Sexual misconduct in the federal workplace: One expert’s view ...

Nathan Abse interviews a specialist on workplace law, Michael H. Leroy of the University of Illinois College of Law, about the long—and sometimes seemingly impossible—struggle to stop sexual harassment in the workplace.

This month, the watchdog group Project On Government Oversight published an investigative report on revelations of widespread sexual harassment suffered by employees at components of the Department of Homeland Security. The piece is based on an as-yet unreleased DHS Office of Inspector General report, one that—though based on solid survey research showing a third of employees had been harassed—somehow remains secret for four years now. POGO notes that the long-suppressed DHS OIG report creates “the appearance that the four DHS components—which employ roughly 150,000 federal workers—suffer from a widespread culture of impunity, silencing, and retaliation when dealing with sexual misconduct and domestic violence.” And despite potentially powerful recent legal developments—including passage of a reauthorization of the Violence Against Women Act (VAWA) and the new Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act—sexual harassment in the workplace in recent years continues to be a terrible problem. This week, Nathan Abse speaks with Michael H. Leroy—an attorney and professor of employment relations at the University of Illinois College of Law—about the POGO report and the wider problem of on-the-job sexual misconduct.


Q&A Michael Leroy

How big of a problem is sexual harassment in the workplace?

Leroy: So, it's hard to know statistically—hard to know what we don't know. But from a global perspective, it’s been three decades since Anita Hill’s testimony at [Supreme Court Justice] Clarence Thomas’ confirmation hearing brought attention to the issue, when this topic became fair game for public consumption. And it’s remarkable how little progress has been made in the employment area. This new POGO report is just another clear piece of evidence of that. The sheer frequency and severity of sexual harassment incidents are stunning in scale. And these statistics are about government agencies. We don't even have a comparable readout of private organizations. But judging from anecdotal evidence, as well as litigation trends, sexual harassment at work is a problem that seems to defy solutions.

Why is it a seemingly intractable problem?

Leroy: Well, it may be several things. We get employers who have either not taken it seriously, or their measures just don't just aren't effective. But the point is, when you have—as in the POGO sample—30% or more people who are reporting that they have experienced sexual harassment or assault, that's a shocking number. That’s a third of your workforce, and now they are not only suffering but the whole workforce does too—their performance in the workplace is interfered with by somebody's misconduct, right? We are not lacking for official processes to deal with it. But, somehow, we're lacking processes that are effective, potent and give employees confidence to come forward, and confidence that they won't be retaliated against.

So, even to you experts, the answer as to why it is such a stubborn problem, or at least how to make major progress against it, is still not clear?

Leroy: Right. The answers and fixes to this are still clearly lacking. So now, I would add that—as problematic as the report indicates here—we still don't really know if the problem is any worse in the public sector, or in these particular agencies [in the POGO report], than in the private sector, more generally. My hunch is that something pretty bad like these numbers are societal figures, they're not necessarily endemic or worse at these agencies.

The POGO report highlights how slow and sclerotic DHS has been at dealing with the issue. In your work and observation, is an especially slow response typical for this?

Leroy: So, your question indicates there’s often a delayed response. And I would just say there is that, but also that it fits a pattern of employers actually burying, and being avoidant, in their responses. Now, one way these federal agencies with their sexual harassment problem is different from the private sector is this: the private sector, generally, is not subject to government oversight—or only very selectively. So, in the private sector all the more I think the more typical thing for an employer to do is simply to hide the problem. Here, at these agencies in the POGO report, there are indications of that and that people were bought off with settlement money. You also have what amounted to non-disclosure agreements to deal with these cases and make them go away. Still, I would just say, compared to the private sector, the public sector is accountable to the public. Yet by delaying the reporting of the problem, that certainly frustrates the aim of oversight.

How does the public sector compare with the private sector on this problem?

Leroy: If your global question is: How do they compare, generally? Then, the answer is we don’t know accurately, and there are ways the agencies employ to avoid discussing the problem in real time such that real results might be achieved. The POGO piece shows the OIG has hung on to its draft report, unreleased, for several years. Now, another element I would point out here is that a lot of that when you're looking at these particular agencies—including Customs and Border Protection and the Secret Service, for example—that these are agencies that are still male-dominated. Meaning that by the numbers they are far more male than female—and that’s also a culture there. To me, that is part of the problem. And, and when you have [training] academies, as you do with respect to these agencies, that this problem is there is not unusual to see.

So, as other experts note, the imbalance of male staff and leadership is fueling the problem?

Leroy: Yes. In any kind of residential environment, you have male predation over females. And because in these agencies you have concealment, a kind of authority out there, and this whole structure of command and control. And it all lends itself to abuse. I do think that that's part of the culture that has to be reconsidered in this whole process, you know, for military academies, working now more than 30 years, trying to create conditions of equality for men and women. And yet we have recurring stories, like these in the POGO report, that are similar in nature. So, I think, here’s my bottom line: Unless and until we get at the problem with the culture here, and get it fundamentally reorganized, the sexual harassment—and worse—problems will persist. But there are women who can be part of the problem too. It’s not just the men alone. But that’s a big part of it.

What are some ways that employers could stop—or slow—sexual harassment, whether in the larger context or the federal context?

