Former Ky. Commissioner’s ‘Unsubstantiated’ Sexual Harassment Claim Typical

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When a former Cabinet for Health and Family Services commissioner alleged sexual harassment, the department said it couldn’t substantiate her claim.

The department had the same response in every single one of the more than 40 complaints it received between 2012 and 2017, a KyCIR review of public records shows.

The Associated Press reported last week that Adria Johnson, former commissioner of the Department for Community Based Services, resigned from her position on June 4 and alleged sexual harassment and discrimination by male coworkers. An investigation by Health and Family Services failed to find evidence to support her claims, according to the AP.

Cabinet officials declined to answer questions by phone. When asked by email about investigators deeming all of the cabinet’s sexual harassment investigations to be unsubstantiated, Cabinet spokesperson Catherine Easley responded in a statement that the cabinet “takes immediate action through prompt investigation” when sexual harassment is reported.

According to documents KyCIR obtained through an open records request, in a six-year time span beginning in 2012, Health and Family Services investigated 42 sexual harassment complaints.

Like Johnson’s allegations, none of those complaints were substantiated as sexual harassment, although some investigations did confirm inappropriate behavior. All the offenders’ names were redacted in the documents. In about half the cases, investigators deemed that some misconduct occurred, but they weren’t willing to name the behavior “sexual harassment.”

In more than half of the complaints, investigators said that type of behavior was not “severe or pervasive” enough to be sexual harassment.

Johnson’s attorney, Thomas Clay, sent the cabinet’s general counsel a letter on June 11 detailing Johnson’s allegations, and claiming state officials knew about the harassment. Clay provided a copy of the letter, and all references to the employees against whom Johnson alleged gender discrimination and sexual harassment were redacted.

Clay’s letter alleges the discrimination began soon after Johnson’s appointment as commissioner on Dec. 29, 2015. One man allegedly acted in a “controlling manner” that prevented Johnson from fully working as the commissioner, she said. The employee also implied Johnson wasn’t necessary in her position because she was a woman. At least two colleagues confirmed to Johnson that this man treated other women in a similar manner, according to the letter.

In another incident described in the letter, a male employee suggested he wanted a sexual relationship with Johnson. When Johnson expressed shock, he replied, “It’s just sex,” according to Clay’s letter. A male coworker also commented on a picture of Johnson remarking, “Isn’t that a gorgeous picture.”

The cabinet investigated Johnson’s claims after the letter was received, and deemed them unsubstantiated, the AP reported.

How is sexual harassment defined?

Kentucky’s Personnel Cabinet defines sexual harassment as “unwelcome sexual advances, requests for sexual acts or favors, with or without accompanying promises, threats, or reciprocal favors or actions; or other verbal or physical conduct of a sexual nature that creates or has the intention of creating a hostile or offensive working environment.”

The employee handbook lists examples of sexual harassment as sexually suggestive comments, jokes of a sexual nature and sexually explicit pictures.

But when complaints filed by Health and Family Services employees described this same behavior, investigators never concurred that it was sexual harassment.

In several complaints, employees claimed they experienced sexually offensive language, comments about their bodies, uninvited physical contact and unwanted sexual advances. Other said they felt pressured into relationships or were showed explicit images.

In one instance, an employee who filed a complaint alleged her offender commented on her legs and sent Facebook messages about his sex life. He repeatedly asked her to lunch although she declined, touched the nape of her neck and joined the same gym after asking where she worked out, the employee said.

The investigation found that the man behaved unprofessionally, but said his actions weren’t “severe or pervasive enough to rise to the level of sexual harassment.”

Another employee accused a man of making inappropriate comments, hugging her excessively, grabbing her breast and kissing her on the cheek.

The man denied all of the allegations, and the investigation found that sexual harassment “as defined by law” was not substantiated. He received a two-day unpaid suspension.

JoAnne Sweeny, a University of Louisville law professor, said there could be numerous reasons why all the sexual harassment claims were found unsubstantiated. In some cases, she said, it’s easier to ignore the claims or downplay them to avoid disrupting the workplace. In other situations, some people may not want to admit that the offender is capable of that behavior.

But, Sweeny said, it’s unlikely that all 42 claims did not meet the criteria for sexual harassment.

“The standard for unsubstantiated seems pretty low,” Sweeny said. “It seems pretty easy to get something unsubstantiated.”

Sweeny said in sexual harassment investigations, it’s often a case of “he said, she said” with the woman’s word up against the man’s word. She said in many cases, the investigators choose to believe the man.

Sweeny said many people may also believe the myth that men and women communicate differently, so they view the alleged harassment as a simple miscommunication. She said the woman may also be viewed as overreacting to what some perceive as a minor incident.

In one case, a female employee filed a complaint against a male coworker after she found 13 pictures of herself on his phone. The woman said they had been taken without her consent.

When questioned, the man acknowledged he did take the pictures, but he said he thought it was OK because they were “friends,” and he “was just joking around.” The investigators found the man’s behavior unprofessional but said it did not meet the criteria for sexual harassment. The man retired shortly after the investigation.

Sweeny said the people investigating the sexual harassment allegations are often men, and they may identify more with the male offender than the female complainant. She said male investigators may also fear they could be accused of sexual harassment, so they work to dispute the allegations.

“They want to find them not guilty because they have this residual fear that, “that could have happened to me,’” Sweeny said.

Punishment doesn’t always follow substantiation

More than half of the 42 sexual harassment complaints at the cabinet were substantiated for some offense other than sexual harassment, but investigators issued punishments in only 14 cases. The accused employees most often received counseling.

An investigation into a man who lifted up his shirt and suggested he was going to expose himself to a female coworker found the man had acted “inappropriately and unprofessionally.” His punishment: a two-day suspension.

Out of the 42 investigations, only two employees were terminated after sexual harassment allegations. One lost his job after making sexual comments while on initial probation. The other was terminated for timesheet fraud, drinking on the job and poor job performance.

Neither was found to have committed sexual harassment.

In a few investigations, offenders were required to undergo sexual harassment training.
In 2012, an employee filed a sexual harassment complaint after overhearing a conversation that involved “sexually suggestive topics.” After an investigation, the four accused individuals were required to undergo “online anti-harassment” training.

The recommendation noted that two of the individuals had not received anti-harassment training in over a year. The other two individuals had not received harassment prevention training in almost seven years.