Affirmative Defenses: Making the Complainant Whole

By Meghan Droste, April 18, 2018

In the era of the #MeToo and #TimesUp movements, there has been a lot of discussion of what constitutes harassment, what we are no longer willing to tolerate or excuse, and who is experiencing harassment.  To a certain extent, we have also started discussing what should happen once an allegation is raised, but most of those conversations have centered around very prominent men either losing or quitting their jobs.  That can’t be the end of the conversation.  We need to continue talking about what employers are obligated to do once they learn that someone has been harassing a subordinate or a coworker.  From an agency’s perspective, this conversation is essential not only to ensuring that the victim of the harassment can go back to focusing on her work instead of being harassed, but also so the agency can ensure it has done everything it is required to by law.

In 1998, the Supreme Court decided a pair of cases—Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton—in which it addressed the concepts of vicarious and strict liability.  In these cases, the Court examined when an employer may be strictly liable for harassment by a supervisor, and when it may avoid liability by putting forward affirmative defenses.  The takeaway from these cases is that an agency will be strictly liable for supervisory harassment if the supervisor takes a tangible employment action (e.g. firing or demoting the employee).  If, however, the harassment stops short of a tangible employment action, the agency may avoid liability if it can show that it took prompt and effective corrective action as soon as it became aware of the harassment, or if the employee unreasonably failed to take advantage of a published reporting procedure.

All of this of course invites the question of what constitutes prompt and effective corrective action?  What must an agency do to take advantage of this affirmative defense?  The Commission recently addressed this in Jenna P. v. Department of Veterans Affairs, EEOC App. No. 0120150825 (March 9, 2018).  As the Commission explains, the complainant’s first line supervisor (“S1”) sexually harassed her for several months.  What began with comments about the complainant’s appearance and clothing quickly escalated to S1 asking the complainant to have sex with him and another management official.  S1 also exposed himself to the complainant several times and groped her on more than one occasion.  After more than seven months of harassment, the complainant’s fiancé, who was also an agency employee, reported the harassment to his supervisor.  Immediately after the report, the complainant’s second-line supervisor (“S2”) placed S1 on administrative leave pending an investigation.  Within two days of the report, S2 assumed direct supervision of all employees previously under S1, granted the complainant indefinite telework, and arranged for harassment training for all management officials.  S2 also met with S1 and then later that day accepted S1’s voluntary resignation.

As I started to read the Commission’s decision my first thought was how the agency appeared to do the right thing.  So often we see cases that make it to OFO because the agency fails to take the complaint seriously or takes corrective actions that only serve to punish the complainant rather than the harasser.  In Jenna P., the agency tried.  Unfortunately, it didn’t quite do everything it needed to do.  The complainant filed a formal complaint regarding the harassment as well as a subsequent delay in her career ladder promotion.  After the complainant withdrew her request for hearing, the agency issued a Final Agency Decision.  In it, the agency concluded that it was not liable for the harassment.  The agency relied on the steps S2 took immediately after he learned of the harassment and S1’s resignation, which prevented the agency from taking any further action against him.  In reviewing the complainant’s appeal, the Commission found that although the agency had taken several steps to address the harassment, it failed to make the complainant whole.  As a result of the harassment, the complainant had used sick leave and annual leave; the agency had not restored the leave or provided the complainant with the appropriate back pay.  The Commission concluded that because the agency had not made the complainant whole, it could not avail itself of the affirmative defense.  The agency therefore was liable for the harm the months of sexual harassment caused, even though the harassment did not include a tangible employment action and the agency was not aware of it until the very end.

This case is a good reminder to all of us that agencies are “under an obligation to do ‘whatever is necessary’ to end harassment, to make a victim whole, and to prevent the misconduct from recurring.”  As we continue to discuss how we can prevent and stop harassment, we also need to focus on what we must do to undo the significant harm that so often follows. Droste@FELTG.com