Being a Member of Protected Class Is Not a Free Pass to Harass Others

By Meghan Droste, April 20, 2021

It’s hard to believe it’s been more than a year since I’ve been able to teach a class in person. I’m so grateful that we live in a time when technology makes it possible for us to continue teaching and learning in a virtual environment. Even in this past year of dramatic changes, there have been a few constants — my cat still demands treats regularly, the weather in New England remains unpredictable (I’ve received reports from friends that it is snowing there today, and yes, it’s mid-April as I write this), and many people still have questions and concerns about holding an employee accountable when there is the possibility the employee might file an EEO complaint.

I get the hesitation. Who wants to invite a complaint, and the time and effort it requires to respond to one, if there is a way to avoid it? That’s an understandable concern. But as a recent Commission decision reminds us, not holding an employee accountable can lead to consequences as well. In Zora T. v. Department of Justice, EEOC App. No. 0120171654 (Mar. 23, 2021), the complainant alleged that a coworker harassed her repeatedly based on her sex.  The harassment included following the complainant in what multiple employees perceived as a stalking manner, physically blocking the complainant from leaving a room, repeatedly invading the complainant’s personal space, and grabbing the complainant from behind and lifting her off the floor in a “bear hug.”  The agency verbally reprimanded the coworker and proposed a five-day suspension that it mitigated to one day. Despite this, the harassment continued. The complainant’s supervisor testified that management was afraid to discipline the coworker because she served as the LGBT Program Manager.

The case was before the Commission on an appeal from the administrative judge’s grant of summary judgment in the agency’s favor.  The Commission noted that summary judgment was not appropriate in part because there was a dispute of fact as to whether the agency took appropriate corrective action against the coworker. From the facts presented in the decision on the appeal, it seems clear that the agency’s actions were not sufficient to avoid liability, if for no other reason than that the harassment continued. While management may have been concerned that the coworker would have filed a complaint of sex discrimination if they took more severe disciplinary action, that concern does not change the agency’s obligations to the complainant. Regardless of whether the harasser might subsequently file a complaint, an agency still has an obligation to take prompt and effective corrective action when it learns of harassment.

Sometimes, despite your best efforts, employees will file EEO complaints. That’s their right and there is nothing inherently wrong with that. What is wrong is failing to act simply because you are concerned that a harasser will file a complaint if you hold her accountable. Droste@FELTG.com