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The Three R’s of Anti-Harassment

 

 

 
 
   
   
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(Credit: istockphoto.com/RapidEye)

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“Harassment is the one type of discrimination that can be stopped in progress.” 1

Army commanders are familiar with the programmatic R’s that stand for Ready and Resilient, and their alignment with the Sexual Harassment/Assault Response and Prevention initiative. But, when it comes to management of Civilian employees, leaders at all levels could use a primer on three related requirements that resonate in the broader anti-harassment context: recourse, relief, and ramifications.

As a federal government employer, the Department of the Army (Agency) is responsible for preventing both sexual and non-sexual harassment in the workplace; providing a sensible, accessible system for reporting allegations; investigating credible claims; effecting remedial relief where liability or culpability is found; and holding offenders accountable. Federal and Agency policy also favor early resolution of employment disputes, wherever possible. These overlapping functions are accomplished through different channels. So, while conceptually successive, they can and should occur simultaneously in practice—a premise that is often misunderstood, especially when individual equal employment opportunity (EEO) claims are resolved via negotiated settlement. This article discusses why and how the Agency must meet these various obligations.

Federal Employment Discrimination Law

Title VII of the Civil Rights Act of 19642 (Title VII) initially defined prohibited employment discrimination as follows: “It shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”3 Title VII also provided for creation of its own governing body, the Equal Employment Opportunity Commission (EEOC), established in 1965.

Further development of federal employment law on discrimination in the interim has included the Age Discrimination in Employment Act (ADEA) of 1967,4 as amended by the Older Workers Benefit Protection Act (OWBPA) of 1990;5 the Pregnancy Discrimination Act of 1973 (which amended Title VII);6 the Rehabilitation Act of 1973,7 as amended; the Americans with Disabilities Act (ADA) of 1990,8 as amended by the ADA Amendments Act (ADAAA) of 2008;9 the Civil Rights Act of 1991 (which amended both Title VII and the ADA);10 the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act);11 and the Genetic Information Nondiscrimination Act (GINA) of 2008.12

Consequently, the list of prohibited bases for employment discrimination, under laws enforced by the EEOC, has expanded. The EEOC is currently responsible for enforcing “federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.”13 In addition to protecting these characteristics, federal discrimination law protects civilians who engage in EEO activity: “It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.”14 Retaliation for protected EEO activity is commonly referred to as reprisal.

Harassment as Discrimination

It is well-settled that harassment—whether sexual or non-sexual—is a form of discrimination under federal employment law, when it occurs in or with a nexus to the workplace.15 Harassment is unwelcome conduct based on protected status or activity that “becomes unlawful where (1) enduring the offensive conduct becomes a condition of continued employment, or (2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.”16

Types of discriminatory harassment include: sexual harassment (quid pro quo); hostile work environment; religious coercion; and retaliatory harassment, which can encompass either after-action reprisal or up-front interference that creates a “chilling effect” on the exercise of EEO activity.17

Sometimes retaliatory conduct is characterized as ‘retaliatory harassment.’ The threshold for establishing retaliatory harassment is different than for discriminatory hostile work environment . . . . If the conduct would be sufficiently material to deter protected activity in the given context, even if it were insufficiently severe or pervasive to create a hostile work environment, there would be actionable retaliation.18

EEOC Anti-Harassment Policy Directive

On 1 October 2003, the EEOC issued EEO Management Directive 715 (MD-715), which establishes that model EEO programs, which federal government employers are supposed to emulate, must issue written policies and procedures for addressing all forms of harassment.19 As “legal authority for this requirement,” the EEOC cited two Supreme Court decisions concerning harassment liability20 for the proposition that a government employer with “many departments in far-flung locations” could not protect against harassment “without communicating some formal [anti-harassment] policy, with a sensible complaint procedure.”21

In Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), the Supreme Court made clear that employers are subject to vicarious liability for unlawful harassment by supervisors. The standard of liability set forth in these decisions is premised on two principles: (1) an employer is responsible for the acts of its supervisors, and (2) employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment. In order to accommodate these principles, the Court held that an employer is always liable for a supervisor’s harassment if it culminates in a tangible employment action. However, if it does not, the employer may be able to avoid liability or limit damages by establishing an affirmative defense that includes two necessary elements:

  • The employer exercised reasonable care to prevent and correct promptly any harassing behavior, and
  • The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.22

So, the rationale for this measure was preventive—against the incidence of harassment itself and against employer liability, where it did occur.

