As D.C. weighs sexual harassment policy, data show scope of complaints

The issue was brought to the fore this year after Bowser’s former chief of staff, John Falcicchio, was accused of prolonged sexual harassment by two women, a scandal that led to his resignation in March and fueled an appetite among city leaders to assess whether Bowser’s anti-harassment order needed changes.

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Now, MOLC’s data provides a window into how the city has handled scores of sexual harassment complaints over the past five years, with varying outcomes under a relatively stringent definition of sexual harassment that the D.C. Council has already thrown out and that Bowser is expected to change as well.

The MOLC’s tracker is not a comprehensive account of all sexual harassment complaints filed by D.C. employees — who can file them in several places, such as the D.C. Office of Human Rights — but it does record all complaints investigated under the mayor’s policy.

Of the 290 complaints that The Post reviewed from December 2017 through June 2023, just under 30 percent were substantiated in full or in part — including a case in which 11 women accused a Department of Health employee they nicknamed “Perv” of inappropriate touching and conversations as well as “masturbation by placing his hands inside his pant pockets during face-to-face meetings.”

About 40 percent of complaints were unsubstantiated or were found inconclusive. This includes some cases where investigators believed that the alleged conduct did happen, but agency leaders didn’t think it rose to the level of sexual harassment. For example, the Department of Human Services found that an employee likely slapped a woman’s behind while she was talking to a colleague, but the agency didn’t think it was a violation of the order.

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The results show how judgment calls about whether alleged harassment is “severe” enough can lead to inconsistent enforcement of a well-intentioned policy, according to employment attorneys who reviewed the set of complaints at The Post’s request. The costs of sexual harassment can reverberate beyond victims, too, with D.C. taxpayers footing the bill if a complaint results in a settlement or judgment. In fact, a federal jury in mid-September entered a $700,000 judgment against D.C. after finding the city failed to take necessary steps to protect the victim, a former Department of Behavioral Health (DBH) social worker, from sexual harassment in a D.C. public school.

The city did not make any officials available to speak on the record about the policy. But in a statement from Bowser’s office provided by a spokeswoman, the administration said it was working on several changes “to further improve and refine what is already one of the most progressive sexual harassment policies in the country.” The updates are expected “soon.”

For example, Bowser (D) is expected to amend the policy to broaden the definition of sexual harassment to align with a 2022 D.C. law, eliminating the 2017 standard that sexual harassment has to be “severe and pervasive” enough to create a hostile working environment. Multiple attorneys, including within D.C. government, described that as a positive and overdue change, especially considering the high bar that alleged victims have had to clear to show that they’d been harassed.

The D.C. Council is also expected to take action. At-large council members Anita Bonds (D) and Kenyan R. McDuffie (I) pledged this summer to hold hearings or use their oversight authority to investigate the scope of sexual harassment within District government, including workplace culture within the Office of the Deputy Mayor of Planning and Economic Development, which Falcicchio led. Neither has held a hearing yet, but Bonds said in an interview that she has used the time to collect input from D.C. agencies about how Bowser’s 2017 order is being implemented. She said she is planning to schedule a hearing this fall soliciting feedback directly from D.C. employees about their own experiences or opinions about Bowser’s order, and said she would withhold judgment on changes she believes are needed until then.

Emily Martin, vice president of education and workplace justice at the National Women’s Law Center, said the fact that about 300 employees brought complaints does not necessarily denote a problem. It’s positive, she said, if employees are comfortable coming forward — as long as valid complaints result in accountability.

“If employers are getting zero complaints, that’s indicative of a problem,” she said. “It is a sign of a healthy, functioning workplace culture for people to feel empowered and enabled to come forward with concerns. I think the bigger question is, what happens when people come forward?”

Bowser unveiled her sexual harassment order in December 2017, months after explosive sexual assault and harassment allegations against Hollywood mogul Harvey Weinstein birthed the #MeToo movement, prompting public and private entities to revisit their policies. D.C. had not updated its policy since 2004.

