Sexual Harrassment

I am not sure what you mean by "sexual harrassment" and "acted inappropriately." I do not know of any regulations or decisions off hand and I haven't looked for any.

My practical (not legal) advice is that if you are talking about a contract with an individual, and if you do not want that person around any longer, then terminate the contract for convenience. Termination for default is likely to be unpleasant, uncertain, and may end up being costly. If you go to court and lose, then the government will have breached the contract.

T for C will be relatively fast and easy. The cost of a T for C is not likely to amount to much if you're talking about a contract with an individual and, in any case, is likely to be less than the cost of a T for D. Among other things, you won't need a lot of ugly personal documentation and testimony. Just write a memo explaining the situation in noncommittal terms and say that the CO decided that it would be best for all involved to end the relationship.

Be careful about what you say in any past performance rating. Stick to facts that you can prove.

And the proper word is precedent, not "precidence" or precedence.

IMO it's prudent to seek advice from your legal advisor. Depending on the severity of the contractor's conduct, other types of actions may be warranted, such as in informal inquiry or investigation. Although this forum by its nature would most likely provide you a contractual remedy the legal advisor may opine other courses of action not found in contract law.

August - The matter is very serious. For the protection of all parties concerned this has to be handled properly. T4D/T4C might be the end result but the first steps I would take if I were you are as follows.

I would contact the Department of Labor, the Employment Standards Administration's Office of Federal Contract Compliance Programs (OFCCP) for appropriate advice and suggested actions. This is DOL's area and they should be your go to source for advice and counsel.

I would also advise the offended Federal employee that they may have recourse through the Federal EEO process if the contractor is classified as a "contingent worker" and let the employee decide on their own as to whether this is a route they want to take.

I would advise the contractor of the allegations and the steps being taken regarding the matter.

While I do not entirely disagree with Charles and Carl, I say this:

First, the COs primary concern is the contract, the contractual relationship, and the requisite contractual action, not "other types of actions."

Second, I would not advise the offended employee to do anything. However, I would refer them to the agency personnel office.

Third, what I would tell the contractor depends on what I know, but I would be very careful in that regard. If the offended employee has filed a formal complaint, and if I have been given official notice of the complaint, I would tell the contractor that I have received such notice, but I would provide no details, referring them instead to the office that is handling the complaint for any additional information they may want. The problem is more delicate if the offended employee has complained to me or to the COR, but has not filed a formal complaint. I would talk to legal and ask for advice, but I would say nothing until I have been so advised.

Fourth, I would not contact the Department of Labor unless (1) legal tells me that the issue is covered by the contract, (2) a formal complaint has been filed with the appropriate office, and (3) the contract, FAR, or my agency supplement tells me to contact the Department of Labor.

Fifth, I would do absolutely nothing based solely on word of mouth.

Post deleted...subsequent post corrects information I provided based on further research.

A protracted debate on such a serious matter without all the facts and actions to date is just guess work on my part. My concern and suggested advice is based the limited information in the post and my experience of dealing with such matters specific to a contract and as a trained EEO counselor for an agency. Admittedly experience as a EEO counselor is from many years ago but the processes of EEO as related to the EEOC and OFCCP have not changed drastically. My experience suggests that general agency legal counsel will not be as well versed in matters of EEO as either an EEO office or the OFCCP. Some may find the following support to my advice to be weak but I do want to note that the EEO poster to be placed at a Federal worksite references both EEOC and OFCCP as the contacts for issues related to EEO not ?legal counsel?.

I am bailing out of this discussion and will let my suggested actions stand.

Under Title VII of the Civil Rights Act, the organization could be held liable for sexual harassment if it continues to allow a hostile environment exist, even though the alleged harassment is by an outside entity or outside person. It would behoove the supervisor to contact the EEO office and the COR or KO to have direct discussion with the offending contractor ASAP to stop the behavior.

.

So, now we have a layman, not a lawyer, telling us about Title VII of the Civil Rights Act. This is exactly the kind of thing that worries me. How do we know that there was an "offending contractor"? We don't know what happened. We don't know where it happened. We do not know whether there has been a complaint from an offended person or from somebody who witnessed something or part of something that they did not fully understand. Should we ask the contractor employee for his or her side? If we do, what do we do with that information?

Many years ago, I taught a class at a government training facility. On one occasion I used the word "ejaculation" in class, not with reference to sexual activity, but to a word uttered suddenly, like "Yikes!" Some young women in the class were in the club that night, giggling about it. Some guy who teaches classes overheard them and called the agency to say that I had engaged in inappropriate sexual speech. Fortunately, the chief of the contracting office was also in the class, had witnessed my comment, and knew the full context. The agency told the jackass to get lost.

Sexual harrassment is a serious charge. It can ruin a career. COs should not overreact. Let qualified people handle the matter. Don't call outside your agency or read the riot act to anyone until you know the facts and have been given legal advice and higher-level instruction. If a COR witnesses what he or she consider to be inappropriate behavior, they should take note and report what they heard or saw to cognizant officials within their agency. They should not intervene unless immediate intervention is necessary to protect someone.

Don't take it upon yourself to destroy someone. Report what you know and let qualified officials handle the matter. Remember, it could happen to you.

So, now we have a layman, not a lawyer, telling us about Title VII of the Civil Rights Act. This is exactly the kind of thing that worries me. How do we know that there was an "offending contractor"? We don't know what happened. We don't know where it happened. We do not know whether there has been a complaint from an offended person or from somebody who witnessed something or part of something that they did not fully understand. Should we ask the contractor employee for his or her side? If we do, what do we do with that information?

Many years ago, I taught a class at a government training facility. On one occasion I used the word "ejaculation" in class, not with reference to sexual activity, but to a word uttered suddenly, like "Yikes!" Some young women in the class were in the club that night, giggling about it. Some guy who teaches classes overheard them and called the agency to say that I had engaged in inappropriate sexual speech. Fortunately, the chief of the contracting office was also in the class, had witnessed my comment, and knew the full context. The agency told the jackass to get lost.

Sexual harrassment is a serious charge. It can ruin a career. COs should not overreact. Let qualified people handle the matter. Don't call outside your agency or read the riot act to anyone until you know the facts and have been given legal advice and higher-level instruction. If a COR witnesses what he or she consider to be inappropriate behavior, they should take note and report what they heard or saw to cognizant officials within their agency. They should not intervene unless immediate intervention is necessary to protect someone.

