentioned the article is somewhat related.

Share this post


Link to post
Share on other sites

Carl:

I will use Jacque's latest post as an example. Jacque's has concluded that the alleged victim is "undoubtedly" a government employee and not jointly employeed. I would offer that only EEOC will determine this fact and in the end, if necessary, prove it in a court of law.

I don't understand what you were talking about when you said that. Here is what Jacques said in his latest post, number 58 in this thread:

Here, the alleged victim is undoubtedly a government employee. She would have no reason to allege she was jointly employed. The federal government is already responsible for ensuring her workplace is not a hostile work environment, not the contractor.

He was talking about "here" in this thread. Here is how the original poster opened the thread:

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

Given that opening to the thread, I think that Jacques is on solid ground.

If a CO learns that a contractor employee has been accused of sexual harassment of a government employee, the CO must not act hastily. He or she should communicate with three people immediately: his or her boss, the contracts attorney, and the local EEO representative (who will probably bring in the agency's labor attorney) and seek instruction. He should not tell the contractor anything and must not accuse the contractor or its employee of anything. After that, depending on the circumstances, it may be necessary to direct the contractor to reassign or remove the employee. What reason the CO gives for such direction will depend on what he or she is told that the contractor can be told. Whatever else may happen will depend on the facts and contract analysis.

The CO should not contact the EEOC, unless he or she plans to make a third party complaint in accordance with 29 CFR ? 1601.7. As a CO, I would not do that without first speaking with my boss, lawyer, and local EEO representative.

Share this post


Link to post
Share on other sites
Guest carl r culham

Vern - Probably a case of where my quotes were. Here is how I see it.

As I read Jacques post Jacques has concluded that there would be no reason to allege joint employment. My comment was to question Jacques conclusion based on the facts as we know them. Yes the alleged victim is a federal employee per the original post and yes responsibility for ensuring a non-hostile workplace belongs to the federal agency but nothing else is known about the matter. Sure it could be read in that since the contractor is performing the services in a government facility the alleged act took place in the facility but what if did not? Further we do not even know the nature of the work that is being performed. Maybe the sole proprietor is being used in an administrative position where as the contractor the sole proprietor has to depend on the alleged victim for work accomplishment and as such helps direct the alleged victim in their day to day working relationship. Maybe they go on working dinners off site and the alleged acts have occurred at the dinners.

Bottom line anything can be assumed but on my part I will not assume one way or the other whether the alleged victim has reason to want to be considered a joint employee.

The rest of your most recent post (#62) is in agreement with my most recent posts.

Share this post


Link to post
Share on other sites

I don't see any reason to raise the question of joint employment. We were told that the victim was a government employee. That was the basis for the initial inquiry. Why should we consider any other possibility? Might the accused be a joint employee? I don't know, and I don't see how it matters in this case. The joint employee issue arises only when a contractor employee seeks redress from the government. That is not the issue in this thread.

Share this post


Link to post
Share on other sites
...

As I read Jacques post Jacques has concluded that there would be no reason to allege joint employment. My comment was to question Jacques conclusion based on the facts as we know them.

...

At the risk of echoing Vern's last post, the legal action you seem to be talking about is the government employee against the federal government for permitting a hostile work environment. The fact the hostile work environment was precipitated not by a fellow employee, but by a contractor, likely makes no difference. See my earlier posts #20 & #26 on employer liability for third parties. The government employee would have no reason to allege the contractor was her joint employer. Unless I've completely missed the ball, the facts in this thread contain no suggestion that the elements for establishing joint employment have been met here. As such, the Contracting Officer (hurrah, we're back to the point) would have no reason to claim that contractor's conduct violated the EEO clause.

