By Meghan Droste November 14, 2018
In April, I shared the Commission’s decision in Jenna P. v. Department of Veterans Affairs, EEOC App. No. 0120150825 (Mar. 9, 2018), which addressed what happens when an agency fails to make a complainant whole after a report of harassment.
The complainant’s first line supervisor sexually harassed her for several months, escalating from inappropriate comments to sharing sexually explicit videos he filmed with another agency employee. After her second line supervisor learned of the harassment, he took immediate action, including removing the harasser’s supervisory duties, scheduling training, and initiating an investigation. Within two days the harasser resigned.
Although the agency took several key steps to address the harassment — and did so promptly — the Commission concluded that the agency was unable to establish its affirmative defenses because it failed to make the complainant whole when it did not restore her sick leave and pay the back pay for the leave without pay the complainant used as a result of the harassment. This decision is a good reminder of why it is so important to determine the full extent of the harm and then address it.
I thought the Commission’s decision in Jenna P. was fairly straightforward and reasonable. However, the agency appears to have taken a different view because it filed a request for reconsideration. Jenna P. v. Dep’t of Veterans Affairs, EEOC Req. No. 0520180337 (Aug. 2, 2018). In its request, the agency argued that it should not be liable for the harassment because the complainant took an unreasonably long time to report it, waiting more than seven months from the initial harassing conduct. The agency also questioned the finding that the complainant found the harassment unwelcome, arguing that she only seemed to object after her fiancé discovered the sexually explicit videos the supervisor sent to her. Finally, the agency argued that the Commission’s decision did not fully address that the harm was flawed because the complainant did not request the restoration of her sick leave or request back pay for the leave without pay until well after the agency had initiated its response to the report of harassment.
When the Commission denies a request for reconsideration, it generally does so in a paragraph or two. It will usually remind the parties of the very limited circumstances in which it will grant such a request and then state the request does not fall within one of the categories. We get a bit more detail in Jenna P. The Commission reminds the agency that it knew, before it learned of the supervisor harassing the complainant, that the supervisor had an “unprofessional interest in his female coworkers.” The Commission also relies on the complainant’s probationary status and the “egregious” nature of the harassment to dispose of the agency’s argument that she should have reported the harassment earlier. The fact that the harassment increased in severity from complimenting the complainant’s appearance to homemade pornography weighed heavily in the complainant’s favor and made it reasonable and understandable that she did not report the harassment immediately.
The facts in this case — a supervisor who repeatedly harasses his subordinate, escalating from comments to sexually explicit material, while reminding her of the significant power imbalance between them and that he holds her job in his hands — unfortunately are not uncommon. I encourage you all to review the Commission’s unusually detailed decision and consider it when addressing reports of harassment. Droste@FELTG.com