WHEN IS CO-WORKER HARASSMENT ILLEGAL AND THE AGENCY’S FAULT?

Although the lawyers break it down into a much longer list of criteria, EEOC recently put it in a nutshell as follows: “In the case of co-worker 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.” Here are some facts from the case that will give you a more tangible idea of what that looks like.

EEOC found that an employee had threatened to kill the EEO Complainant, threatened to “f… him up,” and repeatedly shouted that he was a “f*gg*t.” The Commission also found the offending employee came back to the worksite during her nonduty hours and threatened to sue the Complainant because the offending employee had been moved to a different shift than the Complainant’s while an investigation was conducted.  She also stared at the Complainant and snapped her fingers every time he walked by. No manager took any steps to remove the offending employee from the workplace that day even though she was off-duty.

This harassment wore the Complainant down so much that he quit out of fear for his life. Based on all these facts, EEO ruled, “We find that the preponderance of the evidence establishes that Complainant was subjected to a hostile work environment based on sex and sexual orientation.”  At that point in the legal process, the agency is permitted to show that there is no basis for holding it responsible for an employee bad and illegal behavior. In its defense it noted that it started an investigation and issued an oral admonishment.  It also pointed out that the employee, as a member of the public had a right to be at the workplace during non-duty hours.  But EEOC said that was not enough to show it had “exercised reasonable care to prevent and correct promptly any harassing behavior.” It went on to write that, “…we note that an agency can be liable for the harassment of an employee by a nonemployee, such as a customer.”

It then lowered the hammer on the agency ordering reinstatement because the employee’s resignation was ruled a constructive discharge, reinstatement of all leave and other benefits that would have been earned, extra compensation to cover any extra income bite the employee may encounter from such a large one-time payment.  Check out this case for details: Silas T., v. John P. Roth, Act’g Secretary, Dep’t. of the Air Force, EEOC No. 2019003996 (2021)

So, if a union rep hears about a member of the public, ex-employee or co-worker harassing an employee over his/her civil rights protected status, bring it to management’s attention ON THE RECORD and look for immediate corrective action.  If there is none, drag out this decision and follow its instructions.