I-2024-4
| Effective Date: | Expiration Date: | Chapters: |
| June 11, 2024 | When Superseded | 16 18 |
The District of Columbia government is committed to maintaining a safe work environment free from harassment, abuse, and intimidation for all its employees. This issuance defines sexual harassment and provides steps employees must take to report incidents of misconduct. This issuance also outlines how agencies should handle and investigate sexual harassment reports. It does not replace the requirement to attend the annual Sexual Harassment Officer (SHO) training. SHOs are strongly encouraged to review the trainings posted on the DCHR intranet prior to conducting an investigation.
The District government reaffirms its commitment to maintaining a harassment-free work environment.
The Mayor established a policy and related procedures mandating that workplaces be free from all forms of sexual harassment (Mayor’s Order 2023-131). This policy protects individuals from workplace sexual harassment whether they are employees, contractors, interns, applicants for District government employment, or any other persons engaged by the District of Columbia government to provide permanent or temporary employment services. The District’s laws and policies also prohibit retaliation against anyone who reports harassment or participates in an investigation.
The definition of sexual harassment has been updated to align with the expanded definition under the Human Rights Enhancement Amendment Act of 2022, D.C. law, and the District Code.
Sexual harassment is “any conduct of a sexual nature, ‘whether direct or indirect, verbal or nonverbal, that unreasonably alters an individual’s terms, conditions, or privileges of employment or has the purpose or effect of creating an intimidating, hostile, or offensive work environment.’"[1] Under this updated definition, “conduct need not be severe or pervasive to constitute harassment” and “no specific number of incidents or specific level of egregiousness is required."[2]
Sexual harassment includes quid pro quo sexual harassment, which is “sexual advances, requests for sexual favors, or other conduct of a sexual nature where submission to the conduct is made either explicitly or implicitly a term or condition of employment or where submission to or rejection of the conduct is used as the basis for an employment decision affecting the individual’s employment."[3]
Examples of conduct that can contribute to or constitute sexual harassment or that could otherwise violate the Mayor’s Order include, but are not limited to:
Notably, the District may treat some conduct of a sexual nature as misconduct, even when it does not rise to the level of unlawful sexual harassment actionable under the D.C. Human Rights Act. As an example, an employee who tends to greet people with a hug who has been warned that the conduct was offensive to some employees and then hugs an employee whom they have not seen in many months. The conduct may not rise to the level of “unreasonably altering the individual’s terms, conditions, or privileges of employment,” but it could constitute misconduct since they had been warned that some employees associate hugging with unwanted sexual contact that is offensive in the work environment.
To assist employees and agencies with accepting, receiving, reviewing, and investigating sexual harassment complaints, Mayor’s Order 2023-131 requires that all agencies designate a Sexual Harassment Officer (SHO). Agencies are also required to designate an individual who serves as the alternate SHO when the primary SHO is unavailable. Agencies must submit the names of their SHOs to the D.C. Office of Human Rights (OHR) and the D.C. Department of Human Resources (DCHR) via email at [email protected] and [email protected], or at any other email address designated by OHR or DCHR, with the subject line, “[Agency Name] – SHO Designations.” If an agency makes any changes to the SHO designation, they must notify both agencies as soon as possible.
Agencies may designate SHOs at their discretion so long as the designee is competent in Equal Employment Opportunity (EEO) laws, takes (and continues to take) the annual training provided by DCHR and OHR, and has no inherent conflict of interest. Due to their role in defending the agency, DCHR recommends that agencies do not select the General Counsel, or attorneys in an agency’s Office of General Counsel, to serve as their SHO. SHOs may, but do not need to be, an agency’s EEO officer or human resources manager.
Since the SHO will investigate allegations of a very sensitive nature, agencies must designate employees with specific criteria in mind. When designating employees to serve as a SHO, the agency should designate someone with:
Individuals who may be ideal designees include:
To ensure that employees know who to contact for sexual harassment concerns, agencies must post the names and contact information of their SHO and alternative contact in a high visibility or high traffic area (e.g., a break room). Employees may also obtain their Sexual Harassment Officer’s contact information from their agency’s Equal Employment Opportunity (EEO) Officer, Human Resources (HR) office, or the Office of Human Rights. DCHR also maintains a list of Sexual Harassment Officers on its website at https://dchr.dc.gov/page/sexual-harassment-officer-list.
