Tips from the Trenches

5 Steps an Agency Must Take When Harassment Occurs to Establish an Affirmative Defense

Sep 17, 2019 1:00:39 PM / by Deryn A. Sumner, Esq.

The EEOC has signaled its focus on eradicating workplace harassment through the creation of the Select Task Force on the Study of Harassment in the Workplace, which reconvened in June 2018, and the issuance of recent decisions finding agencies subjected complainants to harassment. One such recent case, Sallie M. v. USPS, 118 LRP 47676 (10/16/18), was the subject of spirited discussion at the FDR Training last month. It is a great illustration of what agencies need to do in order to establish an affirmative defense to claims of harassment, or in this case, what not to do.

I recommend you read the entire case, but briefly, the complainant worked as a city carrier assistant for the Postal Service. Her supervisor made numerous comments about her physical appearance, including lewd comments about her feet. After she reported the comments and nothing was done, the supervisor subsequently physically assaulted complainant (according to the decision, the supervisor “grabbed her bare foot and shoved it in his mouth” as she sat in an agency vehicle).

The agency issued a FAD finding that actionable harassment occurred, but that it was not liable for the harassment because it took immediate and appropriate corrective action once it learned of the harassment. The Commission disagreed and the decision illustrates five steps agencies must take when harassment occurs in order to successfully establish an affirmative defense.

Step 1: If an employee makes a report of harassment, it must be taken seriously and substantively addressed. In Sallie M., the complainant reported the inappropriate sexually charged comments to at least two supervisors at the work facility – a carrier supervisor and a supervisor for customer service. According to the Commission’s decision, neither supervisor took any action after receiving these reports.

Step 2: The agency should swiftly conduct an internal investigation into the allegations. Here, the agency did act appropriately in launching an internal investigation after the physical assault. Although the agency should have been on notice of the harassment before the assault, it initiated and finished an internal investigation within one month, according to the EEOC’s decision.

Step 3: The agency must take prompt corrective action, with an emphasis on prompt. Although the agency in Sallie M. acted appropriately in conducting an internal investigation, the Commission took it to task for waiting a month and a half after the investigation concluded to propose disciplinary action against the harasser. According to the decision, the investigation started in August 2016, and the agency issued the report on Sept. 15, 2016. “Despite the clear evidence of sexual assault by the Supervisor,” the agency did not issue a proposed removal action to the harasser until Nov. 1, 2016.

Step 4: The victim and the harasser should be separated, but unless specifically requested by the victim, it should be the harasser who is reassigned. In Sallie M., the complainant requested to be reassigned away from her facility because she did not feel safe; however, the agency assigned her to a facility closer to the harasser’s home, and he was on administrative leave pending the investigation into the assault. The Commission found this clearly demonstrated failure to take appropriate action to prevent further harassment. This fact alone, setting aside the other missteps, would likely have prevented the mounting of a successful affirmative defense.

Step 5: The agency must cure the harm to the victim of harassment. The decision does not contain any references to any actions taken by the agency to address any harm to the complainant as a result of the harassment, such as restoration of leave or payment of compensatory damages.

As the complaint didn’t include a tangible employment action, the agency could assert an affirmative defense. However, the actions taken by the agency in Sallie M. fell well short of what is required for a successful defense.

Topics: federal hr & eeo law training, affirmative defense, harassment, 5 steps

Deryn A. Sumner, Esq.

Written by Deryn A. Sumner, Esq.

Deryn A. Sumner, Esq. is a Partner at Gilbert Employment Law, as well as Co-Chair of the firm's Federal Sector EEOC Practice Group. She focuses her practice on representing federal employees and agencies before the EEOC and has worked on hundreds of cases involving claims of employment discrimination on the basis of disability, race, age, religion, retaliation and other bases. She also has experience representing employees and agencies in cases of whistleblower retaliation and adverse action challenges before the MSPB. Ms. Sumner graduated from American University's Washington College of Law in Washington, D.C. While in law school, she served as a Note and Comment Editor on the Administrative Law Review, as well as co-chair of the Labor and Employment Law Society. She also holds a Bachelor of Arts in Political Science from the University of Southern California in Los Angeles, California. Ms. Sumner is the co-author of several books on federal sector employment law including Representing Agencies and Complainants Before the EEOC; Federal Sector Disability Discrimination Law Deskbook; EEO Counselors' and Investigators' Manual; and an annual Consolidated Federal Sector EEO Update.

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