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DOJ issues new sexual harassment guidelines — are they enough?

On Behalf of | May 7, 2018 | Employee Discrimination

Last week, the Department of Justice issued new directives to address sexual harassment in its workplaces. Some complain, however, that the policies invite uneven application from section to section, and that could mean leaving victims of harassment and assault unprotected.

“The department will not wait for a pattern of offensive conduct to emerge before addressing claims of harassment,” read policy memos obtained by the New York Times. “Rather, the department will act before the harassing conduct is so pervasive and offensive as to constitute a hostile environment.”

The Justice Department is made up of a large network of criminal prosecutors’ offices, civil litigation departments and related services. It employs over 115,000 people, and there has been concern in the past that enforcement of anti-harassment policy has been uneven across the various areas.

Deputy attorney general Rod J. Rosenstein issued the new policies in response to a report last year by the DOJ’s inspector general. It described harassment, misconduct and assault and made recommendations for how to address them. Over the past five years, the inspector general has issued several reports detailing such problems.

The new polices require systematic tracking of sexual misconduct claims. Each section must track each complaint by:

  • Specifying the nature of the claim, including any aggravating factors
  • Noting whether and when it was reported to the inspector general and/or security
  • Listing the disciplinary action taken

In addition, managers will be required to account for any complaints when issuing a public commendation or employee award. Moreover, each component or section is urged to punish people found to have committed harassment or misconduct in a consistent manner and to take steps to protect accusers from harassment. The DOJ says the sections will be held accountable for its handling of these complaints.

That said, each unit will be given discretion on how best to enforce the directives, which goes against the inspector general’s recommendations. This could result in important procedural differences, but also in uneven punishments. Under the new policy, for example, the penalty for substantiated sexual harassment could range from a 15-day suspension to termination, but there is only general guidance over how the final penalty should be determined.

“The question this raises is who does the Department of Justice prioritize?” said one employment lawyer. “Right now, they’re worried about being sued by harassers. They should be worried about being sued by the victims whose claims are ignored. That will be much more damaging to the department’s reputation.”

If you work for the DOJ, these policies affect you. Do you think they are protective enough of victims, who may face retaliation for complaints? Do you think there are sufficient protections in place for employees who are accused?


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