OPM SCORES VICTORY IN SEXUAL HARASSMENT CASE

A recent action by the U.S. Court of Appeals for the Federal Circuit has reaffirmed that sexual harassment is a serious offense and will not be tolerated in the federal workforce.

At the request of U.S. Office of Personnel Management (OPM) Director James B. King, the Court of Appeals for the Federal Circuit overturned an arbitrator's award that had reinstated a federal employee who had been disciplined for engaging in a persistent pattern of sexual harassment and notoriously disgraceful misconduct.

Director King said, "The decision handed down by the Federal Circuit Appeals Court sends a clear message that arbitrators will be counted on to uphold the law and provide a workplace that is free from sexual harassment."

In King v. Frazier, 94-3670 (Fed. Cir. December 19, 1995), the arbitrator, Joseph Glasser, quashed a disciplinary action imposed upon Frazier by his employer, the Department of Housing and Urban Development. Although the arbitrator found that Frazier, in fact, had engaged in notoriously disgraceful conduct, he believed that Frazier did not know right from wrong and did not know that his conduct constituted sexual harassment. In the arbitrator's view, Frazier's conduct was part of his "lifestyle."

Director King exercised his special statutory authority to seek reconsideration of erroneous arbitral awards and Merit System Protection Board decisions that will have a substantial impact upon civil service law. The arbitrator rebuffed the opportunity to give him a chance to bring the award in conformity with federal laws dealing with discipline and sexual harassment, and the Director filed an appeal in the Federal Circuit.

Applying its landmark decision in King v. Hillen, another case brought by the Director of OPM, the court concluded that the correct inquiry in a sexual harassment case is whether a reasonable person would find the conduct that resulted in disciplinary action hostile or abusive and whether the victim perceived that the misconduct created a hostile or abusive environment. Both of these inquiries must be judged from the perspective of the one being harassed, not from the alleged perpetrator's viewpoint. The court found that the evidence in the Frazier case met that legal standard.

The court also adopted OPM's argument that the arbitrator should not have based his award upon whether Frazier intended to commit misconduct. In order to discipline a federal employee, an agency need only show that the employee engaged in misconduct and that there was a connection between the misconduct and the efficiency of the federal service.

"OPM is committed to challenging legally erroneous arbitral awards to root out the scourge of sexual harassment in the workplace," said Director King.

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Web page created 2 December 1997