Sec. 3. Reporting, documentation, and investigation procedures
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In this Act— the term covered employee means— any officer or employee (including any temporary, part-time, contract, intermittent employee, interns, fellows, or other unpaid staff; both American citizens and foreign nationals) performing work for or on behalf of the Department of State; members of the Foreign Service (as that term is defined under section 103 of the Foreign Service Act of 1980 ( 22 U.S.C. 3903 )), to include Foreign Service Officers, Foreign Service Specialists, Locally Employed Staff, and Consular Agents; and an individual who is engaged by an employer or entity as a contractor; the term Office of Employee Advocacy means the Office of Employee Advocacy, as established under subsection (b); the term Office of Civil Rights means the Office of Civil Rights within the Department of State; the term Global Talent Management means the Bureau of Global Talent Management, Office of Employee Relations, Conduct, Suitability, and Discipline Division within the Department of State; and the term Diplomatic Security means the Bureau of Diplomatic Security within the Department of State. the term harassment means— conduct based on race, color, religion, sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype), or national origin, regardless of whether it is direct or indirect, or verbal or nonverbal, that unreasonably alters an individual’s terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment; sexual harassment is conduct that takes place in a circumstance described in subparagraph
(C)and that takes the form of— a sexual advance; a request for sexual favors; or any other conduct of a sexual nature; a circumstance described in this subparagraph is a situation in which— submission to the conduct involved is made either explicitly or implicitly a term or condition of employment; submission to or rejection of such conduct is used as the basis for an employment decision affecting an individual’s employment; or such conduct unreasonably alters an individual's terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment; and in determining whether conduct constitutes harassment because the conduct unreasonably alters an individual’s terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment, the following rules shall apply— that determination shall be made on the basis of the record as a whole, according to the totality of the circumstances. A single incident may constitute workplace harassment; incidents that may be workplace harassment shall be considered in the aggregate, with— conduct of varying types (such as expressions of sex-based hostility, requests for sexual favors, and denial of employment opportunities due to sexual orientation) viewed in totality, rather than in isolation; and conduct based on multiple protected characteristics (such as sex and race) viewed in totality, rather than in isolation; the factors specified in this subparagraph are among the factors to be considered in determining whether conduct constitutes harassment and are not meant to be exhaustive. No one of those factors shall be considered to be determinative in establishing whether conduct constitutes harassment. Such factors are each of the following— the frequency of the conduct; the duration of the conduct; the location where the conduct occurred; the number of individuals engaged in the conduct; the nature of the conduct, which may include physical, verbal, pictorial, or visual conduct, and conduct that occurs in person or is transmitted, such as electronically; whether the conduct is threatening; any power differential between the alleged harasser and the person allegedly harassed; any use of epithets, slurs, or other conduct that is humiliating or degrading; or whether the conduct reflects stereotypes about individuals in the protected class involved; and in determining whether conduct constitutes harassment, conduct may be harassment regardless of whether, for example— the complaining party is not the individual being harassed; the complaining party acquiesced or otherwise submitted to, or participated in, the conduct; the conduct is also experienced by others outside the protected class involved; the complaining party was able to continue carrying out duties and responsibilities of the party’s job despite the conduct; the conduct did not cause a tangible injury or psychological injury; or the conduct occurred outside of the workplace. Not later than one year after the date of the enactment of this Act, the Secretary shall establish a new office to be the Office of Employee Advocacy, to be headed by a full-time Chief Advocate. Personnel of the Office shall be appointed without regard to political affiliation and solely on the basis of fitness to perform the duties of the position. The Chief Advocate— shall report directly to the Under Secretary for Management; and may not have any other duties in the Department of State that are not reasonably connected to employee advocacy. Receive complaints from any Department of State covered employee or eligible family member (EFM), as defined in the Foreign Affairs Manual, of harassment, discrimination, sexual assault, and related retaliation. Counsel victims of their rights, procedures for seeking relief, and available resources, both locally and at headquarters, under this Act, and other employment laws enforced by the Equal Employment Opportunity Commission including the Civil Rights Act of 1964, the Pregnancy Discrimination Act of 1978, the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, the Civil Rights Act of 1991, the Rehabilitation Act of 1973, and the Genetic Information Nondiscrimination Act of 2008. Provide confidential support and information, including referrals to medical and mental health care. Refer complaints to the appropriate offices in the Department of State promptly including— the Office of Civil Rights in instances of harassment, discrimination, or related retaliation; and Bureau of Diplomatic Security in instances of sexual assault or other complaints with security clearance implications. For the purposes of receiving complaints, operate secure, confidential means of reporting 