Behaving Badly

sfigura@govexec.com

H e gave me a hug. He slid his hand down to my chest, and he squeezed my breasts with both of his hands. I pulled back in shock, and he had a smirk on his face. . .. I wanted to slap his face. Instead, I mumbled something and rushed to the ladies' room. I felt sick and the rest of my night was ruined. And I kept wondering, who could I tell, who would believe me?"

It reads like a bad romance novel. But Doris Moore-Russell, an employee at the Veterans Affairs medical center in Fayetteville, N.C., was describing the harassment she'd suffered on the job to the House Veterans Affairs Subcommittee on Oversight and Investigations in April 1997. She and four other female Veterans Affairs Department employees-known as the Fayetteville Five-had come to Washington to share their stories about facility director Jerome Calhoun. They testified before a Senate panel the next month.

It was the second time in five years that VA was the target of major congressional hearings on sexual harassment problems. The first time, in 1992, Congress agreed to let VA Secretary Jesse Brown try administrative fixes. His zero-tolerance policy had improved things marginally, but overall little appeared to have changed. Not only did VA still tolerate egregious sexual harassment, legislators pointed out, but the agency lacked a fair avenue for redress. On top of that, demoting Calhoun was far too mild a punishment, lawmakers said. This time they passed a law forcing VA to make major changes to its system for combating sexual harassment.

VA is not the only agency to face public scrutiny over this issue. The Navy had the Tailhook scandal, where servicemen groped and assaulted some of their female colleagues during a 1992 convention in Las Vegas. In 1996, stories of harassment and other sexual misconduct among drill instructors and new recruits came to light at the Army's Aberdeen Proving Ground, Md. And in October 1997, just a few months after VA's humiliating hearings, the Federal Aviation Administration faced similar oversight attention for sexual harassment charges against air traffic controllers.

But while VA is not alone in its sexual harassment troubles, the agency is unique in having been forced by law to reform the way it handles these problems. VA's experience, especially as it relates to the Calhoun case, contains valuable lessons for all agencies on how to educate employees about sexual harassment, design a credible complaint process and punish perpetrators. As one House staffer puts it, "The Calhoun case was an object lesson in how not to handle a case." Those lessons, along with two 1998 Supreme Court decisions that laid out specific actions employers can take to avoid liability in sexual harassment cases, provide agencies with an increasingly clear picture of their legal, moral and public responsibilities.

Anatomy of a Case

The Calhoun case sparked attention because it involved several allegations against a senior executive whose job it was to set the tone for a respectful, professional work environment. The case also highlighted a glaring conflict of interest built into VA's equal employment opportunity complaint system, which handles sexual harassment claims as well as racial, religious and other discrimination cases.

Each facility director served as the top EEO officer at a particular site, with the EEO managers and counselors who guided complainants through the process reporting to the director. In other words, the Fayetteville Five had to file their complaints with Calhoun himself. Nicholas Inzeo, deputy legal counsel for the Equal Employment Opportunity Commission, told House members at the April 1997 hearing, "The peculiar setup at the VA center . . . would appear to make that situation worse, where the EEO manager on site reports to, in this instance, the individual who was alleged to have discriminated."

Adding fuel to the fire, VA officials made several procedural errors in handling the case, including allowing someone to write a letter firing Calhoun without proper authority. Agency attorneys and human resources experts decided that VA should not push forward with a removal order. The chances were good, they said, that the agency would not prevail were Calhoun to appeal his dismissal to the Merit Systems Protection Board.

Rather than take that risk, VA officials negotiated a settlement in which Calhoun agreed to give up his senior executive status and transfer to a non-supervisory GS-14 position in Florida. Calhoun already had requested a transfer to Florida in anticipation of his upcoming retirement. Also as part of the deal, he kept his SES salary, which actually increased slightly to about $106,000 because of a cost-of-living adjustment. The maximum pay for a GS-14 at the time was $83,000.

VA officials believed this arrangement was the best they could achieve, given the circumstances. "The last thing I wanted was to go before the MSPB, have [the removal] reversed, have to pay all kinds of attorneys fees, maybe have to pay some other kind of monetary award, and put a person anywhere they wanted to go," VA Deputy Secretary Hershel Gober told the House panel in 1997. In similar testimony before the Senate, he added: "I think we rushed. . . . No doubt there was a hostile atmosphere down there. And we were concerned it would affect the treatment of veterans."

