chevron-down Created with Sketch Beta.
May 30, 2024 Feature

The Justice Department’s Sexual Harassment Workplace Initiative and Its Urgent Message to State and Local Governments

Michelle L. Wade & Susan R. Fiorentino

[T]he Justice Department will not tolerate sexual harassment and retaliation especially when it is perpetrated by an elected official who abuses the powers of their office.
—Kristen Clarke, Assistant Attorney General


Several years have passed since the #MeToo Movement made headlines, focusing worldwide attention on the subject of workplace sexual harassment. Virtually no workplace is untouched by the problem of sexual harassment. From highly compensated Hollywood movie stars to minimum-wage food service workers, women have courageously come forward to share their stories of victimization. Although sexual harassment can occur in the private or public sector, it is of particular concern at the municipal level. It is common for some local departments, such as fire and police, to be male-dominated. In addition, the relationship between elected officials and municipal managers (and other employees) is frequently less insulated. Smaller municipalities, in particular, can lack the resources to properly train their workforces to avoid sexual harassment. Moreover, turnover in elected official positions can affect consistency of policy processes, even in the best-run municipal workplaces. As a result, public sector workplaces can face inordinately high numbers of sexual harassment charges. Ironically, very little research has taken place on the nature of sexual harassment in state and local governments. Few states have laws requiring elected officials at the municipal level to have any human resources training, much less sexual harassment training. According to the Institute for Women’s Policy Research, the estimated lifetime costs of sexual harassment can range from approximately $610 to $1.3 million. These costs include reduced earnings, job loss and unemployment, forced career change and delayed advancement, lost benefits, medical fees and copays, retraining, and consequential costs such as late payment fees and loan defaults. According to the U.S. Equal Employment Opportunity Commission (EEOC), monetary benefits from resolved sexual harassment charge receipts and ligation in the United States totaled $299,835,597 from 2018 to 2021. Thus, every municipality has a monetary, as well as an ethical, reason to adopt strong sexual harassment policies. Unfortunately, that is often not the case.

The problem of sexual harassment in public sector employment has not gone unnoticed. In 2018, the U.S. Department of Justice, in concert with the EEOC, initiated a new program to assist public sector employers in preventing sexual harassment. The federal Sexual Harassment in the Workplace Initiative (SHWI) is designed to reduce sexual harassment in state and local government workplaces by providing litigation support and outreach to public sector employers seeking to reduce incidents of sexual harassment.

This article argues that, with the creation of SHWI, it is crucial that municipalities and states embrace proactive policies and practices now to eliminate sexual harassment from the public-sector workplace. Municipalities and states that fail to take corrective action do so at their peril in terms of both reputational loss of public confidence and federal sanctions. Moreover, public sector workplaces should make an effort to promote heathy workplace culture, as such efforts improve individual workplaces and increase public trust.

Part I of this article provides an overview of the development of sexual harassment law, including a discussion of its application to municipal entities. Part II examines the unique environment of municipal workplaces and factors that can foster sexual harassment. Part III examines the creation of SHWI and analyzes current sexual harassment case law against municipalities. Finally, in light of the urgent goals established pursuant to SHWI, Part IV sets forth a plan of action for municipalities that lack proper policies and processes to help them address sexual harassment in the workplace. Such efforts not only improve individual workplaces but ultimately enhance public trust.

I. Sexual Harassment Law

It has been nearly four decades since the U.S. Supreme Court held that sexual harassment is unlawful under Title VII of the Civil Rights Act of 1964 (Title VII). Specifically, Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex . . . .” While the term “sexual harassment” does not appear in Title VII, courts have presumed the inclusion of sexually harassing behavior as a form of discrimination on the basis of sex. Subsequently, courts have developed a body of law that further defines unlawful conduct and clarifies when an employer is liable for the sexually harassing behavior of its employees. A brief overview of that jurisprudence follows.

One of the first cases to establish the legal parameters of sexual harassment was the 1986 case of Meritor Savings Bank v. Vinson. In that case, Justice Rehnquist’s opinion relied heavily upon earlier guidance issued by the EEOC to hold that sexual harassment can occur not only in instances where the aggrieved party has suffered some economic harm, such as a demotion or termination for failure to engage in sexual acts, but also where a hostile work environment has been created absent any economic harm. Citing EEOC regulations, the Court reinforced the concept that a hostile work environment can include discriminatory intimidation, ridicule, and insult that is not directly tied to the economic gain or detriment of the charging party, where the “conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating hostile or offensive working environment.” Moreover, the Meritor Court clarified that harassing behavior must be sufficiently severe or pervasive to alter the conditions of employment such that an abusive workplace is created.

