The EEOC recently held that a supervisor’s 21-day delay in responding to a sexual harassment allegation constituted a failure to act promptly to address harassment. Complainant v. Department of Defense, Defense Commissary Agency, EEOC No. 0120130331 (May 29, 2015). A store associate alleged that she was subject to sexual harassment by a male coworker in the form of sexual comments, requests for sexual favors, and sexual touching of her buttocks. The agency failed to explain why it took the supervisor 11 days to speak to the associate after he learned of the alleged harassment or why did he not take any steps to immediately address the allegations as he didn’t speak to the coworker until 21 days after he learned of the allegations.

The EEOC found that the associate’s allegations were similar to that of a female coworker and rejected the agency’s argument that the conduct was welcome. The associate and the female coworker had repeatedly told the male coworker to stop his sexual harassment, but his response was to laugh and walk away. The Commission cited the similarities in their experiences and noted that after the supervisor had concluded his investigation, he only proposed a suspension for the male coworker. There was no evidence that the complainant had also engaged in inappropriate conduct as no discipline was proposed.

The EEOC determined that the male coworker’s actions were sufficiently severe or pervasive to create an abusive working environment. The touching of the female associate’s buttocks was itself sufficiently severe to constitute a hostile work environment. The Commission also noted that the supervisor did not immediately separate the complainant and the male coworker after learning of alleged harassment and later forced the complainant, but not the male coworker, to change her shift, which could have stated a claim for reprisal.

This decision points out the need for agencies to take prompt remedial action when employees complain about sexual harassment from coworkers as well as from supervisors and managers.

* This information is provided by the attorneys at Passman & Kaplan, P.C.