By Meghan Droste, March 16, 2021

When I started writing this article, I was planning to make the headline something about not being an ostrich. This seemed like a somewhat amusing way to highlight one of the points from the case I’m bringing to you, Thomasina B. v. Department of Defense, EEOC App. No. 0120141298 (Feb. 9, 2021). The point being that supervisors shouldn’t ignore obvious evidence of harassment — so don’t stick your head in the sand … hence, the ostrich — and should instead take action right away.  But the more I thought about it, the more I realized that didn’t quite capture the issue in Thomasina B. because the supervisors in this case didn’t just ignore the harassment, they actually participated in it. They also failed to take any appropriate action to end it. Also, fun fact I learned in the process: It turns out that the whole ostriches burying their heads in the sand thing is a myth. The more you know.

So, what is actually going on in Thomasina B.? It’s a textbook case of everything an agency shouldn’t do in a harassment case. The issues started when the complainant’s ex-husband, who also worked for the agency, started rumors that the complainant was a lesbian and that she was in a relationship with another coworker (CW1).

As the Commission found, there was evidence that nearly everyone in the workplace, coworkers and supervisors, were aware of the rumors.  Rather than putting a stop to them, some of the complainant’s supervisors helped spread them.  They also repeatedly took actions against the complainant based on the rumors. They moved her to a different location, told her not to enter the building CW1 worked in, and denied the complainant’s request for a minor schedule modification all because they believed the complainant was spending too much time socializing with CW1 and not enough time doing her own work. The Commission found no evidence that the complainant was doing so. She received a fully successful performance rating, so her performance wasn’t suffering. At least one supervisor wanted her to work more in the same building as CW1, and the supervisors never had an issue with any other employees socializing during the workday. This wasn’t a case of burying their heads in the mud like a flamingo (another bonus animal fact for you), this was a case of supervisors engaging in harassment and opening the agency up to liability.

Unfortunately for the complainant, the harassment did not end there. For nearly a year, another coworker (CW2) repeatedly harassed the complainant because of CW2’s beliefs about the complainant’s sexual orientation. The harassment included CW2 telling the complainant that she was going to hell, that homosexuality is an “abomination,” and that the complainant was harming her children because of her “lifestyle.”

When the complainant reported the harassment to a supervisor, she requested that the agency move CW2 away from her. The supervisor asked CW2 if she wanted to move and when she declined to do so, the supervisor did not take any other action. He didn’t move anyone, he didn’t tell CW2 to stop, and he didn’t investigate the harassment.

The agency issued a FAD finding no liability. It concluded that although CW2 harassed the complainant because of her sex, the agency was not liable because it took appropriate action once it learned of it.

The Commission, unsurprisingly, did not agree. It found the agency liable for two years of harassment by both coworkers and supervisors. I encourage you to read the Commission’s decision in this case, and use it as a blueprint of everything you should not do. Droste@FELTG.com

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