Everything wasn’t civil within the Civil Division of the Justice Department.
For an agency filled with lawyers familiar with handling evidence and detailing investigations, the agency’s management of sexual harassment and misconduct cases was surprisingly sloppy, according to the department’s Office of Inspector General (OIG).
While the number of documented harassment cases is not great, “we identified significant weaknesses in the Civil Division’s tracking, reporting, and investigating of the 11 sexual harassment and misconduct allegations that we reviewed” during fiscal 2011-2016, the report said, “as well as inconsistencies among penalties imposed for substantiated allegations.”
In one case, a male attorney allegedly spied on two female lawyers while they pumped breast milk. “The investigation into the allegation consisted of the male attorney’s supervisor speaking with him,” according to the report. “Thereafter, his supervisor accepted the male attorney’s explanation of the incident as an honest mistake and imposed on him an informal disciplinary action of oral counseling.”
There are examples of lower-level workers being punished more harshly than upper-level officials for similar offenses. In some situations, the offenders were “flushed” to other offices, like a pedophile priest assigned to a new parish — a practice known as “pass the trash.”
Three cases from the report illustrate the problems.
- A senior supervisory lawyer groped the breasts and rears of two female attorneys at an office happy hour. The same lawyer, who also made unwelcome sexual and offensive comments, previously was reprimanded in writing and punished with a lesser title for sending sexual emails to co-workers.
The senior attorney moved to another office within the department, but his new supervisors were not told of his conduct. “He received no suspension or loss in pay or grade, despite the prior misconduct and the seriousness of the second incident, with the deciding official commenting that a suspension ‘would unnecessarily deprive the government of [the senior official’s] litigating services.’ ”
This case involved potential criminal assault charges, but it was not referred to outside law enforcement authorities. OIG said the case demonstrates poor decision-making and “an inadequate appreciation” of the department’s zero-tolerance policy.
- A senior attorney admitted stalking another lawyer and hacking into her personal email. The senior official did a “catfishing” operation, meaning he used a fake online persona in an attempt to lure the victim into a relationship. Again, no suspension or loss in pay or grade, but he did get a written reprimand, a lesser title and was restricted for one year from the facility where his victim worked. Though there were potential criminal implications, referral was not made for possible prosecution.
- A mid-level staffer, grade GS-9, received a letter of admonishment after making inappropriate comments about a female colleague’s body. The letter did not constitute formal discipline and did not go into his file.
Yet, while the actions of the GS-9 “was significantly less flagrant than the misconduct” of the lawyers, both GS-15s, “the disciplinary response in this case was only slightly less severe than the penalties imposed in those cases,” the report said. This raises the risk that “the Civil Division may impose less severe penalties for substantiated cases of sexual harassment and misconduct for high-performing employees.”
Not only that, the harassers in cases A and B subsequently received performance awards.
This sent a message — sexual misconduct will be lightly punishment and some of the guilty will be rewarded.
“What is alarming about the Civil Division and what rings true for the entire labor force is the lack of accountability for individuals committing acts of sexual misconduct due to the absence of punitive procedures,” said Wanda Killingsworth, president of Federally Employed Women. “Without any internal system to protect employees from sexual harassment the fight to effectively combat workplace sexual harassment is directly inhibited and the current report on the Department of Justice just proves that lack of awareness is a breeding ground for abuse.” The division’s cases, she added, “are not unique to any single agency, but nonetheless present in many sectors of the workforce.”
Another consequence is that sexual misconduct can negatively affect far more than the targeted victim by creating “a hostile work environment, lower productivity and morale, and diminish an agency’s reputation and credibility,” Deputy Inspector General Rob Storch said in a podcast.
A central finding, he added, “was that the Civil Division does not consistently or effectively track, record, or maintain adequate information on allegations of sexual harassment and misconduct. For example, case files were maintained only in hard copy, the content of those files was inconsistent, and the Civil Division relied on the memory of one human resources officer to track all allegations of misconduct.”
While the report focused on one division, a memo from Inspector General Michael Horowitz to Deputy Attorney General Rod J. Rosenstein said the findings indicate the department should “assess the handling of sexual harassment and misconduct allegations across all components.”
In response to the report, Rosenstein said “it is fortunate that there are relatively few substantiated incidents of sexual harassment, but even one incident is too many. We will review the Inspector General’s recommendations and consider whether additional guidance is required to ensure that all misconduct allegations are handled appropriately, in support of our goal of a workplace in which everyone is treated fairly.”
The department agreed with the OIG’s recommendations to track sexual misconduct allegations, report allegations to the appropriate offices, develop consistent penalty guidelines and consider guidance on performance awards to those under investigation or recently disciplined for misconduct.
Previously, the report concluded, the division did not respond to sexual harassment and misconduct allegations “in a manner that would successfully eliminate such misconduct from the workplace.”