The order required every agency to assign a “sexual harassment officer” to investigate complaints, creating multiple reporting avenues for victims. The sexual harassment officers submit their investigative report to the agency’s top brass, who determine whether the alleged harasser violated the mayor’s order and what discipline should be doled out.

The experience of the DBH social worker that summer underscored exactly why a more robust policy was needed: After months of sexual harassment by an assistant principal at the school where she worked, she struggled to find someone to take her concerns seriously.

The woman, who is called Jane Doe in court documents due to the sensitivity of the case, said she began a consensual sexual relationship with the assistant principal who supervised her soon after she started working at the school that spring. But by July, it was no longer consensual, she said.

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That was when the assistant principal began aggressively pursuing her through unnecessary classroom visits and unwelcome calls, texts and lewd photographs, Doe alleged. The assistant principal also groped her breasts and buttocks without consent, even though she told him to stop and made clear she had no interest in a romantic or sexual relationship, according to the lawsuit.

In October 2017, Doe alleged, the assistant principal entered her classroom, locked the door and sexually assaulted her while her students were outside in the hall and as she told him to stop.

Doe’s attorney, Michael P. Ellement, said Doe first brought up the harassment with her superior at DBH in September 2017, but her complaints were rebuffed, mishandled or ignored. At one point in early October, when Doe offered to show him texts from the assistant principal as proof, the DBH supervisor responded, “Don’t send them to me. I don’t want them,” according to the complaint. When Doe finally met with the principal, she similarly brushed off Doe’s concerns, according to the complaint.

“I felt empowered by the ‘MeToo’ movement to speak out about what was happening to me at the school, yet I had an enormous amount of fear that I would not be believed or supported if I filed a complaint,” she said in a statement to The Post through her attorney. She said those fears materialized. “In my case specifically, I was not believed or supported by my leadership even in the midst of the movement.”

It’s difficult to assess the impact of Bowser’s policy in the case, which Doe described as a “step in the right direction” as long as it’s enforced. But by the time the mayor’s order took effect and Doe brought a complaint under it in January 2018, she had already been shuffled between two agencies that her attorney says were too slow to respond meaningfully. Later that spring, an internal investigation under the mayor’s order substantiated some allegations, but the agency was unable to substantiate others, including the alleged assault, due to a lack of witnesses.

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She turned to the courts — and last month, a jury found D.C. “failed to take prompt and effective action” to protect Doe from sexual harassment and, under negligent supervision, the assistant principal committed battery against her. The jury awarded Doe $700,000 in damages.

“The order allows a multitude of ways to complain, which is what my client tried to do. But the [supervisor] did not push it up the chain of command and tell the right people,” Ellement said. “So if this system is going to work, you need to be training supervisors to spot sexual harassment and report it when they see it.”

DCPS said it could not comment on personnel actions. The Department of Behavioral Health in a statement said it could not comment on this specific case because of ongoing litigation, adding that the agency is “committed to providing a workplace that is free from sexual harassment and investigates all claims promptly and thoroughly.”

The $700,000 judgment in a sexual harassment case is the largest that The Post — or, via records requests, city officials — have identified in D.C. since at least 2015. When The Post last examined the cost of sexual harassment to D.C. taxpayers, in March 2018, the city had paid at least $735,000 in settlements over the previous three years.

Bowser’s administration pledged in 2017 to “centralize” information about sexual harassment complaints and settlements. But nearly six years later, not a single D.C. agency centrally tracks sexual harassment settlements, with responsibilities divided among the attorney general’s office, the Office of Risk Management and city administrator.

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Through records requests to those agencies and information provided by Bowser’s office, The Post compiled an additional 10 sexual harassment settlements since 2018, eight of which resulted in roughly $1 million in payments to the alleged victims; two settlements did not require District funds. A portion of the cases predate Bowser’s order, as some took years to reach a conclusion.