The Court, however, failed to clarify when and under what circumstances an employer could be liable for the unlawfully harassing conduct of its employees. That clarification would come more than a decade later with the companion cases of Burlington Industries, Inc. v. Ellerth, and Faragher v. City of Boca Raton. Noteworthy to the discussion that follows, infra, the seminal Faragher case occurred in a municipal workplace setting.

From 1985 until 1990, Beth Ann Faragher worked as an ocean lifeguard for the Parks and Recreation Division of the City of Boca Raton, Florida. In the course of her employment, her immediate supervisors, Bill Terry and David Silverman, engaged in a pervasive pattern of sexual harassment including offensive comments and unwelcome touching, such as to create a sexually harassing hostile work environment. After five years of employment, Faragher quit her job and brought suit against the City of Boca Raton, claiming that Terry and Silverman were agents of the employer, making the city liable for their conduct. Although the federal appeals court found that Faragher clearly endured sexual harassment as defined by Title VII, it failed to find that the city could be liable for the actions of the supervisors. Faragher appealed to the Supreme Court.

In a 7–2 opinion, Justice Souter, writing for the majority, opined that an employer is vicariously liable for actionable discrimination caused by a supervisor but subject to an affirmative defense that looks to the reasonableness of the employer’s conduct, as well as to the conduct of the plaintiff/victim. Specifically, the Court held that employers who have been sued for the sexually harassing conduct of their employee supervisors may offer an affirmative defense that (1) the employer took reasonable care to prevent and correct the sexual harassment and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities. For example, an employer who includes an anti-harassment policy in an employee handbook with instruction on what to do if an employee feels they are being sexually harassed may proffer the policy as evidence that the employer took reasonable steps to prevent and correct sexual harassment. An employer can maximize protection from legal liability by thoroughly describing a clear and detailed process by which an employee can report sexual harassment to the employer. It is then up to the employee to take advantage of the process for notifying the employer of such harassment.

On the same day that the Court handed down the Faragher opinion, it issued a decision in the case of Burlington Industries, Inc. v. Ellerth. Kimberly Ellerth worked for Burlington Industries as a sales representative from March 1993 until May 1994. During the course of her employment, she was repeatedly sexually harassed by her supervisor Ted Slowick, including threats of retaliation for failure to engage in sexual conduct with him. Ellerth did not face any tangible employment action as a result of Slowick’s conduct and, in fact, was promoted during her tenure.

As in the Faragher opinion, the Ellerth Court held that employers could be vicariously liable for sexual harassment perpetrated by supervisors absent any tangible employment action. In so holding, the Court distinguished situations in which employers would be held strictly liable for a supervisor’s conduct that results in a tangible employment action, such as a termination, demotion, or discipline. In those instances, employers could not avail themselves of any affirmative defense. But in situations where no tangible employment action occurs, employers may be vicariously liable for a supervisor’s conduct that creates a hostile work environment. In those instances, an employee must demonstrate that the harassment was severe or pervasive. The employer may then rely on the affirmative defense spelled out in Faragher—that the employer took reasonable measures to prevent and correct sexual harassment and that the employee unreasonably failed to take advantage of those measures. The affirmative defense is not available for situations in which a tangible employment action has been imposed.

Two additional cases further explain employer liability in cases of sexual harassment. First, in Vance v. Ball State, the Court held that the definition of “supervisor,” as that term is applied under the Faragher/Ellerth framework, refers to those individuals who have the authority to impose a tangible employment action such as hiring, termination, demotion, promotion, transfer, and discipline. Moreover, the Vance Court reaffirmed lower court rulings that impose employer liability for sexually harassing conduct by coworkers. In those situations, courts apply a negligence standard to determine liability and ask whether an employer knew or should have known about the co-worker’s behavior and failed to take any corrective action.

