Southworth PC recently settled a sexual harassment and reprisal case against a large federal agency.
The allegations were that a male supervisor treated women and men differently, letting the men do less and giving the men preferential treatment compared to the women. It was also alleged that the supervisor made demeaning comments about our client’s pregnancy and her sick child. He also referred to a higher-level female manager in a demeaning manner based on gender. Also, it was alleged that when the male supervisor discovered employees were submitting statements to the EEOC to support our client, the supervisor engaged in “per se retaliation” to punish the other employee’s writing statements supporting our client. These allegations were denied.
It is unlawful for the federal government to treat men and women differently in the workplace because of their sex or gender. It is also unlawful for a supervisor to make any statements that could interfere with the EEO process.
As to per se retaliation, the Commission has also determined that attempting to dissuade an employee from filing an EEO complaint is a per se violation of the Commission’s regulations against restraint or interference with the EEO process. See Lewis v. Postmaster General, 01922440, 4036/E6 (1994) (attempts by management to dissuade the employee from filing a sexual harassment complaint are “unequivocally prohibited by the regulations.…”).
Agencies are obligated to ensure that managers and supervisors perform in such a manner as to “insure a continuing affirmative application and vigorous enforcement of the policy of equal opportunity.” 29 C.F.R. § 1614.102(a)(5); Binseel v. Dep’t of the Army, EEOC Request No. 05970584 (Oct. 8, 1998) (statement made by manager “rather than encouraging the realization of equal employment opportunity in the workforce, served to have a potentially chilling effect on the ultimate tool that employees have to enforce equal employment opportunity”).
EEOC Regulation 29 C.F.R. §1614.101(b) provides that no person shall be subject to retaliation for opposing any unlawful discriminatory practice or for participating in any stage of the EEO complaint process.
“When a supervisor’s behavior has a potentially chilling effect on use of the EEO process — the ultimate tool that employees have to enforce equal employment opportunity — the behavior is a per se violation.” Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), request to reconsider denied, EEOC Appeal No. 0520090654 ((Dec. 15, 2010). Central to a finding of per se reprisal is that the conduct is reasonably likely to have a chilling effect on deterring the complainant or a reasonable employee from engaging in, or pursuing, protected activity. Christeen H. v. U.S. Postal Serv., EEOC Appeal No. 0120162478 (June 14, 2018).
— * * * Ludie M., Complainant, EEOC DOC 0120170459, 2019 WL 2296693, at *7 (May 9, 2019)
These actions, for instance, are illegal under relevant case law:
- management telling an employee that filing an EEO suit was the wrong way to get a promotion;
- a labor management specialist telling an employee “as a friend” that his EEO claim would polarize the office;
- supervisor, during an employee meeting, stated EEO complaints had been filed and said “what goes around, comes around;
- management stating to an employee it was unacceptable for her to claim discrimination by another official;
- management stating to an employee making allegations of discrimination would be bad for her career.
The same goes for comments by a supervisor to dissuade employees in the workplace from participating as witnesses in the EEO process.
It is important that retaliation is illegal and that agencies are not allowed to discourage people from using the EEO process to report illegal discrimination or retaliation. If retaliation were legal, people would have to choose between their careers and doing what is right. Our loved ones in the federal sector would have to potentially suffer discrimination, harassment, and reprisal in silence.
We are grateful that we were able to help our client resolve her matter with the Agency.
If you are a federal employee who believes they have been subjected to discrimination, harassment, or retaliation, please contact our federal employment attorneys today to see if we can help you before the EEOC or MSPB.