D.C.’s management of sexual harassment complaints is full of holes
Words by Jeffrey Anderson ♦ Photograph by Traci Clever
Moved by the #MeToo wave that swept America and sexual assault allegations that rocked the Supreme Court confirmation process, the D.C. Council stood in solidarity last fall against sexual abuse in all of its ugly forms.
Harassment, assault, or worse, simply will not be tolerated in the District of Columbia, was the resounding message.
Mayor Muriel Bowser made this clear in December 2017, when she issued “Sexual Harassment Policies and Protections,” and reminded city employees of her commitment to “providing employees, contractors, and the public with a safe environment.”
The D.C. Human Rights Act states that “It is unlawful for an employer or employee in the District to create a hostile environment.” Bowser pledged that trained professionals at each agency would investigate allegations of sexual harassment, and that managers and supervisors and 30,000 employees would receive training by March 2018.
She says she has delivered on that promise. Her administration says 95 percent of all employees have undergone sexual harassment training. Individual agencies have told Council oversight committees that they have complied with her directives.
But a months-long investigation by District Dig shows Bowser has no coordinated system for tracking sexual harassment complaints or accounting for millions of dollars in victim settlements and no demonstrable evidence that her administration has made dealing with sexual harassment a priority.
The Act, passed in 1977, “prohibits discrimination in the areas of employment, housing, public accommodations and educational institutions based on 20 protected traits.”
It states that individuals who feel they are victims of discrimination or harassment can file complaints with the D.C. Office of Human Rights and recover money damages or other remedies if their claims are upheld.
Accounting for that money, tracking complaints, spotting red flags or even confirming compliance with the Mayor’s policy pronouncements is like herding cats in the dark.
December of 2017 was a watershed moment. Harvey Weinstein’s world collapsed under horrible allegations of sexual abuse. Broadcasters, talk show hosts, politicians, comedians and chefs faced similar charges, their reputations damaged in a swift and devastating manner.
Bowser reacted decisively. In a memo, she reminded managers and employees about sexual harassment policies and the protections provided by District laws.
“We will not tolerate any acts of unlawful discrimination or harassment, we lead by example, and we are committed to providing employees, contractors, and the public with a safe environment,” she said.
Bowser linked to the Human Rights Act, with its instructions on how to file a complaint and the government resources available to government employees.
The following day, Ward 6 Advisory Neighborhood Commissioner Denise Krepp inquired about payouts to victims who had filed complaints of harassment, and about how the Bowser administration intended to coordinate its efforts to stamp out sexual harassment in the workplace.
“I’m emailing you tonight to find out if the D.C. government has entered into sexual harassment and/or sexual assault related settlement agreements with employees in the past ten years,” Krepp wrote to D.C. Office of Human Rights Director Monica Palacio, on December 20, 2017.
“If so, please let me know the number of settlements and the amount of each settlement. Thank you for your assistance.”
Krepp also asked the Office of the Chief Financial Officer how much money the city had paid to settle sexual harassment claims by its employees.
The Anti-Deficiency Act, she explains, requires agencies to obtain proper authorization to spend money outside their operating budgets. The act prohibits payments without an appropriation being made. Agencies also are required to report quarterly to the OCFO any variations between their actual expenditures and their approved spending plans.
“I’d like to know as much as possible about how the District pays for liability settlements,” Krepp wrote, in an email to the OCFO that she provided to The Dig. “If compliance with the above [sections] requires agencies to report to OCFO their financial obligations or funds necessary for disbursements, then would that be of any help in determining totals of payments on an agency basis, or categories of payments in general?”
One would think. But in response to similar inquiries, the OCFO stated that it does not categorize or track payments on sexual harassment settlements.
Determining who (if anyone) does is not so easy.
According to a spokesman for the Office of the Attorney General, there are numerous ways to resolve complaints of sexual harassment.
“[It] depends on whether the settlement is negotiated pre-litigation (before a lawsuit is actually filed), in pending litigation, or in an administrative proceeding,” the spokesman wrote.
“For lawsuits against the District, OAG has the authority to approve settlements up to $500,000. For OAG settlements above $500,000, mayoral approval is required.
“For personnel and contract settlements resolved by agencies, OAG is generally not involved.
“For personal injury claims resolved prior to litigation, the District’s Office of Risk Management (ORM) approves the settlement amount.”
The Dig struck out with ORM. In response to a Freedom of Information Act request, the agency said it “has not found information responsive to your request: no documents or correspondence of sexual harassment claims by D.C. Government Employees against other D.C. Government Employees that led to pre-litigation settlements entered into by any and all District agencies and departments.”
