By Deborah Hopkins, August 16, 2022
One of the topics we’ve been discussing in recent FELTG classes is “other harassment,” that is, harassment that’s not based on protected EEO categories. And one of the most common questions we’re asked is this: At what point a supervisor crosses the line from effectively supervising employees to creating a hostile work environment?
Hostile work environment harassment is a term of art in the EEO world, and requires a complainant to
prove three things:
- They were subjected to unwelcome conduct,
- The conduct was based on their protected EEO category, and
- The conduct was so severe or pervasive that it altered the terms, conditions, and privileges of employment.
The below supervisory actions, if exercised in a reasonable manner, are NOT harassment:
- Assigning work
- Setting deadlines
- Creating a work or telework schedule
- Assessing performance or providing feedback
- Managing work groups
- Setting a dress code
- Disagreement on management style or decisions
The list is not exhaustive. The statute that gives supervisors this authority is 5 USC 301-302, which says the head of an executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business … and to delegate to subordinate officials the authority vested in him … by law to take final action on matters pertaining to the employment, direction, and general administration of personnel under his agency.
Harassment is easy to allege, but not easy to prove. Let’s look at a couple of recent cases.
The employee alleged harassment and reprisal when his supervisor avoided him or walked away from him on multiple occasions, and he claimed that his supervisor often responded to his questions by stating he did not know the answer and failed to provide him adequate guidance. He also claimed his chain of command treated him in a “hostile manner” when his supervisor “yelled” at him that he needed to fix something, and when his supervisor “grabbed [his] arm to pull [him] into a room” and “yelled” at him about reporting improper patient care. In addition, he claimed that the chief of staff “yelled at him, accused him of ‘making up our service data,’ and told him to ‘shut up’ during a meeting.
The MSPB, which had jurisdiction over this case because it was an IRA appeal, said that while these actions were indicative of an “unpleasant and unsupportive work environment,” they did not violate the law. Skarada v. VA, 2022 MSPB 17 (Jun. 22, 2022).
In a recent case before the EEOC, a complainant alleged multiple incidents of harassment based on race, color, sex, age, and reprisal. Among the incidents she identified:
- She received a Letter of Warning (we at FELTG recommend you NEVER issue these)
- She was told that the Letter of Warning was serious and could lead to future disciplinary actions
- Her access to work-related databases was revoked
- A supervisor went through her desk to look for documents
- A supervisor broke a souvenir that was on her desk
- She did not receive assistance from upper-level management after she informed them her supervisor was targeting her
- She was eventually removed
In response to the allegations of harassment the agency provided legitimate reasons for its actions, including that the complainant had engaged in 198 specifications of misconduct, including violations of the Privacy Act and Rules of Conduct of Maintenance of Personnel Records, as well as “unauthorized use of non-public information, intentional failure to observe any written regulation or order prescribed by competent authority, and violating the Rules of Behavior.” Also, the complainant did not respond to any of the charged misconduct.
EEOC said, “The image which emerges from considering the totality of the record is that there were conflicts and tensions in the workplace that left Complainant feeling aggrieved. However, the statutes under the Commission’s jurisdiction do not protect an employee against all adverse treatment … Discrimination statutes prohibit only harassing behavior that is directed at an employee because of their protected bases. Here, the preponderance of the evidence does not establish that any of the disputed actions were motivated in any way by discriminatory.” Kandi M. v. SSS, EEOC Appeal No. 2021002424 (Apr. 18, 2022)