An employer may not take an adverse employment action against an employee for behavior that was caused by the employer’s failure to properly respond to employee’s previous complaints regarding harassment on the basis of membership in a protected class under Title VII of the Civil Rights Act of 1964. A female employee who was the only African-American employee in her division, alleged that the agency revoked her law enforcement commission in retaliation for her earlier filing of an equal employment opportunity (EEO) complaint after she was subjected to harassment based on her race, when co-workers posted derogatory personal attacks against her in a men’s locker room that referenced her speaking “Ebonics” and an “Ethnic Expressions” catalogue was left under her office door. To establish a claim of harassment under Title VII, as amended, 42 U.S.C. § 2000e et seq., a complainant must show that: “(1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose 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.” The EEOC determined that the employee established that she was subjected to a hostile work environment after being routinely ridiculed and intimidated in the office in a way that reflected racial animus against her, and the agency’s failure to adequately respond to her complaint led directly to the behavior—including crying, absences from work, and a withdrawn demeanor while at work—that the agency cited as its basis for suspending her commission.
See Bryant v. Salazar, EEOCDOC 0120091468 (Aug. 31, 2012)l see also Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Westlaw EEOC Compliance Newsletter, PN9100000000008712, 2012 WL 4468451 (Oct. 1, 2012);
(Development authored by Eileen Lohmann)