A visit to the agency confirmed that it does not handle allegations of sexual harassment or settlements of claims.
Krepp’s year-long odyssey into the alphabet soup of the D.C. bureaucracy was more painstaking. In response to her original request, OHR General Counsel Ebony Scott wrote on January 29, 2018, that “OHR does not maintain records of settlement agreements that District agencies may enter into with District employees that do not stem from an OHR matter.”
Scott cited the confidentiality of sexual harassment complaints filed with OHR and information gained through investigations, and the confidentiality of mediations, including any settlement agreements. (Exceptions are made for the complainant, the complainant’s representative and agency staff tasked with investigating the complaint.)
After a reasonable search, Scott continued, OHR determined that it “does not track settlement agreements by trait or issue advanced in the aggregate, nor does the Office track the protected traits involved (i.e., sex), or issues alleged (i.e., hostile work environment) within the settlement agreements facilitated by this Office.”
OHR does, however, “collect the total number of cases alleging discrimination based on sex in the area of employment,” Scott concluded.
A review of the data provided by Scott shows that from fiscal year 2015 through January 2017, OHR received 77 “inquiries” regarding allegations of sexual harassment and docketed 81 cases for investigation or review.
Krepp, who has served as Chief Counsel for the U.S. Maritime Administration, Senior Counsel with the House of Representatives Committee on Homeland Security, Attorney-Advisor for the Transportation Security Administration and a U.S. Coast Guard officer, was not satisfied.
Perhaps best known for having successfully sued the Department of Justice for prosecution data related to crimes occurring in D.C., she also has testified and written about sexual assaults in the military and civilian agencies and is an advocate for reform of how institutions of higher education address sexual assault.
In 2012, she was fired from the Maritime Administration after having taken the issue of sexual harassment and assault to the U.S. Department of Transportation’s Inspector General for review.
Krepp pressed Scott for data on the amount of taxpayer dollars spent on sexual harassment settlements. She copied Bowser and several D.C. Councilmembers, including Council Chair Phil Mendelson, and Attorney General Karl Racine.
“Ms. Scott, Thank you for the information below. It is incomplete and I’d appreciate knowing when D.C. will be sending me data on the amount of taxpayer dollars spent on sexual harassment settlements,” she wrote.
Before she received a reply, the Washington Post reported last March that the Bowser administration spent $295,000 since 2015 to settle two lawsuits against the D.C. Police and one against male employees with the Department of Corrections for allegedly exposing themselves to female co-workers, offering promotions for sex and mistreating women who complained about the harassment.
The story exposed additional settlements across a variety of agencies but concluded that the administration could not say with any specificity the number of misconduct allegations that had been made against District employees and at what cost to taxpayers.
Not included, the Post reported, was a $90,000 settlement of a longstanding complaint, nor were several cases D.C. agencies had reported to the Council such as a $350,000 settlement in October 2017 involving the D.C. Police.
In all, the story rounded up $735,000 in settlements of sexual harassment claims in “recent years.”
Bowser administration officials conceded that they did not have a handle on the problem, pointing to a “decentralized system” in which individual agencies resolve complaints against their own employees. Through a review of agency oversight reports to the Council, the paper found 28 sexual harassment complaints over a two-year period, four of which were discarded.
A Bowser spokesperson told the reporter that the city would be setting up a system to track new complaints and settlements.
Yet almost a year later, after months of emails, FOIA requests and phone calls, neither Krepp—nor The Dig—could find evidence to support that contention. If anything, voluminous correspondence, dead ends, deferrals and denials of access to information suggest an opaque, barely functioning system that offers no assurance that D.C. employees’ rights are being respected any better than before Bowser promised a new era.
Following the Post story, Krepp circled back to the Office of Human Rights and again demanded answers, this time copying her correspondence to Councilmember Charles Allen, who heads the Committee on the Judiciary and Public Safety; fellow committee member and At-Large Councilmember Anita Bonds; Council Chair Mendelson; Mayor Bowser and her chief of staff, John Falcicchio; and Attorney General Racine.
“Ms. Scott, Per the Washington Post this morning, the Bowser Administration spent $295,000 settling sexual harassment claims,” Krepp wrote, last year on March 16. “Is there a reason you didn’t share that information with me in January? Is there any additional information that you did not share? I’m asking these questions because providing inadequate information to an official request is not acceptable.”
