Harassment Based on Perceived Sexual Orientation
Wednesday, October 16, 2013
In Appeal No.0120131136 (August 13, 2013), the EEOC found that a federal agent’s claim of harassment based on his perceived sexual orientation was a claim based on the perception that he did not conform to gender stereotypes of masculinity, and therefore stated a viable claim under Title VII. The agent alleged that he was repeatedly subjected to harassment by his coworkers who used derogatory terms; told him he was going to be fired because of his sexual orientation; and told him he was unwelcome and that he should find another job. He alleged that his coworkers did not want to work with him, avoided him at work, and excluded him from work assignments and trips.
The complainant also alleged that when he reported the harassing incidents to his supervisor, nothing was done. He alleged that after complaining about the harassment, management subjected his work to increased scrutiny. After he filed his formal EEO complaint, the harassment by managers and coworkers against him increased. Information regarding his EEO complaint was passed around to other agents who made fun of him for filing the complaint, a derogatory term was written on his gun bag, and sexually explicit gay and lesbian magazines were placed in his rental car while he was on travel status.
The EEOC found that he was harassed on the basis of his sex and that he was harassed in reprisal for his protected EEO activity. The EEOC also found that he had been ostracized by his supervisors and coworkers and that his work was subjected to stricter scrutiny by his supervisors than the work of other employees. Additionally, the EEOC found that the agency was vicariously liable for the harassment because, despite his complaints, the supervisors failed to take appropriate action to stop the harassment and did not exercise reasonable care to prevent or correct the harassing behavior.
The EEOC ordered the agency to take immediate and effective measures to insure that all discriminatory and retaliatory conduct directed at him cease, and ordered the agency to place him on a different work team with coworkers and supervisors who were not involved in the discriminatory conduct. Additionally, the EEOC ordered the agency to “strongly consider taking appropriate disciplinary action against the coworkers and supervisors” involved in creating the hostile work environment. Finally, the EEOC ordered the agency to conduct a supplemental investigation on the issue of the complainant’s entitlement to compensatory damages.
This case is a significant finding by the EEOC because it reaffirms the Commission’s position that it has jurisdiction over claims of gender stereotyping and perceived sexual orientation discrimination under Title VII’s prohibition against sex discrimination. As the Commission stated, while Title VII does not explicitly include sexual orientation as a basis for protection under the law, the law’s broad prohibition of discrimination on the basis of sex offers coverage in certain circumstances