OEDCA DIGEST by wulinqing

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									                  OEDCA DIGEST
 Vol. II, No. 4          Department of Veterans Affairs                       Fall 1999
                      Office of Employment Discrimination
                             Complaint Adjudication



Summaries of Selected Decisions Issued by the Office of
 Employment Discrimination Complaint Adjudication




                                FROM THE DIRECTOR


The Office of Employment Discrimination Complaint Adjudication is an independent, ad-
judication unit created by statute. Located in the Office of the Secretary, OEDCA’s
function is to issue the Department’s final agency decision on complaints of employment
discrimination filed against the Department. The Director, whose decisions are not sub-
ject to appeal by the Department, reports directly to the Secretary of Veterans Affairs.

Each quarter, OEDCA publishes a digest of selected decisions issued by the Director
that might be instructive or otherwise of interest to the Department and its employees.

Also included in this issue is a discussion of EEOC's recent guidance on management's
liability for harassment by supervisors and, in particular, the requirements for an effec-
tive anti-harassment policy and complaint procedure. In fact, several cases discussed
in this issue relate directly to the requirements set forth in EEOC’s guidance.

The OEDCA Digest is available on the World Wide Web at: www.va.gov/orm.



                                  Charles R. Delobe




Case Summaries……………………………………………………………………………..2
EEOC Guidance--Effective Anti-Harassment Policy and Complaint Procedure…..…11
                          OEDCA DIGEST

                     I                         might make an error. She provided
                                               medical documentation from her psy-
MANAGEMENT'S FAILURE TO CON-                   chiatrist, who confirmed that she was on
SIDER AN EMPLOYEE’S REQUEST                    anti-depressant medication and, hence,
FOR ACCOMMODATION OF A DISA-                   should not dispense medication to pa-
BILITY RESULTS IN REHABILITA-                  tients. She subsequently agreed to per-
TION ACT VIOLATION.                            form patient care duties, but continued
                                               to maintain that she was unable to dis-
OEDCA recently adopted an EEOC ad-             pense medication.        Management re-
ministrative judge’s recommended deci-         fused to relieve her of that function. The
sion finding disability discrimination due     complainant thereafter filed an EEO
to management's failure to further modi-       complaint alleging that management
fy a light duty position.                      failed to provide her with a reasonable
                                               accommodation.
The complainant, a part-time registered
nurse, worked only one day per week.           The Rehabilitation Act of 1973, 29
She suffered a work-related injury,            U.S.C. Section 791, et seq., prohibits
which, along with her pre-existing physi-      discrimination based on disability and
cal condition, left her permanently dis-       requires federal agencies to provide
abled. She was subsequently diag-              reasonable accommodations to the
nosed with major depression caused by          known physical and mental limitations of
the circumstances surrounding her              qualified persons with disabilities. The
physical injury.                               EEOC administrative judge determined
                                               that the complainant was a qualified in-
The complainant collected Office of            dividual with a disability within the
Worker’s Compensation benefits for ap-         meaning of the Rehabilitation Act. The
proximately two years. The OWCP                administrative judge also noted that
subsequently terminated her benefits,          management did not claim that dispens-
determining that she was no longer dis-        ing medications was an essential func-
abled. Prior to that determination, man-       tion of the complainant’s position. In
agement officials had ordered the com-         fact, one nurse manager indicated that it
plainant to return to work in a light duty     might not have been necessary for the
position. The light duty position re-          complainant to dispense medication.
quired, among other things, limited pa-        Management provided no explanation
tient care duties, dispensing medication       for its refusal to further modify the com-
to patients, clinical chart reviews, quality   plainant’s light duty position with respect
assurance data collection, progress re-        to dispensing medication.
ports, and various other clerical tasks.
The complainant requested reasonable           The duty to design a reasonable ac-
accommodation for her disability, stating      commodation includes an individualized
that she could not perform patient care        assessment of an employee’s impair-
duties. Additionally, because of the me-       ment, which takes into account the na-
dication she was taking for her depres-        ture of the employee’s disability, qualifi-
sion, she asserted that she could not          cations, and possible accommodations.
dispense medication to patients, as she        Here, there was no evidence that man-


