Encl: (1) Definitions
(2) Sexual Harassment Behaviors
1. Purpose. To issue policy and guidance concerning sexual harassment.
2. Cancellation. MCO 5300.10A.
3. Summary of Changes. This Order provides additional requirements
and information in compliance with references (a) and (b) as well as
recommendations from the Defense Equal Opportunity Council Task Force and
the Standing Committee on Military and Civilian Women in the Department of
the Navy. Enclosures (1) and (2) contain additional definitions of terms
and an expanded illustration of sexual harassment behaviors. The Order
should be read in its entirety.
4. Background. People are our most precious asset. Sexual harassment
devalues the individual and threatens unit cohesion. It has no place in
the Marine Corps. How we treat and care for each other and how we feel
about our organizations are vital to mission readiness. Leaders--officer,
enlisted and civilian--are obligated to uphold and protect the dignity of
all Marine Corps personnel. Accordingly, all Marine Corps personnel will
conduct themselves with honor, courage, and commitment and, likewise, all
Marine Corps personnel will be treated with dignity and respect.
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MCO 5300.10B
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5. Policy
a. Per references (a) and (b), no individual Marine or civilian
employee of the Marine Corps will:
(1) Commit sexual harassment, as defined in enclosure (1);
(2) Take reprisal action against a person who provides information
on an incident of alleged sexual harassment;
(3) Knowingly make a false accusation of sexual harassment; or
(4) While in a supervisory or command position, condone or ignore
sexual harassment of which he or she has knowledge or has reason to have
knowledge.
b. A violation of the provisions above by a Naval service member is
punishable under the Uniform Code of Military Justice (UCMJ) as a violation
of U.S. Navy Regulations and Standards of Conduct, and can serve as the basis
for disciplinary action for civilian employees. Such behavior will be dealt
with immediately through the leadership/supervisory structures of the Marine
Corps.
6. Informal Resolution System (IRS). Whenever possible, conflicts arising
from offensive or unwelcome behavior should be resolved at the lowest
possible level. The IRS is designed to address behaviors that could
potentially become sexual harassment or behaviors which are inappropriate
but do not constitute an offense under the UCMJ. Examples can be found in
enclosure (2). The recipient is encouraged to confront the offender directly
in person, in writing, or through an informal third party. The third party
can be the supervisor, a co-worker, or someone outside of the workplace. The
offender should be informed that the behavior is offensive or unwelcome and
should be stopped. Another IRS alternative is for the offended person or
the supervisor to request sexual harassment prevention training or resource
materials to improve overall awareness in the workplace. Additional
information on the IRS can be found in reference (c). Although this is an
informal system, participants are encouraged to document what was said and when, in the event the behavior continues or repeats afterwards. Use of the
IRS is encouraged but not required.
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7. Formal Complaints. All Marines have the right and responsibility to
lodge a legitimate formal complaint of sexual harassment without fear of
reprisal using one of the following methods. Assistance in filing a formal
complaint is available from the unit Equal Opportunity Representative or
command Equal Opportunity Advisor. Civilian personnel will file complaints
per references (d) and (e).
a. Request Mast. This is the preferred method for an individual to file
a complaint of sexual harassment with any commanding officer in the chain of
command up to the individual's immediate commanding general. Reference (f)
provides specific guidance for the request mast program.
b. Article 138, UCMJ Complaint. A Marine who alleges wrong(s) by the
commanding officer may file a complaint under Article 138, UCMJ. Chapter III
of reference (g) provides instructions and the Staff Judge Advocate or legal
assistance office can provide assistance.
c. Redress of Wrong(s) Committed by a Superior. A Marine may file a
complaint against any other superior, in rank or command, who the Marine
believes committed a wrongdoing (Article 1150, USNAVREGS). Contact the Staff
Judge Advocate or legal assistance office for assistance.
d. Communications with Inspectors General. As an alternative to the
normal chain of command, military and civilian personnel may lodge complaints
and provide facts to the Command Inspector or to representatives of the
Deputy Naval Inspector General for Marine Corps Matters/Inspector General
of the Marine Corps.
e. Individual Communications with Congress. Marines may write
individual letters to members of Congress at any time concerning sexual
harassment incidents.
8. False or Malicious Complaints. An intentionally false complaint of
sexual harassment may be, among other things, chargeable as a "false official
statement" in violation of Article 107, UCMJ, or a "false swearing" under
Article 134, UCMJ. A Marine who makes an intentionally false complaint may
be subject to adverse administrative or disciplinary action. A complaint
not substantiated per paragraph 10a(4) of this Order does not automatically
constitute an intentionally false complaint.
