Hostile Work Environment and Compensation Claims
The employee, an air traffic controller front-line manager, on June 29, 2009, filed a formal complaint of discrimination alleging she was discriminated against on the basis of sex and subsequent reprisal of a hostile work environment when her operations manager told her that she was not his pick for the supervisory position "because she has a kid" and questioned her loyalty and reliability. She further alleged that he made attempts to sabotage her work; bad-mouthed her to co-workers, her subordinate employees and management; used abusive, offensive and crude language toward her; and while yelling at her in a meeting, refused to let her leave his office by physically blocking the exit. Also, the employee claimed discrimination on the basis of sex as she believed she did not get the same salary increase as similarity situated males when she received a permanent promotion on August 15, 2008.
The agency dismissed both of the employee's claims by holding the following: 1) the employee failed to state a claim in the hostile work environment claim since she did not allege disparate treatment regarding a specific term, condition or privilege of employment; and 2) the employee's compensation claim was untimely since she received the promotion in August 2008, and did not initiate EEO contact until March 2009, beyond the expiration of the 45-day time limit period required by 29 C.F.R. § 1614.107(a)(2).
The EEOC reversed the agency's dismissal of the employee's discrimination complaint and reinstated both of her claims. The Commission held that even if harassing conduct produces no tangible effects, a complainant may assert a cause of action if the discriminatory conduct was so severe or pervasive that it created a work environment abusive to the complainant because of race, gender, religion, national origin, age or disability. Accordingly, the EEOC concluded that applying the aforementioned principle to the events the employee alleged in her hostile work environment claim, if taken together, are sufficient to state a viable claim of harassment.
Additionally, the EEOC allowed the employee's compensation claim to proceed due to the Lily Ledbetter Fair Pay Act, which was enacted on January 29, 2009:
…when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits or other compensation is paid, resulting in whole or in part from such a decision or other practice…[recovery may include] recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practice with regard to discrimination in compensation that occurred outside the time for filing a charge.
Therefore, since the employee here was still receiving allegedly discriminatory paychecks, during the period up to and including the 45-day period prior to her EEO counselor contact in March 2009, she continued to be affected by the application of the allegedly discriminatory compensation decision made when she was initially promoted by receiving lower paychecks than similarly situated male employees. Consequently, the employee timely initiated EEO contact.
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.