Scott promptly reiterated her previous response, and Krepp replied the next day: “Ms. Scott, I understand that the city’s past practice was not to monitor sexual harassment settlements. I also understand that no one office was tasked with tracking this information. Is that still the case or have procedures been put in place to provide Mayor Bowser with regular updates on sexual harassment claims and settlements? And if new procedures have been put in place, which office is responsible for compiling the information and sharing it with the Mayor? How often is this information shared?
“With regards to the confidential nature of the settlements, is it D.C.’s policy to require individuals to sign Non- Disclosure Act agreements as part of sexual harassment settlements? You provided me with the number of cases. How many resulted in settlements and what was the settlement amount? Thank you for answering these questions.”
Krepp’s gratitude would prove to be premature. On March 23, Scott reiterated that OHR collects annual data on the number of complaints filed under the Human Rights Act, and explained that not every sexual harassment case or claim is filed with OHR. Thus, the agency “does not have comprehensive information on sexual harassment claims and settlements involving the District government.”
Some cases are filed in D.C. Superior Court and others in the U.S. District Court,” Scott added. “Others are filed internally at the agency and never make it beyond the internal process.”
Regarding persistent inquiries about what new procedures were put in place to update the Mayor on sexual harassment claims and settlements, Scott replied, “OHR does not have information responsive to this inquiry.”
If Scott thought she had gotten rid of Krepp, she was mistaken. On March 28, copying the same officials (and a veteran Council staffer) Krepp wrote back, “Ms. Scott, “The continued delays gives the impression that Mayor Bowser supports a policy of using D.C. tax dollars to settle sexual harassment claims against D.C. agencies and then hiding these settlements from D.C. tax payers.”
On April 10, Scott finally provided Krepp with data on the broader category of sex discrimination between FY15 and into FY18. For FY15, the data showed, OHR settled 16 cases of alleged sexual discrimination and didn’t pay a penny. For FY16, the agency resolved 35 cases for a total of $23,000. In FY17, however, 43 cases led to $970,519 in settlements. (Just one of those allegations was against OHR, which took “immediate steps to address the reported harassment,” the agency said.)
But when Krepp insisted that she drill down and provide the number of claims of sexual harassment against District employees, and the amounts of taxpayer dollars that had been paid out to resolve them, Scott replied, “As I indicated previously, this Office does not possess the information you seek. However, my understanding is that settlements are addressed on an agency-by-agency/case-by-case basis.
“In light of this, I am unable to provide you with one entity to which I could refer you. I wish I could be of more assistance in this regard.” (Scott’s successor, Attorney Adviser Stacey Biney took a firmer stand, telling Krepp, “Complaints filed with OHR are strictly confidential and are to be made available only to parties in the matter.”)
Eventually, OHR reported that from the beginning of FY18 through late July, a total of 28 sex discrimination cases across District agencies were resolved at a cost to taxpayers of $265,097. Despite numerous requests, the agency has not yet provided any updated figures for the entirety of FY18 or for FY19 thus far.
If and when it does, the Mayor’s Office of Legal Counsel will be among the first to know: In response to a FOIA request by District Dig for information on claims of sexual harassment made against D.C. government employees by other D.C. government employees that are settled outside existing litigation through June of last year, and for written communications involving approval of any such settlement payments, including amounts paid, the Office replied, that “A search for responsive MOLC records yielded zero (0) results.”
Asked to comment on the Mayor’s purview over sexual harassment policies, complaints or settlement, Mayoral spokesperson Susana Castillo offered, “Different agencies touch this in some kind of way.”
Reviewing individual agencies yields little more insight, however.
The Dig started with a pair of Council committees to see what oversight might look like, and then reviewed a sampling of some of the District’s larger agencies.
In conducting oversight, Council committee chairs provide agency directors with written questions, and after receiving the responses, hold an in-person hearing to make a videotaped record.
The level of oversight rigor varies from chair to chair.
At-Large Councilmember Elissa Silverman’s Committee on Labor and Workforce Development oversees 12 agencies. The Dig reviewed reports for eight of them. Aside from one lawsuit originating from the Department of Employment Services, and five Equal Employment Opportunity claims for sex discrimination or retaliation that had been either dismissed or withdrawn, almost all of the agencies reported no sexual harassment complaints.
One exception was the D.C. Department of Human Resources (DCHR), which is responsible for carrying out employee and supervisor training in sexual harassment protocols throughout District agencies.