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9. Training. Sexual harassment prevention training, to include training on
the Informal Resolution System, will be conducted upon initial entry into the
Marine Corps at Marine Corps Recruit Depots, Officer Candidates School, and
The Basic School.
Thereafter, all Marines and civilian personnel will receive training at
least annually per reference (c).
10. Action
a. All commanders will:
(1) Ensure the contents of this Order and the enclosures are known
by all military and civilian personnel under their command.
(2) Create an environment in which all personnel are treated with
dignity and respect and prompt action is taken when they are not. This
includes directing Marines and civilian personnel to refrain from sexual
harassment and to actively counter and report incidents immediately.
(3) Process all formal complaints of sexual harassment per the
timelines and procedures established in reference (c). A Commander's
Handbook on "processing Equal Opportunity and Equal Employment Opportunity
Complaints" has been published by CMC (MPE) to provide guidance. It can be
ordered through the Marine Corps supply system using PCN 50100379600.
Additionally, a formally trained Equal Opportunity Advisor is available at
every major command and installation to review sexual harassment
investigations and provide other assistance as required.
(4) Take corrective action in each substantiated incident of sexual
harassment. Corrective action includes but is not limited to: formal or
informal counseling, non-punitive letter of caution, security clearance
revocation, adverse fitness report, nonjudicial punishment, or court-martial.
Per reference (h), processing for separation is mandatory following the first
substantiated incident of sexual harassment involving any of the following
circumstances: (An incident is considered substantiated when there has been
a court-martial conviction, nonjudicial punishment, or the commander
determines, based on a preponderance of evidence, that sexual harassment
has occurred.)
(a) Threats or attempts to influence another's career or job for
sexual favors;
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(b) Rewards in exchange for sexual favors; or
(c) Physical contact of a sexual nature which, if charged as a
violation of the UCMJ, could result in a punitive discharge.
(5) Conduct sexual harassment prevention training for all Marines
and civilians per paragraph 8 of this Order. Commanders should actively
participate in the training with their units.
(6) Ensure subordinate leaders/supervisory personnel are aware of
their responsibilities for maintaining a positive work environment and
dealing with sexual harassment incidents.
(7) Ensure NAVMC 2921, "Marine Corps Procedures for Processing of
Discrimination/Sexual Harassment Complaints for Military Personnel," is
prominently displayed on a permanent basis within the command.
(8) Protect complainants and others providing information of an
alleged sexual harassment incident from reprisal or retaliation during an
investigation and afterwards. Monitor during follow-up with the complainant,
per reference (c).
(9) Ensure counseling support or referral services are made available
to all personnel involved in incidents of sexual harassment, per references
(i) and (j).
b. All leaders/supervisors will:
(1) Actively prevent sexual harassment in their workplace.
(2) Understand their responsibilities if they receive a complaint
of sexual harassment.
c. All Marines and civilian employees will:
(1) Conduct themselves in a professional manner in the workplace
and treat others with dignity and respect.
(2) Understand their rights and responsibilities in preventing
sexual harassment in the workplace.
(3) Take action immediately if they are the recipient or witness of
sexual harassment behavior. Sexual harassment
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incidents should be addressed or reported as soon as possible to minimize
the negative impact on the Marine or civilian employee and the unit and to
facilitate the investigation. Per reference (d), civilian personnel have 45
days to notify an Equal Employment Opportunity Counselor. Military personnel
filing formal complaints should do so within 60 days of the incident.
11. Applicability. This Order is applicable to all Marine Corps military
and civilian personnel.
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DEFINITIONS
1. Reasonable person standard. An objective test used to determine if
behavior meets the legal test for sexual harassment. The test requires a
hypothetical exposure of a reasonable person to the same set of facts and
circumstances; if the behavior is offensive, then the test is met. The
reasonable person standard considers the complainant's perspective and does
not rely upon stereotyped notions of acceptable behavior within that
particular work environment.
2. Reprisal. Taking or threatening to take an unfavorable personnel action
or withholding or threatening to withhold a favorable personnel action, or
any other act of retaliation against a military member or civilian employee
for participating in the sexual harassment or discrimination complaint
process. Reprisal can come from any military member or civilian employee
internal or external to the workplace of the complainant or offender.
