SEXUAL HARASSMENT QUIZ: WHO STAYS AND WHO GOES?
If one employee alleges that another employee in the same office is sexually harassing him, does the Agency have to move one to another workplace while it investigates the matter? If so, who gets moved? EEOC just answered both questions in a case out of the Federal Aviation Administration.
To begin, the Commission noted that to establish a case of sexual harassment, Complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that s/he is a member of a statutorily protected class; (2) that s/he was subjected to unwelcome conduct related to her sex; (3) that the harassment complained of was based on her/his sex; (4) that the harassment had the purpose or effect of unreasonably interfering with her/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. The agency will be held liable if it knew or should have known of the misconduct and failed to take immediate and appropriate corrective action. What is appropriate action will necessarily depend on the facts of the particular case, the severity and persistence of the harassment, and the effectiveness of any remedial step.
In this case, the Agency initiated an investigation shortly after management was informed of the offensive comments at issue and the Agency issued the offending employee a Letter of Reprimand which was to remain in his personnel file for two years. But EEOC found that these actions were insufficient to meet the Agency’s full responsibility to take appropriate corrective action. Specifically, the EEOC said FFA was wrong when it failed to remove the allegedly offending employee from the FAA control room floor during the course of the investigation. The Commission holds that an employer may need to take intermediate action pending the investigation of a claim, such as transferring the alleged harasser, to ensure further harassment does not occur. Examples of such measures are making scheduling changes so as to avoid contact between the parties, transferring the alleged harasser, or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation. EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors (June 18, 1999).
In this FAA case, the Agency’s inaction with respect to not removing the offending employee from the control room floor during the investigation resulted in Complainant having to request leave and/or a reassignment. That opened the agency to back pay and interest liability for any leave the employee had to take, attorney fees, compensable damages, and an obligation to discipline the managers responsible for the error.
Check out the following case for guidance if you face a similar situation: Danita S., V . Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0120161096 (2018