Holding the Government Accountable

Without a Nominee, a Federal Study on Sexual Harassment Is Bottled Up

Sexual harassment in the workplace is a serious issue, and it has garnered high-profile news coverage in recent months. While much of the coverage has focused on Congress, executive branch agencies have generally drawn less scrutiny despite widespread claims of harassment at the Interior Department.

A government-wide study that could shed light on sexual harassment at federal agencies won’t see the light of day anytime soon because President Trump has yet to appoint a nominee to run the little-known office conducting the study. Without at least one more member, the three-person Merit Systems Protection Board (MSPB) lacks a quorum and thus cannot issue the sexual harassment study or reports on other topics of substantial interest, such as whistleblower reprisal.

To prevent harassment and reprisal, it is important to understand the scope of the problems and identify the causative factors. The MSPB has the mandate to do that for most of the executive branch. The MSPB is tasked with upholding merit principles to promote an effective federal workforce that is free of prohibited personnel practices, including discrimination, sexual harassment, and whistleblower retaliation.

MSPB’s Research Agenda 2015-2018 identified 34 topics planned for study, including an update to the 1995 Sexual Harassment in the Federal Workplace report. The report found that almost half of the women and 20 percent of the men in the federal workforce had received unwanted sexual attention in the preceding two years.

While MSPB has released some preliminary findings that show progress since the last study, a full report will not be public anytime soon. The MSPB needs a quorum, or a minimum of two board members, to issue official reports to the President and Congress. The board has been comprised of a sole member, Vice Chairman Mark Robbins, since January. The most recent instance of MSPB lacking quorum was in 2003, and that lasted for just a few weeks.

To restore a quorum, a new member must be nominated by the President and confirmed by the Senate. President Trump has not nominated anyone to the position.

The release of the full report is important. It could shed light on whether sexual harassment is more prevalent at certain federal agencies or in certain occupations, as well as whether the agencies have been making progress in combating the problem. The findings could help the public and policymakers understand the scope and nature of sexual harassment inside the federal government and could help shape solutions.

Additionally, the preliminary findings revealed a decrease in sexual harassment in the federal workplace over the last 20 years. The full report could shed light on what best practices, if any, have contributed to this decline and could serve as a guide for how the other branches of government, state and local governments, and the private sector can improve their workplace cultures.

The lack of a quorum is also affecting MSPB’s work on whistleblower retaliation issues. The federal government is experiencing a pile-up of whistleblower and other types of employment appeals (706 as of this month). In addition, MSPB’s Research Agenda 2015-2018 includes a planned study of reprisal for protected activities. The study will explore issues like how agencies respond to whistleblowing and what the best practices are for dealing with employees who have blown the whistle. However, without a quorum, the report cannot be issued.

Both studies could be useful context for understanding cases like that of Alyssa Bermudez, which involves both sexual harassment and retaliation claims. Bermudez, an army veteran and former Transportation Security Administration (TSA) employee, has been involved in a long-running battle with the TSA since she was terminated in 2015 after reporting sexual harassment at her agency. Federal News Radio reported Bermudez was transferred from her position in the Office of Intelligence and Analysis to processing Freedom of Information Act requests and then put on administrative leave. This type of a job shake-up is a form of retaliation whistleblowers often experience. A supervisor who refused to lie about the harassment he witnessed was demoted, according to the article.

Earlier this month, Federal News Radio followed up on her saga, reporting that “an OSC [Office of Special Counsel] attorney called to say they’ve reached preliminary findings in Bermudez’s favor. And, OSC is reaching out to TSA to see if it will accept her settlement terms.”

Whether Bermudez finally gets justice remains to be seen. But what is clear is that she’s not alone. To move the federal government closer to its goal of being a “model employer,” these MSPB studies should see the light of day, and the board needs a quorum as soon as possible. President Trump should make it a priority to nominate an MSPB member, as well as fill other key federal watchdog positions.