Don't take it upon yourself to destroy someone. Report what you know and let qualified officials handle the matter. Remember, it could happen to you.

My response is based upon my yearly Army training in Prevention of Sexual Harassment. I was an Army supervisor for over 20 years and recieved yearly POSH refresher training and still recieve it as a rehired annuitant. I dont know what your current background is and dont really care.

If a supervisor becomes aware of complaints by his/her employees that an outside person, such as a contractor or client, is acting inappropriately as to cause a "hostile work environment" (you can read the laws yourself), they must take some quick action to stop the offensive behavior. They should contact the organization's EEO office - as I stated - for guidance. In addition, whomever is responsible to oversse the activities of the alleged "violator" should talk to the person ASAP and advise them that their behavior is offensive to various government employees, is unacceptable in the office and advise them to cease immediately. That is the minimum action required.

If the office allows the behavior to continue, the employees pusue an official sexual harassment complaint and some jurisdiction ultimately agrees that sexual harassment has and/or is still on-going, the agency may be held liable. Their supervisor and the pertinent contracting officials might all be disciplined or admonished for allowing this to occur and for doing nothing to stop it. Note that offensive behavior is in the eyes of the receiver, regardless of the intent or whether it technically qualifies as sexual harassment.

I assume here that the contracting office is trying to do something about it. Good. I hope that they have spoken with the alleged violator.

Bottom line is that, under the law, sexual harassment in the workplace can be caused by other than the victim's employer or co-workers. It can be caused by outside individuals, such as client, visitors or by contractors where such behavior affects the quality or environment of the workplace. Employers are responsible to not allow such objectionable behavior to continue.

I wont advise the contracting office beyond that.

Many years ago, I taught a class at a government training facility. On one occasion I used the word "ejaculation" in class, not with reference to sexual activity, but to a word uttered suddenly, like "Yikes!" Some young women in the class were in the club that night, giggling about it. Some guy who teaches classes overheard them and called the agency to say that I had engaged in inappropriate sexual speech. Fortunately, the chief of the contracting office was also in the class, had witnessed my comment, and knew the full context. The agency told the jackass to get lost.

"Many years ago", one of the women in my office gave me a sketch to help emphasize a point I was trying to make in a class. I was teaching classes in cost analysis of construction contract proposals for preparation of price negotiation objectives. The point was related to eliminating ambiguities. When viewed upright, one could see a beautiful princess; when turned upside down, the sketch was of an ugly hag. The women in the office "all" thought it would be a great attention getter so I used it. During the subsequent break in one session, two female attendees approached me to say that I had offended them - that I was equating success with female beauty and failure with a homely female. They said that they would file a complaint with the Corp's training office. Well, I was really flabergasted and humbled by their complaint, as I had no intention of belittling anyone. I apologized and said that I wouldnt repeat showing the slide.

I altered the slide to show an ugly man vs. the princess, used it for 10 more years and never recieved another complaint. I now have newer, better examples to use, but I saw the original slide a couple of years ago in an email, so it is still out there. At any rate, when I got back to the office after that session, all my female employees were shocked that someone had gotten uptight about the slide. But the damage had been done and my awareness of the sensitivity of certain images to some people was greatly increased.

My response is based upon my yearly Army training in Prevention of Sexual Harassment. I was an Army supervisor for 17 years and recieved yearly POSH refresher training and still recieve it as a rehired annuitant.

And that annual training satisfied a regulatory requirement for annual training. It does not qualify you to give CONTRACTING advice about such matters.

"Many years ago", one of the women in my office gave me a sketch to help emphasize a point I was trying to make in a class. I was teaching classes in cost analysis of construction contract proposals for preparation of price negotiation objectives. The point was related to eliminating ambiguities. When viewed upright, one could see a beautiful princess; when turned upside down, the sketch was of an ugly hag. The women in the office "all" thought it would be a great attention getter so I used it. During the subsequent break in one session, two female attendees approached me to say that I had offended them - that I was equating success with female beauty and failure with a homely female. They said that they would file a complaint with the Corp's training office. Well, I was really flabergasted and humbled by their complaint, as I had no intention of belittling anyone. I apologized and said that I wouldnt repeat showing the slide.

I altered the slide to show an ugly man vs. the princess, used it for 10 more years and never recieved another complaint. I now have newer, better examples to use, but I saw the original slide a couple of years ago in an email, so it is still out there. At any rate, when I got back to the office after that session, all my female employees were shocked that someone had gotten uptight about the slide. But the damage had been done and my awareness of the sensitivity of certain images to some people was greatly increased.

And that story proves my point.

And that annual training satisfied a regulatory requirement for annual training. It does not qualify you to give CONTRACTING advice about such matters.

"Employers are responsible to not allow such objectionable behavior to continue." I'll stand by that and it includes those who hire government contractors when the contract employee interacts with government employees.

In addition, whomever is responsible to oversse the activities of the alleged "violator" should talk to the person ASAP and advise them that their behavior is offensive to various government employees, is unacceptable in the office and advise them to cease immediately. That is the minimum action required.

The person responsible to oversee the activities of the accused is the contractor employee's supervisor, NOT the CO or the COR. The CO oversees the activities of the contractor and speaks only to the contractor's representative.

I assume here that the contracting office is trying to do something about it. Good. I hope that they have spoken with the alleged violator.

I hope that they have not spoken to the alleged violator, but to the contractor's representative.

Bottom line is that, under the law, sexual harassment in the workplace can be caused by other than the victim's employer or co-workers. It can be caused by outside individuals, such as client, visitors or by contractors where such behavior affects the quality or environment of the workplace. Employers are responsible to not allow such objectionable behavior to continue.

You are not an attorney and you are not qualified to say what the law requires in this situation, but that is exactly what you are doing.

"Employers are responsible to not allow such objectionable behavior to continue." I'll stand by that and it includes those who hire government contractors when the contract employee interacts with government employees.

Emphasis added.

Prove that. Show us the law.

Emphasis added.

Prove that. Show us the law.

Sorry for the delay. Wife installed new computer and we had to reinstall the Internet to the wireless router.

