By Deborah J. Hopkins, February 14, 2023

When we discuss tangible employment actions in our EEO classes, we usually focus on facts in existing case law: a supervisor takes a pay-related action (such as a suspension, or non-selections) against an employee because of the employee’s response to the supervisor’s unwelcome sexual advances.

The Supreme Court has ruled that a tangible employment action constitutes “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

A fairly new case from EEOC has seemingly broadened the type of action considered a “tangible employment action” in Federal agencies and has also included actions motivated not by an employee’s responses to sexual overtures but by a supervisor’s distaste for a complainant because of the complainant’s sexual orientation. In this case, the complainant accused his supervisor of creating a hostile work environment based on sex, citing several examples over a span of four years. The complainant claimed his supervisor:

  • Made negative comments about the complainant’s sexual orientation in a chat message with a coworker.
  • Was condescending to the complainant in emails.
  • Verbally attacked the complainant about his breaks and lunch periods.
  • Informed the complainant that he could only use certain doors when arriving to and leaving the workplace, making the door closest to the supervisor’s workstation off-limits.
  • Told the complainant that he was no longer allowed to “loiter” in the parking lot after work hours.
  • Required the complainant to inform her when he was coming and going from the workplace, despite a maxi-flex schedule.
  • Excluded the complainant from office discussions in an effort to get him to resign.

The agency asserted it was not liable because it exercised reasonable care to prevent and promptly correct the harassing behavior when:

  • It followed its internal workplace harassment policy once the complainant made a claim of harassment.
  • It allowed the complainant to maximize telework in order to avoid the supervisor while the agency worked to resolve the situation.
  • It eventually transferred the supervisor to a lower-graded position within the agency.

In its FAD, the agency found the supervisor created a hostile work environment but argued there was no agency liability because the “[s]upervisor’s actions did not result in a tangible employment action.”

On appeal, EEOC disagreed and found the agency was liable:

Despite this approved [maxi-flex] work schedule, Supervisor made it clear to Complainant that he was only allowed strict break and lunch times. Additionally, despite his maxi-flex schedule, Complainant was informed that he was to notify Supervisor any time that he was leaving his workspace. Lastly, Supervisor acknowledged that she informed Complainant that he was only allowed to use certain doors for exiting and entering. We find these actions constitute tangible employment actions as they altered the terms and conditions of Complainant’s employment. [bold added]

Nathanial P. v. NPS, EEOC Appeal No. 2021000613 (Jan. 13, 2022).

We discuss the ever-changing world of hostile work environment harassment as part of our comprehensive EEOC Law Week, next held March 13-17. Join us for the day or the week; we’ll be happy to have you there. [email protected]

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