All District of Columbia employees are responsible for ensuring a workplace free of harassment. To that end, all employees who know of incidents of sexual harassment, or know of conduct of a sexual nature that could create an intimidating, hostile, or offensive work environment should report the situation immediately as outlined below. Agencies should protect the confidentiality of all aspects of the harassment complaints and those reporting such complaints, to the greatest extent possible consistent with the Mayor’s Order, the needs of the investigation, and resolution of the complaints.
Alleged victims of sexual harassment should report the harassing behavior to one of the following individuals within their agency as soon as possible:
Employees have a responsibility to report incidents of sexual harassment or behavior of a sexual nature that may create an intimidating, hostile, or offensive work environment. Witnesses should report incidents to the following individuals within their agency:
An individual should notify the agency General Counsel instead of the SHO in instances where giving notice to the SHO would raise conflict of interest concerns. If a complaint is reported to a SHO in a different agency, that SHO must notify their General Counsel, who will then notify the General Counsel of the complainant’s agency for appropriate referral and investigation.
In addition to reporting to an agency SHO, or other individual as identified above, under the D.C. Human Rights Act, alleged victims may file a claim of sexual harassment directly with the Office of Human Rights or in court.
Managers, supervisors, and HR officials who receive reports of alleged sexual harassment must immediately relay the report to the agency’s Sexual Harassment Officer and take any appropriate remedial actions as directed by the agency General Counsel.
The role of the SHO is to accept, review, and investigate sexual harassment claims by gathering, investigating, and reviewing the factual basis of the claim, and preparing a written report that details the investigation, the facts ascertained from the investigation, and which allegations are substantiated and which are unsubstantiated. SHOs do not make legal conclusions as to whether sexual harassment occurred or whether the Mayor’s Order was violated. Upon receiving a report of potential sexual harassment or other misconduct of a sexual nature, the SHO must:
Any individuals involved in investigating reports of alleged sexual harassment must take reasonable steps to ensure that the details of the complaint and investigation remain confidential, especially when information pertaining to a sexual harassment complaint changes hands or is shared as part of an investigation. Failure to safeguard confidential information can result in corrective or adverse action, up to and including separation.
However, confidentiality is not absolute. The alleged harasser is entitled to notification of the allegations and must be given a full and fair opportunity to respond. SHOs may have to disclose information to witnesses to gather more information, and they must ensure the agency General Counsel is frequently updated for investigation support. Additionally, the confidentiality requirement does not prevent an agency from reporting a suspected illegal or improper act, such as sexual assault, to the appropriate enforcement authority, or from cooperating in any related investigation. Further, the SHO may have to disclose information due to a court order.
All information obtained in the investigation shall be used by the SHO only for purposes of the investigation and must be maintained in the strictest levels of confidence. It is recommended that all materials and information be stored on drives and in locations that are under the control or oversight of the agency General Counsel.
Complaints against of the below senior officials must be referred to the Inspector General:
The Inspector General will determine if the allegation is credible, and if so, the complaint will be referred for independent investigation. A complaint against an Agency Head or General Counsel must be reported by the SHO directly to the Mayor’s Office of Legal Counsel.
Once a SHO has received a complaint of sexual harassment, they are required to immediately begin the investigation process, which must be completed within 60 days of receiving the complaint. The following are nine steps that should be part of any successful investigation:
The SHO is responsible for conducting the investigation and completing the investigation report, which the SHO will provide only to the Agency Head, or their designee, and the General Counsel. The SHO must seek guidance and support from the agency General Counsel, keeping them apprised throughout the investigation process, which includes drafting the report. In addition to providing overall guidance, the General Counsel can assist with hurdles beyond the SHO’s scope, such as gaining access to relevant information in the possession of a sister agency (such as email records from OCTO), ensuring the cooperation of agency witnesses, and preventing an employee’s interference with the investigation.
SHOs must take all allegations of sexual harassment seriously and conduct thorough and complete investigations.
Immediately upon receiving a report of an allegation of sexual harassment, the SHO shall notify the agency’s General Counsel of the complaint and share with the General Counsel all known information related to the allegation. The General Counsel is responsible for determining what information, if any, should be communicated with the agency’s leadership and external authorities. The General Counsel should notify the Mayor’s Office of Legal Counsel of the complaint immediately after receiving it, with as much of the following information as known: names of the alleged harasser(s), alleged victim(s) and witnesses; nature and type of harassment; all relevant date(s) and location(s); and a description of the incident(s) to be investigated. If not all of this information is known at the time of the initial reporting, the General Counsel should update the MOLC as it is identified.