See : http://edocket.access.gpo.gov/cfr_2009/jul...9cfr1604.11.htm

"[Code of Federal Regulations]

[Title 29, Volume 4]

[Revised as of July 1, 2009]

From the U.S. Government Printing Office via GPO Access

[CITE: 29CFR1604.11]

[Page 198]

TITLE 29--LABOR

CHAPTER XIV--EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

PART 1604_GUIDELINES ON DISCRIMINATION BECAUSE OF SEX--

Table of Contents

Sec. 1604.11 Sexual harassment.

(a) Harassment on the basis of sex is a violation of section 703 of

title VII. \1\ Unwelcome sexual advances, requests for sexual favors,

and other verbal or physical conduct of a sexual nature constitute

sexual harassment when (1) submission to such conduct is made either

explicitly or implicitly a term or condition of an individual's

employment, (2) submission to or rejection of such conduct by an

individual is used as the basis for employment decisions affecting such

individual, or (3) such conduct has the purpose or effect of

unreasonably interfering with an individual's work performance or

creating an intimidating, hostile, or offensive working environment....

(e) An employer may also be responsible for the acts of non-

employees, with respect to sexual harassment of employees in the

workplace, where the employer (or its agents or supervisory employees)

knows or should have known of the conduct and fails to take immediate

and appropriate corrective action. In reviewing these cases the

Commi'ssion will consider the extent of the employer's control and any

other legal responsibility which the employer may have with respect to

the conduct of such non-employees.

(f) Prevention is the best tool for the elimination of sexual

harassment. An employer should take all steps necessary to prevent

sexual harassment from occurring, such as affirmatively raising the

subject, expressing strong disapproval, developing appropriate

sanctions, informing employees of their right to raise and how to raise

the issue of harassment under title VII, and developing methods to

sensitize all concerned."

SEE: http://www.eeoc.gov/eeoc/publications/fs-sex.cfm

"Facts About Sexual Harassment

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

* The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.

* The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.

* The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.

* Unlawful sexual harassment may occur without economic injury to or discharge of the victim.

* The harasser's conduct must be unwelcome.

It is helpful for the victim to inform the harasser directly that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available."

SEE: http://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964

"In the late 1970s courts began holding that sexual harassment is also prohibited under the Act. Chrapliwy v. Uniroyal is a notable Title VII case relating to sexual harassment that was decided in favor of the plaintiffs. In 1986 the Supreme Court held in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that sexual harassment is sex discrimination and is prohibited by Title VII. Same-sex sexual harassment has also been held in a unanimous decision written by Justice Scalia to be prohibited by Title VII (Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), 118 S.Ct. 998). Title VII has been supplemented with legislation prohibiting pregnancy, age, and disability discrimination (See Pregnancy Discrimination Act of 1978, Age Discrimination in Employment Act,[33] Americans with Disabilities Act of 1990)."

Sorry for the delay. Wife installed new computer and we had to reinstall the Internet to the wireless router.

See : http://edocket.access.gpo.gov/cfr_2009/jul...9cfr1604.11.htm

"[Code of Federal Regulations]

[Title 29, Volume 4]

[Revised as of July 1, 2009]

From the U.S. Government Printing Office via GPO Access

[CITE: 29CFR1604.11]

[Page 198]

TITLE 29--LABOR

CHAPTER XIV--EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

PART 1604_GUIDELINES ON DISCRIMINATION BECAUSE OF SEX--

Table of Contents

Sec. 1604.11 Sexual harassment.

(a) Harassment on the basis of sex is a violation of section 703 of

title VII. \1\ Unwelcome sexual advances, requests for sexual favors,

and other verbal or physical conduct of a sexual nature constitute

sexual harassment when (1) submission to such conduct is made either

explicitly or implicitly a term or condition of an individual's

employment, (2) submission to or rejection of such conduct by an

individual is used as the basis for employment decisions affecting such

individual, or (3) such conduct has the purpose or effect of

unreasonably interfering with an individual's work performance or

creating an intimidating, hostile, or offensive working environment....

(e) An employer may also be responsible for the acts of non-

employees, with respect to sexual harassment of employees in the

workplace, where the employer (or its agents or supervisory employees)

knows or should have known of the conduct and fails to take immediate

and appropriate corrective action. In reviewing these cases the

Commi'ssion will consider the extent of the employer's control and any

other legal responsibility which the employer may have with respect to

the conduct of such non-employees.

(f) Prevention is the best tool for the elimination of sexual

harassment. An employer should take all steps necessary to prevent

sexual harassment from occurring, such as affirmatively raising the

subject, expressing strong disapproval, developing appropriate

sanctions, informing employees of their right to raise and how to raise

the issue of harassment under title VII, and developing methods to

sensitize all concerned."

SEE: http://www.eeoc.gov/eeoc/publications/fs-sex.cfm

"Facts About Sexual Harassment

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

* The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.

* The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.

* The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.

* Unlawful sexual harassment may occur without economic injury to or discharge of the victim.

* The harasser's conduct must be unwelcome.

It is helpful for the victim to inform the harasser directly that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available."

SEE: http://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964

"In the late 1970s courts began holding that sexual harassment is also prohibited under the Act. Chrapliwy v. Uniroyal is a notable Title VII case relating to sexual harassment that was decided in favor of the plaintiffs. In 1986 the Supreme Court held in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that sexual harassment is sex discrimination and is prohibited by Title VII. Same-sex sexual harassment has also been held in a unanimous decision written by Justice Scalia to be prohibited by Title VII (Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), 118 S.Ct. 998). Title VII has been supplemented with legislation prohibiting pregnancy, age, and disability discrimination (See Pregnancy Discrimination Act of 1978, Age Discrimination in Employment Act,[33] Americans with Disabilities Act of 1990)."

SEE: http:http://www.bc.edu/bc\_org/avp/law/lwsch/journals/bclawr/42\_2/05\_TXT.htm for discussion as to whether a supervisor may be held personally liable under Title VII of the Civil Rights Act for sexual harassment under the "hostile environment" scenarios.

Regardless, if the employer has rules regarding POSH - and I think all federal government agencies do - the agency can discipline or admonish the supervisors or other personnel for allowing this behavior to continue, once it comes to their attention that it is going on.

