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Legal Matters: Holidays bring sexual harassment complaints

We’d like to think the holiday season brings out the best in people, but there are some who will take the holidays’ messages of good cheer too far.

 By Mathew B. Tully, Esq.

We’d like to think the holiday season brings out the best in people. But years of practice in federal employment law has taught me that there are some who will take the holidays’ messages of good cheer too far.

Like presents under the Christmas tree, or Hanukkah gifts, sexual harassment complaints are bountiful during the holiday season. Some supervisors may view the holidays as an opportunity to crudely goof around or express affection for a subordinate. But their misguided attempts to evoke the holiday spirit often backfire.

For example, Tamburello v. MSPB involved a U.S. Postal Service branch operations manager whose male employees complained about their office lacking Christmas decorations. In response, the manager, who was wearing a Santa Claus hat at the time of the comment, told a female employee to walk down an aisle. He then told the male employees that the woman was their decoration. This incident prompted the agency to charge the manager with conduct unbecoming of a postal supervisor for exposing an employee to ridicule and embarrassment. For this misconduct, and other sexually harassing and unbecoming conduct, the agency demoted and transferred the supervisor.

Agency supervisors must also be careful when giving cards to subordinates. This holiday staple can quickly damage a federal career, especially when the card aims at vulgar humor. For example, Ferrer v. Dep't of the Navy involved a Department of the Navy police officer whose immediate supervisor gave her a holiday card saying, “Merry Christmas BB. I say that with love so don't get mad. Thanks…for the job you did for me this year….” In the card, “BB” stood for “Big Butt.” An administrative law judge found this nickname to be “inappropriate,” but it did not rise to the level of sexual harassment. Regardless, the agency relieved the supervisor of his duties, reassigned him, and suspended him for five days for conduct unbecoming of a supervisor.

It is important to note that in both of these cases, the inappropriate holiday conduct did not rise to the level of sexual harassment, which is prohibited by Title VII of the Civil Rights Act. As the Equal Employment Opportunity Commission noted in Shaw v. Dep't of the Navy, sexual harassment involves “unwelcome conduct” related to an employee’s sex. The harassment must be based on the employee’s sex, and it must have the “purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive working environment.” Lastly, the agency must be put on notice of this harassment.

One of the the most important aspects of a sexual harassment claim is this last component. Often employees do not immediately report a supervisor’s unwanted advances or other harassing conduct, hoping it will not happen again. But when it does happen again, their case is missing this notice requirement. That was part of the defect with the sexual harassment complaint in Shaw. This case involved a Navy recreational aide who filed an EEO complaint claiming her supervisor subjected her to a hostile work environment when he kissed her on the cheek at a holiday party. A few months earlier, he also kissed her when she returned from vacation. Given that the employee did not initially complain about this first kiss, the EEOC concluded that the alleged harassment was not severe or pervasive enough to create a hostile or abusive working environment.

Federal employees should not let the crude behavior of supervisors or co-workers spoil their holidays. If they have been subjected to sexual harassment, they should immediately consult with a federal employment law attorney to explore whether they should file an EEO complaint.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. He concentrates his practice on representing military personnel and federal employees and can be reached at mtully@fedattorney.com. To schedule a meeting with one of the firm’s federal employment law attorneys call 202-787-1900. The information in this column is not intended as legal advice.

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