By Ann Boehm, March 13, 2023
I frequently get asked, “Should the agency conduct a harassment misconduct investigation even if there is a pending EEO complaint filed by the alleged victim?” The answer is a resounding “YES!”
I should be surprised by this question, but I am not. I worked in agencies reluctant to investigate a harassment allegation for fear it could adversely impact on an EEO matter if the investigation uncovered harassment. The problem with that thinking is it does not comport with how liability is determined in a hostile work environment harassment case.
Let’s review some U.S. Supreme Court case law on harassment. In the landmark sexual harassment case Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the Court explained that an employer can avoid liability for sexual harassment by a supervisor if the alleged harassing actions did not occur, the alleged acts were not “unwelcome,” the alleged harassment was not so “severe or pervasive” that it altered the alleged victim’s terms and conditions of employment, the employer took immediate and appropriate corrective action once it learned about the alleged harassment, and there was no basis for liability under agency principles. Id. at 67; see also Dollie T. v. Perdue, Sec’y of Agriculture, EEOC Appeal No. 2019003298 (Sept. 21, 2020).
In 1998, the Supreme Court provided more guidance on employer liability in Burlington Industries v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). These decisions explained that an employer is always liable for harassment that results in a tangible employment action. A tangible employment action harassment case arises when a supervisor undertakes, recommends, or threatens a tangible employment action based on a subordinate’s response to unwelcome sexual demands. Examples include a failure to hire or promote; undesirable reassignment; disciplinary action; or any decision causing a significant change in benefits.
If, however, there is no tangible employment action and the allegation involves a hostile work environment, employer liability is not a certainty. An employer can avoid or limit liability in a hostile work environment case by showing it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and that the complainant unreasonably failed to take advantage of “any preventive or corrective opportunities provide by the employer or to avoid harm otherwise.” Ellerth, 524 U.S. at 745.
What does an agency need to do to exercise reasonable care to prevent and promptly correct any harassing behavior? Along with having a policy that provides an avenue for employees to complain about harassment without fear of retaliation, the agency must have “a complaint process that provides a prompt, thorough and impartial investigation” and “assurance that the employer will take immediate an appropriate corrective action when it determined harassment has occurred.” Dollie T., EEOC Appeal No. 2019003298, at 14.
Simple, right? Promptly investigate a hostile work environment allegation and you are on the way to avoiding agency liability, even if the EEO process reveals there was indeed a hostile work environment. Of course, if the misconduct investigation also uncovers a hostile work environment, corrective action – typically removing the offending employee(s) from the workplace and often disciplining them – must also occur for the agency to avoid liability.
One more important aspect of this liability avoidance centers on the word “prompt.” The EEOC takes that word very seriously. In the Dollie T. case, the agency took three months to initiate the investigation. The EEOC said “[t]he Agency simply took too long and did not address this matter in a sufficiently prompt manner.” Id., at 15.
In my many years of government experience, getting something done in the government in three months is quick as lightning. Not so in the hostile work environment world. Prompt means really prompt!
What is really prompt? The agency avoided liability in Thornton v. Mike Johans, Secretary of Agriculture by implementing its process for addressing reported harassment “the day it was reported,” and initiating an investigation that resulted in a report being issued 54 days after the agency learned about the alleged hostile work environment. EEOC Appeal No. 01A60388 (Sept. 28, 2006).
Investigating promptly and taking effective corrective action can result in no liability for the agency. Completing an investigation in 54 days is prompt enough. Waiting three months to start an investigation is too long.
So, do you now understand my answer to the oft-asked question? Yes, you should investigate an allegation of hostile work environment regardless of whether an EEO Complaint is pending. And you need to commence it as soon as you learn about the allegation. You can avoid agency liability! You can ensure you have a workplace free of harassment. And that’s all Good News! Boehm@FELTG.com
Check out FELTG’s upcoming training Conducting Effective Harassment Investigations, April 25-27, 2023, on Zoom.