The person responsible to oversee the activities of the accused is the contractor employee's supervisor, NOT the CO or the COR. The CO oversees the activities of the contractor and speaks only to the contractor's representative.

I hope that they have not spoken to the alleged violator, but to the contractor's representative.

You are not an attorney and you are not qualified to say what the law requires in this situation, but that is exactly what you are doing.

Vern, I suggest re-reading the original post. The contractor is a sole proprietor. I'm probably not qualified to interpret that post. However, I think it meant that the contractor employee's supervisor is the employee himself.

So yes, absolutely, definitely, undeniably speak with the contractor's supervisor and let him or her know that the employee's conduct is unacceptable. I'm glad we two non-attornies can agree on this point. In fact, if the original poster has access to an attorney or EEO office, I suggest they consult with them first.

Joel:

If only you would learn to be more careful about the advice you give.

The point that I asked you to prove was your assertion that the contracting officer is responsible for preventing a hostile workplace:

[That responsibility] includes those who hire government contractors when the contract employee interacts with government employees.

Your lengthy quote does not prove your assertion. I say that the relationship between the Government and a contractor is not employer-employee, it is contractual. The contracting officer is responsible for enforcing the terms of the contract. When a contractor employee is accused of sexual harassment, several procedural issues arise, two of which are critically important.

The first issue is whether the accusation is true. I say that the CO should rely on the findings of qualified officials for that determination. Pending such a determination, the CO should do no more than tell the contractor's representative to remove the employee from the jobsite. Government service contracts should include a clause that permits the Government to make such a demand without explanation, but if an explanation is necessary, the CO should be very careful about what he or she discloses and seek legal advice in that regard. The CO should not accuse the employee of anything. The CO should point out that the removal demand is for the protection of both the Government and the contractor. The CO must be very careful if the complaint is informal or word-of-mouth, in which case the CO does not know the truth of anything and must not accuse the employee of anything on that basis. The CO or COR should absolutely not approach the contractor employee in an attempt to "counsel" that person or seek their side of the story.

If the accusation is found to have merit, the second issue is what further action should the CO take. Unless the contract provides otherwise, the CO may have to provide an explanation. There are privacy issues, so he or she should seek legal advice about how much can be disclosed to the contractor. The CO should be careful about demanding that the contractor take any further action, since any such demand might properly be construed as a change to the contract obligating the Government to cover the contractor's costs. Any demands for a cure should be given in writing, worded very carefully, and submitted for legal review before transmission to the contractor.

I don't need to re-read the original post. I gave a practical response to it in Post #2 without going off the deep end about Title VII of the Civil Rights Act, quoting at insufferable length and irrelevantly from 29 CFR, or telling anyone to "have direct discussion with the offending contractor ASAP to stop the behavior" or to "discipline or admonish" contractor personnel. Besides, if the contractor employee has, in fact, engaged in improper behavior, why "admonish" them? Why would you want to keep them around under any circumstances? In the case of the contractor mentioned in the original post, the best way to do that would be to terminate the contract for convenience.

Knowledgeable contracting practitioners know that Government service contracts are usually nonpersonal services contracts, and that the relationship between the parties is contractual, not employer-employee. They know better than to "talk to the [accused] person ASAP and advise them that their behavior is offensive to various government employees, is unacceptable in the office and advise them to cease immediately." They know better than to "discipline or admonish" contractor personnel, as have you suggested. They know to act prudently and contractually and within the bounds of their qualifications and authority.

Now, I've said what I have to say. I'll trust the readers to decide who has taken the more sound and prudent position in this matter.

August,

If I were you, I would set up a meeting with my customer, my contracts attorney, and my customer's labor law attorney. Your customer is potentially at some risk here, and you may be able to help mitigate that risk. Point your legal team to 29 CFR 1604.11(e) [Thanks Joel] and Lori A. Tetreault, Liability of employer, under Title VII of Civil Rights Act of 1964 for sexual harassment of employee by customer, client, or patron, 163 A.L.R. Fed. 445, which discusses employer liability for the harassment of independent contractors.

While T4C may be the way to go, look for other requirements of the contract. For instance, sexual harassment by independent contractors often comes up in the health care arena, where the credentialing function, expressly required in the contract, often prohibits unwelcome sexual advances. (While contract physicians are often personal service contractors, this would apply under even a non-personal services contract.)

I'm sure that the labor law attorney will welcome the reference to 29 CFR and a law review article from a CO. The the CO will have done well to have read the FAR and the contract that he signed.

August, don't bother boning up on the law of sexual harassment, unless you are interested for other reasons. Have the meeting that Jacques suggests and get advice, but don't tell the labor law attorney what to read. Remember that your responsibility is to ensure compliance with the terms of the contract. Other officials of the agency will tell you what must be done in order to protect the agency from a hostile work environment accusation.

I will tell you that if a Government employee has made such a complaint, it is doubtful that the contractor employee can be kept around. It has been my experience as a Federal manager that once these things start the only way to stop them is to separate the parties. That's hard when both parties are Government employees, because both employees are entitled to protection and due process. That is why the Government's EEO process is so cumbersome. It's also hard when the accused person is a Government employee and a contractor employee is the victim. (There is a lot of case law about that situation.) It's much easier when the accused is a contractor employee, because they usually can be removed upon request and without explanation, But it is not necessary to make unsubstantiated accusations in order to remove the accused.

Joel:

If only you would learn to be more careful about the advice you give.

The point that I asked you to prove was your assertion that the contracting officer is responsible for preventing a hostile workplace:

Your lengthy quote does not prove your assertion. I say that the relationship between the Government and a contractor is not employer-employee, it is contractual. The contracting officer is responsible for enforcing the terms of the contract. When a contractor employee is accused of sexual harassment, several procedural issues arise, two of which are critically important.

The first issue is whether the accusation is true. I say that the CO should rely on the findings of qualified officials for that determination. Pending such a determination, the CO should do no more than tell the contractor's representative to remove the employee from the jobsite. Government service contracts should include a clause that permits the Government to make such a demand without explanation, but if an explanation is necessary, the CO should be very careful about what he or she discloses and seek legal advice in that regard. The CO should not accuse the employee of anything. The CO should point out that the removal demand is for the protection of both the Government and the contractor. The CO must be very careful if the complaint is informal or word-of-mouth, in which case the CO does not know the truth of anything and must not accuse the employee of anything on that basis. The CO or COR should absolutely not approach the contractor employee in an attempt to "counsel" that person or seek their side of the story.

