WHAT WAS FEMA LEADERSHIP THINKING?
A case just came out of FEMA that further shakes our faith in the competence of agency leaders. When an employee got pregnant, her supervisor called her in to explain how she would now have to change how she and her husband “interacted” in the bedroom. (He was much more graphic than us.) Once she delivered and returned to work, the supervisor watched for her to leave for the nursing room and as soon as she was gone he went to her desk and commented to anyone near-by about her disappearance. Not crazy enough yet? Well, after the birth the supervisor started calling her “mom” rather than by her name. That was followed by asking the employee when she was going home to China (even though she was a USA citizen) and referring to her Chinese co-workers as “Ching-Chang” and “Dang-Lang.” Want even more crazy? The supervisor also made it clear he did not agree with deleting names of Confederate leaders from schools. Apparently, he thought that was un-American and that that needed to be said to the minorities in the office. So, what did top management do about all this?
They COACHED and MENTORED him. They also gave him a COUNSELLING LETTER, but promised not to put it in his permanent file. Then they subjected him to “PEER COACHING” when none of that helped and SUGGESTED he register for the agency’s EEO training class. Finally, when the employee filed an EEO charge claiming a hostile environment and discriminatory harassment, top management RALLIED BEHIND THE SUPERVISOR to defend him. Although not clear, it appears FEMA leaders thought that because the supervisor had not taken any adverse personnel action against the employee that she did not have a case.
When the case got to EEOC it smacked management to the curb explaining that it found the supervisor’s behavior unwelcomed, severe, pervasive, and sufficient to sustain a finding of hostile environment discrimination. It then reminded the agency of what was necessary to sustain such a charge, i.e.,
Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency….In other words, to prove her harassment claim, Complainant must establish that she 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, her race, national origin or sex. Only if Complainant establishes both of those elements – hostility and motive – will the question of Agency liability present itself
It also explained the employer may raise an affirmative defense to liability by showing that
(a) it exercised reasonable care to prevent and correct promptly any harassing behavior; and (b) Complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the Agency or to avoid harm otherwise.
But EEOC found FEMA’s defense woefully lacking. As a result, it ordered the agency to pay the employee compensatory damages, which can be as much as $300,000. Oddly, it did nothing about the terrible behavior by top management that allowed this to continue for so long and actually rose to defend the supervisor.
For details, see Assunta V., v. Mayorkas, Sec’y, DHS (FEMA), EEOC No. 2021003725(2023)