                                                                                        2
                          OEDCA DIGEST

agement ever inquired into the feasibility    The harassment continued for another
of providing an accommodation, such as        six months, at which point the employee
having other nurses on the ward dis-          again complained. This time manage-
pense medication on the one day per           ment officials confronted the harasser,
week that she worked. Accordingly,            who admitted that the employee’s alle-
OEDCA accepted the administrative             gations were true. The harasser was
judge’s finding that management failed        thereafter disciplined and transferred.
to make a good faith effort to accommo-
date the complainant’s disability, as re-     Notwithstanding the eventual discipline
quired under the Rehabilitation Act.          and transfer of the harasser, the EEOC
OEDCA therefore ordered the depart-           found management liable, as it failed to
ment to provide the complainant with          take prompt and effective action when
make-whole and other appropriate relief.      the employee first reported the harass-
                                              ment. Management, of course, argued
                                              that, in honoring the complainant’s initial
                    II                        request not to confront the harasser, it
                                              was effectively precluded from taking
REQUEST BY VICTIM OF SEXUAL                   prompt and appropriate action.
HARASSMENT THAT MANAGEMENT
NOT CONFRONT THE HARASSER                     The Commission acknowledged that its
DOES NOT EXCUSE MANAGEMENT                    recently issued guidance on employer
FROM INVESTIGATING THE MATTER                 liability for sexual harassment requires
                                              employers to keep harassment allega-
(Although this EEOC decision does not         tions confidential to the extent possible.1
involve the VA, we are including it in the    The guidance, however, also recognizes
OEDCA Digest because the decision is          that an employer’s obligation to effec-
significant, and one that all VA supervi-     tively investigate such allegations will
sors and managers should be aware of.)        inevitably result in certain information
                                              being revealed to the alleged harasser
An employee of the Social Security Ad-        and potential witnesses, and ―while it
ministration (SSA) had informed a man-        may seem reasonable to let the em-
agement official that a team leader who       ployee determine whether to pursue a
exercised supervisory authority over her      complaint, the employer must discharge
had been sexually harassing her for al-       its duty to prevent and correct harass-
most a year. The official advised her         ment.‖      Thus, the Commission con-
that he would immediately speak to the        cluded that management had an obliga-
alleged harasser. However, the em-            tion to investigate, even if that meant
ployee insisted that the official not speak   questioning the harasser.
to the harasser. The official consented
to her request and took no action on the      Moreover, in this particular case, the
matter other than to ―monitor‖ the situa-     EEOC found that SSA management
tion and ask the complainant to report        could have taken steps to address the
any further problems.
                                              1
                                                See the article that begins on page 11 for a discus-
                                              sion of EEOC’s guidance on this topic.


                                                                                                       3
                          OEDCA DIGEST

situation without involving the harasser.    tified that the PSA was expected to act
Some examples the EEOC gives in-             as the lead in the unit and had overall
clude talking to the harasser’s superiors,   responsibility for the smooth operation
questioning other employees about the        of the unit. Finally, they testified that
harasser’s behavior, and reaffirming to      another major difference between the
all employees that sexual harassment is      two positions was that the PSA was re-
illegal and will not be tolerated. As SSA    sponsible for reviewing examination re-
management did none of these things,         ports for completeness and releasing
thereby allowing the harassment to con-      cases to the regional office.
tinue for an additional six months, it was
unable to assert an affirmative defense      The complainant did not deny these dif-
against the employee’s claim.          The   ferences in responsibility. In fact, her
EEOC therefore found in the employee’s       testimony tended to confirm them. For
favor.                                       example, she admitted that she only re-
                                             leased cases to the regional office in the
                                             PSA’s absence. In addition, she ap-
                    III                      peared to be arguing that when she had
                                             to cover for the PSA in his absence, she
NO EQUAL PAY ACT VIOLATION                   would have to assume more responsibil-
WHERE COMPLAINANT WAS NOT                    ity, not just more work. This tends to
DOING WORK EQUAL TO THAT OF A                confirm that the two jobs, though similar
HIGHER GRADED MALE WORKER                    in some respects, were different in
                                             terms of the level of responsibility. Fi-
OEDCA recently adopted an EEOC ad-           nally, the record showed that after the
ministrative judge’s finding that the        PSA left on extended medical leave,
complainant was not discriminated            and the complainant had to assume his
against due to her gender because she        responsibilities on a regular basis, she
was being paid less than a male co-          was paid at the GS-6 level.
worker.
                                             To establish a violation of the Equal Pay
The complainant, a GS-5 Claims Clerk,        Act, a complainant must show that he or
alleged that she was not given the ap-       she is receiving less pay than an indi-
propriate grade for the level of work she    vidual of the opposite sex for work sub-
was performing, which she claimed was        stantially equal in skill, effort, and re-
at the same level as a male co-worker        sponsibility under similar working condi-
who was a GS-6. The male co-worker           tions. Both the EEOC administrative
was a Patient Services Assistant (PSA).      judge and OEDCA found that the com-
According to the record, while some of       plainant failed to prove a prima facie
their duties were similar, the higher        case of an Equal Pay Act violation, as
graded PSA job had more administrative       her duties as a Claims Clerk were not
duties than that required of a Claims        substantially equal to those of the PSA
Clerk. In addition, the PSA was ex-          in terms of responsibility.
pected to work independently, and at a
higher level of responsibility than a
Claims Clerk. Management officials tes-


