Three Strikes

Consensual sex between co-workers, regardless of their relative power positions, is not harassment nor employee misconduct under federal law and workplace rules. Perhaps the Forest Service should regulate its employees’ consensual sexual relations, but no rules do so now. The status quo is that only harassing, i.e., unwelcome, actions of a sexual nature are barred; consensual sex is not.

This matters when it came to the retired regional forester’s view of what should have happened in regard to Tooke’s consensual affair ten years ago. According to the RF (willieboat007), Tooke’s boss, the forest supervisor, should have “report[ed] this type of Misconduct to Regional Forester,” i.e., herself. She believes that “consent didn’t matter, the Forest Service doesn’t condone this type of conduct.” In fact, the Forest Service is silent when it comes to consensual sex, barring only harassing, “unwelcome” sex. Strike one.

According to the RF, having determined that “misconduct” occurred, an “investigation should have taken place to determine the facts.” Government is allowed to investigate only alleged wrongdoing. Government is not allowed to investigate in the absence of a credible allegation that a law or rule has been violated. In particular, government is not allowed to investigate an employee’s private, consensual sexual affairs. Doing so violates the Fourth Amendment’s right to privacy. If Tooke’s lover had said their affair was “unwelcome,” that fact would justify an investigation (USDA employee relations manual calls for misconduct investigation of “sexual harassment”). But, simply reporting the existence of an affair is insufficient to establish a probability of misconduct. Strike two.

According to the RF, had the investigation revealed consensual sex between Tooke and the “young lady,” the RF would have issued a “letter of warning, letter of reprimand with or without time off and/or removal from the supervisor position, or letter of termination.” In other words, she would have punished Tooke for something that broke no law or rule, based on an investigation that invaded Tooke’s privacy. Strike three.

Maybe the times “they are a changing,” as some have commented on this blog. But, until the law changes, too, government agencies and their managers are required to follow the law as written, not as they wished it were. There’s a reason Tooke received only a “verbal reprimand,” i.e., no disciplinary action at all. He didn’t break any rules.

7 Comments

  1. Would a quid pro quo scenario, since we know Tony tried to set the young lady up with promotion in a new position (fact), potentially fall under the legal landscape of sexual harrassment as defined by USDA?

    You struck out Andy. You’re defending the indefensible.

    • (file this under: Things I Never Thought I’d Be Parsing Out As a Retiree)

      Billy, I see two potential ideas here. And I’ll use a hypothetical example of “hunting buddies.”

      A real “quid pro quo” would be “if you let me keep the elk, I’ll help you get this position”. My primary point is that there is no need to do this, as buddies traditionally help each other get positions when the person with the influence thinks it’s a good idea.

      In the elk/ recommendation for position scenario, as unlikely as it is, it would be under the aegis of ” agreements agreed to freely by both parties” which couldn’t be about unequal power (harassment).

      Buddies, especially those higher in the organization, always tend to help buddies get promotions that they think they deserve. It’s incredibly hard to tell if this is “only” because they’re a buddy, or because they think the buddy has the right skills/complexion/personality to succeed in the job. It generates a favor buddy network that is linked across the organization and can help you to get things done/find out about things, etc.

      In this context, sexual buddies would be no different than any other variety.

    • Billy — Tooke’s lover has not alleged quid pro quo sex. Without any evidence that the sex was “unwelcome,” we are left to conclude it was consensual; thus, it cannot be quid pro quo.

      Nor is this a case of “bystander” quid pro quo sexual harassment, which is a subset of hostile work environment. A single workplace sexual affair cannot establish third-party sexual harassment, which must be “excessive, pervasive and opprobrious.” In other words, to establish third-party quid pro quo sexual harassment, the demands for sexual favors have to be the notorious norm within the workplace. A single, secret extra-marital affair doesn’t fit the bill.

      I’m not defending Tooke’s moral or managerial decisions; I think he “showed very poor judgment.”

    • And vice versa, which is what makes workplace affairs of unequal power so imprudent. When a subordinate wants to break-up and the superior responds with quid pro quo pressure, that’s when consensual turns into harassing.

  2. Then there’s always the trap of a subordinate saying “it’s consensual, until I don’t get my way, then I cry foul”. I witnessed that scenario play out in two different jobs on separate occasions , a good “scared straight” lesson that kept me avoiding any relationship connected to the work place. A strong desire to advance and make money can be good if channeled the right way.

  3. How about we agree if he was married the affair constituted moral failure and lack of judgement. His career should have stopped there in terms of ever expecting more responsibility or a higher grade. If this was the military he would have been bounced out.

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