A 2020 report from the D.C. auditor warned that a failure to cohesively track settlements and judgments could pose problems for the city in identifying and mitigating risks or patterns of misconduct.

The city has taken positive steps: In 2018, the city administrator issued an order requiring all personnel-related settlements to be routed through the office for approval. But not all settlements identified by The Post appeared in the city administrator’s records under that order. While the Office of Risk Management told The Post in 2017 and the auditor in 2020 that it was developing software to centrally track settlements and judgments in all litigation, an update to the auditor this year revealed the work was still incomplete.

Bowser’s administration would not answer questions about why the work was unfinished or make Jed Ross, the chief risk management officer, available to answer questions.

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Some D.C. Council committees attempt to track sexual harassment complaints and settlements through their oversight role. But a review of performance oversight documents shows that the committees do not ask uniform questions to agencies and sometimes don’t ask at all.

Aware of the shortcomings, the council last summer passed a bill that requires the D.C. Office of Human Rights to also compile and submit data on sexual harassment complaints and settlements in one unified report. The first report is due in December.

Council member Robert C. White Jr. (D-At Large) said the bill came to fruition after multiple reports of sexual harassment involving DCPS staff in 2018. But he and his constituents had trouble getting information about the incidents. The city needs to have full transparency, he said, so lawmakers can scope out patterns of alleged harassment and see how agencies are handling the allegations.

“I’m confident that not every agency was collecting the allegations of sexual harassment, and even if they were, I don’t think they were giving it to anyone,” White said. “The unknowable cost is the number of talented people, overwhelmingly women, who left, or may not want to work in a government that is not properly handling sexual harassment allegations.”

‘Severe and pervasive’

The legislation moved through the council at the same time as another bill from White that changed the definition of sexual harassment in the D.C. Human Rights Act.

The new law, which became effective in September 2022, acknowledges that an alleged perpetrator’s actions “need not need to be severe or pervasive to constitute harassment,” adding that no specific number of incidents or level of egregiousness is required. Martin, the attorney at the National Women’s Law Center, said the change put D.C. in line with just five other states that have amended definitions of sexual harassment to “really reflect modern understandings and expectations of workplace behavior.”

Martin and other attorneys who reviewed the policy said that, while the “severe and pervasive” standard has been the norm nationwide, it’s notoriously difficult for victims to prove. And that appeared to explain why in some D.C. government cases since 2017, certain inappropriate conduct or comments were still found not to violate the order.

For example, the Department of Motor Vehicles substantiated allegations from February 2022 that a male employee told a female colleague he would spank her and often had sexual conversations with her and other colleagues, among other things. “However, it was not a violation of the mayor’s order,” the agency reported for all substantiated allegations.

The case is now in litigation, according to the MOLC.

“The law needed to change because not everybody agreed with the interpretation of what ‘severe or pervasive,’ meant; it was different for different people,” said Lauren A. Khouri, president of the board of directors for the Metropolitan Washington Employment Lawyers Association, who reviewed the collection of data from MOLC.

DCPS similarly appeared to struggle to decide whether certain conduct met the “severe and pervasive” standard. The agency accounted for roughly a quarter of all complaints in the MOLC tally since 2017, though over recent years it also made up roughly between a fifth and a quarter of all D.C. employees.

In one inconclusive case, a DCPS employee who was a girls’ coach was accused of running his hand down a player’s arm as they were walking to the field, and continued after she felt uncomfortable and asked him to stop. In a separate instance he was accused of touching a player’s shoulders during a team photo and telling the group to say “sexy mamas” to the camera, which the girls didn’t want to do. “Accusations were found to be credible, but the behavior not severe or pervasive enough to violate order,” the notes in the tracker say. “Remedial action” was still recommended.

