The Navy combined its policies on sexual harassment and equal opportunity in the relatively new OPNAVINST 5354.1H (Navy Harassment Prevention and Military Equal Opportunity Program Manual). It is extremely broad in scope. Like the U.S. Marine Corps’ Prohibited Activities and Conduct (PAC) Order, it covers all manner of hazing, sexual harassment, unfair treatment, stalking, extremist activity, other forms of inappropriate conduct. OPNAVINST 5354.1H is also punitive, meaning that violations can be punished under Article 92 of the Uniform Code of Military Justice (UCMJ) – Failure to obey order or regulation. This article focuses specifically on the definition of sexual harassment in the Navy’s instruction and why it can be problematic for people accused of committing sexual harassment.
OPNAVINST 5354.1H defines sexual harassment as conduct that:
(a) Involves unwelcome sexual advances, requests for sexual favors and deliberate or repeated offensive comments or gestures of a sexual nature when:
(1) Submission to such conduct is made either explicitly or implicitly a term or condition of a person’s job, pay or career;
(2) Submission to or rejection of such conduct by a person is used as a basis for career or employment decisions affecting that person; or
(3) Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creates an intimidating, hostile, or offensive working environment; and
(b) Is so severe or pervasive that a reasonable person would perceive and the victim does perceive the environment as hostile or offensive.
More simply, sexual harassment is conduct that is (1) sexual in nature; (2) has some impact on the work environment; and (3) so “severe or pervasive” that any reasonable person would feel intimidated, offended, or uncomfortable.
The first and second prongs are almost always a given. If the conduct involves sex in any way, even remotely, it satisfies the first prong. The work environment is everywhere two people interact for official business or command-sponsored events. So sexual harassment does not just have to happen at work, on the ship, or even on base. Except for limited circumstances, the Navy considers the workplace to be pretty much everywhere. The third prong is often the source of confusion. The “so severe or pervasive” standard is used a lot in equal opportunity and employment law and is even included in the newly established paragraph 107a of UMCJ Article 134–(Sexual Harassment). The Navy adopted this language as well. But it raises the question: What kind of conduct is “so severe,” and what is “so pervasive?”
The Equal Employment Opportunity Commission (EEOC) notes that the conduct must be more than simple teasing, offhand comments, or isolated incidents to be considered severe. A single statement or gesture can be considered severe. However, for a single incident to rise to that level, it would almost always need to be intentionally offensive or so extreme that the person should have known it would be interpreted offensively. The bar is relatively high. Pervasive means constantly present. That could mean twice or ten times, depending on the circumstances. A decent rule of thumb is that if someone is asked directly to stop a specific behavior, and they continue, that conduct is pervasive. It can also involve inescapable conduct, like having private photos or texts forwarded to all your friends and family members. If these definitions for sexual harassment seem broad, it is because they are, but OPNAVINST 5354.1H expands them even further.
OPNAVISNT 5354.1H includes any deliberate unwelcome comment or gesture, any sexually explicit statement, question, anecdote, physical contact, or any other “inappropriate communication.” Under OPNAVINST 5354.1H, it is almost easier to define what is not sexual harassment than to define what sexual harassment is.
Because the Navy’s definition of sexual harassment is so broad, it leaves a lot of room for personnel to make unfounded allegations without repercussions. After all, there is no penalty for simply misinterpreting what someone says unless the statement is knowingly false. Ultimately, the person who needs to be persuaded is the unit commander. They are required to report incidents and are under heavy pressure to avoid any appearance of “sweeping things under the rug.” They are often not an audience that is friendly or receptive to alleged offenders. Furthermore, because the culture is purposefully biased toward believing alleged victims, the burden weighs heavily on the alleged offender to show that what they did or did not do was not sexual harassment. This is a massive uphill battle.
The key to disproving allegations of sexual harassment is focusing on the part of the third prong involving the hostile working environment. This is a very fact-intensive process. It means developing an understanding of the workplace environment itself, interviewing witnesses, constructing a detailed timeline of events, and attempting to explain what an “objective person” would or should believe.
If you are the subject of a complaint of sexual harassment, whether formal or informal, your character and reputation are already under the microscope. Substantiated complaints can result in negative performance evaluations, non-judicial punishment, court-martial, and even involuntary separation. Protecting yourself from these potentially career-ending consequences requires knowing your rights and crafting compelling strategic arguments. If you want to contest allegations of sexual harassment under OPNAVINST 5354.1H, you need an attorney.
With nearly 30 years of combined Naval Service, the attorneys at Jacksonville, Florida firm of Korody Law understand Navy culture and what it means to work among Sailors at sea and ashore. We have represented numerous clients in equal opportunity and sexual harassment cases under OPNAVINST 5354.1H. We can bring our in-depth knowledge of the process and experience with winning arguments to your side. Please contact us today for a free consultation and case evaluation.