Thus, employer liability can be summarized in the following manner:

  • In situations where a supervisor engages in harassment that results in a tangible employment action, the employer is always (strictly) liable, and no affirmative defense is available.
  • In situations where a supervisor engages in harassment that does not result in a tangible employment action, the employer is vicariously liable for a hostile work environment claim if the conduct is sufficiently severe or pervasive but may utilize the affirmative defense that (1) the employer took reasonable care to prevent and correct sexual harassment, and (2) the plaintiff/employee unreasonably failed to take advantage of any preventive or corrective opportunities.
  • In situations where a co-worker engages in harassment that results in creation of a hostile work environment, the employer may be liable under a negligence standard if the employer knew or should have known about the harassment but failed to take action to correct it.
  • In situations where an employee complains about sexually harassing behavior to the employer, either verbally or in writing, the employer is liable for retaliation if, after that complaint, the employee suffers an adverse employment action, such as demotion, termination, or discipline.

A few other recent developments in the area of sexual harassment law are worthy of note. First, in the 2020 Supreme Court case Bostock v. Clayton County, Georgia, the protections of Title VII’s anti-discrimination provisions were interpreted to extend to employees who identify as gay or transgender. Justice Gorsuch, writing for the majority, opined that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” In crafting the Court’s opinion, Gorsuch relied, in part, on the logic in Oncale v. Sundowner Offshore Services, Inc., a case decided twenty-two years earlier, in which the Court held that Title VII’s protection “because of sex” extended to claims of same-sex sexual harassment.

Finally, in reaction to growing outrage over high-profile sexual harassment settlements, such as those that occurred in the Harvey Weinstein matter, Congress passed the Speak Out Act in 2022. The law limits “the judicial enforceability of predispute nondisclosure and nondisparagement contract clauses related to disputes involving sexual assault and sexual harassment.” Accordingly, employers can no longer shield workplace sexual harassers under cover of predispute nondisclosure and/or nondisparagement clauses.

A. Title VII Claims Against State and Local Governments

Title VII sets forth slightly different enforcement provisions depending upon whether claims of employment discrimination are brought against private-sector employers or against state and local governments. Private-sector employees who believe they have been discriminated against may file charges of discrimination with the EEOC, which has authority to investigate any claims of employment discrimination and otherwise dispose of such claims. Public-sector employees may likewise file charges of discrimination with the EEOC for investigation and possible conciliation. However, Title VII provides:

In the case of a respondent which is a government, governmental agency, or political subdivision, if the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission shall take no further action and shall refer the case to the Attorney General who may bring a civil action against such respondent in the appropriate United States district court.

These civil actions are litigated under the Department of Justice’s Civil Rights Division (CRT), and, in particular, its Employment Litigation Section (ELS).

Given the shared authority for enforcement of Title VII against municipal actors, the EEOC and the CRT entered into a Memorandum of Understanding (MOU) in December 2018 to promote collaboration and improve efficient and consistent enforcement of federal employment discrimination laws. Under the terms of the MOU, the EEOC and CRT can share and request information from each other regarding claims of employment discrimination and otherwise cooperate in the processing of such claims. The MOU also outlines additional action steps, such as shared training programs, materials, and outreach designed to reduce employment discrimination.

B. State Law and Sexual Harassment

In addition to federal laws that protect against workplace discrimination, most states have anti-discrimination laws as well. Title VII specifically grants states the ability to investigate and resolve charges of discrimination within their borders. While Title VII applies to employers with fifteen or more employees, most state laws typically apply to much smaller employers. For example, Pennsylvania’s Human Relations Act applies to employers with as few as four employees. Thus employees who believe they have suffered employment discrimination, including sexual harassment, may choose to bring a charge of discrimination either with the federal EEOC or with the state agency responsible for handling those charges.

II. The Unique Environment of State/Local Government That Fosters Sexual Harassment

Although numerous studies on sexual harassment have occurred, few focus specifically on the public sector. One exception is the U.S. Merit Systems Protection Board’s (MSPB) examination of the prevalence of sexual harassment in the federal government since 1980. According to the most recent 2016 survey distributed by the MSPB, fourteen percent of federal employees reported sexual harassment. Women were more likely to report experiences of sexual harassment at twenty-one percent, compared to nine percent for men. The most common behaviors that respondents reported were exposure to sexually oriented conversations, unwelcome invasion of personal space, unwelcome sexual joking or teasing, derogatory terms related to sex or gender, and unwelcome sexually suggestive gestures or looks. Only eleven percent of those who experienced sexual harassment filed a formal complaint or grievance, and, of those who filed, only thirty-six percent felt it improved their situation.