The first step after informing the General Counsel of the complaint is to work with the General Counsel to ensure the complaint involves sexual harassment or misconduct of a sexual nature in order to determine whether the allegations are appropriate for the SHO to investigate. For example, the SHO would not investigate retaliation claims.
Further, the SHO should determine the extent of the investigation. For example, situations may arise when the alleged conduct is of a nature that does not require an extensive investigation to disclose the facts. For example, all parties may agree as to the facts or there may be videotape evidence that clearly shows what happened, and thus the matter may be investigated quickly. Regardless of whether a full investigation is required, the SHO should speak with the relevant parties, document or record all information received, and document all efforts undertaken to address the matter.
After receiving the complaint, the SHO must consult with the General Counsel to determine if immediate workplace changes are necessary to prevent further harm and to ensure the investigation is free from disruption. The most common action that may be taken is to temporarily separate the alleged harasser from the complainant (or vis versa). Whether immediate interim action is needed is ultimately decided by the General Counsel and/or agency head, and such action will be initiated by the agency General Counsel (working with the appropriate HR, management and other staff as necessary) and should be processed in accordance with the District Personnel Manual and any applicable Collective Bargaining Agreement.
The agency must assess whether the alleged harasser should be separated from the complainant’s work environment. It may be appropriate to take such a step when there are allegations of:
As previously noted, moving the complainant may be perceived as retaliatory. The best way to avoid claims of retaliation is to temporarily reassign the alleged harasser in a reasonably comparable placement, even if in a different agency or division. Other possibilities include reassignment of duty station, changed shifts, duties, or reporting requirements, or other measures that do not result in reduction of pay, title, responsibility, or other loss of employee benefits. If these steps are taken, the alleged harasser should be informed that the arrangement is temporary, that no conclusions have been reached as to the sexual harassment allegations, and that the action being taken is in no way punitive.
Sometimes, the complainant of alleged sexual harassment will ask to be reassigned or given time off pending the investigation. If this occurs, find out and document exactly why the employee wants to be taken out of the work environment.
If the alleged victim is experiencing trauma or other health-related issues because of the alleged sexual harassment, the agency should take appropriate actions as required or permitted by law to assist the employee. If the alleged harasser has threatened the complainant, or co-workers are shunning the complainant, this is information that should be immediately brought to the attention of the agency General Counsel. Whatever the explanation, it is important to reiterate that retaliation by the alleged harasser or co-workers is not tolerated. Additionally, make the best arrangements to address the complainant’s concerns. If the complainant is removed from the work environment, make sure that the employee can still be available to participate in the investigation.
Administrative leave with pay for either individual should be used only as a last resort.
Whenever a report of sexual harassment or subsequent evidence reveals potential criminal conduct, such as sexual assault, physical violence, or threats to do bodily harm, stop the investigation and consult agency General Counsel immediately. The agency’s General Counsel, in consultation with the Mayor’s Office of Legal Counsel, will determine whether law enforcement should be contacted and what other immediate steps must be taken. Do not conduct additional interviews or resume your investigation until you have consulted your agency General Counsel or the MOLC and received their approval to proceed. Failure to comply with this instruction may impact the criminal investigation and/or case of law enforcement officials.
Generally, the agency’s Sexual Harassment Officer (SHO) will investigate reports of sexual harassment. Smaller agencies are authorized to enter into cooperative agreements with other agencies if their staffing level does not allow for the appointment of a dedicated SHO. In these cases, the SHO investigating the report may be a SHO from another agency. In the event of a conflict of interest, or of a claim of bias that could reasonably be raised against the assigned SHO, the assigned SHO should immediately notify the agency General Counsel to assist with identifying another SHO to conduct the investigation.
If another SHO is assigned to conduct the investigation, the original SHO or another appropriate party (agency General Counsel, etc.) should notify the complainant in writing of this change. The written notification should identify the new SHO as the formal contact for the investigation and as the individual who is conducting the investigation on behalf of the agency. The written notification is also useful for communicating to involved parties that an investigation is underway.
