UNION REP TEST #20 – (Reprisal or Hostile Environment)
Read through the following facts to identify whether it is a case of reprisal for EEO activity or a hostile EEO environment. The distinction is a big deal when representing an employee.
A few weeks ago, Natalie reported a manager commented that she earned her promotion by “being on her back” with a male manager, but the Area Manager (AM) told her not to file a report and treated her with hostility afterwards. Natalie tells you, her union rep, that she believes it was because the AM “thought Natalie was being difficult,” by complaining about the offensive comment, and wanting to file a charge or grievance claiming this illegal treatment is based on race, national origin, and age. Natalie went on to mention that at a training, she asked the moderator a question and the AM jumped up and berated her for asking a question. She also recalled that at another training, she and another coworker were in the back row to share a laptop and the AM told them in a hostile manner that she did not want Natalie and the coworker to sit in the back row. A Management Analyst (MA) friend of Natalie’s corroborated her statement that the AM treated Natalie with hostility after she reported the comment. He noted that the AM frequently interrupted Natalie, behaved in a condescending manner, rolled her eyes when she was speaking, and dismissed her suggestions in group settings by saying “we already tried that,” which he said “gave the impression that Natalie was not viewed as a peer in [their] Management group.” He also confirmed Natalie’s recollection of the incidents at the trainings, noting that at the second training, the AM’s manner was rude and she did not provide any valid instruction related to work or give a reason for why she wanted Complainant to move out of the back row.
If you have been reading our FEDSMILL.com advice for a while, you know the best answer when in doubt is to level every possible charge. However, we bring up this actual case to make the reader aware that there is a significant difference under the law between reprisal and hostile EEO work environment—as well as filing one charge versus the other.
To establish a claim of hostile environment harassment, an employee must show that: (1) she is a member of 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 the 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 employer.
When EEOC applied those criteria, the Commission decided Natalie’s evidence did not establish that any of the actions taken by the Agency were motivated by race, national origin, or age. Moreover, it ruled that all the objectionable management behavior Natalie reported amounted merely to “offhand comments, and isolated incidents…,” which unless extremely serious, do not amount to discriminatory changes in the ‘terms and conditions of employment’.”
So, even if you alleged a hostile work environment to be safe, you would not win Natalie’s case. But do not think that just because she loses under one section of the anti-discrimination law, she loses under all of them. Or to put it differently, never underestimate the power of a “reprisal or retaliation” allegation.
EEOC found the evidence in the record established a claim of retaliatory harassment based on these events. “The AM’s hostile treatment towards Complainant, which is also corroborated by the MA, could dissuade a reasonable person from engaging in protected activity. We further note that, as the MA stated, the AM’s hostility towards Complainant “gave the impression that [Complainant] was not viewed as a peer in [their] Management group” and could have encouraged C1 to escalate his own unprofessional conduct towards Complainant which culminated in C1’s termination.
The Commission emphasized that the “standard for establishing retaliatory harassment is lower than that for showing a discriminatory hostile work environment.” (We have highlighted those words because they are critical for the union rep in a similar situation.) Under Commission policy, adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. Typically, an adverse actions means the employee must lose money or benefits whereas they must if the employee alleges a hostile work environment. In contrast, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. “Because the evidence indicates that the AM subjected Complainant to hostile treatment which could dissuade a reasonable person from engaging in protected activity, we conclude that the Agency subjected Complainant to unlawful retaliation as alleged.”
Here is another excerpt from the case that makes our point.
Moreover, the threshold for establishing retaliatory harassment is different than for a discriminatory hostile work environment. Retaliatory harassing conduct can be challenged under the Burlington Northern standard even if it is not severe or pervasive enough to alter the terms and conditions of employment. “If the conduct would be sufficiently material to deter protected activity in the given context, even if it were insufficiently severe or pervasive to create a hostile work environment, there would be actionable retaliation.”
You can find more details about this case at Natalie F., v. Raimondo, Sec’t’y, Dep’t. of Commerce, EEOC No. 2021002517 (2022).