DCHR reported one complaint of sexual harassment and retaliation in FY 2017 by a former employee, which the agency steered to the Office of Human Rights. “We have no reason to believe that the employee pursued the matter at OHR and DCHR considers the matter closed,” the agency told Silverman, while reporting no “top accomplishments” and no “strategic initiatives.”
The Dig also reviewed 11 agency oversight reports to the Committee on Government Operations, chaired by Ward 4 Councilmember Brandon Todd. Whereas Silverman asked consistent questions about sexual harassment, Todd took a more piecemeal approach.
In one instance—ironically, the Executive Office of the Mayor—Todd simply asked if there were any lawsuits that left the office “exposed to significant liability.”
For the most part, he asked the agencies to describe what steps they had taken to address sexual harassment, and received rote assurances that officials had implemented the Mayor’s training policies.
One agency reported an EEO complaint that was referred to OHR, with no details or indication whether it had been addressed much less resolved.
In a number of cases he didn’t bother to ask about sexual harassment complaints at all.
D.C.’s larger agencies are not much easier to penetrate.
D.C. Public Schools, for instance, responded to an oversight request to describe its procedures for investigating allegations of sexual harassment or misconduct, and to list allegations received in FY17 and FY18, including whether or not they were resolved.
When a DCPS employee alleges sexual misconduct, the Office of Talent & Culture’s Labor Management & Employee Relations (LMER) division interviews the employee and collects any information he or she would like to submit, then conducts witness interviews, reviews documents, and evaluates case information to determine if the complaint was founded, according to the report to Committee on Education Chairman David Grosso.
If the complaint involves an allegation of student misconduct, the Student Grievance Team reviews the matter. (DCPS currently is being sued for $5 million by a student claiming that the Roosevelt High School principal did not properly respond to her sexual assault complaint.)
Yet a pair of oversight reports contain no specific information about sexual harassment allegations despite an unexplained spike in complaints, and no specific information about resolutions or settlements.
For FY17, DCPS received just three complaints of sexual harassment, the report to Grosso states. “All cases were investigated that were investigated with “appropriate action taken.” That same report, dated October 2018, also included FY18 figures that, at the time, showed five such complaints, again, with “appropriate action taken.”
In a March 7 email, however, DCPS spokesperson Shayne Wells updated those numbers: “DCPS received 27 complaints of sexual harassment in FY18. All cases were investigated, and appropriate action was taken to resolve the complaint. DCPS has received four complaints of sexual harassment thus far in FY19. All cases are investigated, and then, appropriate action is taken.”
School officials say “appropriate action” can mean anything from investigation and employee training to termination or settlement, but they offer no further specifics, and no explanation for the sharp increase in complaints in FY18.
And, some six months after Krepp first inquired, DCPS is still gathering information about settlements.
(When Krepp asked OHR about sexual harassment complaints at DCPS last October, an attorney replied, “The law prohibits OHR from disclosing any information about specific individuals and entities. You may find it helpful directly contacting DCPS about your inquiry.”)
Likewise, an inquiry into sexual harassment complaints at the Department of General Services leads to a dead end.
Last June, Cuneyt Dil reported in Washington City Paper that DGS suffered from “low morale” and was in need of a “culture change” and a new “code of conduct” for managers and employees to instill respect, teamwork and collaboration.
The Dig has received numerous tips over the years regarding sexual harassment at DGS, yet the agency reports just one complaint in the first quarter of FY18.
That complaint is listed on a year-old oversight report as still under investigation by the Department of Human Resources. At time of publication there was no up-to-date Council oversight report available for DGS.
Ironically, the D.C. Police Department, one of the more opaque agencies when it comes to internal matters, has more to say for itself in terms of processing sexual harassment complaints. Even there, however, the picture is somewhat vague.
The police follow Bowser’s December 2017 policy in responding to complaints but also have their own internal controls. The Mayor’s order states that “Agency heads who have complaints of sexual harassment brought to their attention shall promptly investigate and attempt to resolve the complaints. If a resolution cannot be reached within an agency within sixty (60) days, the agency head shall refer the complaint to OHR.”
Neither Krepp—nor The Dig—could locate an oversight report for FY18 to determine if that policy had been tested. But a February 2018 report to Councilmember Allen, who chairs of the Committee on the Judiciary and Public Safety, contains some useful data about FY17.
According to the report, the police department settled two sexual harassment lawsuits in 2017; one for $175,000, and one for $350,000—the latter being reported in the Post.
It also received five new complaints that year: One of them was ruled unfounded and one was listed at the time as “pending.” Two of the complaints were “sustained,” though there is no indication what resulted of the finding or whether any settlement occurred. And one was found to have “insufficient facts,” though the officer underwent training and no longer is with the department.