                                                                                     4
                          OEDCA DIGEST

                    IV                        complainant was to ensure harmony on
                                              the ward and good patient care. Ac-
INVOLUNTARY REASSIGNMENT OF                   cording to one witness, the reassign-
VICTIM OF SEXUAL HARASSMENT                   ment was necessary because of con-
IN THE INTEREST OF “HARMONY                   cern that friends of the harasser might
AND PATIENT CARE” FOUND TO BE                 subject the complainant to a hostile en-
RETALIATION                                   vironment. The witness feared that the
                                              complainant’s continued presence on
(Note: Although this case was previous-       the ward under such circumstances
ly reported in the Winter 1999 edition of     would cause problems and adversely
the OEDCA Digest (Vol. II, No. 1), we         impact the patient care environment.
are presenting it again because of its
importance and relevance to the article       However, the EEO manager at the facili-
on employer liability for harassment that     ty had advised management that the fa-
appears in this issue of the digest. More     cility’s policy and past practice was not
specifically, it highlights management’s      to reassign alleged victims of harass-
duty not to penalize or otherwise burden      ment against their will, and that doing so
the victim of harassment when taking          would be construed as punitive and re-
corrective action.                            taliatory. Despite this advice, manage-
                                              ment reassigned the complainant, as-
The complainant filed a sexual harass-        serting that the reassignment did not re-
ment complaint that included an allega-       sult in any work-related harm, and that it
tion that the decision to reassign her fol-   was not punishment, as both the ha-
lowing the incident of harassment was         rasser and the complainant were being
an act of retaliation for reporting the in-   treated equally.
cident. Following a hearing, an EEOC
administrative judge recommended a            In its decision, OEDCA noted that the
finding of discrimination on both the         victim of harassment must not be re-
sexual harassment and retaliation             quired to take an involuntary transfer or
claims. OEDCA later adopted the ad-           reassignment, even when the avowed
ministrative judge’s recommended deci-        purpose is to further the employer’s
sion as the Department’s final agency         business objectives. Instead, it is the
decision.                                     offending party that must bear the ad-
                                              verse effects resulting from the harass-
Following an incident in which the com-       ment.
plainant was physically assaulted by a
male co-worker in a linen room, man-          Further, the complainant’s reassign-
agement officials reassigned both indi-       ment, contrary to management’s asser-
viduals, rather than just the harasser.       tion, adversely impacted the complain-
The complainant objected to the reas-         ant, was viewed by her as punitive, and
signment, preferring to remain in the         was the type of response likely to deter
familiar surroundings where she had           a complainant from complaining about
worked since 1984.                            sexual harassment in the future. Man-
                                              agement, in this case, did more than just
The rationale given for reassigning the       fail to take appropriate action in re-


                                                                                      5
                         OEDCA DIGEST

sponse to a sexual harassment com-          In its final decision, OEDCA found that
plaint. Instead, it penalized the com-      the complainant had failed to establish a
plainant for complaining and, hence, re-    prima facie case of disability discrimina-
taliated against her. OEDCA ordered         tion. Specifically, OEDCA found that the
that the complainant receive appropri-      complainant had failed to prove that his
ate, make-whole relief.                     impairment constituted a disability as
                                            defined by EEO law and regulations. To
                                            qualify as a disability, the impairment
                   V                        must substantially limit a major life activ-
                                            ity. Generally, temporary medical condi-
TEMPORARY MEDICAL CONDITION                 tions or injuries are not substantially li-
FOUND NOT TO BE A DISABILITY                miting and, hence, are not considered to
REQUIRING ACCOMMODATION                     be disabilities under the Rehabilitation
                                            Act or the Americans with Disabilities
The complainant sustained a temporary       Act. As the complainant was not dis-
injury that resulted in damage to the       abled, management was under no obli-
tendons in his right hand, and thereby      gation to provide an accommodation.
restricting movement of his right thumb.
Because his arm and hand were placed
in a cast, he requested an accommoda-                           VI
tion from his supervisor in the form of a
light duty assignment.                      MANAGEMENT’S FAILURE TO TAKE
                                            PROMPT CORRECTIVE ACTON RE-
The supervisor granted the complai-         SULTS IN FINDING OF SEXUAL HA-
nant’s request, assigning him to admin-     RASSMENT
istrative duties that lasted four weeks.
At the end of the fourth week, the su-      The complainant filed a discrimination
pervisor informed the complainant that if   complaint against her supervisor, alleg-
he was unable to return to his regular      ing that he had engaged in a pattern of
duties, he would have to use sick leave,    sexually harassing behavior over a pe-
as there was no longer a need for the       riod of approximately six months. Spe-
administrative duties he had been per-      cifically, she alleged that the harasser
forming.                                    would constantly walk over to her desk
                                            to flick, touch, or pull her hair. She as-
The complainant used sick leave, but        serted that she tried, without success, to
subsequently filed a discrimination com-    prevent him from doing it by raising her
plaint alleging that the refusal to allow   arm as he approached, and by telling
him to continue performing light duty       him that his behavior was unwelcome
amounted to a failure to reasonably ac-     and to stop. She testified that the su-
commodate a known disability in viola-      pervisor once responded by stating,
tion of the Rehabilitation Act. According   ―You know you like me pulling your
to the evidence in the record, the com-     hair.‖ The complainant responded by
plainant’s impairment lasted only eight     saying, ―No, I don’t.‖
weeks.
                                            In addition to the incidents involving her


