Wednesday, November 06, 2013
The EEOC's Office of Federal Operations reversed an agency's decision dismissing a complaint of sexual harassment and discrimination in the case Moore v. Department of Education, Appeal No. 0120111258 (August 15, 2013). The OFO held that the agency was liable for a co-worker's harassment of complainant Moore after it reassigned her after she complained repeatedly about inappropriate touching by her supervisor.
According to the EEOC, the supervisor's inappropriate touching included hugs, kisses, placing his hands on Moore's shoulders, waist, hips, back, and arms. An internal agency investigation revealed that several other women acknowledged the supervisor's inappropriate touching and use of improperly affectionate terms of endearment including "Sunshine" and "Sweetness." The agency nonetheless chose to disregard the evidence and claimed that the harassment was neither "severe nor pervasive," concluded that Moore was not credible, and issued a final agency decision of no discrimination on all claims.
While upholding the dismissal of the other claims, the OFO reversed the finding on the sexual harassment claim. In particular, the OFO reiterated Commission guidance that "corrective action" (here, the reassignment) "should not adversely affect a complainant" and held that "a complainant should not be involuntarily transferred or otherwise burdened" in response to her complaint against a harassing colleague. Concluding that the agency failed to offer any legitimate, non-discriminatory reason for the reassignment, the OFO ruled that "the transfer was due to retaliation for Complainant's claims of sexual harassment."
This case is a good reminder that a complainant should not have to bear the burden of an agency's failure to protect her from sexual harassment, and that it is always the agency's duty to remove the harasser from the situation, and not vice versa.