If the accusation is found to have merit, the second issue is what further action should the CO take. Unless the contract provides otherwise, the CO may have to provide an explanation. There are privacy issues, so he or she should seek legal advice about how much can be disclosed to the contractor. The CO should be careful about demanding that the contractor take any further action, since any such demand might properly be construed as a change to the contract obligating the Government to cover the contractor's costs. Any demands for a cure should be given in writing, worded very carefully, and submitted for legal review before transmission to the contractor.

I don't need to re-read the original post. I gave a practical response to it in Post #2 without going off the deep end about Title VII of the Civil Rights Act, quoting at insufferable length and irrelevantly from 29 CFR, or telling anyone to "have direct discussion with the offending contractor ASAP to stop the behavior" or to "discipline or admonish" contractor personnel. Besides, if the contractor employee has, in fact, engaged in improper behavior, why "admonish" them? Why would you want to keep them around under any circumstances? In the case of the contractor mentioned in the original post, the best way to do that would be to terminate the contract for convenience.

Knowledgeable contracting practitioners know that Government service contracts are usually nonpersonal services contracts, and that the relationship between the parties is contractual, not employer-employee. They know better than to "talk to the [accused] person ASAP and advise them that their behavior is offensive to various government employees, is unacceptable in the office and advise them to cease immediately." They know better than to "discipline or admonish" contractor personnel, as have you suggested. They know to act prudently and contractually and within the bounds of their qualifications and authority.

Now, I've said what I have to say. I'll trust the readers to decide who has taken the more sound and prudent position in this matter.

Vern, my advice was directed to the situation at hand. The employee IS THE CONTRACTOR.

Obviously the KO or COR must ascertain the relative facts - that is a no brainer. You have simply decided that the employer must be told to remove himself from the jobsite. Then what? There is no contractor.

I didn't go that far.

The contract should require that the contractor comply with laws and rules . The KO and COR should require compliance with the organization's rules against harassing employees or acting in a way that creates a hostile working environment for others in the office. I never said that the contractor violated Title VII of the Civil Rights Act.

The government officials should, as a minimum, discuss the unacceptable behavior with this person and advise that it must stop - immediately. The concerned government employees' supervisor needs to do his or her job. They need to contact the EEO office for advice.

This isn't legal advice . The EEO office consults with lawyers but they were not lawyers in my organization.

Whether they need to go beyond this depends upon more information than I have.

The government officials should, as a minimum, discuss the unacceptable behavior with this person and advise that it must stop - immediately.

A CO absolutely should not do that, unless and until advised to do so by people who know what they are doing. For one thing, it assumes that the accusation is true, which might not be the case. For another thing, it might disclose the identity of the person making the complaint, which might not be appropriate for a CO to do.

August asked if he could T4D. I answered that if the agency wants to get rid of the contractor, the better way to go would be T4C. I did not go into all the EEO business that you and others have immersed yourselves in. What August does for a replacement contractor after termination is not my concern, since he did not ask about that. Poor August. He comes with a simple question and he gets the Wifcon over-the-top treatment. including incredibly bad advice from you, Joel. Why is it that some of you guys cannot just answer a question without going further than you need to go or are qualified to go? What is up with that? Title VII, for Pete's sake.

It doesn't matter that the accused is the contractor. The same rules apply. If I were notified of a formal complaint, i would make no accusation and would not admonish anybody. If it were necessary to keep the contractor around, I would take a formal, contractual approach. I would tell the contractor what my lawyer told me that I could and should tell them. I would not give a sexual harassment lecture. I would instruct the contractor about what I want him or her to do or to refrain from doing pending the outcome of the investigation.

If a person came into my office to complain that he or she had been harassed by a contractor employee, and had not filed an official complaint, I would tell them that I will contact the legal office and the EEO office for advice. I would suggest that they consider doing the same. I would make it clear that my authority is strictly contractual and that I would rely on instructions from other officials. I would notify my boss. I would not tell the contractor anything until I had been advised by cognizant officials about what I could tell them. I would confirm all oral instructions from the cognizant officials in writing. Pending further instructions, I would separate the parties, if possible. and keep my eye on the situation in order to be sure that they remained separated or were never alone together.

I would not read the Civil Rights Act, 29 CFR, or law review articles.

Quote: 'Vern Edwards' date='Oct 12 2010, 08:19 AM' post='7038']

"...The point that I asked you to prove was your assertion that the contracting officer is responsible for preventing a hostile workplace:

Your lengthy quote does not prove your assertion."

Vern, per the references I cited, it is the responsibility of not only the affected employees' (the alleged victims here) supervisor but of all "officials" related to the situation to ensure that the government's working environment is not "hostile"

to their employees, whether from internal or external sources. The references I cited and many other references easily reached via a GOOGLE Search point that out. If you don't understand that, then I'm sorry.

Inasmuch as the KO and COR are charged with enforcing the contract as well as ensuring that the worksite is not hostile toward the people who must deal with the contractor, it should also be evident that they are charged with using sound judgement and should, as a minimum, discuss the problem with the contractor (WHO IS THE EMPLOYEE).

What they do beyond that depends to a great deal upon the facts of the situation and whether the other employees can still work with the person, assuming he corrects his behavior, etc.

Joel:

Anybody who follows your advice in this matter, or who thinks that you know what you are talking about, is very foolish indeed. As usual, you have gone too far.

Joel, I agree with Vern that this is first and foremost an issue for which August's customer has primary responsibility. If you can't point to terms and conditions in the contract that are not being met, the CO's role is secondary. That said, the CO's participation in assisting the customer in resolving the issue is vital.

August, most federal government labor law attorneys also have access to a copy of Ernest C. Hadley, A Guide to Federal Sector Equal Employment Law and Practice. Chapter 12 has a section entitled, "Harassment by Third Parties" which appears at 740 of the 22nd Edition, published in 2009. The courts look to see the extent to which the agency had day-to-day control over the third party (here, the contractor), and whether the agency knew or should have known of the offending conduct and failed to take prompt and effective remedial action.