While the anti-discrimination statutes seek to remedy discrimination, their primary purpose is to prevent violations. The Supreme Court, in Faragher and Ellerth, relied on [EEOC] guidance which has long advised employers to take all necessary steps to prevent harassment. The new affirmative defense gives credit for such preventive efforts by an employer, thereby ‘implement[ing] clear statutory policy and complement[ing] the Government’s Title VII enforcement efforts.’23

The EEOC explained: “The question of liability arises only after there is a determination that unlawful harassment occurred. Harassment does not violate federal law unless it involves discriminatory treatment . . . or protected activity under the anti-discrimination statutes.”24 Nonetheless, as a model employer: “An agency’s internal anti-harassment process should take immediate and appropriate corrective action to eliminate harassing conduct regardless of whether the conduct violated the law.”24

In addition to responding promptly, the goal of the anti-harassment policy is to prevent harassment before it becomes severe or pervasive . . . it can be used to avoid liability at the outset by correcting harassing conduct before it is cumulatively ‘severe or pervasive’ enough to constitute a legal claim of harassment.25

Under the EEOC’s Enforcement Guidance, an agency’s anti-harassment policy should contain:

  • A clear explanation of prohibited conduct;
  • Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;
  • A clearly described complaint process that provides accessible avenues of complaint;
  • Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
  • A complaint process that provides a prompt, thorough, and impartial investigation; and
  • Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.26

Recourse

The Army’s written policy and procedures for civilian anti-harassment were incorporated into a major revision of Army Regulation (AR) 690-12, Equal Employment Opportunity and Diversity (formerly Equal Employment Opportunity and Affirmative Action).27 Army Regulation 690-12 places responsibility squarely on the shoulders of “Commanders at all levels” to: “Execute EEO programs and create an inclusive command climate in which it is clear to all Soldiers and civilians that unlawful discrimination and harassment (sexual/non-sexual) will not be tolerated.”28 It also specifically provides that all supervisors and management officials, whether Civilian or military, who supervise Army employees “have a responsibility to maintain a workplace free of harassment” and requires them to “make reasonable efforts to prevent and promptly correct harassing behavior in the workplace.”29

In keeping with the principles espoused by the EEOC, the Army procedures indicate that

[w]hen an employee makes a complaint to a management official about alleged harassment, the Army will investigate the allegation regardless of whether the harassment rises to the level of being severe or pervasive. Complaints of harassment do not need to conform to any particular format or be in writing.30

And, more specifically:

Supervisors and managers of Army civilian employees will promptly address allegations of harassment with the employees directly involved in the incident, along with any witnesses who might have firsthand information. Managers must take prompt preventive and corrective action, including discipline, as appropriate, in consultation with the servicing staff judge advocate and the Labor Management Employee Relations (LMER) staff.31

The regulation defines harassment and acknowledges the requirement for “prompt and appropriate corrective action” to avoid liability, as follows

D–1. Unlawful Harassment

a. Unlawful harassment includes, but is not limited to, unwelcome conduct, intimidation, ridicule, insult, offensive comments or jokes, or physical conduct based on race, color, religion, sex (whether or not of a sexual nature), national origin, age (over 40), disability, genetic information, or reprisal when an employee’s acceptance or rejection of such conduct explicitly or implicitly forms the basis for a tangible employment action affecting the employee, or the conduct is sufficiently severe or pervasive as to alter the terms, conditions, or privileges of the employee’s employment or otherwise create a hostile or abusive work environment.

b. The harasser can be a person’s supervisor, a supervisor in another area, a coworker or someone who is not an employee of the agency, such as a contractor or customer.