“Allegations of sexual harassment shall be fully investigated, and corrective or disciplinary action taken if warranted,” the report assures Allen.
In an email, a spokesperson for Allen says one reason sexual misconduct claims reporting is so inconsistent is that it depends on what other Committees are asking:
“Councilmember Allen was the first to begin including questions about pending litigation and settlements as part of the pre-oversight questionnaire. [And he] re-introduced a bill on January 8 called the Sexual Misconduct Sunshine Amendment Act of 2019 that would require both the Mayor and the Attorney General to annually report to the Council all payments [of] public funds for awards and settlements relating to sexual offense, sexual harassment or a violation of the Human Rights Act.”
A larger piece of legislation also forbids Non-Disclosure Agreements from preventing someone from disclosing factual information related to certain sexual offenses, Allen’s office says.
But the effectiveness of such legislation would seem to require the Mayor to really own her own policy, which would seem to hinge on some centralized system for reporting and tracking complaints and accounting for public funds expended to settle claims and lawsuits.
Anyone who knows Denise Krepp knows she will not give up until she receives the information she is seeking. But the District has proven to be a match even for her.
In November, she reached out to the members of the D.C. Council with the following email:
“Good evening. I’m emailing today to seek your assistance. On December 19, 2017, Mayor Bowser stated that sexual harassment and sexual assault is not tolerated in the D.C. government. After she released this statement, I requested information on the number of sexual assault complaints filed against D.C. agency employees. I also requested information on the settlement agreements associated with these complaints and whether or not DC tax dollars were used to settle the complaints, and if so for what amount.
“Based on a year long email correspondence (see below), complaints have been filed against city employees and D.C. tax dollars were used to settle these complaints. As Chairpersons of the Council of D.C. Committees, I’m emailing tonight to ask if these settlement numbers and amounts were included as part of the FY19 budget documents, and if so where do I find them?
“I’d also appreciate your assistance in learning if the Council has requested citywide data on the sexual assault complaints. If so, where do I find that data?
“Lastly, I’d like to learn from you where the money came from to pay the sexual assault settlement agreements reference below. Does the Council appropriate money each year for these settlements? If so, what is this amount and who manages it?”
Krepp heard back from just two members, Mendelson and Ward 1 Councilmember Brianne Nadeau.
“Hello commissioner,” Nadeau replied, after reviewing her committee budget. “We do not have a line item for this in the Human Services budget. You might wish to check with OAG since they typically take the lead on defending the District in lawsuits.”
“Commissioner Krepp, the Council does not approve a budget that includes a line item for sexual harassment/assault settlements,” replied Mendelson. “Rather, all settlements are paid for either out of the ‘settlements and judgements’ line, which is a discrete budget line, or by transfers from reprogramings or contingency reserves made by the Mayor.
“With regard to committee requests, each committee decides what information to request of agencies and those answers, if part of the budget deliberation, typically are posted on the Council’s website.”
Following Mendelson’s guidance, Krepp consulted D.C. CFO Jeff DeWitt’s report to the Mayor from last November. The report presented a spreadsheet that outlined budget figures including a line showing a 74 percent increase in settlements and judgments.
An increase of 74 percent for settlements and judgments?
A spokesman for DeWitt said the report refers to the “Current Services Funding Level (CSFL) budget,” a best practice process that provides estimates of anticipated expenditures ahead of the budget process to allow for “proactive steps to be taken to address potential issues.”
The CSFL represents the cost of local funds for District agencies in FY 2020 at the FY 2019 service levels “without consideration of any new policy decisions,” says Public Affairs Officer David Umansky, in response to an inquiry from The Dig.
“As such, it looks at spending patterns to estimate how much it will cost in the coming fiscal year to provide the same level of services being provided in the current year, Umansky writes. “Its numbers show what costs may or could be, not what they are expected to be. Since November, that number has been lowered and is revised quarterly as cases are decided, closed and opened. The budget will reflect the mostly likely estimate.”
What that says about the city’s management of sexual harassment complaints and the money it spends to resolve them is hard if not impossible to say.
Which leaves The Dig—and Denise Krepp—wondering if that’s what Bowser had in mind when she spoke to reporters back in December 2017 about what the #MeToo movement meant to her:
“I want to get out front of the issues before they happen. It’s about time. We know people are disadvantaged in the workplace. Just imagine what [sexual harassment] could do to a single person’s career and productivity.”