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Sexual Harassment-Prohibited Conduct

December 14, 1998

Office of the Attorney General
Washington, DC 20530



SUBJECT: Prevention of Harassment in the Workplace

The Supreme Court recently issued three important decisions on sexual harassment in the workplace. I want to take this opportunity to reiterate to all employees that it has been and continues to be the policy of the Department of Justice to maintain a work environment that is free from harassment based on race, color, gender, religion, national origin, age, disability and sexual orientation. It is also the policy of this Department to ensure that no employee is subjected to retaliation because he or she has alleged unlawful harassment. Immediate and appropriate corrective action will be taken to address any form of harassment.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment based on gender by managers, supervisors, or coworkers violate the law when:

  1. An individual is told (or it is implied) that he or she must submit to the unwelcome conduct as a condition of the job;
  2. An employment decision affecting the individual is made because the individual submitted to or rejected the unwelcome conduct; or
  3. The unwelcome conduct unreasonably interferes with an individual's work performance or creates an intimidating, hostile or abusive working environment.

In addition, unwelcome verbal or physical conduct based on an employee's race, color, religion, national origin, age, or disability is unlawful, if the conduct unreasonably interferes with an individual's work performance or creates an intimidating, hostile or abusive working environment. Furthermore, the Federal Government will not tolerate any discrimination on the basis of sexual orientation.

I want everyone to be aware of the Supreme Court's recent decisions. In Oncale v. Sundowner Offshore Services, Inc., the Court held that harassment on the basis of sex, where both the harasser and the victim are the same sex, is prohibited by Title VII. In Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, the Supreme Court held that when a manager or supervisor sexually harasses an employee and the harasser results in a "tangible employment decision" "such as discharge, demotion or undesirable reassignment), the employer has violated federal law. Other types of illegal sexual harassment by supervisors and managers are treated as hostile environment harassment. In cases of hostile environment harassment, the employer will not be held responsible for harassment by its managers or supervisors if it: (1) exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) the victims of harassment unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

I am committed to taking a proactive approach in addressing the critical problem of sexual harassment. We must continue to take all necessary steps to ensure that no employee of the Department is subjected to harassment, whether based on sex or another prohibited factor. We must continue to educate our employees to ensure that everyone has a clear understanding of this issue. Any employee who believes that he or she has been subjected to harassment should report such behavior immediately to a supervisor, any higher level manager, the personnel officer in their office, or to individuals who may have been identified specially by their office to receive sexual harassment reports. Employees can also seek assistance through appropriate provisions of their collective bargaining agreement. I assure you that the matter will be dealt with promptly and impartially and that employees will not suffer any form of reprisal or retaliation. Please remember that employees who want to file a formal complaint of harassment and preserve their legal rights must contact their Office of Equal Employment Opportunity within 45 days of occurrence of the conduct believed to be unlawful harassment.

I will hold managers and supervisors responsible for enforcing this policy. I expect each manager and supervisor in the Department to set the example in his or her organization by ensuring that the workplace is free of such behavior. Every manager and supervisor must:

  • watch for the potential for harassment in his or her work environment;
  • take all necessary steps to prevent harassment from occurring; and,
  • if it does occur, ensure that the harassment is eliminated in a manner that is prompt and effective but minimizes the effect on the victims to the extent possible.

Appropriate corrective action will be swiftly taken against any manager, supervisor or employee who engages in harassment. Likewise, action will be taken against supervisors and managers who either condone or fail to act promptly to correct harassing conduct brought to their attention.

I ask each one of you to continue to work with me in this important effort to ensure that the Department is a model among public and private employers.

Updated: May 2012
Equal Employment Opportunity Office

Richard Toscano
Phone: (202) 616-4800
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