c. The Army may be liable for unlawful harassment by a supervisor that results in a tangible (negative) employment action, such as termination or a failure to promote. If the supervisor’s harassment results in a hostile work environment, but not in a tangible employment action, the Army may nevertheless be liable, unless—

(1) Management reasonably tried to prevent and promptly correct the harassing behavior, and

(2) The employee unreasonably failed to take advantage of any preventive or corrective opportunities the Army provided.

d. The Army may be liable for harassment by nonsupervisory employees or nonemployees it has control over (for example, independent contractors or customers on the premises), if management knew or should have known about the harassment and failed to take prompt and appropriate corrective action.32

The procedures outline avenues of recourse in addition to those found in AR 600-20, Army Command Policy,33 and AR 690-600, Equal Employment Opportunity Discrimination Complaints,34 for Civilian employees experiencing or perceiving harassment. Specifically:

D–4. How to Report Harassment

a. An employee who believes another person has subjected them to unwelcome harassing conduct should inform the person(s) responsible for the conduct that it is unwelcome and offensive and request that it cease.

b. If the conduct continues, or if the employee is uncomfortable confronting the responsible person(s) about the conduct, he or she should immediately report the matter to his or her immediate supervisor, the supervisor of the harasser or any other management official in the chain of command. The employee may also report the matter to other officials, including The Inspector General, EEO or CPAC [Civilian Personnel Advisory Center] LMER personnel, union officials, or chaplains. If using these alternative options to report harassing conduct, the employee should give the official permission to notify the employee’s supervisory or management chain.35

Accordingly, and importantly, whenever a manager or supervisor of a Civilian employee becomes aware that the employee is being subjected to unwelcome conduct, that official must ensure that an investigation or inquiry is conducted, regardless of whether the employee has already initiated or goes on to file an EEO complaint.

When an Army employee, former employee, or applicant files a formal EEO complaint, any claims that are accepted by the servicing EEO officer will be investigated by the Department of Defense (DoD) Investigations and Resolutions Directorate (IRD), as part of EEO’s complaint processing procedures.36 However, management should not sit back and wait for that investigation to wrap up before conducting its own internal investigation or inquiry. According to Mr. Spurgeon Moore, Director, Army EEO Compliance and Complaints Review: “If an employee reports harassment to a supervisor, that supervisor should still initiate an inquiry, even if the employee has initiated an EEO complaint” slated for investigation by IRD.37 “One doesn’t preclude the other. They can do that simultaneously,” Mr. Moore explains.38

Notably, the first thing IRD will ask management witnesses when investigating a claim of harassment is what prompt, appropriate corrective action they took when they learned of the alleged harassment. Moreover, since the IRD investigation may not occur for several months following the initiation of the EEO complaint,39 the expectation is that such action would have already been taken.

Relief

The distinction between an IRD investigation of an EEO claim(s) and an internal Army investigation of an allegation(s) of harassment lies in the type of remedy each of these processes is able to afford. Under the EEO laws, victims of discriminatory harassment are “made whole” by remedial relief that is awarded to them personally and individually, but the EEOC is not able to direct the Army to take disciplinary or other measures against the personnel who engaged in the misconduct.40 Only the Army can do that—specifically, management officials in consultation with the servicing LMER specialist and labor counselor—and it must be done in keeping with the alleged offender’s own due process rights to notice of any proposed adverse action and an opportunity to respond to the charge(s) and supporting materials. Such evidence could properly consist of sworn statements taken during an AR 15-6 investigation,41 commander or management official inquiry,42 or the like, without having to wait for the investigative report generated in the EEO complaint.

