WHEN CO-WORKERS HARASS EEO COMPLAINANTS
An employee filed an EEO complaint alleging disparate treatment, which was found to be without merit. However, before the agency dismissed the complaint, the supervisors put out the word that they were going to begin rigidly enforce several work rules because employees were filing EEO complainants when they granted exceptions. EEOC found that as a result, Agents began making disparaging comments about their coworkers. These comments included: (1) that management needed to “handle” Agents who were filing EEO complaints; (2) asking who was going to file a complaint next; (3) that employees needed to stop filing EEO complaints because it was making it hard for everyone else; (4) that rules were only being enforced because of EEO complaints and/or “Complainant and other EEO complainers”; (5) that someone needed to “deal with” those who filed EEO complaints. Others said the EEO complainant needed to “watch his ass.” And they made the comments in front of the employees who had filed complaints. But what could the employee do if the threatening comments were made by co-workers, not managers?
Plenty. He could file an EEO complaint alleging harassment and win like this employee did. EEOC’s decision began by stating the burden of proof. “In order to establish a prima facie case of harassment, Complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that he is a member of a statutorily protected class; (2) that he was subjected to unwelcome conduct related to his protected class; (3) that the harassment complained of was based on his protected class; (4) that the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer. In other words, to prove his hostile work environment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a ‘reasonable person’ in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis; in this case, his disability and engagement in protected EEO activity. Only if Complainant establishes both of those elements – hostility and motive – will the question of Agency liability present itself.”
In the case of coworker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. It is called vicarious liability. In this case, EEOC focused on evidence that showed one supervisor “stated that he ‘heard a rumor’ that Complainant felt he was being harassed…” but never reported to appropriate officials. EEOC wrote, “we find that he should have known that, when he learned that Agents were complaining about the new enforcement, that some Agents either blamed employees who filed EEO complaints or requested reasonable accommodations in general or blamed Complainant in particular. We therefore find that the Agency is liable for the harassment of Complainant by his coworkers.”
Another supervisor admitted he warned the complainant about the harassment he could expect, but he also did nothing about it. The complainant could also show he had contacted the agency’s Office of the Inspector General, to the Assistant Deputy Administrator, and to the Office of General Counsel, to no avail.
For EEOC, the agency’s liability came down to “the Agency knew or should have known about the harassment.”
In the end, EEOC ordered the agency to reinstate all the annual, sick and LWOP the employee had taken and to pay him compensatory damages. It also ordered the pay to consider disciplining the supervisors involved and to report to EEO what it decided to do. Finally, it ordered the agency to train all the employees in the involved office in civil rights law.
For more details, check out Ruben P. , v. Chris Wright, Secretary, Department of Energy, EEOC Nos. 2022004762, 2025002404 (2026). See also FEDSMILL.com.