Unfortunately, few academic studies or data have measured the prevalence of sexual harassment in state or local government specifically. In 1987, Cynthia Ross and Robert England examined how state governments responded to sexual harassment. They surveyed forty-nine state personnel directors and received responses from seventy-five percent of them. They found that thirty-three out of fifty states had a statewide policy or executive order aimed at eliminating sexual harassment. While the state of Michigan was the first to adopt a sexual harassment policy in 1979, most states adopted policies in 1980 and 1981 when the EEOC released its sexual harassment guidelines. Published in 1987, a study by Connie Kirk-Westerman et al. examined municipal policy initiatives targeting sexual harassment. The authors distributed surveys to 170 personnel/human resource directors in American cities with a population of 100,000 or more. They found that most municipalities had implemented sexual harassment policies, grievance procedures, and training programs. However, the studies had several limitations. First, training programs are limited because they are typically only for municipal employees and do not include elected officials at the municipal level who may be sexually harassing employees. Second, the studies included no data on the large numbers of municipalities with populations under 100,000. Third, most cities in these studies implemented their sexual harassment policies between 1980 and 1982, shortly after newly issued EEOC guidelines in 1980, but no data shows how effective these policies have been or if these policies have been updated over the years. Most of the early 1980s’ research focused on how sexual harassment was defined and if municipalities or states had adopted policies.

More recent research by Laura Reese and Karen Lindberg compared sexual harassment policies at the municipal level to “model” policies and examined the sexual harassment training of the same municipalities. The authors’ sample included all cities and villages in the state of Michigan. The response rate for cities was sixty-five percent, and the response rate for villages was thirty-four percent. Reese and Lindberg found that seventy-three percent of the municipalities that responded had specific sexual harassment policies, and another seventeen percent had a different policy (such as a union contract) that covered sexual harassment. The vast majority of policies (ninety-seven percent) included EEOC language defining sexual harassment. However, only twenty-seven percent of municipalities reported that they trained top management, and only thirty-five percent reported training all supervisors. Training varied significantly, with sixty-two percent of municipalities reporting that they defined sexual harassment, fifty-eight percent reporting that they addressed how to handle complaints, and only twenty-five percent reporting that they provided information on how to conduct an investigation (including how to interview witnesses). Compared to “model” sexual harassment policies, the responding municipalities were least likely to have sanctions for breaching confidentiality or time requirements for reporting.

In 2021, the EEOC received 5,581 charges of sexual harassment, but these charges were not categorized by public and private sector, much less by federal, state, and local government sectors. However, the EEOC has identified risk factors that can contribute to sexual harassment. According to an EEOC report, the following risk factors can increase incidents of sexual harassment: a homogonous workforce; workplaces where not all employees conform to workplace norms; cultural and language differences in the workplace; coarsened social discourse outside of the workplace; workplaces with significant power disparities; workplaces that rely on customer service or client satisfaction; workplaces where work is monotonous or tasks are low intensity; isolated workplaces; workplaces that tolerate or encourage alcohol consumption; and decentralized workplaces. Many of these risk factors are present in municipal governments, particularly in police, fire, public works, and sanitation departments. Some common risk factors that might be present in municipal governments include a homogenous workforce, workplaces where some employees do not conform to workplace norms, cultural and language differences in the workplace, and workplaces with significant power disparities.

Certain workplaces in which some employees refuse to conform to workplace norms may be single-sex-dominated. In this type of environment, employees may engage in jokes, remarks, and banter that is crude, demeaning, or sexually explicit. This homogeneity can lead to a workplace environment that devalues the contributions of individuals who are not part of the majority.

Although sexual harassment can happen to anyone regardless of their sex or gender, women are more likely to have been sexually harassed; thus, male-dominated workplaces can be ripe for sexual harassment. In 2021, the EEOC estimated that fifty-three percent of state and local government workers were male; however, this number varied depending on the level of government. At the state level, forty-seven percent were male, while fifty-three percent were female. At the county level, forty-eight percent were male, while fifty-two percent were female. At the municipal level, however, sixty-eight percent of employees were male, while only thirty-two percent were female. Thus, local governments fare the worst in terms of gender diversity. Municipal governments are often gendered workplaces, making them vulnerable to sexual harassment. Of particular concern for municipalities are local police and fire departments and sanitation, maintenance, and transportation departments, all of which tend to be male-dominated and to lack diversity. In 2021, sanitation departments were comprised of seventeen percent women and eighty-three percent men; streets and highway departments were comprised of nineteen percent women and eighty-one percent men; and utilities departments were comprised of twenty-six percent women and seventy-four percent men.