Before investigating, the SHO must plan how the investigation will be carried out. To do this, DCHR recommends completing the attached Investigation Plan (See Attachment 2: Investigation Plan Template) and utilizing the agency General Counsel for feedback and suggestions. To complete the plan, the SHO will need to rely on the complaint of the complainant or third-party witness reports of the potential harassment. The SHO can also use available documents, such as organization charts to determine some baseline information, such as the names of the relevant parties as well as their job title and work relationship.
If the complaint was not submitted in writing or the written complaint is insufficient, the SHO may need to meet with the individual reporting the sexual harassment allegation to get a clear sense of the circumstances and issues being raised. The individual may be an alleged victim, third-party witness, or an individual to whom the allegation was reported. It is important to clarify the exact allegation from the individual making the report to the SHO. If they are not a witness to the allegation, the SHO may also make efforts to clarify the allegation from the original source of the complaint, which might be the alleged victim. These preliminary meetings are only for understanding the actual allegation so as to plan the investigation accordingly. More thorough interviews of these individuals should occur as the investigation progresses.
Before drafting the investigation plan, the SHO must have some understanding of the complaint and allegations. Initially, the SHO should verify the allegations with the individual originally reporting the situation, and then brainstorm and try to answer the following types of questions using known information before conducting a formal interview:
Finding the answers to the above questions will help the SHO decide who to interview, what documents and other evidence might be available, and what type of questions to ask witnesses.
The SHO must establish the general nature of the complaint, including, but not limited to: name(s) of the alleged harasser, alleged victim and witnesses, nature and type of harassment, all relevant date(s) and location(s), and a description of the incident(s) to be investigated to complete a thorough draft investigation plan. This should be done before contacting additional witnesses or gathering any documentary evidence. The draft plan can be used to keep the SHO organized and communicate the scope of the investigation to the General Counsel. Keep in mind that the initial draft can be an incomplete plan and the SHO may further develop the plan as the investigation proceeds.
Each investigation plan should have an Overview section. Give the investigation a title, a description with key objectives, and the investigation scope.
The Basic Information section provides the allegations. Describe what was alleged – who was harassed, by whom, when and how. The SHO likely will not have all this information when crafting the first draft.
Supply a succinct chronology of alleged events leading to the investigation. This is not a chronology of the investigation; it is a chronology of the harassing behavior and how that behavior came to the attention of the SHO.
List any known direct and circumstantial evidence and potential witnesses. The list should be concise, but sufficiently descriptive to identify the importance of the physical evidence or witnesses.
This section lists the planned investigation activity events that will take place during the investigation. This can include meetings, document reviews, and formal witness interviews. This section also includes a listing of notifications made to individuals during the investigation, such as notifications to the General Counsel and to witnesses for purposes of scheduling interviews.
The investigation plan will be fluid and should be updated as the investigation proceeds. When new evidence is discovered, or new witnesses come to light, that information should be added to the plan. Similarly, the plan should be updated with itinerary and notification changes.
Once an investigation plan is in place, the SHO will need to direct their focus to interviewing witnesses. If it is feasible, DCHR highly encourages agencies to tape-record interviews with witnesses to ensure record accuracy. Some agencies require investigators to obtain written statements or affidavits after an interview. The SHO should never interview more than one witness at a time – each witness should be interviewed separately.
The SHO should schedule and complete witness interviews as quickly as possible. Generally, the SHO should aim to complete all interviews within days of receipt of the initial complaint, or as soon as possible thereafter. This allows for the investigation to proceed efficiently and minimizes investigation-related discussion among witnesses in the workplace. DCHR recommends scheduling formal interviews in writing by sending separate email notifications to the complainant, alleged harasser, and potential witnesses, which outline their rights and what to expect. (See Attachment 3: Confidentiality Notice and Attachment 4: Sample Notification). Be deliberate when scheduling an interview – the description on the calendar invitation should be generic so that others who may have access to the individual’s calendar are not aware of the content of the meeting. Also ensure that the interview location is private.
If interviewing a union employee, the SHO should work with the agency General Counsel to refer to the agency’s collective bargaining agreement and notify employees in writing that they have a right to union representation at the interview, if applicable. Always work with your General Counsel if you encounter any issues from a union.
