The Foreign Service Journal - March 2018

66 MARCH 2018 | THE FOREIGN SERVICE JOURNAL KnowYour Rights: Sexual Assault and Sexual Harassment NOTES FROM LABOR MANAGEMENT AFSA NEWS The courage of the women— and men—speaking out against sexual assault and sexual harassment over the past several months has finally brought the issue out into the open and empowered others to come forward. Employees should be aware of recent additions to the Foreign Affairs Manual regarding sexual assault and should also under- stand their rights and obliga- tions under FAM regulations related to sexual harassment. Assault vs. Harassment The FAM defines sexual assault as “any type of sexual contact that occurs without the explicit consent of the recipient” (3 FAM 1711.2 and 3 FAM 1752). Sexual harassment is defined by 3 FAM 1525.1 as unwelcomed sexual advances, requests for sexual favors and other verbal/physical conduct of a sexual nature in which the submission or rejection of the conduct affects an employ- ment decision or the conduct interferes with the employee’s work performance. The primary difference between the two is that sexual harassment relates to the vic- tim’s employment and/or per- formance. Sexual harassment is governed by equal employ- ment opportunity (EEO) laws, while sexual assault is a crime against another person, and therefore falls under criminal law. Sexual assault is a form of sexual harassment if it affects employment and/or the victim’s job performance, and therefore can be both a criminal action and a violation of EEO law. New FAM Provisions In spring 2017, AFSA and the State Depart- ment negotiated and finalized two new FAM provisions gov- erning sexual assault. 3 FAM 1710 is applicable to sexual assault involving chief of mis- sion personnel or occurring at a department facility outside the United States, while 3 FAM 1750 pertains to sexual assault in the United States. When conferring on these new guidelines, AFSA and the department were cognizant of the traumatic nature of such an incident for the victim and tried to balance sensitivity and victim empowerment with the responsibilities of the depart- ment to investigate and act. Both FAM regulations dis- cuss the department’s policy and procedures for handling allegations of sexual assault, points of contact for victims to report a sexual assault and the responsibilities of various offices (e.g. Diplomatic Secu- rity, the Bureau of Medical Services and the Office of Civil Rights) once a sexual assault is reported. In addition to the offices listed as resources in the FAM, sexual assault victims can also contact the Victims’ Resource Advocacy Program, which provides assistance and support for victims. Contact information for this program is contained in 3 FAM 1715.5. Both FAM provi- sions also emphasize that employees cannot be retaliated or discriminated against for reporting a sexual assault or par- ticipating in a sexual assault investigation. Any employee alleged to have committed a sexual assault may be subject to removal from the prem- ises, revocation of building access, curtailment and/or suspension/revocation of one’s security clearance. In addition to criminal penalties, the alleged perpetrator may also face disciplinary action, including suspension without pay or separation. State Policy State’s sexual harassment policy is contained in 3 FAM 1520, which states that the department is committed to a workplace that is free from sexual harassment. There is a detailed definition of sexual harassment, including an extensive list of actions that are deemed sexual harass- ment and can lead to disciplin- ary action, in 3 FAM 1525.1. These actions include sex- ual pranks, comments, touch- ing and/or grabbing, standing too close to or brushing up against a person, making repeated requests to socialize after work hours despite the other person indicating they are not interested, sexually suggestive gestures, making or posting sexually-related materials, and unwelcome off-duty conduct that is sexual in nature. While overseas, employ- ees are considered to be on the job “24/7.” Even off-duty conduct can be subject to discipline. In addition, while employees may believe that their comments (“Beauti- ful dress—shows off those leg muscles”) and actions (putting an arm around a colleague’s shoulder or back) are harmless and innocent, an individual on the receiving side of such comments and/ or actions may feel offended, embarrassed or harassed. Who Can Report? Anyone can report harass- ment to the OCR, and the department is obligated under the FAM to investigate all such claims. Furthermore, the FAM mandates that anyone in a supervisory position must report any harassment that they have been informed of or witnessed. The FAM provisions dis- cussed here are applicable to all employees, and all genders should feel empowered and safe to report any behaviors, comments or actions that are unwelcome, inappropriate, harassing or made without explicit consent. If you have questions, please contact the AFSA Labor Management team for advice or assistance. n —Neera Parikh, AFSA Senior Staff Attorney Neera Parikh