GNOBFA Sexual Harassment Panel Provokes Discussion

The most intense discussions at the recently concluded River and Marine Industry Seminar held by the Greater New Orleans Barge Fleeting Association took place on April 25, on the topic of reporting of sexual harassment and sexual assault. In his introduction to the panel, moderator Marc Hebert said the issue of sexual harassment is global.

The panel at GNOBFA included maritime attorney Dana Merkel, a partner at BlankRome; Capt. Evelynn Samms, chief of the Office of Investigations and Casualty Analysis for the U.S. Coast Guard; Lynn Buchanan, commanding officer of the Coast Guard Suspension and Revocation National Center of Expertise; and Jennifer Mehaffey, a litigation attorney with the Coast Guard. Buchanan’s office handles the investigation of every allegation of sexual harassment or assault related to a mariner credential. The questions they addressed included: What needs to be reported? How does it need to be reported? What needs to be in company policies?

The expert panel barely got into their presentation before the rest of the session was taken up with a blizzard of polite but pointed questions from the audience. The Coast Guard has been developing new policies in response to the Safety at Sea Act and the James M. Inhofe National Defense Authorization Act (NDAA) for FY2023, passed in the wake of the Midshipman X incident.

Midshipman X served on a Maersk ship for her Sea Year training. Her story of being assaulted became a media sensation, sparked a number of women and some men to come forward with additional stories of being sexually assaulted or harassed at sea, and caught the attention of Congress.

The Inhofe NDAA includes several provisions related to sexual assault and sexual harassment. It updates Title 46 of the United States Code to include new reporting procedures for commercial vessels. It also required camera surveillance systems for certain vessel classes, improved crew training on sexual harassment and conduct issues and key controls on certain vessels.

‘Two-Step Dance’

The Coast Guard issued a circular, MSIB 01-23, that states, “Recent changes to the law now require the responsible entity of a vessel, defined as the owner, master or managing operator, to report any complaint or incident of harassment, sexual harassment or sexual assault to the Coast Guard that violates company policy.”

Before the 2023 NDAA, a captain could file a one-paragraph report. Now there are statutory requirements for what has to be in a report. Although anyone can make a report—including anonymous informants—the statute only makes the company responsible from its date of awareness.  If a company learns that an employee is a registered sex offender or has been convicted of a sex offense in the past, the reporting obligation is triggered—regardless of how long ago the incident took place, whether the employee has already paid a legal penalty or even if it occurred long before the employee came to work for the employer. Merkel clarified the point further. “It’s not just the past five to 10 years that’s open to investigation; it’s your entire past life.”

Mehaffey noted that the license renewal process is separate from a suspension and revocation proceeding. Denial of renewal of a credential is considered an administrative penalty. All official Coast Guard findings are reviewed by an administrative law judge.

When one audience member questioned whether due process was being denied for events that may have happened decades ago, Mehaffey responded, “We disagree. Congress wrote that law.” When asked about how many appeals of suspension and revocation actions had been successful, however, she answered, “We have had voluntary surrenders and settlements, but no proceeding resulting in revocations yet.”

Planet Earth Is AOR

In introducing herself and her office, Buchanan said, “Our AOR [area of responsibility] is planet Earth.” Her office of 25 people has authority over any allegation, at any time and place, involving a license or maritime credential. She said her office handled about 600 complaints a year during the past year, up from 516 the year before.

“Sexual assault cases are handled totally in-house,” she said, because her office wants to keep control over the whole length of the investigation. Any confirmed finding of sexual harassment or sexual assault requires suspension and/or revocation of credentials under the law. The two types of outcomes possible are S&R actions or court proceedings. In cases of old offenses, credentials simply may not be renewed.

Awareness Window

An initial report must be made immediately upon a company becoming aware of the incident or allegation, with a required after-action report after 10 days with additional information and details about steps taken to address the incident or allegation. The Coast Guard has set up tip lines, emails and phone numbers where informants can send allegations.

Merkel emphasized that it is in everyone’s best interest that the 10-day reports be as thorough as possible. “Do not minimize the 10-day reports; the more you give the investigators, the better off you are. The Coast Guard is required by law to investigate, and if investigators begin with less information, the investigation will be more stringent.” Some questioners wondered if 10 days is really enough for companies to do proper due diligence.

One questioner said regulations already state that every mariner applying for a license must report all prior convictions. However, employment law in some states prevents employers from asking about felony convictions in a job interview. “Should I not hire convicted felons, even at the risk of violating civil rights law?” Mehaffey said there is a regulation that says the Coast Guard cannot use admissions against licenses except for purposes of impeachment. Administrative decisions are different from civil or criminal penalties, but they can still be appealed through the federal system.

Harassment Definition

Many audience questions centered on what constitutes “sexual harassment,” which the law leaves undefined. Hebert had noted in his introduction of the panel that when Congress drafts a law, it sometimes does not include “enough definition, analysis or guidance.” Mehaffey said any conduct that violates company policy should be reported, an answer that led some questioners to wonder whether the law was leaving the definition of “sexual harassment” up to the companies themselves. Coast Guard MSIB and corporate policies on what constitutes sexual harassment or non-sexual harassment may differ, and the law is unclear, further complicating what must be reported. Samms said that language clarifying the definition may be included in the authorization bill for the Coast Guard, which is pending in the House of Representatives. Mehaffey said that simple “harassment” with no sexual component may not be included in the 10-day reporting requirement.

But Mehaffey noted that language regarding misconduct charges and violations of company policy are well established in suspension and revocation law. “As of today, we don’t have a standard for [non-sexual] ‘harassment’ other than what’s in a company policy. Misconduct is defined as a violation of a duly established rule.” She said the Coast Guard has not yet brought a license action for harassment under the new law. “We are not trying to create problems where there aren’t any,” she said.

What Happens To Information?

Suppose a mariner is investigated, one questioner asked, and the case results in no action or suspension? Do the allegations remain in a publicly available file? Buchanan said the information would remain in a file available in the Coast Guard’s MISLE [Marine Information for Safety and Law Enforcement] system, which is publicly searchable and subject to Freedom of Information Act requests. The file with the mariner’s investigation, even if there is a finding of no action, is never purged.