IS THIS SEXUAL HARASSMENT INTOLERABLE?

A DoD male supervisor did the following to a female employee: made repeated sexual comments and innuendoes to her, regularly reminded her that he was “watching her,” invited her over to his house when his wife was away, often touched her and at least twice “touched her buttocks.”  Moreover, when her co-workers started harassing her because they thought something was going on between her and the supervisor, he did nothing to discourage that. Nor did he back off when she started having panic attacks and became depressed. A real gem of a guy, but did that meet the legal definition of sexual harassment?

To make a successful case of that an employee must show, by a preponderance of the evidence, that:

(1) she belongs to a protected class;

(2) she was subjected to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature;

(3) the harassment complained of was based on sex;

(4) the harassment affected a term or condition of employment, either unreasonably interfering with the work environment or creating an intimidating, hostile, or offensive work environment; and

(5) there is a basis for imputing liability to the employer.

The EEOC’s Guidance indicates that the following factors are pertinent to the inquiry: (1) whether the conduct was verbal or physical, or both; (2) how frequently the conduct was repeated; (3) whether the conduct was hostile and patently offensive; (4) whether the alleged harasser was a coworker or a supervisor; (5) whether others joined in perpetrating the harassment; and (6) whether the harassment was directed at more than one individual.

In the end EEOC found no doubt that the manager and the agency were guilty of harassing her based on her gender. One of the agency’s defenses was that because the employee quit she was not entitled to any compensation even if it did violate her civil rights.  EEOC disagreed, finding her resignation was a constructive discharged due to intolerable working conditions.  It applied the following criteria to reach  that conclusion: (1) a reasonable person in the complainant’s position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant’s involuntary resignation resulted from the intolerable working conditions.

The employee is getting reinstated with over four years of backpay, a additional lump sum to  cover the income tax hit from getting all that income in one year, and the opportunity to show she is entitled to up to another $300,000 in damages for the emotional harm the harassment caused her. The case is Stephany K. v. Lloyd J. Austin III, Sec’y, DoD (Commissary Agency), EEOC No. 2021003668 (2023).