Washington Lawyer - March/April 2024 - 34

TAKING THE STAND
By Kayla Morin
L
ast October the District
of Columbia released
a revised sexual harassment
policy for city government
employees. The new
policy overhauled Mayor Muriel
Bowser's prior policy, which had
not been updated since 2017.
This development followed a turbulent period
in city government, which was rocked by allegations
of sexual harassment against a top official.
In March 2023, two D.C. government employees
reported that John Falcicchio, who
served as chief of staff to Mayor Bowser and
headed the Office of the Deputy Mayor for
Planning and Economic Development, had
sexually harassed them.¹ Falcicchio held an outsize
role in city government, and the allegations
lodged against him rattled city leadership
and prompted a reckoning over the city's sexual
harassment policies and procedures.
The Mayor's Office of Legal Counsel (MOLC),
which reports directly to the mayor, conducted
two investigations and substantiated the women's
sexual harassment allegations. But the way
MOLC handled the investigations - including
a late-night, weekend release of the first report
>>> " Taking the Stand " appears periodically
in Washington Lawyer as a forum for D.C.
Bar members to address issues of importance
to them and of interest to our readers. The
opinions expressed are the author's own, do
not constitute legal advice, and do not necessarily
represent the policies or views of the D.C.
Bar or its Board of Governors. For submissions,
email editorial@dcbar.org.
and the fact that neither complainant's allegations
of retaliation were substantiated -
prompted questions from policymakers and
the press as to whether MOLC could impartially
investigate the mayor's former right-hand man.
Mayor Bowser's updated order is a response
to many of those questions. It reflects a sea
change in the city's attitude toward sexual
harassment and is a testament
to the brave women
who came forward to report
sexual misconduct under an
outdated, confusing policy
that never contemplated the
scope of an investigation
that allegations against
someone like Falcicchio required.
Most
notably, the order eliminates
the requirement that
harassment be " severe or
pervasive " to be considered
sexual harassment, entirely
bans relationships between
supervisors and anyone in
their reporting lines, and
creates a Sexual Harassment
Task Force charged with
making recommendations to
further the goal of a harassment-free
workplace.
Of course, it remains to be seen if the city
will live up to the lofty aims of its new policy.
Whether employees feel safe coming forward,
whether the investigations are thorough and
impartial, and whether instances of sexual harassment
are tracked and reported will depend
on the city leadership's commitment to the letter
and spirit of the new policy. The tone at the
top will trickle down to employees at all levels
and set the standard for how the city implements
its protections against sexual harassment.
Here are some of the positive developments
in the 2023 policy.
ment. Although the " severe or pervasive "
test still applies for Title VII claims, the D.C.
Council amended the D.C. Human Rights Act
(DCHRA) in 2022 to eliminate that requirement,
instead adopting a " totality of the circumstances "
test and explicitly noting that
" no specific number of incidents or specific
level of egregiousness is required. " ²
Until the mayor's office issued the revised order,
the District's sexual harassment policy
did not reflect that change, generating confusion
over which standard actually applied.
In most cases, employers' sexual harassment
ELIMINATION OF 'SEVERE
OR PERVASIVE' STANDARD
The new policy incorporates long-needed
changes to the city's sexual harassment standards.
One of the most glaring problems with
the old order was that it required employees to
show that conduct was " severe or sufficiently
pervasive " to establish a hostile work enviro34
WASHINGTON LAWYER
* MARCH/APRIL 2024
Shutterstock
Washington Lawyer - March/April 2024

Table of Contents for the Digital Edition of Washington Lawyer - March/April 2024