                                                                                      6
                          OEDCA DIGEST

hair, the complainant alleged that the         to discourage such unlawful conduct.‖
supervisor once grabbed and twisted            Notwithstanding this admonition, none
her arm and, a few days later, grabbed         of the supervisors who witnessed or was
the back of her neck. She stated that          otherwise aware of the harasser’s con-
when she complained that he had hurt           duct took action to remedy the situation.
her neck, he replied by stating, ―[I]f I was   According to the record, they were not
you I would shut up since you’re the ju-       disciplined; nor were they counseled re-
nior person in the office.‖ The supervi-       garding how they should handle this
sor denied these two incidents, but re-        type of situation in the future.
called touching her arm ―lightly‖ on one
occasion. He also admitted touching            Under recent Supreme Court decisions,
the back of her neck once to get her at-       employers may avoid liability for ha-
tention.                                       rassment by supervisors if they can
                                               prove a two-prong affirmative defense.
OEDCA, as did the EEOC administra-             First, they must prove that they exer-
tive judge who heard the case, had little      cised reasonable care to prevent and
difficulty concluding that the complainant     correct promptly any harassing beha-
had been subjected to sexual harass-           vior. Second, they must prove that the
ment.                                          employee unreasonably failed to take
                                               advantage of any preventive or correc-
The most disturbing aspect of this case,       tive opportunities provided by the em-
however, is that several other supervi-        ployer, or to avoid harm otherwise.
sors witnessed the harassing behavior,
but did nothing to prevent it. One su-         Management in this case was unable to
pervisor admitted walking away, stating        avail itself of this defense. Its anti-
that he had no desire to be a witness to       harassment policy was clearly not effec-
sexual harassment. Another supervisor          tive in preventing the harassment, even
who had witnessed some of these inci-          though several management officials
dents admitted that the victim had com-        were aware of the problem. Moreover,
plained to him about the harasser, but         the complainant did what she was sup-
that he did nothing to try to end the ha-      posed to do, which was report the mat-
rassment. Another supervisor testified         ter to a management official or officials.
that she witnessed the complainant to          OEDCA, therefore, ordered that the
be visibly upset and that she heard the        complainant receive appropriate, make-
complainant tell the harasser to stop          whole relief.
pulling her hair. Another supervisor, to
whom the complainant had reported the
incidents, jokingly suggested that she                            VII
―get a stick and hit him with it.‖
                                               SIXTEEN MONTH PERIOD BETWEEN
The facility’s anti-harassment policy          COMPLAINANT’S PRIOR EEO PRO-
clearly stated that ―supervisors at all le-    TECTED ACTIVITY AND HER PER-
vels have the responsibility to ensure         FORMANCE APPRAISAL TOO LONG
that employees work in an environment          TO SUPPORT AN INFERENCE OF
that is free from sexual harassment and        RETALIATORY MOTIVE


                                                                                       7
                                  OEDCA DIGEST

                                                          sons for giving other employees higher
The complainant had filed EEO com-                        ratings were untrue or not worthy of be-
plaints on February and May of 1995                       lief. Hence, even assuming the com-
against her supervisor. The supervisor,                   plainant had established a prima facie
who was aware of those complaints,                        case, she failed to prove that the rea-
nevertheless recommended the com-                         sons given for her rating were a pretext
plainant for a promotion in February                      to mask unlawful retaliation.
1996. In March 1996, the supervisor
gave the complainant an opportunity to                                       VIII
submit a self-appraisal for the annual
rating period that had just ended in Jan-                 DISCIPLINARY ACTIONS FOUND TO
uary. The complainant declined to pro-                    HAVE BEEN MOTIVATED BY RETAL-
vide the self-appraisal.                                  IATION BECAUSE OF THE COM-
                                                          PLAINANT’S PRIOR EEO COM-
In September 1996, the supervisor gave                    PLAINT;    BUT   COMPENSATORY
the complainant a rating of ―Successful.‖                 DAMAGES DENIED DUE TO INSUF-
Dissatisfied with the rating, she filed an                FICIENT EVIDENCE OF CAUSATION
EEO complaint alleging that the super-
visor retaliated against her because of                   The complainant, a Police Officer in the
her prior EEO complaints.                                 Police and Security Service, filed a for-
                                                          mal EEO complaint in August 1996 re-
OEDCA found, as did an EEOC admin-                        garding his supervisor’s conduct. Within
istrative judge, that the complainant                     the next six months, while his EEO
failed to establish a prima facie case of                 complaint was under investigation, his
retaliation. The approximately sixteen                    supervisor disciplined him on two sepa-
month period between the complainant’s                    rate occasions for minor infractions. In
prior EEO activity and the receipt of her                 November 1996, he received a repri-
performance appraisal was too long to                     mand for being idle while on duty. In
support an inference of a retaliatory mo-                 February 1997, he received a letter of
tive.2 Moreover, the fact that the super-                 counseling for not folding the U.S. flag
visor recommended the complainant for                     properly.
a promotion in February 1996 -- after
the complainant had filed two com-                        Shortly after receiving the letter of coun-
plaints against her -- negates any possi-                 seling, the complainant filed a second
ble inference that the supervisor reta-                   formal EEO complaint in which he al-
liated against her in September 1996                      leged that the issuance of the reprimand
with respect to the performance ap-                       and the letter of counseling amounted to
praisal.                                                  reprisal for his prior EEO complaint
                                                          against the supervisor. The reprisal
In addition, the complainant presented                    complaint was consolidated with the
no evidence that the supervisor’s rea-                    earlier EEO complaint for hearing and
                                                          subsequent processing. Following a
2
   There is no clearly established rule as to what con-
                                                          hearing on the merits of both com-
stitutes too long a period to support an inference of     plaints, an EEOC administrative judge
retaliation.                                              recommended a finding of no discrimi-


