Analyzing Hostile Work Environment Complaints: An Overview Rodney O’Neal – OFO/ARP Appellate Attorney

The Goal The main goal of this presentation is to assist attorneys and administrative judges in analyzing non-sexual harassment hostile work environment complaints in an efficient manner without sacrificing quality

Steps Organize Claims Identify Discrete Acts (If Any) Tell the Story of the Complaint State the Law Fact Application and Analysis – Macro and Micro-View Determine Liability (If Necessary)

Harassment Legal Standard To establish a claim of harassment a complainant must demonstrate: Complainant belongs to a statutorily protected class; Complainant was subjected to unwelcome verbal or physical conduct; The alleged conduct was based on a statutorily protected class; The conduct 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 There is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

Harassment Legal Standard Ultimately, the incidents alleged must be “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Organizing Allegations – The Framework of the Decision Review complaint and determine whether the claims are best addressed chronologically or grouped together based on related subject matter Chronological Complainant claimed that on August 29, 2018, her supervisor set her up to fail by issuing conflicting instructions Complainant alleged that on August 31, 2018, her training request was denied Complainant claimed that on September 12, 2018, she was charged leave without pay instead of annual leave Related Subject Matter Complainant has alleged a narrative of events that have occurred over time, but perhaps not in a linear fashion Is there a pattern or overarching theme of the claims? E.g. Unfair assignments, supervisory observations, comments about work performance Every incident need not be addressed in depth; usage of “inter alia” or among other things to indicate that incidents stated may not be all-inclusive

Organizing Allegations – The Framework of the Decision Tell the “Story” From here, the writer can create a narrative (may be effective for decision after a hearing) or a numbered statement of facts (may work best for a summary judgment decision) This is the most important step because how effective the writer organizes and conveys the incidents and facts will influence the strength of the decision

Applying the Law To establish a claim of harassment a complainant must show : (1) she belongs to 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 her 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Applying the Law Complainant must essentially demonstrate two things: Hostility and Motive Hostility – Complainant was subjected to severe or pervasive conduct that a “reasonable person” would have found to be hostile or abusive AND Motive - The conduct was taken because of a protected basis Complainant must establish both before the question of Agency liability presents itself

Analysis The analysis of hostility and motive essentially involves a macro and micro analytical approach Macro: Taking ALL of the incidents together as a whole, is the alleged conduct sufficiently severe or pervasive to rise to the level of a Hostile Work Environment? Micro: Is there a discriminatory or retaliatory motive present?

Analysis Macro-View Taking all of the incidents as a whole, is the conduct at issue “sufficiently severe or pervasive” to alter the conditions of [complainant's] employment and create an abusive working environment? Search for themes or patterns vs. isolated incidents Are these everyday workplace occurrences? E.g. supervisory observations, instructions on tasks, standard discipline Are these personality conflicts? Petty slights, minor annoyances, and simple lack of good manners occur in the workplace. Not every unpleasant or undesirable act that occurs constitutes discrimination. See Shealey v. Equal Emp’t Opportunity Comm’n, EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep’t of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009).

Analysis A single incident can be sufficiently severe to create a hostile work environment Examples: An actual or depicted noose or burning cross (or any other manifestation of an actual or threatened racially motivated physical assault), a favorable reference to the Ku Klux Klan, an unambiguous racial epithet such as the “N-word,” and a racial comparison to an animal. EEOC Compliance Manual Section 15, “Race and Color Discrimination,” No. 915.003, at 15-VII.A.2 (Apr. 19, 2006) Another example: Ihsaan is a Muslim. Shortly after the terrorist attacks on September 11, 2001, Ihsaan came to work and found the words “You terrorists go back where you came from! We will avenge the victims!! Your life is next!” scrawled in red marker on his office door. EEOC Compliance Manual Section 12, “Religious Discrimination,” No. 915.003 (July 22, 2008) Because of the timing of the statement and the direct physical threat, this incident, alone, is sufficiently severe to constitute hostile environment harassment based on religion and national origin

Analysis Micro-View Complainant must next demonstrate a discriminatory and/or retaliatory motive Here, discrete acts can be addressed by analyzing whether the Agency has articulated legitimate, nondiscriminatory reasons for its actions

Liability Co-Worker Harassment Agency is liable if management officials knew or should have known of the co- worker’s conduct Agency can avoid liability where officials take immediate and appropriate corrective action and harassment ceases

Supervisory/Managerial Harassment Liability Supervisory/Managerial Harassment Vicarious Liability Affirmative Defense – Agency must demonstrate that it Exercised reasonable care to prevent and correct promptly harassing behavior AND Employee unreasonably failed to take any preventative or corrective opportunities provided or to avoid harm otherwise

