EEOC: Federal employee harassed and constructively discharged. Complainant filed an appeal with the Employment Opportunity Commission (EEOC) in response to the Agency’s Final Decision concerning his EEO complaint alleging employment discrimination in violation of the Civil Rights Act. On appeal, the EEOC’s Office of Federal Operations (OFO) determined that Complainant had established through a preponderance of the evidence that he was subjected to harassment and constructively discharged based on his sexual orientation; however, the OFO also had to determine whether there was a basis for imputing liability to the Agency. The OFO held that the Agency was liable because although the Agency removed the harasser from the work schedule, it allowed her to return as a customer where she continued to harass and threaten the Complainant. they failed to adequately assert an affirmative defense and Complainant had proven constructive discharge. The OFO noted that in some circumstances an Agency can be liable for harassment of an employee by a non-employee such as a customer by allowing the harassing behavior to continue despite the Agency’s knowledge. Complainant was reinstated to his position pending his acceptance, and the case was remanded to determine appropriate damages.

Silas T. v. Dep’t of the Air Force, EEOC Appeal No. 2019003996 (May 24, 2021)