                                                                                                   8
                          OEDCA DIGEST

nation in connection with the original         problems were caused by the two dis-
complaint of discrimination. However,          ciplinary actions. OEDCA did, however,
as for the second complaint, the judge         order the Department to provide the
concluded that the supervisor had reta-        complainant with other appropriate,
liated against the complainant with re-        make-whole relief.
spect to both disciplinary actions.
                                               This decision illustrates several impor-
OEDCA agreed with and adopted the              tant points: (1) supervisors and other
judge’s findings. Although management          management officials must scrupulously
articulated legitimate, nondiscriminatory      avoid retaliating against employees who
reason for its actions, the evidence in        engage in protected EEO activity; (2) a
the record demonstrated that those rea-        finding of reprisal is possible, even if the
sons were not the true reasons, but ra-        complainant did not prevail in the prior
ther, were merely a pretext to hide an         EEO complaint(s) and (3) prevailing
intent to retaliate against the complai-       complainants will receive compensatory
nant. The reasons given by the super-          damages only upon sufficient proof that
visor for imposing the discipline were         their harms were caused by the discri-
weak, and his testimony, which was             minatory conduct found to have oc-
contradicted by other evidence in the          curred.
record, rendered his credibility suspect.

Furthermore, witnesses established that                            IX
the supervisor had singled out the com-
plainant for more intense scrutiny, over-      REASONS GIVEN FOR EMPLOYEE’S
sight, and criticism than other em-            NONSELECTION FOR POLICE OF-
ployees, especially after the first EEO        FICER POSITION FOUND TO BE A
complaint was filed. This scrutiny in-         PRETEXT FOR DISCRIMINATION
cluded a ―stake out‖ and use of a sur-         DUE TO EMPLOYEE’S DISABILITY.
veillance camera because the supervi-
sor suspected – without evidence or            The complainant had been employed as
good reason – that the complainant was         a GS-5 Police Officer for approximately
engaging in criminal activity at the facili-   three years before taking a voluntary
ty. Finally, witnesses testified that the      downgrade to a GS-4 File Clerk position
supervisor made negative comments              to accommodate a medical condition.
about the complainant’s visits to the          Prior to taking the downgrade, his per-
EEO office and about the EEO com-              formance had always been rated as ―sa-
plaint process.                                tisfactory‖ or better.

OEDCA also accepted the judge’s rec-           He took the downgrade per the sugges-
ommendation that the complainant was           tion of his physician, who recommended
not entitled to compensatory damages           that he perform less strenuous duties,
for medical expenses, home repairs,            as he was about to undergo five-vessel
stress, anxiety, mental anguish, and           coronary artery bypass surgery. Medi-
sleeplessness because the complainant          cal documentation in the record indi-
failed to show that those expenses and         cated that he would have been able to