Some cases appeared to incorporate some questionable investigative tactics. An investigation into a male DCPS employee found that he told an unidentified female, “I’m going to explode in your mouth,” after she commented about the bursting tomatoes she was eating for lunch. “This made the [redacted] uncomfortable, but agency couldn’t find that this was an inherently sexual statement because the top google result was related to dentistry.” DCPS’s ruling on whether it was sexual harassment: Inconclusive.

Other times investigators got hung up on whether an alleged harasser got “mixed signals.” A complaint against an employee who repeatedly asked a colleague out on dates even after she said she was not interested, then suggested sex instead, was also found “inconclusive.” The reason: “findings could not substantiate whether accused knew the behavior was unwanted or unwelcome” — yet remedial action was suggested considering the accused harasser continued even after the victim specifically said no.

Kera Tyler, a spokeswoman for DCPS, said the agency could not comment on the specific cases, but that it investigates complaints and takes immediate action to “create the safe environment we want to provide for our students and employees.”

Michelle Bercovici, an employment attorney who reviewed summaries of the cases for The Post, says the provision of the mayor’s order requiring accusers to directly tell or ask a supervisor to tell the harasser that the conduct is unwelcome may be intended to encourage early intervention. But if the burden is too heavy on accusers to prove they have been sexually harassed, Bercovici said that could discourage people from participating and intensify fears of retaliation.

“It makes employees less likely to complain, especially if there’s situations where there’s been openly inappropriate sexual conduct,” she said.

Vanessa Natale, deputy director of the MOLC, welcomed the change in the law that broadened the definition of sexual harassment. “It makes it better and more comfortable for complainants to come forward,” she said. “They don’t have the burden of proving ‘severe and pervasive.’”

The MOLC does not typically investigate harassment complaints, but did investigate the high-profile Falcicchio allegations at Bowser’s request and substantiated two complaints of sexual harassment against him. Natale said the MOLC adhered to the standard in the new law in its investigation rather than the 2017 mayor’s order.

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According to the mayor’s office, the D.C. Office of Human rights began training sexual harassment officers and agency lawyers on applying the new definition of sexual harassment last month. Bowser’s administration said sexual harassment officers and others will receive additional training after the policy is amended. Some of sexual harassment officers submit much more robust investigative reports than others, the statement said, “and it’s underscored the need for more training for SHOs and more stability in the SHO corps.”

Bowser’s office did not confirm any other forthcoming changes to the policy, but a new policy for consensual relationships could be included. Bowser’s 2017 order required the human resources department to develop reporting requirements for relationships within a chain of command — but the department never did that, according to the MOLC. The administration did not answer when asked why not.

Discipline is not frequently recorded in the MOLC’s tracker in substantiated cases, which attorneys who reviewed the cases for The Post said made it difficult to assess how harassers or managers were being held accountable under the order. Outcomes of investigations are also not recorded in about a quarter of cases in MOLC’s tracker. Natale acknowledged gaps in the tracker, though stressed that the absence of information doesn’t mean no action was taken or investigations were not completed.

Natale said discipline is often tailored in each case and can range from verbal counseling to more serious action such as suspension or termination.

The bulk of complaints were filed in the first two years of the policy’s existence — nearly 200 through 2019. They began to drop off in 2020, coinciding with the pandemic as many employees began working from home.

“I know people don’t like the idea that there is a lot of sexual harassment complaints, Natale said. But, she said, it shows people know that the agency will investigate every claim, big or small. “Maybe it’ll make someone think before they say something.”

At times, the complaints in the MOLC’s tracker illustrate plainly how Bowser’s order caused city government workers to think differently about harassment — though some, apparently, didn’t have a complete grasp.

At a Department of Transportation meeting in May 2018, for example, an employee told men in the room that they “needed to be careful” now that the new policy was in effect. But the women in the room received a different message, according to the complaint: If they “dressed like a ‘ho,’” the employee told them, “they are going to be treated like a ‘ho.’”

Months later, the employee was written up for violating the policy.