3. Sexual Harassment. A form of sex discrimination that involves unwelcome
sexual advances, requests for sexual favors, and other verbal or physical
conduct of a sexual nature when:
a. Submission to such conduct is made either explicitly or implicitly
a term or condition of a person's job, pay or career, or
b. Submission to or rejection of such conduct by a person is used as a
basis for career or employment decisions affecting that person, or
c. 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. Workplace conduct, to be actionable as
"abusive work environment" harassment, need not result in concrete
psychological harm to the victim, but rather need only be so severe or
pervasive that a reasonable person would perceive, and the victim does
perceive, the work environment as hostile or abusive. Any person in a
supervisory or command position who uses or condones any form of sexual
behavior to control, influence, or affect the career, pay, or job of a
military member or civilian employee is engaging in sexual harassment.
Similarly, any
ENCLOSURE (1)
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military member or civilian employee who makes deliberate or repeated
unwelcome verbal comments, gestures, or physical contact of a sexual nature
in the workplace is also engaging in sexual harassment.
4. Workplace. An expansive term for military members which may include
conduct on or off duty, 24 hours a day. Examples of the workplace include,
but are not limited to: an office; an entire office building; a DoD base or
installation; DoD ships, aircraft or vehicles; and anywhere when engaged in
official military business or command-sponsored social, recreational, or
sporting events.
5. Work environment. The workplace and the conditions or atmosphere under
which people are required to work.
ENCLOSURE (1)
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SEXUAL HARASSMENT BEHAVIORS
1. Introduction. This enclosure explains and illustrates behaviors which
may constitute sexual harassment by describing in layperson's terms what
sexual harassment is and how it occurs in the work environment. It is
intended to be used as a guide for developing training programs and to assist
military members and civilian employees in distinguishing between acceptable
and unacceptable behavior.
2. The Elements of Sexual Harassment. For a person's behavior to be
considered sexual harassment, it must meet three criteria: (1) it must be
unwelcome, (2) it must be sexual in nature, and (3) it must occur in or
impact on the work environment.
a. Unwelcome behavior is behavior that a person does not ask for and
which that person considers undesirable or offensive. Not everyone has the
same perception of "undesirable or offensive." Since the person being
subjected to the behavior--the recipient--is the one being affected, it is
the recipient's perception that counts as long as the recipient is a
reasonable person and not overly sensitive. Using a "reasonable person
standard," as defined in enclosure (1), from the perspective of the
recipient, is considered a common sense approach in determining which
behaviors might be considered sexual harassment. In this regard, behavior
which the recipient finds unwelcome should be stopped.
b. Behavior which is sexual in nature is fairly easy to determine.
Telling sexually explicit jokes, displaying sexually suggestive pictures,
talking about sex are obviously "sexual in nature." Some people would
consider other behaviors, such as touching, to be sexual in some cases but
not in others. Again, the reasonable person standard is considered a common
sense approach. (Sexist behavior--behavior which disparages or discriminates
based on gender--is not sexual, however, it is a form of discrimination and
equally unacceptable.)
c. For sexual harassment to occur, the unwelcome behavior must occur
in or impact on the work environment, as defined in enclosure (1). The
harassment can take one of the following forms:
(1) "Quid pro quo." A legal term meaning literally "this for that."
This occurs when recipients are offered or denied something that is work-
connected in return for submitting to or
ENCLOSURE (2)
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rejecting unwelcome sexual behavior. Examples include getting or losing a
job, a promotion or demotion, a good or bad performance evaluation, etc. If
any work-related decisions are made based on the submission to or rejection
of the unwelcome behavior, sexual harassment has occurred. Normally this is
from a senior to a junior because the senior person has something to offer.
(2) Unwelcome sexual behavior of one or more persons in a workplace
which interferes with another person's work performance.
(3) "Hostile environment." This occurs when the behavior produces a
work atmosphere which is offensive, intimidating, or abusive to another
person, whether or not work performance is affected. Again, the reasonable
person test from the recipient's perspective is used to determine if
workplace conduct is so severe or pervasive to perceive the work environment
as hostile or abusive. The following are examples of behavior that could
create a hostile environment:
(a) Using sexually explicit or sexually offensive language;
(b) Displaying sexually-oriented posters or calendars;
(c) Touching someone in a suggestive manner, such as any
intentional unnecessary and/or prolonged contact, a neck or back massage,
or any touch that could be described as a caress.