By contrast, an EEOC administrative judge or the Army Director of EEO, if no hearing is requested, can only award prevailing complainants certain equitable remedies such as retroactive reinstatement or promotion, back pay, front pay, and reimbursement of attorney’s fees and costs, as well as pecuniary and/or non-pecuniary compensatory damages, sufficient to place them in the position or restore them to the circumstances that they would have been in absent the unlawful discrimination.43 As such, federal agencies’ “EEO process and anti-harassment programs do not exist for the same purposes.”44

The EEO process is designed to make individuals whole for discrimination that already has occurred through damage awards and equitable relief paid by the agency and to prevent the recurrence of the unlawful discriminatory conduct. See Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); Clarke v. Department of Justice, EEOC Appeal No. 01922561 (1992). However, the EEO process cannot require an agency to discipline its employees. See Cagle v. U.S. Postal Service, EEOC Appeal No. 01903198 (1990). The internal anti-harassment program, on the other hand, is intended to take immediate and appropriate corrective action, including the use of disciplinary actions, to eliminate harassing conduct regardless of whether the conduct violated the law. Ultimately, the goal of the anti-harassment program is to prevent harassing conduct before it can become ‘severe or pervasive.’45

To that end, Agency management has an obligation to take prompt, appropriate corrective action to stop the harassment, prevent its recurrence, and remediate the workplace environment, regardless of the initiation or outcome of the alleged victim’s EEO claims.

In its Enforcement Guidance, the EEOC offers the following:

Examples of Measures to Correct the Effects of the Harassment:

  • Restoration of leave taken because of the harassment;
  • Expungement of negative evaluation(s) in employee’s personnel file that arose from the harassment;
  • Reinstatement;
  • Apology by the harasser;
  • Monitoring treatment of employee to ensure that s/he is not subjected to retaliation by the harasser or others in the work place because of the complaint; and
  • Correction of any other harm caused by the harassment (e.g., compensation for losses).46

In this regard, the EEOC cautions: “Remedial measures should not adversely affect the complainant. Thus, for example, if it is necessary to separate the parties, then the harasser should be transferred (unless the complainant prefers otherwise).”47 This is because “[r]emedial responses that penalize the complainant could constitute unlawful retaliation and are not effective in correcting the harassment.”48

Ramifications

It should be noted that an internal commander’s inquiry could potentially establish that there was no actionable harassment or misconduct on the part of the subject supervisor or coworker. Or, it may be determined that the responsible management official is non-culpable, for instance, if he or she acted with advice from counsel or upon direction from a higher authority, or the violation was per se or de minimis.49 In such cases, the evidence gathered during that Army-regulated command inquiry may be relied upon during an IRD investigation or under the regulatory procedures to show that no corrective action was necessary.

However, in the event the inquiry turns up evidence of harassment, hostile work environment, retaliation or other misconduct, the EEOC’s Enforcement Guidance suggests the following:

Examples of Measures to Stop the Harassment and Ensure that It Does Not Recur:

  • Oral or written warning or reprimand;
  • Transfer or reassignment;
  • Demotion;
  • Reduction of wages;
  • Suspension;
  • Discharge;
  • Training or counseling of harasser to ensure that s/he understands why his or her conduct violated the employer’s anti-harassment policy; and
  • Monitoring of harasser to ensure that harassment stops.50

The Army regulation provides as follows in this regard:

D–6. Action to Take After an Inquiry

a. Upon completion of the inquiry or investigation, the management official who is responsible for taking disciplinary action against the alleged harasser will promptly evaluate the evidence and determine the appropriate action to take in consultation with the servicing staff judge advocate and the LMER specialist in the servicing CPAC. This responsibility normally rests with the first-line supervisor of the employee alleged to have engaged in the harassing conduct, unless the supervisor is involved in the allegation. In those cases, the record of the investigation will be provided to the senior management official in the supervisor’s chain of command.51

As Mr. Moore explains, “Commanders are responsible for their command. They have an obligation to investigate and try to resolve the situation, to prevent it from escalating into a situation that would become an EEO complaint.”52 But, if the EEOC or DoD want to “capture data” on resolution of harassment claims outside of the EEO process, “to be able to say, ‘this is what we’re doing’ and [ask] ‘is it effective,’ there needs to be a way to track engagements.”53

Thus, the Agency is required to report such activity to the EEOC in its annual MD-715 and No FEAR Act Report. In Instructions to federal agencies for MD-715, Section 1, The Model EEO Program, the Army EEO Director must certify the following:

