This file was prepared for electronic distribution by the inforM staff. Questions or comments should be directed to inform-editor@umail.umd.edu. CHAPTER 1 Introduction The Merit Systems Protection Board's 1981 Report on Sexual Harassment Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets. -1 In 1979, in response to a congressional request, -2 the Merit Systems Protection Board initiated a "first of its kind" study on the nature and extent of sexual harassment in the Federal Government. In March 1981, MSPB released the report, "Sexual Harassment in the Federal Workplace: Is It a Problem?" In 1986 the Board decided to update that study under its legislative mandate to conduct special studies of the civil service and other merit systems in order to determine "whether the public interest in a civil service free of prohibited personnel practices is being adequately protected." -3 This report contains the results of that follow-up study, including relevant comparisons and contrasts with the major findings in the 1981 report. The 1988 Report on Sexual Harassment In updating the original study, the Board addressed many of the same issues raised in the 1981 report. In the present report, we compare the nature and extent of sexual harassment in the Federal Government by using two survey periods--May 1985 through May 1987 and May 1978 through May 198(). Since the data for each study were collected at the end of the 2-year period, throughout this report these data are referred to as our 1987 and 1980 sexual harassment data, respectively. This report highlights findings on both employee attitudes and employee experiences with uninvited behavior of a sexual nature. In this context, it examines employees' awareness of the remedies available to them and the effectiveness of those remedies. It also details the financial costs to the Government as well as the personal toll suffered by the victims of sexual harassment. In addition, this report discusses the Government's efforts to reduce sexual harassment since 1980. For example, we wanted to know: Have agencies continued to issue strong policy statements prohibiting sexual harassment? To what extent have managers, personnel and equal employment officers, and employees received adequate training to prevent sexual harassment? What remedies are available in agencies and are they effective? Finally, the report outlines some of the relevant case law that has developed over the last 7 years as the Board and the courts have put together a growing body of case law to enforce the legal prohibitions against sexual harassment. Sexual Harassment: The Development of an Issue We have had reports in this Committee of several instances where [sexual harassment] is happening and continues to happen... As one looks into it, one finds there is often denial and the ultimate result is that it is whitewashed and nothing happens, except the victim gets transferred while the individual in question remains. -4 Sexual harassment in the Federal workplace had largely been ignored when MSPB began its original research in 1979. At that time there was no clear under- standing of what constituted sexual harassment; there was no Governmentwide policy prohibiting it in the workplace; and there was no clear indication that it was an illegal activity under Federal law. Sexual discrimination, per se, in employment was prohibited under Title VII of the Civil Rights Act of 1964. The Civil Service Reform Act drew on the intent of Title VII, stating that one of the merit principles underlying the management of the Federal personnel system is, "All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition..." -5 More specifically, the Reform Act made it a prohibited personnel practice to discriminate on the basis of "race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964" -6 The Government has made substantial progress in setting policy prohibiting sexual harassment. On December 12, 1979, t.he Office of Personnel Management issued a Governmentwide policy statement defining sexual harassment and noting that the practice was considered unacceptable conduct. -7 Most Federal agencies immediately followed OPM's lead and issued individual policy statements. Many agencies also initiated training programs on what. constituted sexual harassment. and how to prevent it. On November 10, 1980, the Equal Employment Opportunity Commission issued guidelines declaring that sexual harassment was an unlawful employment practice.A With this clarification as a significant contributing factor, a number of Federal and private sector employees have filed complaints against their employers alleging sexual harassment. As a result, significant case law on sexual harassment has been developed over the last 7 years. Especially noteworthy is the US Supreme Court's June 19, 1986, ruling in its first sexual harassment case--Meritor Savings Bank, FSB v. Vinson, 106 S. Ct. 2399 (1986). This decision made it clear that sexual harassment can result from the hostile working environment that can be created by offensive behavior directed toward a person because of his or her gender. This and several other recent precedent-setting