Hides sexual harassment payouts....

How the federal government hides sexual harassment payouts

Executive-branch agencies don’t uniformly track claims or report details of settlements paid out via a federal fund.

By ANDREW RESTUCCIA, EMILY GOLDBERG and REBECCA MORIN

Executive branch agencies have settled dozens of sexual harassment cases involving federal workers in recent years, but the resulting taxpayer-funded payments are shrouded in mystery.

Despite a 2002 law aimed at improving federal accountability in discrimination cases, the system for tracking sexual harassment payments in the executive branch is almost as opaque and bureaucratic as the one governing Congress, where payouts similarly lack transparency — a setup that obscures the extent of workplace problems and allows for little oversight of how taxpayer money is spent, according to a POLITICO analysis.

Requests for information about the broad scope and total cost of sexual harassment settlements from the Treasury Department, the Equal Employment Opportunity Commission and more than a dozen federal agencies yielded no clear answers. An administration official, who requested anonymity to speak frankly about the process, acknowledged that the figures are difficult to compile because agencies don’t track the settlements separately from other harassment claims that touch on everything from an employees’ age to religion.

A federal fund run out of the Treasury Department, known as the Judgment Fund, distributes billions annually – more than $4.3 billion in fiscal 2016, the most recent year available – to pay financial judgments and awards against the United States on a range of issues, including sexual harassment claims.

But the exact amount paid through the fund and by federal agencies for sexual harassment settlements is unclear. Treasury publishes a yearly report to Congress that lists hundreds of payments made through the fund, yet the report does not include detailed information about the precise reason for the payments.

The Judgement Fund has come under attack by Republicans as an unchecked slush fund, especially after the Obama administration suggested it could be used to make payments promised to insurers under Obamacare after Republicans moved to stop the money from coming out of the Department of Health and Human Services’ budget.

House and Senate Republicans has introduced legislation that would require the disclosure of more information about the fund’s settlements.

“What we’re looking for is just accountability. We just feel like there should be sunlight cast on these things,” bill sponsor Rep. Chris Stewart (R-Utah) told POLITICO in an interview. “I don’t think people really saw the overlap with the sexual harassment issue until recent days. I can’t imagine that I’m the only one in Congress who feels that it’s best to be made public, rather than in secret.”

But the problem of tracking harassment claims across the executive branch runs deeper than the Judgment Fund.

The Equal Employment Opportunity Commission, which tracks federal discrimination and harassment data, was unable to provide POLITICO with a detailed breakdown of sexual harassment settlements at federal agencies, instead pointing to individual agency data, which often doesn’t include that information, and a chart of private sector workplace discrimination settlements.

Some of this data is compiled in EEOC’s annual Report on the Federal Work Force, but the most recent report posted on the commission’s website is from fiscal year 2014.

EEOC did not provide a formal response to POLITICO’s questions.

Lawyers attributed the outdated data to a lack of resources at EEOC and at federal agencies.

“The problem is that [the EEOC’s] offices throughout the country have such miniscule staff that it’s hard to get anybody trained to do it consistently,” said Josh Bowers, a lawyer who represents federal employees in discrimination and harassment cases. “They’re operating on a shoestring budget.”

Federal employees who experience sexual harassment must navigate a labyrinthine bureaucratic process in order to even get to the point where the federal government will find in their favor or make a payment to compensate for the incident.

The process starts when an employee contacts an agency’s Equal Employment Opportunity counselor and is subsequently offered mediation or counseling. If that doesn’t resolve the issue, an employee can then file a formal complaint, which could trigger an investigation that must wrap up within 180 days. After the completion of the investigation, the employee can either allow the agency to issue a decision or request a hearing with an EEOC administrative judge. Only after the administrative complaint process is complete, can an employee file a lawsuit.

Experts and lawyers said many federal employees drop their complaints after the process lingers on for months, often well past statutory deadlines meant to result in expedient resolutions to their claims.