The SHO will want to open every interview with similar remarks. Here is a roadmap that may be used for opening an interview with a witness (See Attachment 5: Intro for Witness Interview):
Generally, the individual who is the alleged victim of sexual harassment should be the first person interviewed. The alleged victim should be interviewed within five days of acknowledging the initial complaint. The SHO should ask the individual to provide any and all potential evidence of offensive conduct such as emails, pictures, or other physical evidence. The alleged victim should be able to provide the clearest picture of the alleged misconduct and provide insight into other potential witnesses and evidence. In addition to being the first witness interviewed, this individual may need to be re-interviewed after documents are collected and statements are received from all other witnesses to clarify any inconsistencies in the evidence.
Harassment claims usually involve a pattern of multiple incidents that occur over a period of time. When interviewing the alleged victim, the SHO must ask precise questions and take clear notes. The best practice is to have the alleged victim list all incidents, then go through each incident in detail.
Victims who have trouble remembering important facts about the alleged sexual harassment may be experiencing trauma. In this case, usual interview questions may not be as helpful initially. Some experts suggest that such victims may benefit from the use of sensory-based interview questions (such as “do you remember what was playing on the radio in the car”; “what color was the room”; etc.) as these types of questions help place the victim back at the scene of the incident and may help jog their memory. It is recommended that SHOs review techniques for interviewing victims of trauma.
After conducting an initial interview of the complainant, it is usually most effective to interview any third-party witnesses to the alleged harassment. Third-party witnesses are all other witnesses, excluding the alleged harasser. Interviewing third-party witnesses after the complainant allows the investigator to confirm or discount allegations made by the complainant and assists in obtaining a complete account of the potential misconduct before asking the accused employee to respond. A third-party witness should be interviewed within five days after the interview with the complainant. If there are multiple third-party witnesses that must be interviewed, each subsequent witness should be interviewed as close in time to the first third-party witness as possible, to complete the investigation in a timely fashion.
When questioning third-party witnesses, the goal is to gather as much information as possible without giving too much information away. The interview should begin by stating, in general terms, why the SHO is interviewing the witness. The SHO should inform the witness that they are investigating a workplace incident, and that the witness might have information that will help determine what occurred. Then, the SHO will need to move into questions that will help determine whether the witness saw or has information regarding the alleged incident(s).
If for some reason it is not possible to interview a third-party witness, the SHO should have the individual complete a declaration statement. (See Attachment 6: Witness Declaration – Template)
As noted, the employee who allegedly engaged in the harassing behavior should usually be interviewed last. This interview will be uncomfortable for the employee and the SHO regardless of whether the accused employee engaged in the alleged conduct. To avoid the need for a follow-up interview, it is important to have as much information as possible before this interview.
An employee suspected of misconduct might be defensive when being interviewed. When opening the interview, the SHO should make clear that the agency has a legal obligation to investigate the matter and has not yet made any determination or judgments regarding the allegations. The SHO should also make clear that the SHO’s role is to be neutral and unbiased and to find out what happened. The accused employee’s perspective is part of information gathering and is needed before any conclusions can be reached.
Discuss with your General Counsel whether the accused employee is allowed to have a union or other representative present during the interview, although this should not unduly delay the interview process and SHOs are not required to permit such representative to disrupt the interview or answer questions during the interview on the employee’s behalf.
The SHO also needs to plan the sequence of questions for the accused employee. The first series of questions should be simple, non-controversial questions that the employee can easily and willingly answer. This will establish ease and rapport, which may help to minimize any defensive tension that might otherwise occur.
The SHO must advise the employee of the accusations made against him or her. After preliminary introductions and questioning, the SHO must advise the accused employee(s) of the accusations made against them. Although the SHO may not need to identify the person who made the sexual harassment complaint, the SHO must allow the accused a fair opportunity to respond and thus may have to disclose the identity of the alleged victim or complainant.
When interviewing the accused, the SHO should outline the totality of the accusation and ask the accused for their response. Then, the SHO should walk through each event that comprises the harassment complaint and obtain specific responses for each event. The SHO must provide the accused employee an opportunity to offer explanations, denials, defenses, and potential witnesses and documentation for each event discussed.
After the SHO completes their interview questions, the SHO should review their notes of the interview and make sure all aspects of the allegation have been covered and responded to. The SHO should remind the interviewee about the District’s anti-retaliation policies. Witnesses should also be asked to report any new information to the SHO immediately.
