APPEALS COURT UPHOLDS OPM POSITION REGARDING SEXUAL HARASSMENT

Washington, D.C. -- The U.S. Court of Appeals for the Federal Circuit has upheld the U.S. Office of Personnel Management's (OPM) position that an agency should be free to take warranted action based on an employee's sexual misconduct either under its own regulation or, if appropriate, under Title VII of the Civil Rights Act and implementing EEOC guidelines.

The appeals court ruling is a result of a petition filed by OPM claiming that applicable civil service and antidiscrimination law was misinterpreted by the Merit System Protection Board in a sexual harassment case in which it reversed the Department of the Army's removal of an employee in the Senior Executive Service (SES).

In King v. Hillen and Merit Systems Protection Board, the court said it is not necessary for an agency that is disciplining an employee who engaged in sexual misconduct to prove that as a result of the harassment the victim suffered from serious psychological damage.

In addition, the court ruled that when there are multiple incidents and victims, it is the "cumulative effect of the offensive behavior" that creates a hostile working environment. This may include the ability of the harasser to affect the coworker's or subordinate's job. Whether a hostile environment has been created should not depend on the lack of severity of any single incident. The court remanded the case to MSPB to determine if the employee's conduct constituted sexual harassment under these standards.

This decision by the Federal Circuit has several important messages for agencies:

• There is no requirement that a victim must suffer serious psychological injury in order for the agency to establish that an employee engaged in sexual harassment under Title VII.

• By viewing each incident in isolation, as if nothing else had occurred, a realistic picture of the work environment was not presented. The frequency of the offensive environment as well as its nature and its pervasiveness are all factors to be weighed in determining the abusiveness of the environment.

• In the Department of Army's removal of Hillen, his SES "position of high authority at the Command could have contributed to the pervasiveness and severity of the behavior, and its perception as abusive and intimidating." The Army "was justified in applying a rigorous standard of workplace conduct to this senior executive."

• A federal agency may establish a more stringent policy forbidding sexual harassment and discipline an employee under its own policy, as long as the agency clearly notifies the employee of the basis for the charge.

In responding to the ruling, OPM Director Jim King said, "The decision of the U.S. Court of Appeals sends the message that sexual harassment in the workforce is destructive to the work environment and will not be tolerated in the federal government."

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Web page created 2 December 1997