                                                                                         9
                         OEDCA DIGEST

resume a normal work schedule with no        heart condition and the fear that he
restrictions approximately three months      might have a heart attack on the job.
after the surgery.                           The SO denied making this statement,
                                             but the three witnesses who claimed to
Approximately one year after his sur-        have heard it along with the complainant
gery, he applied for a GS-5 Police Offic-    had no apparent motive for lying. Thus,
er position that was advertised in an        it was clear that the SO regarded the
open continuous announcement. His            complainant as unable to work not only
former supervisor, the Police Chief, was     as a VA police officer, but also in the en-
the selecting official (SO). Following in-   tire class of law enforcement jobs requir-
terviews of the applicants, the SO se-       ing life rescue, safety and fire emergen-
lected an applicant who, according to        cies; use of physical ability to restrain,
the SO, was better qualified because he      apprehend; or transport violent and/or
had more experience than the complai-        criminal offenders, conducting patrols
nant. The SO denied that the complai-        and ground searches, and emotional
nant’s medical conditions had any im-        stability under stress.
pact on his decision, and emphasized
that he did not consider the complainant     In addition to this direct evidence of dis-
as disabled.                                 criminatory intent, the administrative
                                             judge, and OEDCA, found that the SO’s
Following a hearing, an EEOC adminis-        reasons for not choosing the complai-
trative judge recommended a finding of       nant lacked credibility. For example,
discrimination due to the complainant’s      although he claimed that the selectee
disability, and OEDCA adopted the            had more experience as a Police Officer
judge’s recommendation as the agen-          than the complainant, the record in fact
cy’s final decision. By the complainant’s    indicated that the complainant had more
own admission, he was not disabled.          experience than the selectee. There
However, even if an employee is not          were also several other instances in
disabled, he or she may be entitled to       which the SO’s testimony was contra-
protection under the Rehabilitation Act if   dicted by other reliable and credible evi-
there is persuasive evidence that the        dence in the record.
employee is ―regarded as‖ disabled by
the employer.                                Thus, the preponderance of the evi-
                                             dence demonstrated that the SO’s rea-
Although the SO claimed that he did not      sons for not selecting the complainant
regard the complainant as disabled, and      were a pretext (i.e., not the true rea-
that the complainant’s medical condition     sons) and that the real reason was the
had no impact on his selection decision,     complainant’s perceived disability. Ac-
there was persuasive, direct evidence to     cordingly, OEDCA ordered the Depart-
the contrary.     The complainant and        ment to provide the complainant with
three other witnesses testified that, just   appropriate, make-whole relief.
prior to the selection action, the SO
stated that, as long as he was Chief, the    This case illustrates the point that an
complainant would never be allowed to        individual may be entitled to the protec-
return as a Police Officer because of his    tions afforded by the Rehabilitation Act


                                                                                     10
                               OEDCA DIGEST

even if the individual does not have an        tional origin, age, religion, disability, and
actual disability—i.e., does not have a        engaging in EEO protected activity.
physical or mental impairment that sub-
stantially limits a major life activity. The   Employers will always be liable for ha-
Act protects not only those who have           rassment by supervisors when it culmi-
such an impairment, but also those who         nates in a tangible employment action.
are regarded as having such an impair-         However, in cases where a supervisor's
ment or who have a record of such an           harassment does not result in a tangible
impairment.                                    job action, an employer can avoid liabili-
                                               ty by demonstrating that it exercised
                                               "reasonable care" to prevent and correct
                         X                     the harassment and that the employee
                                               unreasonably failed to use an available
EEOC GUIDANCE OUTLINES BASIC                   complaint procedure. As the EEOC
ELEMENTS REQUIRED FOR AN EF-                   noted, an effective anti-harassment poli-
FECTIVE ANTI-HARASSMENT POLI-                  cy and complaint procedure encourages
CY AND COMPLAINT PROCEDURE                     employees to report harassment before
                                               it becomes severe or pervasive, thus
Earlier this year, the EEOC issued com-        enabling the employer to stop the ha-
prehensive guidance to employers (in-          rassment before actionable harm oc-
cluding Federal employers) communi-            curs.
cating the standards for an employer's
liability for unlawful harassment by su-       While many employers have established
pervisors. (Enforcement Guidance: Vi-          policies and complaint procedures to
carious Employer Liability for Unlawful        deal with sexual harassment in the
Harassment by Supervisors, June 18,            workplace, many have not updated
1999).3 Although the guidance was de-          those policies and procedures to ad-
signed for employers, all employees            dress other forms of unlawful harass-
should become familiar with it, as it          ment, such as racial harassment, na-
clearly explains what employees may            tional origin harassment, etc.4     Until
reasonably expect from management              such policies and procedures are in
should they report unlawful harassment.        place and being implemented, employ-
                                               ers face a significantly greater risk of
The guidance was based on two Su-              liability for harassment committed by
preme Court decisions, Burlington v. El-       supervisors.
lerth and Faragher v. Boca Raton, in-
volving sexual harassment. However,            Employers (and employees) need look
as the Commission noted, numerous              no further than the Commission's guid-
courts have since applied the liability        ance for those elements that are essen-
rules established in these two sexual          tial for an effective anti-harassment poli-
harassment cases to allegations of ha-         cy and complaint procedure. Those
rassment due to race, color, gender, na-
                                               4
                                                 The Department of Veterans Affairs has already
                                               updated and disseminated its anti-harassment policy
3
    www.eeoc.gov/docs/harassment.html          in compliance with EEOC's new guidance.