Most municipal police and fire departments are dominated by men, and hostile work environments can easily occur in this setting. According to the U.S. Bureau of Labor Statistics in 2022, the majority of police and sheriff’s patrol officers worked in local government (excluding schools and hospitals), an estimated 557,660 out of 655,890 officers. In 2021, the U.S. Census Bureau estimated that 85.8% of police officers were male and only 14.2% were female. Not surprisingly, researchers have found evidence of sexual harassment in police departments. Chaiyavej Somvadee and Merry Moarash surveyed 117 female law enforcement officers in the Midwest and found that 83.7% experienced gender harassment through exposure to suggestive stories or offensive jokes; 68.3% experienced crudely sexual remarks; and 69.2% experienced different treatment due to their sex. In a recent study that included nationally representative surveys of 2,867 female and male law enforcement officers, Bruce Taylor et al. found that 70.3% of female law enforcement officers experienced nonphysical sexual harassment compared to 40% of male officers. Female law enforcement officers also reported higher levels of physical sexual harassment/assault at 8.3%, compared to 2.2% of male officers. In an analysis of media-reported sexual harassment cases from 2000 to 2019, Terrence Dwyer found that the average award after trial was $1,160,834.75 and the average settlement was $389,431.14. For example, a former dispatcher in the St. Louis County police department was awarded $176,000 for sexual harassment and retaliation by a police sergeant in 1996.

In 2020, the National Fire Protection Association estimated that that only nine percent of firefighters were female. Among career firefighters, only five percent were female, but that percentage was somewhat higher among volunteer firefighters at eleven percent. Career firefighters include “full-time uniformed firefighters” who work in municipal fire departments and not firefighters who work for state and federal agencies or private fire brigades. In 2008, findings from a National Report Card on Women in Firefighting indicated that 84.7% of women and 12.4% of men reported having experienced different treatment because of their gender. When asked about specific incidents based on gender, female respondents reported incidents at much higher rates than male respondents. For example, 50.8% of women reported shunning or isolation compared to 2.3% of men; 42.6% of women reported verbal harassment compared to 2.8% of men; 31.9% of women reported exposure to pornography compared to 1.4% of men; and 30.2% of women reported sexual advances compared to 0.5% of men. In interviews, female firefighters reported sexual harassment incidents ranging from vulgar statements and unwanted attention to physical assault. In a study published in 1995, survey responses revealed that 58.2% of women firefighters reported that they had experienced sexual harassment, and, of those, 58.3% said they did not notify a supervisor because the supervisor already knew about the behavior or participated in the incident.

Municipalities are also likely to have departments that are homogeneous in their racial and ethnic composition, another risk factor identified by the EEOC. A homogenous workplace is one that lacks diversity among employees. For example, a department or team may include only one employee from a historically marginalized racial/ethnic group. This can lead to isolation. Police and fire departments tend to lack racial and ethnic diversity just as they lack gender diversity. In 2020, 75.9% of police officers were white, 13.6% were Black, and 2.31% were Asian. In 2020, 13.1% of career firefighters were Hispanic or Latino, 8.4% were African American, and 1.2% were Asian.

III. The Sexual Harassment Workplace Initiative

Just prior to the emergence of the #MeToo movement, the EEOC issued its now infamous report on the chronic problem of sexual harassment. The authors’ frustration was evident from the report’s Preface:

With legal liability long ago established, with reputational harm from harassment well known, with an entire cottage industry of workplace compliance and training adopted and encouraged for 30 years, why does so much harassment persist and take place in so many of our workplaces? And most important of all, what can be done to prevent it? After 30 years—is there something we’ve been missing?

The EEOC’s frustration regarding the intractable nature of sexual harassment was echoed by the U.S. Department of Justice (DOJ), which created the Sexual Harassment Workforce Initiative (SHWI) in 2018. Speaking on behalf of the DOJ’s Civil Rights Division, Assistant Attorney General Eric Dreiband explained that “SHWI seeks to increase litigation of sexual harassment claims against state and local government employers by taking a more aggressive approach to the investigation of charges referred by the . . . EEOC.” In addition, SHWI seeks to hold public employers accountable for implementing and revising policies to ensure workplaces are free from sexual harassment. Accountability is achieved through robust outreach to state and local government employers in all aspects of anti-sexual harassment policy—from reporting to implementing comprehensive sexual harassment and anti-retaliation trainings.

