Standard for Sexual Harassment

The EEOC recently held that a contract specialist for the National Institutes of Health was subjected to sexual harassment when her supervisor repeatedly asked her out on dates, and when she refused, he delayed her promotion and denied a step increase. Hadley v. Dept. of Health and Human Services, Appeal No. 0120113029 (12/6/11). Hadley had requested a final agency decision (FAD), rather than an EEOC hearing, but the FAD found that she failed to establish that the agency’s articulated reasons were pretextual. The Office of Federal Operations reversed, finding that the supervisor’s conduct was unwelcome.

To establish a claim of harassment, a complainant must show that: 1. she belongs to a statutorily protected class (gender in this case); 2. she was subjected to unwelcome verbal or physical conduct; 3. the harassment complained of was based on her gender; 4. the harassment affected a term or condition of employment and/or had the purpose of or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile or offensive work environment; and 5. there is a basis for imputing liability to the employer. Furthermore, the incidents must have been sufficiently severe or pervasive to alter the conditions of the complainant’s employment and to create an abusive working environment. An employer is subject to liability for harassment when harassment is created by a supervisor or manager with authority over the employee.

In this case, the supervisor asked the employee out on a date and repeatedly inquired why she would not see him. He also sent her an email asking to take her out for her birthday. While Hadley never informed the supervisor that the attention was unwelcome, she indicated that she didn’t feel that she could say no to her supervisor. After Hadley spoke to another supervisor, her immediate supervisor apologized to her. According to the EEOC, such evidence shows that not only were her supervisor’s repeated actions were unwelcome, but that he knew that they were unwelcome. As a remedy, the Commission ordered the agency’s to change Hadley’s personnel records to reflect a step increase, to pay back pay, to conduct a supplemental investigation on compensatory damages and to consider taking disciplinary action against the responsible management officials.