24 hours a day, including an electronic reporting system and an internationally accessible hotline. Employ Employee Advocates to carry out the duties of the Office and assist those filing or considering filing a complaint. If a victim chooses to file a complaint, such Advocates shall assist the victim in providing information and support until an investigation is completed, and a final agency decision has been made. Employ attorneys licensed to practice law with experience in harassment, discrimination, retaliation, and assault complaints, and provide optional legal assistance, consultation, and representation related to a covered employee’s complaint of harassment, discrimination, sexual assault, or related retaliation. In carrying out this subparagraph, the following shall apply: The relationship between the Office and an employee to whom the Office provides legal assistance, consultation, and representation under this section shall be the relationship between an attorney and client. Nothing in this section shall preclude covered employees from hiring their own attorneys or require them to use attorneys from the Office. Notwithstanding any law regarding the licensure of attorneys, an attorney who is employed by the Office and is authorized to provide legal assistance and representation under this section is authorized to provide that assistance and representation in any jurisdiction, subject to such regulations as may be prescribed by the Office. The Office may not accept any award of attorney fees or other litigation expenses and costs under any hearing or civil action brought. The Office must be empowered to be independent and work on behalf of complainants without undue pressure from State Department leadership. Provide routine training to attorneys and advocates on harassment, discrimination, sexual assault, and related retaliation policies and best practices for victim care. Track the stage of reporting, investigation, or disciplinary process a complaint is in. Conduct climate surveys, as specified in section 6. The system established under this subsection shall— include an electronic reporting system under which a complaint may be filed, in addition to a non-electronic system; maintain an electronic record of the date and time at which any complaint is so filed; ensure the security and confidentiality of records; and allow the submission of confidential reports that will not prompt individualized investigations, but shall be monitored by the Office to identify trends and determine whether investigations should be undertaken by the Office of Civil Rights. The system established under this subsection shall— include an international toll-free number accessible by all covered employees and EFM both domestic and overseas; be staffed 24 hours day, 7 days a week by Office of Employee Advocacy staff during normal working hours, and by a rotating OEA duty officer or contractor during non-working hours; be entered by OEA staff into the electronic reporting system so that all reported cases are captured in the system; and to the extent practicable, ensure access to the hotline for non-English speakers. Each overseas post shall notify employees that they may use the electronic reporting system or international hotline as established in paragraphs
(3)and (4), or report in person to the Deputy Chief of Mission or other employees designated as Office of Employee Advocacy Liaisons. The OEA Liaisons may include (but are not limited to) the Equal Employment Opportunity Counselor, the Community Liaison Officer, the Locally Employed Staff
(LES)Equal Employment Opportunity Officer Liaison, or other staff to be selected by the Deputy Chief of Mission. OEA Liaisons should be provided with educational materials to distribute as well as training on the resources and services provided by the Office of Employee Advocacy, and on the various means of communications that employees can use to reach out to OEA Employee Advocates. The Chief of Mission shall not be notified of the identity of the complainant without the express permission of the complainant. This section shall not be construed to preclude, limit, or otherwise effect the rights of a covered employee to file a complaint, based on the alleged harassment, discrimination, sexual assault, and related retaliation that gave rise to the complaint under this subsection, under any other provision of law. This section shall not be construed to preclude, limit, or otherwise affect the rights of a covered employee to file a complaint with another office. In developing the Office of Employee Advocacy, the State Department shall receive technical assistance and consultation from organizations and other professionals with expertise in victim-centered, trauma-informed care, individuals who have experienced harassment, discrimination, or retaliation at the State Department, the Equal Employment Opportunity Commission, and other relevant executive agencies. Upon the referral of a complaint from the Office of Employee Advocacy to the Office of Civil Rights, the Office of Civil Rights shall— take steps for the initial intake and recording of the complaint, including providing the covered employee who filed the complaint with all relevant information with respect to the rights of the covered employee under this Act and other relevant law; and notify the accused covered employee— of the complaint and the right of that covered employee to participate in any mediation, hearing, or civil action under this section and other applicable law with respect to the complaint; that retention of documents and evidence is crucial, and any unauthorized destruction of documents and evidence may result in additional investigations and potential punishment; and that there is a prohibition on retaliation against the covered employee who filed the complaint and may be investigation and discipline for retaliation. The Office of Civil Rights shall investigate all complaints in a prompt, thorough, and impartial manner. The Department shall update the Foreign Affairs Manual to enable Office of Civil Rights investigators to travel to the foreign and domestic sites of received complaints in which widespread or pervasive sexual harassment is reported. The Under Secretary for Management shall authorize sufficient funding for Office of Civil Rights attorney advisors to conduct this travel as necessary. If the Chief of Mission at an overseas post is named as the alleged perpetrator in a complaint, the Office of Civil Rights must notify the Secretary of State. The Office of Civil Rights must prioritize the investigation of such cases. Not later than 120 days after a complaint is filed under this section and transmitted to the Office of Civil Rights, the Office of Civil Rights shall conclude the investigation regarding that complaint. On the date the investigation is so concluded, the Office of Civil Rights shall transmit a written report on the results of the investigation to— the covered employee who filed the complaint; the accused employee and his or her employing office; and Global Talent Management. The Office of Civil Rights may extend the 120 day deadline in subparagraph
