Wild kingdom: sexual harassment at the NPS

Twenty years ago in Faragher v. City of Boca Raton, the U.S. Supreme Court considered the case of a female lifeguard who sued the city of Boca Raton for sexual harassment because her supervisor lifeguard, on duty with her on a local beach, subjected her to “uninvited and offensive touching,” made lewd remarks, and told her, “Date me or clean the toilets for a year.” The city’s main defense was that it couldn’t be held responsible for conduct on a remote beach, far from the control of any city official. The Supreme Court found that the city was liable for the supervising lifeguard’s behavior, but it could assert the affirmative defense that its antiharassment policies and investigation procedures were so good that it couldn’t be held responsible for individual employee misconduct.  road sign - ranger station

If only the National Park Service (NPS) had learned that lesson. Rather, in late 2016, the House Oversight and Government Reform Committee  investigated reports of “horrific working conditions [that are] toxic, hostile, repressive and harassing.” A task force report issued 16 years ago found a mountain of harassment and gender bias in the NPS, but lawmakers on both sides of the aisle noted that none of its findings were implemented, while harassment and retaliation continue unabated.

Kelly Martin, Yosemite’s chief of fire and aviation management, reports episodes such as a park ranger repeatedly leering at her through a bathroom window and then photographing her and keeping the pictures on his car visor. Despite her complaints, nothing was done. The Interior Department inspector general found that the chief law enforcement officer at Canaveral National Seashore engaged in a pattern of harassment, but he kept his job and unapologetically describes himself of being guilty of nothing more than a “cultural misunderstanding.”

A female fisheries technician at the Grand Canyon was physically assaulted by a trail maintenance technician and then was harassed and intimidated by the trail crew after she reported him. Federal investigators found that women working on Grand Canyon river trips were pressed into sex by guides and supervisors and then bullied and retaliated against for reporting it. The victims told investigators that they have to “walk the line [between] being not hated and not desired.” An agency report noted that the men on the river crew wagered “to see who could get laid the most.”

With all of that—and the admission that the NPS has “some cultural issues we need to do a deep dive in”—NPS Deputy Director Michael Reynolds couldn’t think of anyone who has been fired for sexual misconduct.

Only YOU can prevent sexual harassment

The NPS has increased its training programs, but really, do you need training to know that sexual assault and subsequent retaliatory conduct are wrong? As Representative Trey Gowdy (R-SC) said during the hearings, “You don’t need a new memo to deal with this. You need handcuffs and a trip to the sex offender registry.”

These charges also make clear that it doesn’t matter if a victim is wearing Christian Louboutin heels or Merrell boots, a silk dress or a Gore-Tex jacket. Obvious trouble spots exist, no doubt including secluded parks, whose local management can establish harsh fiefdoms far from supervisory eyes. The NPS went from grossly negligent to complicit when it ignored the palliative recommendations issued in 2000, although, even back then, it didn’t need a memo to warn about the inherent danger in subjecting young men and women to overnight work in secluded locations under decentralized authority.

Sexual harassment won’t be eliminated in the 21st century, but we at least need to recognize the danger zones. If you send your employees on overnight business trips, you need procedures in place to anticipate and guard against harassment. If you hold awesome holiday parties, know that drinking will reduce inhibitions and increase risk.

You might think that after decades of training about sexual harassment, you can just assume the message has been delivered and received, but you’d be wrong. The problem crops up where you’d least expect it, so you can’t be surprised when it occurs in a hotel or on remote assignments.

Should you be concerned over the threat of sexual harassment in your organization? Does a bear live in the woods?

Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco, California. He may be contacted at schickman@freelandlaw.com.

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