(d) Giving someone unwelcome letters, cards, or gifts of a
personal nature, particularly when these items have sexual overtones.
(e) Applying unwanted or uninvited pressure for dates.
(f) Making offensive remarks about a person's appearance, body,
or sexual activities.
(3) Overt, unwelcome sexual behavior. Certain types of unwelcome
sexual behavior do not have to create a "hostile environment" to be
considered sexual harassment. If the behavior occurs in the work environment
and is unreasonable, such as groping or attempts to fondle or kiss a person,
it may be considered sexual harassment, even if displayed only once. Other
less obvious behaviors can become sexual harassment if they are repeated.
ENCLOSURE (2)
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3. Range of Behaviors. There is a wide range of behaviors which can be
unwelcome, sexual, and work-connected and can, therefore, constitute sexual
harassment. It can be confusing. What if a behavior doesn't meet all three
criteria? Some behaviors may be unwelcome and work-connected, but not
sexual, such as performance counseling, and obviously do not constitute
sexual harassment. To better explain the range of behaviors which may
constitute sexual harassment, the traffic light illustration was developed.
Behaviors are divided into three zones, corresponding to the colors on a
traffic light.
a. Green zone. Green means "go" on a traffic light and these behaviors
are not sexual harassment and can continue. Examples include: touching
which could not reasonably be perceived to be sexual, such as a professional
handshake or a friendly pat on the shoulder; counseling on military
appearance or conduct; social interaction; showing concern or encouragement
in a reasonable manner; a polite compliment; or friendly conversation.
Green zone behaviors: A male platoon sergeant counsels a single female LCpl
on using protection if she is going to be sexually active. A female Cpl is
told to go home and change when she shows up for a command function in
inappropriate clothing. A female Lt tells a male sgt to limit phone calls
from his girlfriend during working hours to emergencies only. A male Col
pats a female Capt on the back in congratulations for receiving an award or
tells her she looks sharp in uniform.
b. Yellow zone. Yellow means "caution" and these are behaviors which
many people would find unacceptable and they could be sexual harassment,
particularly if repeated and especially after the offender has been told the
behavior is unwelcome. Examples include: violating personal space; cat
calls or whistling; questions about personal life; lewd or sexually
suggestive comments; suggestive posters or calendars; off-color jokes;
leering or staring; repeated requests for dates; foul language; unwanted
letters or poems; and sexually suggestive touching or gesturing. Yellow zone
behaviors: A male Cpl asks a female co-worker about her sex life--caution--
the co-worker tells the Cpl his questions are unwelcome but he continues to
ask either in the same conversation or at a later time--sexual harassment. A
female Lt massages the shoulders of a male sgt while he works on a project
at the computer--caution--he tries to shrug her off or tells her his wife
wouldn't like this but the Lt laughs and doesn't take the hint--sexual harassment. A male SSgt has a lingering touch when the women he works with
have to come into contact with him--sexual harassment. The Marines in the
motor pool have always
ENCLOSURE (2)
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talked and joked about sex while they work but a female PFC checks in and
tells her supervisor the sex talk makes her uncomfortable; the supervisor
tells her to lighten up and the talk continues--sexual harassment.
c. Red zone. Red means "stop" and these behaviors are always sexual
harassment. Examples include: making sexual favors a condition for
employment rewards; threats if sexual favors are not provided; sexually
explicit pictures (including calendars or posters) or remarks; using status
to request dates; unwanted attempts to stroke, fondle, or kiss a person; or
obscene letters or comments. The most severe forms of sexual harassment
constitute serious criminal conduct, e.g. stalking, invasion of living
quarters, and sexual assault.
Red zone behaviors: The male S-1 chief propositions young enlisted women in
the command and tells them he has something on them like a DUI. A group of
young male Marines surrounds a female LCpl at the chow hall and won't let her
leave. A male GySgt tells a female GySgt co-worker that he had a dream about
her and describes it to her in explicit detail. While TAD, a female Maj with
connections at HQMC invites a male ssgt to her room after a few drinks at the
bar telling him with a wink maybe they can work out something to get him the
special assignment he wants.
Note: Keep in mind that the above examples are used as guidance only.
Individuals believe they have been sexually harassed based on their
perceptions. Each incident is judged on all the facts in that particular
case and individuals' judgment may vary on the same facts. Caution in this
area is advised. Anytime sexually oriented behavior is introduced into the
work environment or among co-workers, the individuals involved are on notice
that the behavior may constitute sexual harassment.