(A)if the Office of Civil Rights determines that additional time is necessary to conclude the investigation. The Office of Civil Rights must notify the House Committee on Foreign Affairs and Senate Committee on Foreign Relations of the extension and provide justification for each extension of 30 days. After the Office of Civil Rights concludes the investigation, it shall transmit a report providing a summary of the facts with all investigatory material including transcripts of interviews and evidence to Global Talent Management for consideration of disciplinary action. Global Talent Management shall transmit the investigatory report and any resulting disciplinary actions to the Secretary of State. Reports shall be transmitted to the Secretary no less than quarterly. If the number of complaints received by the Office of Civil Rights exceeds its capacity to respond within 120 days to the majority of cases, the Director of the Office of Civil Rights and Under Secretary for Management shall authorize the hiring of additional attorney advisors or other appropriate staff on a temporary or permanent basis. Global Talent Management shall keep a record of investigations, hearings, and other proceedings conducted related to complaints of harassment, discrimination, sexual assault, or related retaliation. Subsequent disciplinary action taken by Global Talent Management in response to the investigation and any EEO settlements or judgements of harassment, discrimination, sexual assault, or related retaliation shall be documented and kept on file and accessible to the Office of Civil Rights, Diplomatic Security, security clearance investigators, and Federal law enforcement officials. Global Talent Management shall also ensure that a standalone document containing a description of the offense and disciplinary action taken, redacted of any personally identifiable information, shall be provided to and reviewed by all subsequent Department Foreign Service and Civil Service Selection and promotion Boards, to include a permanent notation in the employee’s file, including annual performance assessments or employee evaluations. Section 610 of the Foreign Service Act of 1980 ( 22 U.S.C. 4010 ) is amended by adding as follows: In order to promote the efficiency of the Service, the Secretary may suspend a member of the Foreign Service without pay when the member’s security clearance is suspended or when there is reasonable cause to believe that the member has committed a crime for which a sentence of imprisonment may be imposed or if the member has a history of harassment or Equal Employment Opportunity violations documented and substantiated by Global Talent Management. . Section 610 of the Foreign Service Act of 1980 ( 22 U.S.C. 4010 ) is amended as follows: The Secretary may decide to separate any member from the Service for such cause as will promote the efficiency of the service, to include findings by Diplomatic Security that the member has engaged in criminal misconduct, to include murder, rape, or other sexual assault. . Global Talent Management shall update the Foreign Affairs Manual’s Grounds for Disciplinary Action and List of Disciplinary Offenses and Penalties to reflect the amendments made by this subsection and communicate such amendments to staff via Department Notices. Consistent with other civil service and Foreign Service laws and regulations, the Secretary of State shall develop a policy of applying penalties to any covered employee who is determined to have sexual assault, harassment, discrimination, or related retaliation complaints against him or her substantiated. Such penalties shall include additional mandatory training, suspension with or without pay, demotion in rank, or removal for a period of the Secretary’s choosing. Global Talent Management shall ensure, to the extent practicable and appropriate, that any third country national or any national of a host country that was assigned to work at a diplomatic facility or employee residence who harasses, discriminates against, sexually assaults, or retaliates against a covered employee is— documented in an appropriate site history file and in a global tracking and recording system, to be coordinated by Global Talent Management; taken into account with respect to determinations regarding placements of third country nationals or any national of a host country at such post and the provision of any funds or other benefit by the Department; and any covered employee who filed the complaint may opt out of having personally identifiable information included in such a report. The Office of Civil Rights and Diplomatic Security shall conduct case reviews of a statistically significant number of cases on a quarterly basis to determine if proper procedures were followed in accordance with the harassment, discrimination, sexual assault, and related retaliation protocols and guidelines provided under this Act and other applicable laws. An analysis of such case reviews shall be annually reported to the Committee on Oversight and Reform and Committee on Foreign Affairs of the House of Representatives and the Committee on Homeland Security and Governmental Affairs and Committee on Foreign Relations of the Senate in the report mandated in section 7(a).
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