Leroy: Part of it, simply, is that hopefully, when we reach a point of having more female leadership, particularly at these kind of male-culture employers, we will have a different sensitivity for these issues. The POGO report indicates this. You know, we still we still have a male-dominant leadership. Now, there are plenty of men who take this problem seriously. investigating the abuse of women. And, in fact, there are some women who do create or worsen these situations. But on balance, the wrong set of people is tasked with investigating. I mean, these are people who have not experienced this problem first-hand, not been on the receiving end. Too often they just don't have the sensibility and the sensitivity to manage this properly.

In past interviews, you noted that in addition to workplace cultures of indifference there is often also a legal issue—that of arbitration agreements that enable employers to hide the problem?

Leroy: Yes. For the past approximately 30 years, the Supreme Court has facilitated this problem of unreported sexual harassment and related issues by endorsing the widespread use of mandatory employment arbitration. The result of that is similar to the way that DHS, in the POGO piece, has been able to delay and obscure the reporting on the issue. Mediation or arbitration systems have been used to bury the issue, often, from public view. Instead of having trials where it all becomes a matter of public record that is covered by reporters, and where organizations are embarrassed into making real reforms, and forced into powerful monetary penalties, we're at the back end of 30 years of hiding these things officially. All with the Supreme Court's approval. Now, that has changed in recent weeks, as this country has enacted legislation—with Biden’s and bipartisan support in Congress—against mandatory arbitration of sexual harassment claims. Still, we have had a 30-year delay in exposing these problems for what they are, and allowing courts to do what they were set up to do: to root out the problem. And that won’t change until there are real consequences for employers—and for the perpetrators—that we gain real progress here.

OK, so agencies must answer to Congress, a theoretical advantage for a fed. But, to report harassment, employees typically go to their agency first. Hence, the organization that oppressed you is who you must entrust to get relief—a conflict-of-interest for the agency, right?

Leroy: Let me speak to that. So, the system has this very real structural flaw of having the agency police itself, in effect, right? Where those who are doing the investigation ultimately are under the command and control of the group that, in part, is accused of wrongdoing. So, there's no real independence there. It would be much more effective if there were reporting out on sexual harassment, directly, for federal employees to the EEOC or to another independent agency—one that was properly staffed for this purpose. That way, the logic behind it would be to try to get your case resolved properly. The way it is resolved now is that you “owe it to the unit” to speak up, and try to let your local unit solve it first. That's the theory. But the practice too often becomes grounds for retaliation, at that level. And employees are wise to that. It’s a huge reason why we have underreporting on this—employees just don't have confidence in the system to justly manage their case. And, I have to go one step further, to  say that—as a preventative measure—I have never seen a report, anywhere, that indicated that training against sexual harassment is actually effective.

In what ways do you think training has been a failure?

Leroy: In practice, employers just sit people down and say, look at this video, and spend an hour and a half on it. And now the employer can just check the box, “hey—we've done that.” These things don’t actually work. And I think they give employers a false sense of security that they're doing their job.

How much progress has been made against sexual harassment in the workplace?

Leroy: As of today, to up to this point, you know, it's been a systemic failure from training to enforcement to investigation. If you use the Clarence Thomas hearings as a starting point—and you note that he was the chairperson of the EEOC where Anita Hill was a staff attorney with credible claims he had sexually harassed her in fundamentally repugnant and crude ways. And that these disclosures and society’s reaction was supposed to change things—since it was at that point that a surprising number of women came forward with their stories. But then 30 years later we face the new POGO report. It just shows how little has changed. It was a false watershed.

Again, why does the progress seem so limited?

Leroy: I would just say what the legal cases confirm: power protects itself. It’s a truism, but you can have the most the most idealistic law for addressing a problem, and yet nothing improves if the enforcement remains in the hands of either perpetrators or leaders who don’t enforce. It’s not that people at the top are necessarily all engaged in this bad behavior—although that does happen. Rather, it’s that people in management often want to cover it up because it can cast them and their agency in a negative light.

But Congress just passed potentially good new laws—which might help, right?

Leroy: They might. But, you know, I think fundamentally, and more concretely, it's not that we necessarily need more laws. We need better enforcement. And more profoundly, we need change that goes deeper, as the problem starts with a culture issue. So I would just circle back and say, unless and until we get to a point where there are systemic, predictable consequences for the behavior, of sexual harassment, then we're going to see on the news 30 years from now the same headlines.

What advice would you offer the employee considering reporting sexual harassment?

Leroy: I don’t enjoy saying so, but often it’s best to leave your current organization—and challenge it from safer ground. Because, generally, you’re going to face retaliation, right? So, if possible and practical, leave the job and get to a safer place. Of course, most people cannot get to a safer place—because of the lost income or lost standing. However you manage your case, it’s often a slow process. The wheels of justice turn slowly. I understand why that’s true. Whichever process you pursue, it can create an emotional toll—to repeatedly have to tell your story, about something like how your boss pursued or groped you—I mean, it can weigh on your marriage, your relationships, and your self-image. But remember there is strength in numbers. I would recommend you seek decent legal help and/or help from the various organizations dedicated to assisting in this area.

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