The EEOC has upheld a finding of discrimination in a case where the majority of the discriminatory harassment was carried out anonymously by the complainant’s coworker. In EEOC Appeal No. 0720130030 (December 12, 2014), the employee who suffered the harassment was repeatedly slandered in a series of anonymous communications sent to agency management and to media regarding hiring practices. An internal agency investigation found no support for the allegations.

The employee filed an EEO complaint alleging that the agency subjected him to discrimination resulting in a hostile work environment. The administrative judge who heard the case found that the agency failed to afford the employee (an African-American) with the same protections against harassing leaks to the press that it had afforded a white employee. The AJ issued a finding of discrimination against the agency. The agency rejected the finding, and the employee appealed.

On appeal, the Commission determined that the AJ’s disparate treatment analysis was inappropriate for the circumstances of the case. Instead, the Commission employed a hostile work environment analysis, finding that although the harassing communications were sent from an “anonymous” source, agency management had substantial evidence of the identity of the source, and indeed, believed they knew who it was. However, the source was not the complainant’s manager, and the agency would thus not be strictly liable for the harassment unless it knew or should have known of the discriminatory harassment and failed to take appropriate corrective action.

The Commission concluded that the agency had not taken sufficient steps to stop the leaks, which resulted in the hostile work environment. The Commission determined that the agency had not conducted an effective investigation into the identity of the employee who made the leaks, even when agency managers were all but sure. The Commission affirmed the finding of discrimination against the agency.

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