Element C–Management and Program Accountability

B. The agency has established procedures to prevent all forms of EEO discrimination.

1. Consistent with EEOC guidance, agencies must develop a comprehensive anti-harassment policy to prevent and address harassment on all protected bases. The policy should:

a) Establish a separate procedure outside of the EEO complaint process;

b) Require a prompt inquiry of all harassment allegations to prevent or eliminate conduct before it rises to the level of unlawful harassment;

c) Establish a firewall exists between the EEO Director and the Anti-Harassment Coordinator to avoid a conflict of interest. If the anti-harassment program resides within the EEO office, the firewall is a procedure preventing the EEO Director from involvement in the day-to-day functions of the anti-harassment program; and

d) Ensure that the EEO office informs the anti-harassment program of all EEO counseling activity alleging harassment.54

Additionally, in its annual No FEAR Act Report, the Agency must provide:

6. A detailed description of the agency’s policy for taking disciplinary action against federal employees for conduct that is inconsistent with federal antidiscrimination laws and whistleblower protection laws or for conduct that constitutes another prohibited personnel practice revealed in connection with agency investigations of alleged violations of these laws.55

This responsibility to ensure that offenders are subject to disciplinary action, not just for Title VII discrimination, but for “conduct that constitutes another prohibited personnel practice” requires Agency management to look beyond an administrative dismissal or negotiated settlement agreement in certain EEO cases.56

As discussed above, the EEOC strongly favors settlement.57 And the Army agrees. Army Regulation 690-600 provides, at paragraph 1-4e, that: “Early resolution of complaints achieves better employee relations, cuts administrative costs, avoids protracted litigation and is consistent with the Army’s commitment to EEO.”58 However, in cases involving harassment, management’s responsibility to investigate, substantiate and/or exonerate the actions of a responsible management official is independent of any settlement with the aggrieved (at the pre-complaint stage) or the complainant. Settlement agreements, by their nature, incorporate the caveat that neither party admits to any wrongdoing. With respect to EEO complaints, this is limited to violations of the laws under the jurisdiction of the EEOC. They don’t address other objectionable conduct that does not meet a statutory definition of discrimination. As Mr. Moore points out, leaders “can’t tell from the settlement piece whether a management official has committed some other misconduct or a prohibited personnel practice.”59

Thus, in the anti-harassment arena, resolution is not absolution. The underlying conduct, if found to have occurred, may not constitute a violation of Title VII, but could still constitute supervisory misconduct on the part of management officials and/or adverse, reportable information for purpose of screening General Officers or members of the Senior Executive Service for suitability for placement, promotion, retirement, awards, etc. As Mr. Moore observes: “Good judgment of leadership is a focus of the Senate Armed Services Committee.”60 With certain exceptions, adverse information concerning senior leaders’ own conduct or that of their subordinate supervisors must be reported if substantiated, Mr. Moore explains, and it may transpire that aggrieved constituents report their version of events to their senators voluntarily.61 Accordingly, Mr. Moore recommends to practitioners: “If the Service Secretaries go before the Senate with a nomination, make sure they know all the ins and outs of the case. If a settlement was reached because a leader did something wrong, the Senators should know about it.”62 They will want to see the settlement agreement, along with a departmental assessment of whether there was wrongdoing, and whether leadership acted with integrity afterwards.63

Conclusion

The Army, as a federal employer, is required to provide a sensible and accessible means for employees to report or complain about harassment; to conduct an inquiry or investigation into credible claims; to take swift, corrective action to stop the harassing behavior(s) and prevent its recurrence in the workplace; to process EEO complaints through resolution or adjudication; and to hold offenders accountable. These obligations, while overlapping, are distinct. Commanders at all levels are responsible for seeing that they are understood and executed by any management officials with Army Civilian employees in their supervisory chain. Ensuring that leadership is well-advised on the fundamentals of civilian anti-harassment laws and policies will help keep the Army rolling along readily and responsibly. TAL

 


Ms. Hanley is an Equal Employment Opportunity/Civil Rights attorney-advisor, Office of The Judge Advocate General, Labor and Employment Law Division, Washington, D.C.