In terms of impact, SHWI’s focus on state and local government employers has the potential to affect many workplaces that are often overlooked. According to the U.S. Bureau of Labor Statistics, there were nearly nineteen million jobs in state and local government in 2020. Unfortunately, municipal workplaces are particularly vulnerable to sexual harassment. According to an analysis of EEOC claims made from 2005 to 2015, public administration workplaces accounted for the sixth highest number of sexual harassment claims by industry. As set forth more fully in Part II, supra, this occurs for a number of reasons, including, most notably, a lack of proper training for both elected officials and local bureaucrats.

Since its launch, the SHWI has indeed taken an aggressive litigation stance regarding claims of sexual harassment filed against state and local government employers. Specifically, the DOJ’s ELS has resolved several cases totaling over $2.7 million in damages and injunctive relief. Significantly, that injunctive relieve includes vital outreach to state and local governments to educate employers about Title VII liability. A summary of some of these cases follows. The litigation paints an unflattering picture of the status of women in public sector workplaces. From firefighters to jail wardens and county office workers, women continue to endure emotionally degrading—and sometimes physically dangerous—hostile work environments.

One of the first SHWI cases litigated, United States v. City of Houston, was filed by the ELS in February 2018. That case arose when two female firefighters in the Houston Fire Department filed charges of discrimination with the EEOC against the City of Houston. The plaintiffs alleged that they were subjected to sexual harassment in the form of a hostile work environment designed to oust them from the department. The outrageously harassing conduct included vandalizing the women’s bathroom and dormitory areas by spitting chewing tobacco in these areas, urinating and defecating in the lavatory, deactivating female dorm announcement speakers to deprive women of responding to emergency calls, and ultimately making death threats with vulgar slurs written on the walls of their living quarters. Despite multiple complaints to management, the harassing behavior continued, resulting in the constructive discharge of both plaintiffs.

After several years in litigation, the case settled in 2020, and, as part of that settlement, the court issued a consent decree requiring implementation of sexual harassment training for all relevant city employees. Such training describes behavior that is considered unlawful discriminatory conduct under Title VII, and explains the city’s anti-harassment policies and processes for filing harassment complaints.

Similarly, in Sumter v. City of Orlando, female assistant chief firefighter Dawn Sumter claimed she was sexually harassed and subjected to a hostile work environment within the Orlando Fire Department (OFD) by Fire Chief Roderick Williams from 2015 until 2017. After she filed a charge of discrimination with the EEOC, Sumter claimed she was retaliated against when she was moved to a less prestigious position that effectively removed her from consideration for promotion. In 2021, ELS intervened and filed a complaint against the City of Orlando, seeking a consent decree that would provide both monetary and injunctive relief. The court moved quickly to issue the consent decree and directed the city to (1) develop and revise relevant city and fire department policies related to anti-discrimination, anti-harassment, and anti-retaliation; (2) develop training for all OFD employees; and (3) maintain record-keeping and monitor compliance for sexual harassment complaints.

Perhaps one of the most egregious SHWI cases litigated to date was United States v. Cumberland County, Tennessee, filed in March 2021. As stated in the complaint, between February 2015 and February 2018, the director of Cumberland County, Tennessee’s Solid Waste Department fondled, assaulted, propositioned, and otherwise sexually harassed ten female employees of the Solid Waste Department. Specifically, plaintiffs’ direct supervisor Michael Harvel subjected women in the Solid Waste Department “to unwelcome, non-consensual sexual contact such as kissing and grabbing their breasts, thighs, buttocks, and vaginas, both over and under their clothes; unwelcome sexual advances . . . and unwelcome and offensive sexual remarks about their bodies and sex acts.” Some of the ten women complained directly to Harvel about the harassment, while others did not complain because they were either unaware of the complaint process or they feared reprisal. Shortly after the complaint was filed, the parties entered into a consent decree that included over one million dollars in damages and required reforms to Cumberland County’s sexual harassment policies with respect to training and dissemination of policies.