To the victims, VA's action against Calhoun seemed more like a reward than a penalty. In their view, they had suffered degrading harassment and mental anguish, while Calhoun received a de facto raise, got a less-taxing job and moved to the city of his choice. "When the accused is so obviously rewarded, where is the justice for the victims?" asked one of the Fayetteville employees during the Senate hearing. Many in Congress took the same view. "It appears that the VA has a 'Club Med' level of punishment for sexual harassment that is unacceptable," said Rep. Steve Buyer, R-Ind.

After VA's failed attempts at administrative solutions, Congress in November 1997 enacted a law requiring VA to centralize investigation and review of all EEO complaints, taking that power out of facility directors' hands. Mandating a specific EEO structure was a drastic measure. EEOC regulations generally give agencies great flexibility to design their own complaint systems. The law also required VA to significantly boost training on sexual harassment and ordered evaluations to be conducted by a third party.

Early indications suggest the new processes and added attention to prevention are starting to work. Sexual harassment complaints make up about 3.5 percent of VA's total EEO case inventory so far this fiscal year, down from 7.7 percent in fiscal 1997. "My impression is that it is a resolving situation-I do think things are better," says John Bradley, a Senate Veterans Affairs Committee staff member. "But it needs some more running time to see if that process can change a culture which was pretty ugly. We are watching this very, very closely."

House observers, too, are cautiously optimistic. "There is a sense that they are getting on the right track, but it remains to be seen if they're achieving the right results," a House staffer says, adding that the oversight subcommittee will follow the matter "for some time to come." At press time, the House had scheduled another round of hearings for the summer to assess the situation.

VA's Fixes

VA's new complaint system includes two core offices. The Office of Resolution Management (ORM), with 12 offices nationwide, counsels accusers at the pre-complaint stage in the hope of resolving conflicts so that formal complaints never have to be filed. ORM also investigates allegations of all types of discrimination, guides employees through the complaint process and oversees compliance with the agency's zero-tolerance policy. In addition, ORM uses multidisciplinary rapid-response teams to investigate serious allegations against senior managers as soon as they come to light, so that problems don't fester and escalate into a Fayetteville-like situation. The Office of Employment Discrimination Complaint Adjudication reviews formal complaints and makes final agency decisions.

The only direct role facility heads now play in the complaint process is cooperating with ORM investigations and, in the event that the adjudication office finds one of their subordinates guilty of sexual harassment, doling out the appropriate penalty. However, the directors still have general responsibilities for fostering a discrimination-free work environment.

The new approach represents a policy about-face, especially for such a large agency-second in size only to the Defense Department-which historically has been highly decentralized. This shift has been "a monumental change for the department," says Deputy Assistant Secretary Ventris Gibson, who heads ORM. "To have been totally decentralized for as long as we can remember, to now become a centralized organization in an environment where we're pushing decentralization [of various human resources functions]-it's certainly something to make you go 'Wow.' " Gibson was director of human resources at the Veterans Benefits Administration in 1997 when she was asked to lead a special investigation of the Calhoun case. She became ORM chief at its inception in February 1998.

It wasn't easy in the early stages, Gibson admits, noting that some facility directors resisted giving up authority. But she insists relations today are better. They're increasingly collaborative, she says, with facility directors and other senior managers starting to see the benefit of including EEO-and, indeed, the human resources factor-in broader management decisions such as those related to performance planning. "That was not how we did business in the past."

VA Secretary Togo West, who as Army Secretary steered the service through the Aberdeen aftermath, has reinforced Brown's zero-tolerance policy by vowing to hold managers accountable for infractions, Gibson says. He has also put a premium on staff training. Beginning in May, VA will certify that all 235,000 of its employees are trained on sexual harassment prevention every two years. Training will be done via live and video presentations, interactive computer programs and other means.

As an incentive to enforce the zero-tolerance policy, VA directors must reimburse ORM out of their budgets for investigations at their facilities. "If you're going to have high discrimination, you're going to pay a lot for the service," Gibson says. "If you really work on the front end to reduce and eradicate discrimination, then you will pay less."