Alleged victims and alleged harassers must be advised of what to expect next. This includes informing them that they may be interviewed again if necessary.
The investigator must document the interview after its conclusion. The investigator can complete documentation in one of two ways. If the interview is recorded (which is the best practice), the investigator can document the interview by creating a transcription of the audio. If the interview is not recorded, or transcription services are unavailable, the investigator should draft a “memo to file” summarizing what was asked, and what the witnesses said in the interview. (See Attachment 7: Investigation Interview Summary Sample).
Summaries are only useful if they are reliable. Therefore, it is vital that summaries be drafted immediately following the interview. If drafting the summary immediately is impractical, it should be drafted no more than 24 hours after the interview.
Interview documentation must include notes as to the time, the length of any breaks or interruptions, who was present in the room, and copies of any handwritten notes. Handwritten notes must be signed and dated by the author.
If credible and relevant information surfaces that implicates a previously interviewed witness, and that witness did not have an opportunity to provide comments or respond to that information, the SHO must conduct a follow-up interview.
If new accusations or defenses arise, the alleged victim and the alleged harasser(s) must have a fair opportunity to respond. Except when they are trivial, new developments of this nature require follow-up interviews of the necessary witnesses.
Throughout the interview process, the SHO will likely discover potential evidence which may include: emails, text messages, voice mail messages, letters, notes, journals, photographs, time and attendance records, building access records, video recordings, gifts, offensive objects, personnel records, policies, and other relevant items. The SHO must obtain evidence before, during, and immediately following the interview process. All items must be saved in a secure location during the course of the investigation. Speak with your General Counsel to determine the most appropriate and secure manner to store all evidence.
If a SHO requires assistance in obtaining evidence, the SHO should consult with the agency General Counsel. If necessary, the agency General Counsel may request e-mail, telephonic, and building access records from the Office of the Chief Technology Officer (OCTO) or Department of General Services (DGS). Moreover, the agency General Counsel may be able to assist with securing other types of evidence, if needed.
Once the SHO has completed all interviews and obtained all available physical evidence, the SHO must weigh the evidence to determine what happened and whether the allegations are substantiated or not. The SHO will need to evaluate the evidence by, for example, comparing and assessing statements made by witnesses (including assessing any information about witness credibility and reviewing witness statements for similarities and inconsistencies), reviewing the evidence for patterns and trends, and assessing the accuracy, completeness and reliability of documents and other physical evidence.
Before beginning the evaluation of evidence, the SHO should assemble the evidence into a logical order and label each item for easy reference in an appropriately indexed investigative file. At this stage, almost every piece of evidence should have been documented. Therefore, the easiest assembly is to arrange each document in chronological order, labeling each piece of evidence in sequence as Exhibit 1, 2, 3 and so forth. Since the investigation plan is updated to include all evidence as the investigation progresses, it should be an easy matter to simply number the evidence listed in the plan.
Be sure to use a common identification method for all documents. A good practice is to use the format of “Document Title, document type/author (Date).” A sample list of evidence might look like the following:
Sexual harassment investigations will invariably involve conflicting accounts of the same events. The SHO must consider each version of the facts and evaluate the credibility of competing evidence. When deciding the credibility of one version of events over another, the SHO should consider the factors below, none of which are dispositive on their own.
Issues of authenticity pertain to when a particular piece of evidence is not what it appears to be. Information that a piece of evidence was forged or altered would raise an issue as to its authenticity. Evidence collected from records, databases, or other reliable sources such as official agency files can be presumed authentic unless there is a specific reason to believe otherwise. Key pieces of evidence should be authenticated by witness testimony if possible. For example, if an employee sends a note, ask that employee if they did indeed send the note and have them identify the note on the record. If issues of authenticity arise, they must be resolved.
After assembling and assessing all the evidence, the SHO is ready to determine and list each relevant fact in the case. For this purpose, a statement is “factual” if it describes an event or a thing in a manner that does not require substantial interpretation or characterization. Best practice is to list each individual fact that is needed to explain to someone who has no knowledge of the case, who the parties are, what happened, and why it matters. List the facts in a sequence that makes sense (e.g., chronologically) and in a manner that tells a compelling story of events. For each fact listed, the SHO must cite all evidentiary support for that fact.