Another case filed by ELS in 2021, United States v. Mobile County Sheriff’s Office, serves as a noteworthy reminder that public employers are also liable for sexually harassing behavior of third parties engaged in sexual harassment on the employer’s premises. The complaint alleged that twelve female corrections officers employed by the Mobile County Sheriff’s Office experienced unwelcome, severe sexual harassment by male inmates over a period of years. The severe sexual harassment included male inmates engaging in verbal sexual harassment, as well as physical harassment such as exposing themselves to plaintiffs and engaging in exhibitionist masturbation. Plaintiffs repeatedly complained to supervisors about the inmate conduct, yet complaints were never taken seriously.

A proposed settlement agreement is currently pending in this case, and if approved by the court, will pay monetary damages exceeding two million dollars and will offer non-monetary relief. Specifically, the agreement will require updated county policies governing inmate sexual misconduct, training and communication regarding sexual harassment for both employees and inmates, and measures to address inmate sexual misconduct.

One additional case worthy of note is Doe v. Schuylkill County, filed in the U.S. District Court for the Middle District of Pennsylvania. According to the complaint in that case, four Schuylkill County employees, Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4, filed charges of sexual harassment discrimination with the EEOC after repeated sexual harassment at the hands of County Commissioner George Halcovage. The seventy-five-page complaint painted a disturbing picture of sexual harassment that went unchecked by the county over a period of at least eight years. The complaint further alleged that the county solicitor, county administrator, and county human resources personnel all knew about Halcovage’s sexually harassing conduct, including continual comments about plaintiffs’ appearance and escalating verbal sexual harassment.

In January 2023, DOJ issued a press release announcing a consent decree in the case that requires the county to work with a consultant to improve workplace culture, enhance policies and procedures related to sexual harassment, and implement a new training program. The consent decree also restricts Halcovage who, as of the date of the announcement, has refused to resign from the position of Commissioner, and can be removed only through impeachment and conviction by the Pennsylvania legislature. In an extraordinary rebuke, U.S. Attorney Gerard Karam stated, “No official can abuse their power and position to a workforce they were elected to supervise, and this settlement provides steps the County must take to prevent and address this abusive behavior.”

The common themes that emerge from the SHWI cases, supra, are not flattering to the public sector employer. Time and again, state and local government officials flaunt the law of sexual harassment, failing to train supervisors and staff about prohibited conduct on the job, turning a blind eye when sexual harassment occurs, and then punishing those who step forward to complain. Perhaps most alarming is the stubborn belief—made all too clear in many of these cases—that women do not belong in certain male-dominated professions and, accordingly, deserve whatever unlawful behavior to which they are subjected.

Rather than give up on state and local workforces, the SHWI invites a new era of change, not just by litigating cases when things go wrong, but by offering outreach to help workplaces set things right. And, that change is attainable. In the words of U.S. Attorney Gerard Karam in Schuylkill County, “[L]ocal governments must have comprehensive policies and training to prevent sexual harassment and retaliation by public servants.” The consent decrees in many of the cases above point the way: they tell public employers to take sexual harassment seriously, invest in sound workplace policies and processes that will assist employees in filing claims, avoid retaliation, and, finally, lead with respect.

IV. Conclusion: A Path Forward

Given DOJ’s 2018 initiative to combat sexual harassment in the public sector, now is the time for municipalities and states to create or revise sexual harassment policies and to require regular and interactive sexual harassment training for all employees, including elected officials who may have a stronger presence in the day-to-day operations of the municipal workplace than the state or federal workplace. According to the Institute for Women’s Policy Research, current sexual harassment training programs are not effective because supervisors who should be helping to report sexual harassment are failing to act, at best, and are retaliating, at worst. Sexual harassment can cause mental health effects and physical effects such as panic attacks, post-traumatic stress disorder (PTSD), headaches, and fatigue. These negative effects of sexual harassment can lead to greater absenteeism and less productivity; thus, it is in municipalities’ best interest to prevent sexual harassment for both ethical and financial reasons.

Although most states and municipalities offer some sort of sexual harassment training for their employees, they often fail to require sexual harassment training for elected officials. With the #MeToo movement, the number of state laws pertaining to sexual harassment has increased and expanded in scope to include third parties such as lobbyists. Municipalities did not tighten up sexual harassment policies at the same rate though, and municipal elected officials often work in much closer proximity to municipal employees. Currently, only twenty-nine out of fifty states offer some type of human resources training for elected officials; however, the content of that training and the consequences for noncompliance are largely unknown. Such trainings may not specifically include sexual harassment. The State of Georgia has the most robust training for elected state officials, and this training does include personnel management. Still, there are no penalties for elected officials who do not complete the training.