Lingering Hurdles

Most VA employees and agency observers believe the independent EEO structure lends significantly more credibility to the complaint process. Removing "complaint resolution from the control of individual facilities has helped promote trust in the new system and the perception that ORM will administer the new system fairly and with integrity," concludes an evaluation report by consulting firm Booz-Allen & Hamilton. The report, "Assessment of the EEO Complaint Resolution System in the Department of Veterans Affairs," was sent to Congress last spring, as required by the 1997 legislation.

But not everyone likes the new system. "That optimism is not found with many of the supervisory employees, who expressed their concerns that ORM would be biased in favor of the complainant," the report says. Some supervisors also fear that the complete independence of the process from facility management, as well as ORM staff's unfamiliarity with a facility's culture, may slow the resolution process, according to the report. Gibson says concerns may ease as supervisors become more familiar with the new system. Aside from the centralized setup, "the reality is that ORM processes complaints based on [EEOC guidelines, the same way] they were processed in the past," she notes.

The Booz-Allen review found shortcomings in VA's sexual harassment training. The quality and content of training varies considerably across offices, the report says. "Thus, not all employees have equal access to EEO-related training." In such a decentralized agency, this inconsistency is not surprising, a House staffer says, adding that VA may need to standardize its training approach. Asked to respond to Booz-Allen's finding, Gibson simply said, "Training is determined locally."

Despite her high hopes for the program, Gibson's tenure in the EEO realm has armed her with realistic expectations. "Even as seriously as we take sexual harassment and as much as we [do to prevent it], there will on occasion be people, or a person, who will act inappropriately," she says. "But I believe that we now have the mechanisms in place, more firmly so than in the past, that will in fact focus and correct the behavior well ahead of how we did in the past."

Supreme Court Speaks

As Gibson and her staff were restructuring VA's EEO system last summer, the Supreme Court issued two decisions that raised the responsibility bar for all employers in sexual harassment cases. Faragher v. City of Boca Raton involved a woman lifeguard who had been groped by her supervisors. Even though the city had a sexual harassment policy, the fact that officials had not disseminated the policy to beach employees made them liable for the supervisors' behavior, the court said. "You've got to have [a policy], and you've got to let people know about it," notes Diana Veilleux, employment attorney with the Washington law firm of Shaw, Bransford, Veilleux & Roth.

Burlington Industries Inc. v. Ellerth involved a woman whose boss allegedly urged her to wear shorter skirts, inappropriately touched her and said she might not win a promotion because she wasn't "loose enough." Ellerth later got a promotion but quit because of the harassment and filed suit. In the court's view, Burlington may be held liable for the supervisor's behavior even though Ellerth's career did not suffer as a result of spurning the advances.

While these decisions make it clear that agencies can be held responsible for the behavior of their managers, they also spell out an "affirmative defense" for employers in cases where there has been no tangible employment action, such as a demotion or firing, associated with the alleged harassment. If employers can prove they "exercised reasonable care to prevent or correct promptly any sexually harassing behavior" and that the complainant "unreasonably failed to take advantage of any preventive or corrective opportunities," then they may escape liability.

In other words, agencies that have a credible sexual harassment policy and an effective complaint process, and that make sure all employees understand both, should be safe. At the same time, employees have an obligation to use counseling and other resources offered by the agency to remedy sexual harassment problems.

As an EEO professional, Gibson says she welcomed the decisions. "Just as we would not condone employees having a physical altercation in the workplace, we are responsible for ensuring that you work in an environment that is free of sexual harassment," she says. "Employees should not be touching each other, that's the bottom line. Employees should not be making unwelcome [comments] or physical gestures at people of a sexual nature. That type of behavior is unacceptable in the workplace. The employer is responsible for educating the population of employees and preventing it to the extent possible."

Preventing the problem isn't just the right thing to do from a legal or moral standpoint, but also from a management standpoint, Gibson adds. "Any sort of workplace dispute, including sexual harassment or discrimination, undermines the mission of the organization because it takes the victim away from focusing on patient care or processing veterans' claims or ensuring the compassionate and caring and appropriate burial of a veteran and sensitivity to his family," she notes. "It takes away from doing that job 100 percent."

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