At this phase, the SHO is not stating conclusions or opinions. However, if a witness disputes a fact, the SHO must weigh the competing evidence and decide which version is most credible and more likely than not to be true. For disputed facts, the SHO will list the disputed fact, citing all the evidentiary support. The SHO must also note that the fact was in dispute, how it was in dispute, and how the SHO resolved the factual dispute, if possible. For each statement explaining the resolution of a disputed fact, the SHO must cite evidentiary support.
As noted, for each fact listed, the SHO must cite the pieces of evidence that establish that fact. Factual listings should be as concise as possible. Undisputed facts should be no more than one sentence. Disputed facts should be no more than three sentences.
Having fully investigated the matter, evaluated the evidence, and confirmed the facts pertaining to the allegation(s), the SHO must reduce the totality of the investigation into a written investigation report that confirms what did or did not happen based on a preponderance of the evidence. However, the SHO does not make legal conclusions as to whether sexual harassment occurred, or whether the Mayor’s Order was violated. The SHO is expected to issue an investigation report to the agency head, or his or her designee, within 60 days after a claim is reported to the agency. It is recommended that each investigation report contain the elements listed below. A sample investigation report is attached for guidance. (See Attachment 8: Investigation Report Sample)
Report elements
The SHO must share the investigation report with the Agency Head, or his or her designee, in order for the agency to draft the Agency Report. The SHO shall not provide the investigation report to the parties or witnesses involved in the investigation (nor to any other unauthorized party), as the investigation report is deliberative, may require additional work (as determined by the Agency Head or designee), and does not constitute the agency’s official findings regarding the matter investigated. If the SHO is unable to complete the investigation report within the 60-day period, the SHO must immediately notify the agency General Counsel.
Following review of the investigation report and determination of next steps, the Agency Head, or designee, shall authorize additional investigation if necessary or draft the Agency Report. The SHOs role is complete once the Agency Head accepts the SHO investigation report as final.
The Agency Head or designee, in close consultation with the agency General Counsel, has 14 days after the SHO investigation report is accepted to issue an Agency Report, which among other things accepts, modifies or rejects the SHO’s findings, includes conclusions as to whether the substantiated allegations violate the Mayor’s Order, and includes the SHO investigation report as an attachment. Separately, the agency will also issue the Notice of Agency Findings and Conclusions, which simply lists the allegations and the agency’s determinations as to whether the allegations were substantiated or not. The Notice of Agency Findings and Conclusions is the official agency document that will be shared with the following external parties: the Mayor’s Office of Legal Counsel (MOLC), the complainant, and the alleged harasser.
Based on the agency’s findings and conclusions, the Agency Head or designee may need to take additional steps with the assistance of the agency General Counsel and the internal HR department. At minimum, an agency should ensure that its employees are trained, and if needed re-trained, on the agency’s and Districts sexual harassment or other policies. If an agency’s policy is vague or contains gaps that may lead to confusion around appropriate employee conduct or work-related expectations, the agency should update its policies accordingly.
When the agency concludes that misconduct has occurred, the agency General Counsel should ensure that prompt administrative action is taken by the agency. Please note that an employee who is found to have engaged in inappropriate conduct who is not terminated must attend mandatory sexual harassment training within sixty (60) days of his or her receiving notice of the finding. This training must be in addition to any disciplinary actions and must occur even if the employee has already received sexual harassment training.
In addition to imposing discipline on the employee found to have engaged in misconduct, the agency may also have an obligation to report credible violations of the District’s Code of Conduct to the Board of Ethics and Government Accountability (BEGA). Such violations of the Code of Conduct may arise where the employee has engaged in ethical violations such as giving gifts to employees for sexual favors, bribing witnesses or potential reporters of sexual harassment, or using government resources to carry out the harassing behavior.
The provisions of this issuance apply to all District agencies under the Mayor’s personnel authority.
For additional information concerning this issuance, please contact the Department of Human Resources, Sexual Harassment Officer Program Coordinator, by sending an e-mail to [email protected].
Sexual Harassment Officers can find relevant trainings (including the required annual training) at https://dchr.in.dc.gov/page/sexual-harassment-training as well as a training on Unpacking Bias on PeopleSoft (#0123W).
Issued by Director Charles Hall Jr, D.C. Department of Human Resources on June 12, 2024, midnight