It is imperative that states and municipalities adopt robust policies to prevent sexual harassment. For policies to be successful at deterring sexual harassment, there must be buy-in from upper-level management. Recommendations for more robust sexual harassment policies are listed below.

  • Policies should be written, clear, and contain a detailed definition of sexual harassment. The policy should be distributed to all employees and require each employee to sign a form of documentation acknowledging receipt and understanding of the policy. The policy should include examples of harassing behaviors, such as “sexual propositions or advances; insulting or suggestive sounds; comments about a person’s body or body parts; sexually oriented jokes that degrade men or women; repeated flirtations and/or sexual comments; repeated insults against men or women; comments or behaviors that promise benefits for sexual favors; touching, patting, or pinching; and cartoons, pinups, calendars, pictures, etc. . . . of naked men or women or of a sexual nature.”
  • Policies should include a “formal and informal complaint/grievance process.”
  • There should be multiple channels for complaints that include where and to whom complaints should be filed.
  • The policy should prohibit retaliation against the person who filed the complaint and should make it clear that retaliation is a violation of the policy.
  • The policy should say that both parties (complainant and alleged harasser) will be notified of the outcome of the investigation.
  • The policy should specify that complaints will be kept confidential to the greatest extent possible.
  • Policies should include regular mandatory general training for employees at all levels, including managers, supervisors, department heads, and local elected officials.
  • The complaint process and policy should be monitored to determine their effectiveness.
  • Training should be specific and describe penalties, as well as the applicable disciplinary process.
  • Training should include consequences for noncompliance through performance appraisal systems or other avenues.
  • Managers, supervisors, department heads, human resource specialists, and local elected officials should receive training on how to handle and process sexual harassment complaints, including situations in which the complainant is not the target of harassment. The investigating party should also be trained specifically on how to conduct the investigation, interview witnesses, and maintain confidentiality.
  • The training should educate everyone about common misunderstandings, including that sexual harassment is not gender specific (men can be sexually harassed as well as women) and that sexual harassment does not have to be sexual in nature (actions only have to be gender-based).
  • Complaints should be investigated and resolved promptly. Investigations should be properly documented. Investigators should interview the complainant and witnesses and gather any applicable physical evidence. Alleged harassers should be given notice and an opportunity to respond to the complaint.
  • If an investigator determines that sexual harassment occurred, employers should take action to stop it from reoccurring. These steps may include a warning, disciplinary action, or termination of the harasser’s employment. If an investigator’s results are inconclusive, the employer should still warn the alleged harasser of the consequences of potential future infractions.

In addition, state and local governments should:

  • Distribute anonymous surveys to assess the climate of sexual harassment.
  • Increase diversity at all levels of the organization, paying particular attention to work groups with low levels of diversity.
  • Create a culture of civility and respect that involves the highest levels of leadership.
  • Regularly monitor interactions among and within work groups.
  • Ensure that workplace rules are applied uniformly, regardless of the rank or value of the employee.
  • Regularly monitor interactions among and within work groups with significant power disparities.

The federal government has clearly made sexual harassment a priority, and state and local governments need to follow suit. State and local governments that proactively implement robust workplace policies and procedures regarding sexual harassment can avoid legal liability and create a healthier workplace climate for employees. With the federal government’s attention focused on this matter through SHWI, state and local employers can no longer bury their heads in the sand when it comes to sexual harassment.

    The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

    Michelle L. Wade

    West Chester University

    Michelle L. Wade, PhD, is Associate Professor of Public Policy and Administration at West Chester University of Pennsylvania. She teaches in the Master of Public Administration Program and the Doctor of Public Administration Program. Dr. Wade’s scholarship focuses on social equity and public administration.

    Susan R. Fiorentino

    West Chester University

    Susan R. Fiorentino, JD, MA, is Professor of Management at West Chester University of Pennsylvania, where she teaches in the Master of Human Resources Program. Professor Fiorentino’s scholarship is focused on Title VII employment discrimination and sexual harassment. She also maintains a limited law practice in employment law.