Washington Lawyer - March/April 2024 - 35

TAKING THE STAND
policies can serve as a useful framework for
employees to navigate what might constitute
sexual harassment, how to report it, and how
an investigation will proceed. But the D.C. policy
was not in accord with the law on the " severe
or pervasive " front. The DCHRA would, of
course, govern a complainant's legal claims,
but if an employee did not want to pursue formal
legal action, an internal policy might be
their only recourse. And if that policy did not
align with the law - as with the D.C. policy -
an employer might deem some conduct insufficiently
" severe or pervasive " to warrant any
disciplinary action, even when that same conduct
could be in violation of state or local law.
The new policy fixes this gap, directly adopting
the language of the DCHRA and making clear
that " severe or pervasive " is no longer the standard.
It also goes a step further and clarifies
that " conduct of a sexual nature " could be
treated as misconduct under the policy even
if such misconduct would not rise to the level
of sexual harassment under the DCHRA. In so
doing, the policy change illustrates the opportunity
for employers tasked with creating or
revising sexual harassment policies to expand
protections beyond what is afforded by state
or local law, especially in jurisdictions that
retain the " severe or pervasive " standard or
that have no anti-discrimination protections
of their own.
RECOGNITION OF IMPACT
OF POWER IMBALANCE
Falcicchio held such an outsize influence in D.C.
politics that he was sometimes referred to as
the " shadow mayor, " and his dual role as chief
of staff to Mayor Bowser and deputy mayor
only magnified his power. Reporting a coworker's
sexual harassment is one thing, but lodging
a complaint against the second most powerful
person in D.C. government is quite
another.
The new order recognizes that a power disparity
between a complainant and an alleged harasser
can bear on whether conduct constitutes
sexual harassment. Specifically, the order
provides, " Relationships, or aspects of relationships,
that may be perceived as consensual by
one party may be considered coerced or harassing
by the other party due to power dynamics,
and relationships that start consensTHE
NEW ORDER RECOGNIZES
THAT A POWER
DISPARITY BETWEEN A COMPLAINANT
AND AN ALLEGED
HARASSER CAN BEAR ON
WHETHER CONDUCT CONSTITUTES
SEXUAL HARASSMENT.
ually may evolve into sexual harassment. " To
that end, in one of the biggest changes from
the prior order, which merely " strongly discouraged "
relationships between supervisors and
subordinates, the new policy wholesale bans
dating, romantic, or sexual relationships between
a supervisor and an employee in their
chain of command. Moreover, it prohibits dating,
romantic, or sexual relationships between
District employees and trainees, recruits, or interns,
even if the employee and trainee, intern,
or recruit are in entirely separate agencies. It
also cautions supervisors to " take particular
care " to refrain from conduct that " could lead
to allegations of sexual harassment " and to
consider the " time, place, and situations of interactions
with employees. "
Further appreciating the power imbalances at
play in many instances of sexual harassment,
the new policy removes the requirement that a
complainant must tell a harasser to stop under
certain circumstances. The old policy provided
that unless the harassment was particularly severe
or pervasive, " the person creating such an
environment must have been told that the
conduct is unwelcome or must stop. " Requiring
a subordinate to tell a supervisor-harasser
to stop could create an insurmountable barrier
for some employees because they fear retribution.
The new policy eliminates that provision,
bringing the order in line with understandings
of how sexual harassment operates in reality
- and how it is not always as simple as asking
the harasser to stop.
The policy changes align with case law, which
has long acknowledged that harassment perpetuated
by a supervisor or someone in a position
of authority is particularly insidious.³ The
Equal Employment Opportunity Commission's
new Proposed Enforcement Guidance on Harassment
in the Workplace, for example, explicitly
recognizes that sometimes employees
must " go along to get along " with harassing
behavior, and that even participating in the behavior
does not mean that the conduct is welcome.⁴
In the case of supervisor-to-supervisee
harassment, this can often take the form of reciprocating
friendly messages or even flirtatious
banter so as not to anger the supervisor.
Further, this type of power imbalance can chill
employees from reporting harassment, as they
may feel that their reports will not be taken seriously
or that they will face retaliation for reporting
a high-level official.⁵
STRENGTHENED INVESTIGATION
AND REPORTING PROCEDURES
The optics of an agency that reported to the
mayor investigating her top lieutenant prompted
a flurry of calls for an independent investigation.⁶
The D.C. Council jumped in, passing
emergency legislation that designated the Office
of the Inspector General (OIG) to hire independent
counsel to review MOLC's first report
and investigate the complainants' allegations,
including retaliation claims, that were outside
the scope of MOLC's investigation.⁷ The new
sexual harassment policy preempts some of
these issues by mandating that complaints
against the mayor, city administrator, mayor's
chief of staff, mayor's senior advisor, MOLC director,
any deputy mayor, or any other official
who directly reports to the mayor be referred
to the OIG, which then has the threshold authority
to determine whether the allegations
are credible. If the OIG finds the allegations
credible, then it " shall " refer the complaint for
an investigation, which must be " carried out
by an entity outside the District Government. "
The new policy also responds to criticism surrounding
the District's flawed system for tracking
and reporting complaints.⁸ It directs agencies
to comply with the Sexual Harassment
Data Collection and Reporting Act of 2022 and
transmit annual data to the Office of Human
Rights, including the number of complaints,
whether the complaints were substantiated
or unsubstantiated, and whether they resulted
in disciplinary action, legal action, or a settlement,
among other metrics. And it requires
agencies to document warnings to an employee
to halt certain behavior and report those incidents
to MOLC.
MARCH/APRIL 2024 * WASHINGTON LAWYER 35
Washington Lawyer - March/April 2024

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