This analysis easily blurs into a question as to whether the contractor is truly independent; so here, where the contractor is a one-person shop performing at the government's place of business, the labor law attorney is going to look at the factors laid out in Sprides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979) to consider where on continuum this contract falls between independent and personal. That attorney is going to need to know both what the contract says and how it is managed on a day-to-day basis.

Everyone should be aware that EEOC and Federal court decisions about complaints of harassment of Government employees by contractor employees are exceedingly rare. On the other hand, decisions about complaints of harassment of contractor employees by Government employees are relatively common. As for a hostile work environment, that is an exceedingly complex issue that is far beyond the qualifications of most COs to determine. See, e.g., Barbour v. Browner, 181 F.3d 1342, 1347-48 (DC Circuit, 1999):

Barbour's claim that the [Environmental Protection Agency] failed adequately to protect her from harassment by employees of [a contractor] requires us to examine the second mixed question of law and fact raised by this case, namely, whether the behavior of which she complains was sufficiently egregious to violate Title VII. Not all abusive behavior, even when it is motivated by discriminatory animus, is actionable. Rather, a work-place environment becomes ?hostile? for the purposes of Title VII only when offensive conduct ?permeate [the workplace] with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."

That decision was written by Supreme Court Justice Ruth Bader Ginsburg when she was on the Court of Appeals for the DC Circuit.

Egregious. Permeates. Severe. Pervasive. Can behavior by a single contractor employee rise to that level? This is a matter best left to qualified officials. COs should not act in haste or overreact. Contractors have rights, too. As Jacques says, the CO should back up the cognizant officials in a manner that is consistent with the terms of the contract. Of course, the contract can always be terminated for convenience, even if the behavior does not rise to the level of default.

Post deleted...subsequent post corrects information I provided based on further research.

I agree with Vern in this, but the reality of the situation is that the issue of sexual harrassment is also a political and public affairs issue should senior officials and the media get involved. Once that happens, the prudent and measured rules of contract adminstration will get run over by leaders and managers who will do whatever they think will turn off the heat and pressure they will be under.

In the end, those leaders and managers may well decide the KO is responsible for dealing with sexual harrassment from a a contractor the same as a supervisor would be for his or her employee. I have seen similar situations where executives have expected the KO to either treat a contractor as an employee or did so themselves in a non-personal services contract.

In 1 case I am aware of, some personal items were stolen in an office where a contractor worked. I was not the KO, so I do not know the details, but I do know the KO was pressured to "counsel" the contractor, and when he refused, the executive did it herself. The KO was not in good graces with the agency for some time after that.

Was that the correct way to handle the problem? I think not, but I also do not get to decide when those problems arise, I just get to advise my managers and leaders and hope they make the right decisions. In cases like sexual harrassment, I fear they might make the wrong decisions because they are listening to the wrong people and fearful of those people more than they are concerned about proper contract management.

Carl,

I appreciate your comment that the process must run its course. Part of my point is that that process first and foremost is not a contracting one. If the customer ultimately concludes that it is in the best interest of the government to terminate the contract for convenience, then the CO takes on a primary role. Until that time, the CO's responsibility is to provide advice and assistance to his customer.

I do not understand your statement, "It is stated that FAR 52.222-26 is in the contract and therefore the instance is covered by the contract." Are you suggesting that if the allegations are true the contractor has somehow failed to comply with this clause? If so, how?

Post deleted...subsequent post corrects information I provided based on further research.

Carl, please connect the dots. How does his alleged conduct violate EO 11246 or the relevant regs? The regulations govern the conduct of employers as employers, don't they? This guy has no employees.

Part of my point is that that process first and foremost is not a contracting one. If the customer ultimately concludes that it is in the best interest of the government to terminate the contract for convenience, then the CO takes on a primary role. Until that time, the CO's responsibility is to provide advice and assistance to his customer.

This is what I would do.

Termination of the contract for convenience makes sense - it ends the working relationship, it doesn't add a blemish to the contractor's record for potentially unproven allegations, it gets the situation back to normal, and it's quick. A prolonged investigation doesn't help anyone.

Post deleted...subsequent post corrects information I provided based on further research.

Carl, I disagree with your suggestion that a contractor's unwanted sexual advances to a government employee violates either EO 11246 or 41 CFR 60. EO 11246 is entitled, "Equal Employment Opportunity," and the first bullet of section 202 provides, "The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin." Likewise, 41 CFR 60.1-4(1). 41 CFR 60-1.1 provides that the regulations are aimed an insuring "equal opportunity for all persons...employed or seeking employment with Government contractors or with contractors performing under federally assisted construction contracts." The contractor is not discriminating against his employee or applicant. However, if the CO has any question, he should look to FAR 22.808 and refer the allegation to the OFCCP regional office (preferably after asking his own agency's labor advisor, if any).

While we're on the topic of FAR 22.808, if you believe this falls within the Equal Opportunity clause, your suggestion to contact the contractor seems inconsistent:

And yes you do tell the contractor and by this statement I mean the proper contractor representative what you are doing and remind the representative proper performance is required by the contract.

FAR 22.808 provides in part, "The contractor that is the subject of a complaint shall not be advised in any manner or for any reason of the complainant's name, the nature of the complaint, or the fact that the complaint was received."

Carl, I disagree with your suggestion that a contractor's unwanted sexual advances to a government employee violates either EO 11246 or 41 CFR 60. EO 11246 is entitled, "Equal Employment Opportunity," and the first bullet of section 202 provides, "The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin." Likewise, 41 CFR 60.1-4(1). 41 CFR 60-1.1 provides that the regulations are aimed an insuring "equal opportunity for all persons...employed or seeking employment with Government contractors or with contractors performing under federally assisted construction contracts." The contractor is not discriminating against his employee or applicant. However, if the CO has any question, he should look to FAR 22.808 and refer the allegation to the OFCCP regional office (preferably after asking his own agency's labor advisor, if any).

While we're on the topic of FAR 22.808, if you believe this falls within the Equal Opportunity clause, your suggestion to contact the contractor seems inconsistent:

FAR 22.808 provides in part, "The contractor that is the subject of a complaint shall not be advised in any manner or for any reason of the complainant's name, the nature of the complaint, or the fact that the complaint was received."