Share this post


Link to post
Share on other sites
Guest carl r culham

Vern - I did not raise the question of joint employment, jacques did. I simply questioned that jacques attempted to make a factual statement without knowing all the facts. I could spin the facts anyway I wanted to suggest why someone would have reason to be considered joint employed for the purposes of litigation. Whether I believe the joint employment applies is a whole other matter. As you now suggest, in part, and as I have concluded, if I were the CO I would not make any determination of application of clauses, joint employment, etc if faced with the situation of a federal employee alleging sexual harassment by a contractor or contractor's employee other than to refer the matter to the EEO office of the agency for advice and counsel and go from there.

jacques - As noted above I simply took issue with a conclusion you made based on limited facts. While you conclude the employee has no reason to want to be found to be jointly employed I just won't go there as I can't read the mind of a person who feels they have been wronged and who might be looking for every avenue possible to find justice. I understand why joint employment is a none issue from your view and simply disagree that I, at least, do not have enough facts to conclude that it is a none issue.

Specific to your last post -

"Unless I've completely missed the ball, the facts in this thread contain no suggestion that the elements for establishing joint employment have been met here." The facts of the thread do not provide adequate information to conclude elements either way. Facts specific would only determine establishment of joint employment and to conclude anything from the thread is conjecture on your part by reading in the facts you want to.

"As such, the Contracting Officer (hurrah, we're back to the point) would have no reason to claim that contractor's conduct violated the EEO clause." The CO would only have reason to claim violation of the EEO clause when all the facts are concluded and the contractors conduct is found to violate the clause. Who decides that? The EEO office in possible concert with EEOC. Again the very reason I have changed my posts and provide simply one piece of advice - Contact the EEO office of the agency. Vern has suggested other contacts that a CO might find prudent depending on the facts first presented to the CO when the allegation is made.

Share this post


Link to post
Share on other sites

How did we go from: Can the government terminate a contract for default based on sexual harassment of a government employee by a contractor employee to joint employment? Are we on another topic now?

Share this post


Link to post
Share on other sites
How did we go from: Can the government terminate a contract for default based on sexual harassment of a government employee by a contractor employee to joint employment? Are we on another topic now?

Some people are speculating whether the contractor has violated the EEO clause, thus cause for default termination, I think.

Regardless of all that, inappropriate behavior to those that work with you must not be tolerated, so seek advice from the experts, promptly investigate and stop the behavior. It might or might not require further action beyond that. But don't dillydally and don't bury your head in the sand. If the situation gets to the point of creation of a "hostile workplace", its not a good scenario for the affected employees or the organization.

Share this post


Link to post
Share on other sites
Some people are speculating whether the contractor has violated the EEO clause, thus cause for default termination, I think.

Regardless of all that, inappropriate behavior to those that work with you must not be tolerated, so seek advice from the experts, promptly investigate and stop the behavior. It might or might not require further action beyond that. But don't dillydally and don't bury your head in the sand. If the situation gets to the point of creation of a "hostile workplace", its not a good scenario for the affected employees or the organization.

Let me turn this around, and pose the hypothetical situation where it is a contractor employee who is being harassed at the contractor's site by a government employee such as an inspector or auditor. What authority would the contractor have to ban the government employee from the premises to protect the contractor employee?

Share this post


Link to post
Share on other sites
Let me turn this around, and pose the hypothetical situation where it is a contractor employee who is being harassed at the contractor's site by a government employee such as an inspector or auditor. What authority would the contractor have to ban the government employee from the premises to protect the contractor employee?

How about the EEO clause? It prohibits the contractor from discriminating on the basis of sex in matters of employment. The courts have carved out allowing sexual harassment by outside employees (in that case by a government official) that could create a hostile workplace for the contractor's employees as a form of sex discrimination.

The EEO provisions of the Civil Right Act also apply to a contractor. Regardless of the contract clause, an employer of more than 15 employees must take steps to stop such activity or risk being sued for allowing a hostile workplace to exist.

The contractor has every right to demand that the person stop such activity and/ or demand of the government that it replace the inspector. The government has a fundamental responsibility to not interfere with the contractor's business or contract performance and to act in good faith.

This is not an official legal opinion, only my own opinion.

