The Real Story Behind The FCC Sex Scandal
Though a lawsuit’s revelation that Thomas Reed, the director of the FCC’s Office for Communications Business Opportunities, had sex with a Washington Post reporter in his office is salacious, that’s not what should get Congress’s attention. The far more serious revelation involves the FCC’s official legal response to a female employee’s allegation that she was subjected to a hostile work environment due to management inaction when a male coworker repeatedly invited other male coworkers to watch porn with him in the cubicle adjacent to hers, from which she would “hear groans – mmm, mmm, ahh – in response to the pornography viewings,” while having one “stand guard looking for her.”
In today’s environment of heightened concern regarding gender issues, these allegations should have raised red flags about the prevailing institutional culture at the FCC and prompted swift remedial action. Instead, FCC chairman Tom Wheeler’s legal team attempted to dismiss the case in federal court by arguing that these allegations amounted to nothing more than the “mere existence of pornography in the workplace” that was not sufficiently “severe or pervasive” to create a hostile work environment.
Federal Communications Commisison (FCC) Chairman Tom Wheeler. (AP Photo/Lauren Victoria Burke)
As common sense suggests, the court disagreed. Judge Colleen Kollar-Kotelly recognized that the female employee alleged more than the “mere existence of pornography in the workplace,” as the FCC contended. The court determined the allegations were sufficient to demonstrate that the female employee “frequently had ‘no way to avoid’ the groups of men watching pornography in the adjacent cubicle,” that “she felt ‘surrounded by’ the pornography being viewed nearby,” and that “the hostile conduct could be considered to be ‘directed at [her].’” In short, the court found it plausible that the FCC subjected the female employee to “discriminatory intimidation, ridicule, and insult” that is sufficiently “severe or pervasive” to alter the conditions of her employment and “create an abusive working environment.”
Chairman Wheeler’s dismissive response to these activities is especially troubling when the social context of these events is considered. The FCC’s Office for Communications Business Opportunities (known as OCBO) “serves as the principal advisor to the Chairman and the Commissioners on issues, rulemakings, and policies affecting small, women, and minority-owned communications businesses.” And the female employee, who worked at the FCC for over thirty years, was working as a “Women’s Outreach Specialist” at the time of the alleged harassment. When the head of the FCC office responsible for promoting business opportunities for women condones loud and conspicuous porn watching by a group of males in a cubicle adjacent to a female employee and admits to using his own office in the FCC as a location for sex, there is evidence of a problem that should be addressed by more than an aggressive legal defense.
An internal investigation indicates the female employee’s allegations were more than merely plausible. According to a memorandum the female employee filed in her legal case against the FCC, after Reed failed to take action on her behalf and her male coworkers’ behavior escalated, she reported the pornography issue to the agency’s Inspector General in February 2012. Though it doesn’t name any employees specifically, pages 17-18 of the Inspector General’s March 2016 report to the agency’s commissioners describe the results of a “lengthy investigation” into the misuse of FCC facilities to conduct personal business and view pornography. The report states that the investigation, “which included referrals of potential criminal activity to the Internal Revenue Service that were ultimately declined, revealed that four FCC employees violated various ethical and administrative rules, including the FCC’s Computer System Rules of Behavior, the FCC’s Cyber Security Policy, and the Standard of Ethical Conduct for Employees of the Executive Branch, 5 CFR § 2635 et seq.” Among other violations, the report noted there was “substantial evidence” that the employees used FCC equipment to “view, store, and send pornographic material,” and that the Inspector General had referred the case to “the appropriate Bureaus and Offices within the Commission for action.”
Sadly, it appears Wheeler has decided to do “nothing” to address the hostile culture and management issues at the agency. Thomas Reed remains the director of OCBO, a highly-paid management position at the FCC, and it appears no action has been taken in response to the Inspector General’s investigative findings (published nearly 4 years after the female employee alleges she first reported the issue to the IG). During a congressional hearing on September 17, 2014, the FCC’s inspector general testified that the agency “got [a] person to resign” who had been watching porn “8 hours a week” rather than terminate him (which apparently allowed him to keep his federal benefits), but made no mention of the other (or perhaps additional) employees in the 2016 report.
The FCC’s attempt to paper over allegations of abusive behavior toward a female employee would be disturbing in any context. But the pattern of denial, delay, and inaction in this case is positively outrageous. The next administration should make cleaning this mess up a top priority.
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