decisions on sexual harassment have further intensified public interest and concern about the issue. Clearly, the legitimacy of sexual harassment as an important social issue is no longer in question. The issue received a great deal of attention in the early 1980's and is again of major interest. Research Design The data in this report are based primarily on employee questionnaires distributed governmentwide in 1980 and 1987. To obtain trend data, the Board's 1987 questionnaire replicated many of the questions from the 1980 survey. The 1987 survey was sent to approximately 1.3,000 full-time permanent Federal employees during March 1987, and 8523 employees responded. The respondents form a representative cross-section of Federal employees. In addition, in December l986, a formal information request was sent to the heads of the 22 largest Federal departments and agencies to obtain relevant data on their institutional efforts to reduce sexual harassment. -9 The incidence data on sexual harassment contained in this report are based upon the number of respondents who indicated they had received uninvited and unwanted sexual attention. Thus the method of identifying victims was one of self-identification on the part of the respondents. It should also be noted that the term "sexual harassment" is defined differently by different people. OPM defined sexual harassment as 'deliberate or repeated unsolicited verbal comments, gestures or physical contact of a sexual nature which are unwelcome." EEOC expanded upon this definition by outlining the conditions under which such conduct would constitute sexual harassment. EEOC also noted that a determination of the legality of alleged sexually harassing conduct would be made from the facts, on a case-by-case basis. Since the EEOC guidelines were issued, the Board and the courts have developed a body of case law that provides further clarification as to what constitutes sexual harassment within a legal context. It should not be presumed that each reported incident of uninvited sexual attention meets the current legal definition of sexual harassment. It should also be noted, however, that whether a particular action or behavior constitutes sexual harassment depends not only on the intent of the individual taking the action but also on the perceptions and sensibilities of the individual(s) affected by that behavior. With regard to this latter portion of the sexual harassment issue--i.e., employee perceptions of different forms of uninvited sexual attention--this report provides some useful insights derived directly from the employees themselves. Description of Chapter Contents Chapter 1: Introduction. Chapter 2: The Nature and Extent of Sexual Harassment in the Federal Workplace. This chapter presents the Board's findings on the extent of sexual harassment in 1987 compared with 1980 and discusses how employees view various uninvited behaviors of a sexual nature. Chapter 3: Employee Responses to Sexual Harassment. This chapter examines what employees think are the most effective ways of dealing with sexual harassment at work. It also reviews what actions employees have actually taken in response to sexual harassment on the job and discusses the formal actions that can be taken and the effects of those actions. Chapter 4: Agency Actions to Reduce Sexual Harassment. This chapter looks at actions agencies have taken since 1980 in an effort to reduce sexual harassment. Chapter 5: The Cost of Sexual Harassment. In this chapter we examine how much sexual harassment costs the Federal Government. The estimate is derived by calculating the cost of replacing employees who leave their jobs as a result of sexual harassment, of paying sick leave to viclims who misx work as a consequence, and of reduced individual and work group productivity. Chapter 6: The Legal Imperative to Prevent Sexual Harassment: A Review of Case Law. This is a summary of the precedent-setting cases on sexual harassment over the last 7 years, including a recent Supreme Court decision. Chapter 7: Recommendations. In this chapter we report our conclusions and offer recommendations to agencies and to Federal employees on how they can attempt to reduce sexual harassment. NOTES 1. Henson v City of Dundee, 682 F2d 897, 902 (11th Cir. 1982). 2. See "Sexual Harassment in the Federal Government," Hearing Before the Subcommittee on Investigations, House Committee on Post Office and Civil Service, 99th Congress, 2d session (1979). 3. 5 U.S.C. 1205(a)(3). 4. "Treasury, Postal Sevice and General Government Appropriations for Fiscal Year 1987," Hearings Before a Subcommittee of the Committee on Appropriations, US House of Representatives, 99th Congress, 2d session, Statement by Congressman Edward R. Roybalm Chairman (1986). 5. 5 U.S.C. 2301(b). 6. 5U.S.C. 2302(b)(1)(A). 7. Office of Personnel Management Memorandum to Heads if Departments and Independent Agencies, "Policy Statement and Definition on Sexual Harassment," Dec. 12, 1979. 8. Equal Employment Opportunity Commission Guidelines on Discrimination Because of Sex, 29 C.F.R 1604. 9. A copy of the 1987 questionnaire is included in this report as appendix 1.