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.