I couldn't find any direct mention of "sexual harassment" in Section 703 of Title VII (EEO) of the Civil Rights Act, either. The Courts have developed and refined the application of sexual harassment under Section 703 and have developed the second type of harassment: "behavior which creates a hostile working environment". I believe I mentioned that in a reference in an earlier post.

I don't know if one can stretch the contract's EEO clause to cover sexual harassment of an outside employee even if you can read in sexual harassment of the contractor's own employees. That would be a matter for an EEO expert to determine.

The Act and the Regulations actually discuss EEO treatment of one's own employees. It doesn't discuss harassing outside individuals. For instance, it isn't illegal for construction workers to whistle at and tease female passersby on the street even though it is often embarrassing and offensive to many of the "whistlees". I think the Congress and courts have been very careful at limiting the application or prevention and responsibility of sexual harassment to the internal employees' organization or firm.

Under the law and the rules, the organization might be held responsible if it doesn't do something to stop recurring instances of sexual harassment of its employees by outside parties. So, regardless of what specific contract requirement may or may not be involved, the ORGANIZATION must do something to enforce decorum by others amidst its own employees. Unacceptable behavior which creates a hostile work environment for government employees cannot be tolerated, ignored and should not be pushed off to somebody outside the agency. If this contractor is expected to abide by local rules, that ought to be enough grounds for SOMEONE in the government organization to discuss and request corrective behavior with this contractor, after consultation with the EEO officials, if necessary. I personally don't think that the DOL will do this. They get involved when there are formal complaints. If the situation is still informal, I'd bet they advise the organization to handle it. Besides, that's good management.

And certainly, nobody has to describe who the offended parties are, if describing the problem to this contractor (the offender).

If the offended persons don't submit formal EEO complaints, would you start one by reporting it to the DOL? Depending upon the circumstances, it might be possible to resolve informally and certainly a lot less costly and time consuming than a formal EEO case investigation. However, the present case might not allow resolution without removing the person, thus terminating the contract. But, during the time it takes to do that, I'd think someone better look out for the alleged victims.

And yes, get the facts straight before taking any drastic action.

I don't know if one can stretch the contract's EEO clause to cover sexual harassment of an outside employee even if you can read in sexual harassment of the contractor's own employees. That would be a matter for an EEO expert to determine.

OFCCP certainly believes that sexual harassment generally is a form of sex discrimination under EO 11246. Click here and search for "harassment."

However, the class folks protected by EO 11246 has been discussed at the OFCCP. While I couldn't find a decision involving sexual harassment, I did find OFCCP v. Keebler Co., ARB No. 97-127, ALJ No. 87-OFC-20 (ARB Dec. 21, 1999), slip op. at 9:

Executive Order No. 11246 prohibits employment discrimination by Federal contractors based on race, creed, sex, color or national origin. And it expressly requires that covered contracts include the following provision. ?During the performance of this contract, the contractor agrees as follows: (1) The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin.? E.O. 11246 at ?202; 30 Fed. Reg. 12,319 (1965). By this particular formulation, the Executive Order is made to apply to all employees of the Federal contractor but only during the life of the contract.

While this decision involves a different statute, I think it makes fairly clear that those protected by EO 11246 are the employees and applicants of the Federal contractor. (I'm not asking anyone to rely on my conclusion, this is just my prediction of what your labor advisor would tell you.)

Hopefully, everyone agrees that a complaint of sexual harassment is an accusation, not a finding or conviction.

Everyone seems to agree that sexual harassment is a bad thing.

Everyone seems to agree that if someone accuses a contractor employee of sexual harassment the CO must do something.

Everyone seems to agree that the CO should notify the cognizant authorities, whomever they may be, and seek instruction.

Everyone (now) seems to agree that the CO should not directly "admonish" or "discipline" or "talk to," or demand anything from, or kick the butt of the contractor until properly instructed by the cognizant authorities. The obvious exception would be a case in which immediate intervention is obviously necessary to protect someone from harm.

Finally, at least some agree that if the contractor is found to have acted badly, or if the situation is otherwise untenable, then T4D may be possible, but a no-cost T4C would be easier and more expeditious.

Carl, please connect the dots. How does his alleged conduct violate EO 11246 or the relevant regs? The regulations govern the conduct of employers as employers, don't they? This guy has no employees.

I'm with Jacques on this one. I don't think that FAR clause 52.222-26, Executive Order 11246, and FAR 22.808 have any bearing on the matter of contractor harassment of a government employee, and I don't think that the OFCCP is the right organization to talk to about the problem at hand. The clause, the E.O., and FAR 22.808 apply to contractor treatment of employees and applicants for employment. If there has been a breach of contract, it would not be on the basis of violation of the clause or the E.O.

I think that the language of the clause referring to "any rule, regulation, or order of the Secretary of Labor" refers to matters pertaining to the E.O, not literally to "any" rule of the Secretary. That language does not cover sexual harassment of a government employee by a contractor employee. The discrimination involved in such a situation would be that by the government allowing the harassment to continue. What OFCCP would do is determine whether the government has discriminated by allowing a hostile work environment to continue in existence. I don't think OFCCP would have any authority over the contractor in such a matter.

I would be interested in knowing whether the original poster, August, has found this discussion to be helpful.

I'm with Jacques on this one. I don't think that FAR clause 52.222-26, Executive Order 11246, and FAR 22.808 have any bearing on the matter of contractor harassment of a government employee, and I don't think that the OFCCP is the right organization to talk to about the problem at hand. The clause, the E.O., and FAR 22.808 apply to contractor treatment of employees and applicants for employment. If there has been a breach of contract, it would not be on the basis of violation of the clause or the E.O.

I don't think that the language of the clause referring to "any rule, regulation, or order of the Secretary of Labor" refers to matters pertaining to the E.O, not literally to "any" rule of the Secretary. That language does not cover sexual harassment of a government employee by a contractor employee. The discrimination involved in such a situation would be that by the government allowing the harassment to continue. What OFCCP would do is determine whether the government has discriminated by allowing a hostile work environment to continue in existence. I don't think OFCCP would have any authority over the contractor in such a matter.

I agree with everything in your last 2 posts.

I always believed that a KO should consult with the EEO experts and anyone else necessary before discussing such a problem with the contractor, but should have been clear about that. I felt that it goes without saying that you check first. Apparently, that isn't clear. Sorry.

I would be interested in knowing whether the original poster, August, has found this discussion to be helpful.

