We represent federal, Virginia and Washington, D.C. employees in hostile work environment claims. If you have been mistreated at work, especially in a consistent and/or repetitive manner, you might describe it as a “hostile work environment” based on harassment. But in a legal context, this term has a very specific meaning. Not all difficult or abusive workplace situations are actionable under anti-discrimination laws. If a situation is actionable, you may need to act quickly—especially if you are a federal government employee—in order to preserve your rights and potentially obtain relief. It is therefore particularly important to obtain legal counsel as early as possible in order to determine whether your case meets the relevant criteria to bring legal action. An EEO lawyer can also advise you as to what can be done to pursue the claim based on your type of employment and the facts of the case. Regardless, understanding the type of claim is a good first step.
Basics of a Proper Hostile Work Environment Claim
The federal anti-discrimination laws recognize two basic types of harassment claims, and they are fairly intuitive on a surface level: the harassment is either a pattern of conduct (or other change affecting the work environment in an ongoing way), or it is a discrete action standing by itself, such as a termination. If it is a pattern of abusive treatment, or an ongoing and harmful changed condition of the employment, it can be called a “hostile work environment,” often shortened to HWE. The idea behind HWE is that even if an employee is not directly fired, demoted, or otherwise subjected to a specific adverse action, the “terms and conditions” of their employment can still be changed—either formally, or informally and thus “constructively”—by a sufficiently substantial alteration to the work environment.
Two Key Components of HWE Claims
There are two key components of a proper HWE claim under federal law. The first component is that you must have been subjected to “unwelcome conduct” that was, or is, “severe or pervasive”—enough for the overall work environment to reasonably considered “hostile or abusive.” The second component, which is not obvious to many people and which is the source of much confusion, is that however the “unwelcome conduct” may be manifested, it must also be based on your membership in a legally protected group.
Protected Groups
Protected groups include race, color, or national origin; religion; sex and/or gender, including related statuses such as pregnancy; age; disability; genetic information; or having engaged in prior “protected” Equal Employment Opportunity (EEO) activity such as complaining about discrimination or participating in another’s EEOC complaint adjudication. (Discrimination on the basis of prior protected activity is called retaliation or reprisal). Note that this is at the federal level. States may add their own protected groups under their own anti-discrimination laws, but you can’t use state-specific additions to that list if you pursue your case via the federal EEO complaint process. For example, Virginia law protects against discrimination on the basis of marital status or military veteran status; at the federal level, you might have to make a marital status claim using a sex- or gender-based argument, and you would have to potentially pursue the veteran discrimination claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA is a separate statute with a separate complaint and adjudication process. You would have to pursue state-level anti-discrimination processes to use the “extra” protected statuses, and the efficacy of those processes can vary substantially by state.
Nexus Requirement
The second component of tying the HWE to a protected status is critical. Absent this “nexus” component, a claim of harassment or HWE will not survive scrutiny under the federal EEO process. That means that abusive work environments which are not based on any of the protected statuses cannot properly be claimed as a “hostile work environment” under these workplace laws, even if they are based on, e.g., intense personal animus or egregiously targeted and arbitrary adverse action. While such situations could be remediable via other processes, such as the Office of Special Counsel (OSC) if you are a federal employee, or via other state protections, it is important to keep in mind that private companies generally enjoy “at will” employment protections. This means they are allowed to fire or otherwise take adverse action against an employee for any reason or even no reason, as long as it is not a discriminatory reason based on these protected statuses. And for federal agencies, arbitrary or otherwise unsupported personnel action could be appealable to the Merit Systems Protection Board (MSPB) or reported to OSC, but it is not independently an EEO claim.
Subjective Versus Objective HWE
The EEOC necessarily follows Supreme Court precedent regarding these legal issues. In 1993, the Supreme Court laid out a framework for HWE claims, including with the “severe or pervasive” standard. In that same seminal case, Harris v. Forklift Systems, Inc., the Court also imposed a two-pronged standard for deciding when a work environment is sufficiently “hostile:” it must be both subjectively hostile and objectively hostile.
Objective Hostility
Objective hostility uses the classic legal hypothetical of “reasonableness:” would a “reasonable person” find the work environment objectively hostile or abusive? If not, the claim may not be actionable regardless of what the employee subjectively believes. Because this determination is not made by a complainant themselves, it is worth considering whether a neutral decisionmaker (i.e., a judge or jury) is likely to find that an average, rational person in the employee’s position would find the work environment hostile and/or abusive.
Subjective Hostility
Subjective hostility means that the employee must subjectively believe and perceive the workplace to be hostile and abusive before a HWE claim is valid. This may seem silly—why would somebody claim HWE if they don’t personally consider it hostile or abusive?—but that is the point here: you cannot claim HWE if you don’t personally find the environment to be hostile or abusive, even if a reasonable person would and the only reason you don’t is because you don’t mind it. In other words, you cannot receive a windfall just from being willing to put up with something that a hypothetical “reasonable” employee would find to be objectively hostile.
Together, this means that an unreasonably sensitive person cannot claim HWE over a situation where a reasonable person would not mind, and likewise, an especially stoic person cannot claim HWE without actually perceiving the hostility or abuse as harmful to themselves or their employment. Both subjective and objective hostility must be present.
