Blaming the Victim, Or How Not to Respond to a Complaint

By Meghan Droste, August 19, 2020

While preparing slides for a webinar on involving race, national origin, and religious discrimination, I came across a 2015 Commission decision that is too surprising not to share, even though it doesn’t fit my usual criteria of being a recent decision.  The ultimate outcome of the decision is not a surprise (Spoiler Alert: It did not end in the Agency’s favor), but the Agency’s approach to the entire situation is.

Complainant v. Tennessee Valley Authority, EEOC App. No. 0120123132 (May 14, 2015), involves one of the most invidious forms of race discrimination — a noose in the workplace.  As the Commission recounts, the complainant first observed a noose hanging in the back of an agency vehicle on August 5.  He brought it to the attention to the two coworkers who were in the truck at the time.  Apparently neither of them did anything about it because on August 11, the complainant saw the noose again in the back of the same truck.  He told his supervisor, who responded by informing him that the noose wasn’t a “legal” noose because it only had seven knots instead of 13.

Dissatisfied with this (lack of a) response, the complainant told the yard operations supervisor about the noose. This supervisor showed the noose to four other employees, but remarkably no one removed the noose from the truck. The noose remained up for four more days. On August 19, the complainant’s supervisor read the agency’s anti-harassment policy to the yard staff during a meeting but did not make any reference to the noose or address the issue.  On August 22, a member of management alerted agency security officers about the noose. Officers waited until September, more than a month after the complainant first observed the noose, to begin an investigation.  At some point during this time, the agency issued a write-up to the complainant, admonishing him for not reporting the noose sooner.

As you can expect, the Commission reversed the agency’s FAD which found no discrimination.  In the appeal, the agency argued that it was not liable because it had taken prompt and effective corrective action when it became aware of the noose. The Commission soundly rejected this.  Nothing about the agency’s response was prompt or effective:

• The agency allowed the noose to remain up for 10 days after the complainant first reported it.
• The complainant’s supervisor responded to the seeing the noose by declaring it not a “legal” noose.
• The agency did not address the noose or the seriousness of the issue during the staff meeting.
• The agency made no effort to investigate the origins of the noose until a month after the complainant reported it.
• And, of course, the agency disciplined only the complainant and not any of the supervisors who were aware of the noose and failed to take action.

It is hard to imagine any other ways in which the agency could have mishandled this incident.  The only good that I can see from this is that we can all look to this as an example of everything an agency should not do when confronted with harassment. Droste@FELTG.com