A 2002 law, the No FEAR Act, requires that federal agencies regularly publish data detailing discrimination claims by employees, but that data is often incomplete, lacking details about the circumstances of the complaints, the alleged perpetrators and the specifics of any resulting settlements.

The No FEAR Act also requires that agencies must pay for settlements and awards against them from their own budgets, which means they must repay any money paid out by the Judgment Fund.

POLITICO asked 18 federal agencies how many sexual harassment claims were lodged by agency employees since fiscal year 2012 and how much taxpayer money was paid out to settle them.

Eight agencies provided POLITICO with their No FEAR report, but did not give further information on how much, if any, money was allocated to pay settlements, judgements or awards related to sexual harassment claims.

The Office of Management and Budget, Department of Education, Department of Transportation, Department of Energy, Environment Protection Agency, Department of Commerce and Department of Justice did not respond to POLITICO’s inquiries before publication. Another two — the Department of Health and Human Services and the Small Business Administration — said information on money awarded to complainants can only be obtained by filing a Freedom for Information Act request. POLITICO intends to file such requests.

Data provided by the agencies that did respond varied widely.

Department of Homeland Security data show that there were 42 formal complaints about sexual harassment in fiscal year 2017. But DHS says it doesn’t have public data outlining how much money the government paid to settle those claims. The department has broader settlement figures pertaining to discrimination as a whole — more than $5 million in fiscal year 2017 — but a spokeswoman said the department, like most other agencies, doesn’t have more specific figures on sexual harassment settlements.

In addition to its No FEAR report, the Department of the Interior provided POLITICO with survey results revealing that 8 percent of the agency, or approximately 4,882 employees, experienced sexual harassment within the 12 months preceding the anonymous survey, conducted from Jan. 9 to March 5 of 2017. But the agency’s No FEAR report cited only 12 complaints of sexual harassment in fiscal year 2017.

The State Department also provided POLITICO with the number of complaints they have received from agency personnel, which includes not only local employees but contractors and employees overseas.

According to a department official, the agency received 483 reports of harassment in fiscal year 2017, which was up from previous years. The department received 365 reports in fiscal year 2016, 320 reports in fiscal year 2014 and 157 reports in fiscal year 2013. The number of reports, however, doesn’t represent the number of cases, the official said, adding that one incident may receive multiple reports. And the department did not specify how many of those reports included claims of sexual harassment.

But according to information from the State Department’s No FEAR documents, six complaints of sexual harassment had been filed for fiscal year 2017 as of Sept. 30. Three sexual harassment complaints were filed in fiscal year 2016 and in fiscal year 2015 eight complaints were filed, which was the most between fiscal years 2017 to fiscal year 2012.

Just two agencies were able to provide dollar figures detailing the cost of payments related to sexual harassment claims.

The Agriculture Department said it received 75 formal complaints that included an allegation of sexual harassment between 2012 and September 2017. The department said it paid $627,310 to settle the complaints during that period.

A spokesperson for the Department of Housing and Urban Development said 17 sexual harassment complaints have been lodged within the agency since fiscal year 2012. Four of those complaints were resolved, and the remaining 13 entered the formal complaint process. Of the 13 formal complaints, which are reflected in the agency’s No FEAR report, two were settled for a total of $8,600 and two additional complaints resulted in counseling sessions costing $1,000.

Separately, HUD also reimbursed $500,000 to the Judgment Fund in fiscal year 2015 for one case filed under federal anti-discrimination statutes, but it’s not clear from the report whether the basis of discrimination was sexual harassment or other bias.

But as a whole, government agencies were unable to provide a clear picture of the cost of sexual harassment cases across the executive branch.

“If a government official is found guilty of sexual harassment or the government pays a settlement, the public has a right to know,” said Hans von Spakovsky, a senior fellow at the Heritage Foundation who has testified before Congress about the Judgment Fund’s lack of transparency. “The victim should be able to have confidentiality if they want it, but the government shouldn’t be able to have it.”