Further Considerations
Alongside satisfying the “severe or pervasive” standard, demonstrating both subjective and objective hostility, and showing how the problematic actions were based on or motivated by one or more protected statuses, HWE cases often involve even more granular analyses. For example, was the conduct “unwelcome?” How should this be argued in a case with a wide range of allegedly discriminatory and harassing conduct? What if a separate incident is also part of a broader pattern? These issues can get complicated very quickly, which is why experienced representation can be an especially beneficial asset in pursuing a HWE claim.
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Although the umbrella concept of “harassment” can include HWE and “regular,” perhaps more isolated harassing conduct by an employer, there are various stages of the EEOC complaint, investigation, and adjudication processes during which presenting the claims properly can be critically important. Even if a mistake can be rectified later in terms of a claim’s phrasing, a complainant misunderstanding and mis-alleging an EEO-related harassment claim can cause problems with how the complaint is processed, investigated, and ultimately adjudicated. As a result, the distinctions between HWE and “other” harassment are helpful to know from the very beginning, and knowledgeable legal counsel can help tailor how your claims are presented in order to achieve the best possible outcome for your case.If you are seeking representation before the EEOC, you can contact us via our website, www.berrylegal.com, or by phone at (703) 668-0070, to arrange for an individual consultation.
This article discusses the Equal Employment Opportunity (EEO) mediation process for federal employees. Our law firm represents federal employees in discrimination, harassment, retaliation and sexual harassment cases before the Equal Employment Opportunity Commission (EEOC) and/or individual federal agency EEO offices. Many retaliation, discrimination or sexual harassment cases filed through the EEO process proceed to mediation, which is often a good idea.
This article discusses the EEO mediation process and the potential benefits associated with engaging in that process for both parties involved.
What is the EEO Mediation Process?
Mediation is a voluntary procedure where the parties attempt to avoid litigation and resolve a complaint early in the process. Once the EEO complaint process has started federal employees and agencies can attempt mediation first. If mediation is agreeable, then a mediator is assigned. The EEOC provides an excellent general summary of the general mediation process.
The mediator assigned to a case does not make a finding as to who is right or wrong and has no authority to impose a settlement on the employer and complainant. Instead, the EEO mediator attempts to assist the parties in exploring and resolving their differences and hopefully come to a settlement of the case. There is also no fee by from the federal agency for the mediator as it is a benefit provided by the federal government to resolve cases.
Who Attends the EEO Mediation Session?
Usually, once mediation is scheduled, both parties and their lawyers will attend, along with the mediator. The mediator can be someone employed by the agency or a third-party contractor. The background of a mediator varies significantly. It is very useful, however, to have an attorney for both parties to attempt to resolve the case at the earliest stage possible. Furthermore, once an agreement is reached you will need counsel to prepare a written agreement over the terms agreed to.
How Does EEO Mediation Work?
Usually, mediation will be held at a location located in a conference room at the federal agency. Sometimes mediation is conducted by Zoom or Microsoft Teams. The session will usually last from a few hours to a day. Once the mediation session begins, the process usually will proceed as follows:
1. The mediator provides a copy of the mediation agreement. The mediation agreement will ensure that any discussions at mediation are held confidential; they can’t be used later in litigation if settlement does not work out.
2. The mediator will begin by explaining the mediation process to the parties. Mediators, depending on their experience, how many different ways of conducting a mediation.
3. The parties will each provide an opening statement about their position in the case. It is often helpful for the employee to explain how they suffered discrimination, sexual harassment, or retaliation. The Government will then provide their own statement in response.
4. The parties will then usually discuss the EEO complaint. The mediator may attempt to steer the discussion into a dialogue to attempt to get the parties to begin a discussion.
5. The parties may then discuss resolving the complaint or the parties may be separated in separate rooms. A mediator may go back and forth between the parties discussing proposals and responses from each side.
6. The most important part of the mediation process are the caucus sessions; that is where most agreements are found.
7. The mediator will attempt to bring the parties to terms agreeable to both sides, typically a compromise between what both sides want. Sometimes this occurs, and sometimes this does not.
8. If settlement terms are agreed to, the next step will be to reduce the agreement to writing and have all parties execute the agreement.
Formal Written Settlement Agreement
Following a verbal agreement between the parties agreed to at mediation, a written settlement agreement is completed. Usually, where parties are represented by counsel, this will be drafted and reviewed by the attorneys. The agreement will bind both parties to a resolution and the agreed-to terms of the settlement (e.g. reinstatement, benefits, severance, backpay, promotion, attorney fees). When a settlement agreement is signed, the EEO complaint will be then withdrawn as part of the agreement.
According to EEOC statistics, the settlement rate at mediation is approximately 72-75%. We consider it a victory if both parties can resolve a case and save the time and costs of further litigation through dispute resolution efforts.
When Mediation Doesn’t Work Out
If mediation doesn’t work out, then the parties can return to the normal complaint process without any loss of rights. An investigator will be assigned and conduct the investigation. It is generally a good idea to try to mediate an EEO complaint first before going through the investigative process, as many cases do settle.
If you are a federal employee in need of assistance with filing an EEO complaint or mediation, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