I would be too, but I doubt if august will or should elaborate on the actual situation.

Yes, the postings have been helpful.

While my question was more narrow than the discussion that has evolved, it does reflect the internal debate I have had about the situation we have here.

It is a very sensitive issue and one I have not had to deal with before, and I feel unprepared for it.

I have appreciated all the voices that have participated in this discussion.

Thanks.

I apologize if there are gaps in the discussion related to my posts and comments made by others regarding what I had previously posted.

First with regard to the original question posted by August with regard to default termination both termination for convenience as suggested by some and default as proposed by August are available alternatives. Knowing all the facts would help determine which is the most appropriate route. I still remain concerned that a Termination for Convenience seems to be simply brushing the issue aside rather than holding a contractor responsible for actions not appropriate that appear to fall under the contract performance.

In previous posts I suggested action items that August may want to consider that then raised further debate and that others questioned whether my advice was proper. Noting the comments of others I started to question my advice as well. In response I sent the following question to the OFCCP contact email address found on the EEO poster to be posted by a contractor at worksites. It appears that OFCCP then referred the question to the EEOC as I received a response from EEOC and not OFCCP. I conclude from this route of my question that the issue is not under jurisdiction of OFCCP but EEOC as far as what the Federal employee might consider. Being a EEO matter handled by EEOC may also dictate, again based on the facts, what the CO should be doing with regard to the employee lodging the complaint and the contractor.

Again I apologize for any confusion I may have created on this matter.

Question to OFCCP -

If a Federal contractor is alleged to have sexually discriminated

against a Federal employee working at the same site as the Federal

contractor who should the Federal Contracting Officer refer the matter

to?

The response from EEOC -

Thank you for contacting the US Equal Employment Opportunity Commission. I apologize for the delay in responding to your email.

If a federal employee or an applicant for a federal job believes he or she has been the victim of discrimination, they generally have 45 days from the day the discrimination occurred to contact an EEO Counselor where they work or where they applied for a job. If the discrimination involved a personnel action (for example, a demotion or firing), they generally must contact the EEO Counselor within 45 days of the day the personnel action takes effect.

Each agency is required to post information about how to contact the agency?s EEO Office. The information will include the EEO Office location and what number to call to reach someone there.

To learn more information about the Federal EEO Compliant Process you can visit our website at: http://eeoc.gov/federal/fed_employees/complaint_overview.cfm.

Non-federal employees who wish to file a charge can begin the process by using our online assessment tool at https://egov.eeoc.gov/eas/. After completing Part One of the assessment, they will be instructed to print and complete an Intake Questionnaire. Once they have completed the printed questionnaire, they can mail, fax or take it to the EEOC office nearest them. The online assessment tool will provide them with the address of the nearest office.

To find more information about the laws we enforce and our charge-filing procedures on our website at www.eeoc.gov.

Also, please note that there are time limits to file the charge. In many States that limit is 300 days from the date they knew about the harm or negative job action, but in other States it is 180 days. To protect their rights, it is important that they fill out the questionnaire and send it to us right away.

Alternatively, you may call us at 1-800-669-4000 (TTY: 1-800-669-6820) to discuss your situation.

Sincerely,

U.S. Equal Employment Opportunity Commission

Question to OFCCP -

If a Federal contractor is alleged to have sexually discriminated

against a Federal employee working at the same site as the Federal

contractor who should the Federal Contracting Officer refer the matter

to?

Carl, not being a female my judgment may be questionable. But I do NOT believe that "sexual harassment" and "sexual discrimination" are the same thing. Discrimination based on gender, sexual preference, or other characteristic protected by law is one thing. Actual harassment (i.e., attempting to obtain sexual favors based on force, position of authority, etc.) or creation of a hostile work environment is something entirely different.

H2H

I don't know about your judgment, but your assertion that sexual harassment and sexual discrimination are not the same thing is wrong. In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) the Supreme Court found sexual harassment to be a form of sexual discrimination, thereby confirming earlier district court decisions. http://caselaw.lp.findlaw.com/cgi-bin/getc...77&invol=57 See also 29 CFR 1604.11, "Guidelines on discrimination because of sex":

Sec. 1604.11 Sexual harassment.

(a) Harassment on the basis of sex is a violation of section 703 of

title VII. Unwelcome sexual advances, requests for sexual favors,

and other verbal or physical conduct of a sexual nature constitute

sexual harassment when (1) submission to such conduct is made either

explicitly or implicitly a term or condition of an individual's

employment, (2) submission to or rejection of such conduct by an

individual is used as the basis for employment decisions affecting such

individual, or (3) such conduct has the purpose or effect of

unreasonably interfering with an individual's work performance or

creating an intimidating, hostile, or offensive working environment.

By the way, men can also be the victims of sexual harassment, so the fact that you are not a woman is not relevant to the quality of your judgment in this matter.

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

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, did you happen to notice that the EEOC did NOT directly answer your question, as it relates to the referenced situation? It may have something to do with the way you phrased it.

I suggest rephrasing your question and asking them again:

Suggested New Question to OFCCP -

If a Federal contractor who performs services in a government facility has acted inappropriately towards government employees working at the same site as the Federal contractor, who should the Federal Contracting Officer refer the matter to?

I apologize if there are gaps in the discussion related to my posts and comments made by others regarding what I had previously posted.

First with regard to the original question posted by August with regard to default termination both termination for convenience as suggested by some and default as proposed by August are available alternatives.

...

In previous posts I suggested action items that August may want to consider that then raised further debate and that others questioned whether my advice was proper. Noting the comments of others I started to question my advice as well.

...

Again I apologize for any confusion I may have created on this matter.

Carl,

Sounds like OFCCP & EEOC ignored your question. Have you come to any conclusions as to whether unwanted sexual advances by a contractor to the government employee violates the EEO clause?

Carl,

Sounds like OFCCP & EEOC ignored your question. Have you come to any conclusions as to whether unwanted sexual advances by a contractor to the government employee violates the EEO clause?

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.

This could refer to offensive jokes, offensive language or gestures, whistling, posting pictures in a cubical, who knows? It doesn't necessarily involve unwanted sexual advances.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

...

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.

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.

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?

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.

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?

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.

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.

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"

Thanks for the posting, Joel.

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