                                                                                                11
                                 OEDCA DIGEST

elements, along with the Commission's                        icy and complaint procedure will not
explanation, are set forth below.                            be effective without such an assur-
                                                             ance.6 Management should under-
   A Clear Explanation of Prohibited                        take whatever measures are neces-
    Conduct.        An employer's policy                     sary to ensure that retaliation does
    should make clear that it will not tole-                 not occur. For example, when man-
    rate harassment based on sex (with                       agement investigates a complaint of
    or without sexual conduct), race,                        harassment, the official who inter-
    color, religion, national origin, age,                   views the parties and witnesses
    disability, and protected activity (i.e.,                should remind these individuals
    opposition to prohibited discrimina-                     about the prohibition against retalia-
    tion or participation in the statutory                   tion. Management also should scru-
    complaint process). This prohibition                     tinize employment decisions affect-
    should cover harassment by anyone                        ing the complainant and witnesses
    in the workplace – supervisors, co-                      during and after the investigation to
    workers, or non-employees. Man-                          ensure that such decisions are not
    agement should convey the serious-                       based on retaliatory motives.
    ness of the prohibition. One way to
    do that is for the mandate to "come                     A Clearly Described Complaint
    from the top", i.e., from upper man-                     Process that Provides Accessible
    agement.5 The policy should en-                          Avenues of Complaint. An em-
    courage employees to report ha-                          ployer's harassment complaint pro-
    rassment before it becomes severe                        cedure7 should be designed to en-
    or pervasive. While isolated inci-                       courage victims to come forward. To
    dents of harassment generally do not                     that end, it should clearly explain the
    violate federal law, a pattern of such                   process and ensure that there are no
    incidents may be unlawful. There-                        unreasonable obstacles to com-
    fore, to discharge its duty of preven-                   plaints.     A complaint procedure
    tive care, the employer must make                        should not be rigid, since that could
    clear to employees that it will stop                     defeat the goal of preventing and
    harassment before it rises to the lev-                   correcting harassment. When an
    el of a violation of federal law.                        employee complains to management
                                                             about alleged harassment, the em-
   Assurances of Protection against                         ployer is obligated to investigate the
    Retaliation. An employer should                          allegation regardless of whether it
    make clear that it will not tolerate ad-
    verse treatment of employees be-                     6
                                                           The Secretary's policy states that the VA will ensure
    cause they report harassment or                      that no employee is subject to retaliation because he
    provide information related to such                  or she has alleged or cooperated in the investigation
    complaints. An anti-harassment pol-                  of alleged unlawful harassment.
                                                         7
                                                           This complaint procedure should not be confused
5
  The head of the VA, -i.e., the Secretary of Veterans   with EEOC's Federal sector "EEO complaint"
Affairs - issued the Department's anti-harassment        process, which employees may also use to complain
policy. (See vaww.va.gov/orm/SecretaryWest)              about harassment.



                                                                                                             12
                                OEDCA DIGEST

    conforms to a particular format or is                   Counselor in the Office of Resolution
    made in writing. Moreover, supervi-                     Management (ORM), a local EEO
    sors and managers are obligated to                      Program Manager, the Inspector
    investigate the allegation regardless                   General, the Office of Civil Rights for
    of whether or not the complaining                       the Veterans Health Administration
    employee opts to file a formal EEO                      (VHA), the Office of Civil Rights for
    complaint.8 The complaint procedure                     the Veterans Benefits Administration
    should provide accessible points of                     (VBA), and a union representative (if
    contact for the initial complaint. A                    the employee is a member of a bar-
    complaint process is not effective if                   gaining unit).
    employees are always required to
    complain first to their supervisors                    Assurances that the Employer Will
    about alleged harassment, since the                     Protect Confidentiality. An em-
    supervisor may be a harasser.                           ployer should make clear to em-
    Moreover, reasonable care in pre-                       ployees that it will protect the confi-
    venting and correcting harassment                       dentiality of harassment allegations
    requires an employer to instruct all                    to the extent possible. An employer
    supervisors to report complaints of                     cannot guarantee complete confi-
    harassment to appropriate officials.                    dentiality, since it cannot conduct an
    It is advisable for an employer to de-                  effective investigation without reveal-
    signate at least one official outside                   ing certain information to the alleged
    an employee's chain of command to                       harasser and potential witnesses.
    take complaints of harassment. Al-                      However, information about the alle-
    lowing an employee to bypass his or                     gation of harassment should be
    her chain of command provides addi-                     shared only with those who need to
    tional assurance that the complaint                     know about it. Records relating to
    will be handled in an impartial man-                    harassment complaints should be
    ner, since an employee who reports                      kept confidential on the same basis.
    harassment by his or her supervisor                     A conflict between an employee's
    may feel that officials within the                      desire for confidentiality and the em-
    chain of command will more readily                      ployer's duty to investigate may arise
    believe the supervisor's version of                     if an employee informs a supervisor
    events. VA employees, for example,                      about alleged harassment, but asks
    may, in lieu of reporting the harass-                   him or her to keep the matter confi-
    ment to a supervisor, report it to any                  dential and take no action. Inaction
    higher level manager, an EEO                            by the supervisor in such circums-
                                                            tances could lead to employer liabili-
8
  The reason is that EEOC's Federal sector complaint        ty. While it may seem reasonable to
process is generally slow and inefficient. While it         let the employee determine whether
may eventually result in corrective action, it is not       to pursue a complaint, the employer
well suited to preventing actionable harm caused by         must discharge its duty to prevent
harassment. The employer's obligation is to prevent         and correct harassment. One me-
as well as correct such harm. Prevention requires
Federal managers to have in place an effective com-         chanism to help avoid such conflicts
plaint procedure that is separate and apart from the        would be for the employer to set up
"EEO complaint" process.


