By Deborah Hopkins, May 16, 2022
Every now and then, a supervisor in one of my classes will ask if they have a right to file an EEO complaint alleging harassment by a subordinate employee. I’ll tell them yes, they do have that right. I also tell them handling the harassment as a conduct issue is a much quicker process that yields rapid results and allows the supervisor to avoid the EEO complaint process entirely, if they prefer not to file.
How so, you might wonder?
Well, a supervisor who believes a subordinate is harassing him must simply set a rule of conduct (for example, do not refer to me as a “f*g” or “f*ggot”), and then discipline the employee if she violates the rule. [Note: We are using asterisks so that your agency’s firewall won’t block you from receiving this message. We recommend NOT using asterisks in establishing rules of conduct, reports of investigation, disciplinary letters, or other official agency documents.]
A few days ago, I came across a fairly recent EEO decision where a supervisory health system specialist at an IHS medical facility alleged harassment based on sexual orientation. The harassment was coming from a subordinate. The agency FAD acknowledged unwelcome conduct but said the conduct was not sufficiently severe or pervasive, and the complainant failed to take advantage of a key corrective opportunity provided by the agency.
The complainant was the employee’s supervisor and he did not discipline the employee for the conduct. The complainant appealed the FAD to the EEOC.
The EEOC reversed the FAD and found the agency liable for hostile work environment harassment.
Here are relevant details from the case:
- Over a 21-month period, the employee engaged in at least nine incidents of harassment based on the complainant’s sexual orientation, including multiple uses of the words “f*g” and “f*ggot.”
- Seven of these incidents included comments made to other agency staff or directly to, or within earshot of, at least four agency management officials. Examples of the employee’s comments included:
- “If they want to pay me for fighting with a f*g all day, then I guess that is what I will do.”
- “I hate [Complainant], that f*cking f*ggot!’”
- “I have the ear of the Area Director and I am going to report your f*ggot *ss and everyone in this clinic for everything that is going on in this clinic.”
- The complainant’s immediate supervisor, the CEO, informed him that the employee had been making derogatory comments about the complainant’s sexual orientation directly to the CEO. When the complainant questioned whether the CEO had taken corrective action, the CEO said that she had admonished the employee, and referred the complainant to the EEO Complaint process for next steps. The CEO admitted she did not discipline the employee who engaged in the harassing conduct because “she did not feel that it would be appropriate to interject herself …” into the situation.
- The complainant said that he made multiple attempts to discipline the employee, but that the discipline was returned to him. The agency did not present a rebuttal to this statement.
Taking these facts into consideration, the Commission found a hostile work environment based on sexual orientation. It attributed liability to the agency because management officials did not take prompt and effective action once they became aware of the employee’s conduct. The Commission said it was improper for the agency to place the onus on the complainant to discipline the employee or file an EEO complaint, and further stated:
We remind the Agency that the EEO process is not a substitute for the Agency’s internal process. Moreover, we find that the inadequate responses from Complainant’s chain of command likely emboldened [the employee] to continue harassing Complainant, diminished his authority as her supervisor, and heightened the severity of the alleged incidents. Debbra R. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120161305 (Jul. 26, 2016) (finding that when harassment is repeated, a supervisor’s failure to respond to instances of alleged harassment heightens the severity of the alleged act). As such, we find that [the employee]’s actions unreasonably interfered with Complainant’s work environment and management officials failed to take prompt and effective action.
Foster B. v. IHS, EEOC Appeal No. 2019005682 (Apr. 12, 2021).
The case didn’t discuss anything about the returned discipline the complainant alleged, and I can’t help but wonder if that was a deciding factor in the Commission’s decision. One thing is for sure, a lesson learned from this case: Any agency management official who has knowledge of harassing conduct has an obligation to take prompt, effective corrective action – even if the harasser is not in that person’s chain of command. A failure to act can cause agency liability, and potentially immeasurable harm to the victim.
To learn about making the Federal workplace a welcome and inclusive environment, join us on June 9 for Promoting Diversity, Enforcing Protections for LGBTQ Employees. Hopkins@FELTG.com