Share this post


Link to post
Share on other sites

Retread:

If the government inspector is harassing and is creating an atmosphere of intimidation, then the contractor has a duty under the law to protect its employee. A problem arises if the contract requires the contractor to permit a government inspector to have access to its facility. See the inspection clauses. The contractor must, on the one hand, protect its employee, but must, on the other, comply with the terms of the contract. As far as I am concerned, that would be true even if there were no EEO law and regulations.

If I were the contractor, and assuming that I had very good documentation, I would contact the CO, explain the problem, and ask for a new inspector. If the CO refused I would then have to decide whether to risk default. I would notify the CO that I would no longer allow that particular inspector into my facility, explain why, and make it clear that another inspector would be perfectly acceptable. If the CO decided to make an issue, I might have a non-cost claim and would seek further legal advice about how to proceed.

One might argue that I could move my employee so as to be out of the inspector's reach. However, that might cause me a problem, and I would not do it, except on the advice of counsel.

Bottom line: If I thought that the government's inspector posed a thread, I would not let that inspector come in.

Share this post


Link to post
Share on other sites

Just a general note concerning the Army's new mandatory training on prevention of sexual harassment (and sexual assault). As a rehired annuitant, I just completed my training on "Sexual Harassment/Assault Response and Prevention" or "SHARP", which has replaced "Prevention of Sexual Harassment" or "POSH". This training heavily stresses the responsibility of every soldier and civilian employee to help prevent sexual harassment or sexual assault of other military or civilian members through intervention. It changes the focus of previous training from the responsibility of an employee or soldier as a potential victim or victim to everyone's responsibilities toward others. The Army's clear expectations are quite an eye opener. The training also taught me new perspectives of what many of us think of as common dating or situational behavior. This is behavior that many people might probably shrug off, might decide to just look the other way or might think that the victim can or should deal with it themselves.

The training, while primarily focusing on typical soldier on and off-duty activity, also included numerous situations involving a civilian employee who actively intervened with soldiers and/or civilian employees. The situations occurred both on and off-duty. And there were situations involving offensive and intimidating behavior by his boss toward a co-worker. Of course, the fact that the charachter is a retired Master Sgt. probably explained his off-duty, "beyond the call of duty" intervention techniques. But it makes one think about observed on or off-duty offensive behavior by Army (military or civilian) personnel or threats to fellow Army personnel.

While discussing the training with my sister-in-law and a friend last night, who have somewhat narrow or "traditional" views, it hit me how I had viewed various dating and social interaction situations before the training as "normal" or "tolerable", even if not considered good behavior.

Bottom line is that direct harassment or workplace situations where soldiers and employees are exposed to unwanted behavior by others or to situations where the workplace may become a "hotile environment" is not to be tolerated and those observing such activity have a duty to intervene, not just decide that it is the victim or intended victim's responsibility to resolve the situation.

This is not intended to answer the questions raised here but share my renewed and increased awareness that every (Army at least) employee has some responsibility to others in the workplace and the responsibility not to tolerate such behavior, whether it be by other government personnel or by government contractor personnel that interact with government personnel.

An excerpt from AR 600-20

Chapter 7?7. Techniques of dealing with sexual harassment

All soldiers and civilians have a responsibility to help resolve acts of sexual harassment. Examples of how to accomplish this follow:

a. Direct approach. Confront the harasser and tell him/her that the behavior is not appreciated, not welcomed and that it must stop. Stay focused on the behavior and its impact. Use common courtesy. Write down thoughts before approaching the individual involved.

b. Indirect approach. Send a letter to the harasser stating the facts, personal feelings about the inappropriate behavior and expected resolution.

c. Third party. Request assistance from another person. Ask someone else to talk to the harasser, to accompany the victim, or to intervene on behalf of the victim to resolve the conflict.

d. Chain of Command. Report the behavior to immediate supervisor or others in chain of command and ask for assistance in resolving the situation.

e. File a formal complaint. Details for filing an informal or formal complaint are included in Appendix E"

Share this post


Link to post
Share on other sites

Thanks for the posting, Joel.

I think it's good that we continue to evaluate our thoughts and our behaviors - especially on this issue.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.

×