Liability Note: The Agency is under an obligation to do “whatever is necessary” to end harassment, to make a victim whole, and to prevent the misconduct from recurring. See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) Taking only some remedial action does not absolve the agency of liability where that action is ineffective. See Logsdon v. Dep't of Agric., EEOC Appeal No. 07A40120 (Feb. 28, 2006). Harassment is the only type of discrimination carried out by a supervisor for which an employer can avoid liability, and that limitation must be construed narrowly

Summary Ultimately, a well-drafted hostile work environment decision will contain: Clearly organized facts and allegations Facts and allegations driving the story of the complaint Recitation of the law Sound analysis Liability determination This applies to summary judgment decisions, decisions after a hearing, and appellate decisions

Managing the “run of the mill” case Do an initial determination of which issues are material, or not. My supervisor was rude to me v. My supervisor denied my leave request Prepare the case for the Initial conference and focus the parties on the material issues. Consider conducting a targeted hearing, or partial Summary Judgment

Sexual Harassment Cases

Agency liability when harasser is a patient, inmate, contractor, customer or other non-employee: An Agency may be responsible for the acts of non-employees, with respect to harassment of its own employees in the workplace, where the Agency (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. 29 C.F.R. § 1604.11(e); See Brady v Dep’t of Veterans Affairs, EEOC DOC 0120100292, 2011 WL 1369923 at *2 (Mar. 30, 2011) citing Fauntroy v. Dep’t of the Treasury, EEOC Appeal No. 01995207, 2000 WL 1218149 at *1 (August 18, 2000).

“Knew or Should Have Known” Standard   Marr v. Dep’t of the Air Force, EEOC Appeal No. 01941344, 1996 WL 375789 at *9 (1996)(evidence indicated that conduct at issue was too pervasive and well known among employees to have been invisible to agency management, thus agency officials were on notice of the hostile environment in the workplace appellant's EEO Counselor contact). Logan v. Dep’t of the Army, EEOC App. No. 01975321, 2000 WL 33542805 at *5 (Aug. 28, 2000) (holding that Agency had actual and constructive knowledge of sexual harassment and failed to take prompt, remedial action).

“Immediate and Appropriate Corrective Action” Standard Factors to consider: severity and persistence of the harassment and effectiveness of any initial remedial steps. Agency must promptly and thoroughly investigate allegations upon learning of sexual harassment. Douglass v U.S. Postal Serv., EEOC App. No. 0120091037, 2010 WL 4388547 at *10 (Oct. 26, 2010) (holding agency took prompt and appropriate remedial action when it investigated allegations and removed harasser from workplace). Rockymore v. U.S. Postal Serv., EEOC App. No. 0120110311, 2012 WL 424237 at *5 (Jan. 31, 2012) (waiting two weeks to interview the harasser after complaint and failure to conduct investigation was not prompt remedial action).

Sexual Harassment by Prison Inmates In Lemons v. Dep’t of Justice, Bureau of Prisons, Complainant was subjected to indecent exposure and sexual assault by an inmate. She reported the incidents immediately but the Agency failed to take corrective action. The Agency’s response consisted of talking to the harassing inmate, instructing him “not to do it again,” and returning the inmate to complainant's unit. Lemons, EEOC Appeal No. 0120081287, 2009 WL 1173547 at *8 (April 23, 2009). The Commission rejected the Bureau of Prisons’ suggestion that its duty to protect its employees is somehow reduced by the nature of a prison facility. Citing Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006), the Commission noted that prisons have curtailed indecent exposure of inmates by imposing serious disciplinary measures. Here, Agency failed to implement similar measures. See also Beckford v. Dep’t of Corrections, 605 F.3d 951 (11th Cir. 2010).

Sexual Harassment by Prison Inmates, Cont’d In * * * Larae S. v. Dep’t of Justice, Bureau of Prisons, the Commission found that Complainant was a victim of sexual harassment as a result of being subjected to repeated instances of sexual exposure and aggression by inmates. However, Agency was not liable for the harassment because it took prompt and appropriate corrective action when it availed itself of several disciplinary measures to curtail the sexually aggressive and sexually inappropriate behavior of inmates. * * * Larae S., EEOC DOC 0120143209, 2017 WL 1103744 at *7 - *9 (Mar. 9, 2017).

Considerations when Complainant is a victim of sexual assault/rape

Use of Targeted Hearings in Sexual Harassment Cases

Questions?