                                                                                                13
                                 OEDCA DIGEST

     an informational phone line which                        duling changes so as to avoid con-
     employees can use to discuss ques-                       tact between the parties; transferring
     tions or concerns about harassment                       the alleged harasser; or placing the
     on an anonymous basis.                                   alleged harasser on non-disciplinary
                                                              leave with pay pending the conclu-
    A Complaint Process That Pro-                            sion of the investigation. The com-
     vides a Prompt, Thorough, and                            plainant should not be involuntarily
     Impartial Investigation. An em-                          transferred or otherwise burdened,
     ployer should set up a mechanism                         since such measures could consti-
     for a prompt, thorough, and impartial                    tute unlawful retaliation.11 The em-
     investigation into alleged harass-                       ployer should ensure that the indi-
     ment.9 As soon as management                             vidual who conducts the investiga-
     learns about alleged harassment, it                      tion will objectively gather and con-
     should determine whether a detailed                      sider the relevant facts. The alleged
     fact-finding investigation is neces-                     harasser should not have supervi-
     sary.10 For example, if the alleged                      sory authority over the individual who
     harasser does not deny the accusa-                       conducts the investigation and
     tion, there would be no need to inter-                   should not have any direct or indirect
     view witnesses, and the employer                         control over the investigation.
     could immediately determine appro-                       Whoever conducts the investigation
     priate corrective action. If a fact-                     should be well trained in the skills
     finding investigation is necessary, it                   that are required for interviewing wit-
     should be launched immediately.                          nesses and evaluating credibility.
     The amount of time that it will take to
     complete the investigation will de-                     Assurances of Immediate and Ap-
     pend on the particular circums-                          propriate Corrective Action. An
     tances. If, for example, multiple indi-                  employer should make clear that it
     viduals were allegedly harassed,                         will undertake immediate and appro-
     then it will take longer to interview                    priate corrective action, including
     the parties and witnesses. It may be                     discipline, whenever it determines
     necessary to undertake intermediate                      that harassment has occurred in vi-
     measures before completing the in-                       olation of the employer's policy.12
     vestigation to ensure that further ha-                   Management should inform both par-
     rassment does not occur. Examples                        ties about these measures. Re-
     of such measures are making sche-
                                                         11
                                                            In fact, several OEDCA decisions have found
9
   Again, VA managers and supervisors should never       management liable for retaliation because of actions
rely on, or wait for, the EEO complaint process to       that unfairly burdened the complainant.
satisfy this requirement. Doing so could result in the
                                                         12
complained-of conduct continuing, thereby causing           The Secretary's policy states that the VA will take
actionable harm to occur, and hence, a finding of        appropriate disciplinary and adverse action, up to and
liability.                                               including removal, against those who engage in ha-
                                                         rassing behavior or other discriminatory conduct, and
10
   The Secretary's anti-harassment policy states that    those who retaliate against any VA employee who
an immediate investigation is required.                  cooperates, participates, or testifies in cases involving
                                                         alleged harassment or discrimination.


                                                                                                               14
                      OEDCA DIGEST

medial measures should be de-
signed to stop the harassment, cor-
rect its effects on the employee, and
ensure that the harassment does not
recur. These remedial measures
need not be those that the employee
requests or prefers, as long as they
are effective. In determining discipli-
nary measures, management should
keep in mind that the employer could
be found liable if the harassment
does not stop. At the same time,
management may have concerns
that overly punitive measures may
subject the employer to claims such
as wrongful discharge, and may
simply be inappropriate. To balance
the competing concerns, disciplinary
measures should be proportional to
the seriousness of the offense. If the
harassment was minor, such as a
small number of "off-color" remarks
by an individual with no prior history
of similar misconduct, then counsel-
ing and an oral warning might be all
that is necessary. On the other
hand, if the harassment was severe
or persistent, then suspension or
discharge may be appropriate. Re-
medial measures should not ad-
versely affect the complainant.
Thus, for example, if it is necessary
to separate the parties, then the ha-
rasser should be transferred (unless
the complainant prefers otherwise).
Remedial responses that penalize
the complainant could constitute un-
lawful retaliation and are not effec-
tive in correcting the harassment.
Remedial measures also should cor-
rect the effects of the harassment.
Such measures should be designed
to put the employee in the position
he or she would have been in had
the misconduct not occurred.


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