Notes

1. Model EEO Programs Must Have An Effective Anti-Harassment Program, U.S. Equal Emp’t Opportunity Comm’n app. 3, https://www.eeoc.gov/federal/model_eeo_programs.cfm (last visited Jan. 27, 2020) [hereinafter Model EEO Programs].

2. 42 U.S.C. § 2000e (1964).

3. Id.

4. 29 U.S.C. § 621 (1967).

5. 29 U.S.C. §§ 623, 626, 630 (1990).

6. 29 U.S.C. § 701 (1973).

7. 29 U.S.C. § 791 (1973).

8. 42 U.S.C. § 12201 (1990).

9. 42 U.S.C. § 12101 (2008).

10. 42 U.S.C. § 1981a (1991).

11. 5 U.S.C. § 2301 (2002).

12. 42 U.S.C. §§ 2000ff–2000ff–11 (2008).

13. Overview, U.S. Equal Emp’t Opportunity Comm’n, https://www.eeoc.gov/eeoc/ (last visited Jan. 27, 2020).

14. Id.

15. Harassment is expressly prohibited under Title VII, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA).

16. Harassment, U.S. Equal Emp’t Opportunity Comm’n, https://www.eeoc.gov/laws/types/harassment.cfm (last visited Jan. 27, 2020).

17. Retaliation—Making it Personal, U.S. Equal Emp’t Opportunity Comm’n, https://www.eeoc.gov/laws/types/retaliation_considerations.cfm (last visited Jan. 28, 2020).

18. U.S. Equal Emp’t Opportunity Comm’n, EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 sec. II.B.3 (Aug. 25, 2016).

19. U.S. Equal Emp’t Opportunity Comm’n, Equal Employment Opportunity Management Directive 715 (Oct. 1, 2003).

20. Burlington Industries v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

21. Faragher, 524 U.S. at 809.

22. U.S. Equal Emp’t Opportunity Comm’n, Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999) [hereinafter Enforcement Guidance].

23. Id. § ١.

24. Id. (citing Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998, 1002 (1998)).

25. Model EEO Programs, supra note 1, app. 3.

26. Id. app. 2.

27. U.S. Dep’t of Army, Reg. 690-12, Equal Employment Opportunity and Diversity (8 Nov. 2019) [hereinafter AR 690-12].

28. Id para. 1-4e(1).

29. Id. app. D-2. See also id. app. D-2a (responsibilities of supervisors and management officials).

30. Id. app. D-2b.

31. Id. app. D-2c.

32. Id. app. D-1.

33. U.S. Dep’t of Army, Reg. 600-20, Army Command Policy (6 Nov. 2014) [hereinafter AR 600-20].

34. U.S. Dep’t of Army, Reg. 690-600, Equal Employment Opportunity Discrimination Complaints (9 Feb. 2004) [hereinafter AR 690-600].

35. AR 690-12, supra note 27, app. D-4.

36. U.S. Dep’t of Def., Dir. 1400.25, DoD Civilian Personnel Management System: Investigation of Equal Employment Opportunity Complaints vol. 1614 (5 Nov. 2015).

37. Interview with Spurgeon Moore, Director, Army Equal Employment Opportunity Compliance and Complaints Review (Nov. 20, 2019) [hereinafter Mr. Moore Interview].

38. Id.

39. The agency must provide the complainant with a copy of the investigative file within 180 days from the filing of the complaint or, where a complaint was amended, within the earlier of 180 days after the last amendment or 360 days after the filing of the original complaint. 29 C.F.R. 1614.108 (f) (1992).

40. 29 C.F.R. 1614.501(1992).

41. U.S. Dep’t of Army, Reg. 15-6, Procedures for Administrative Investigations and Boards of Officers (1 Apr. 2016) [hereinafter AR 15-6].

42. AR 690-12, supra note 27, app. D-5, D-6.

43. See 29 C.F.R. 1614.501 (1992).

44. Model EEO Programs, supra note 1.

45. Id.

46. Enforcement Guidance, supra note 22, para. V.C.1.

47. Id., supra note 22 (citing Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994) (employer remedial action for sexual harassment by supervisor inadequate where it twice changed plaintiff’s shift to get her away from supervisor rather than change his shift or work area), cert. denied, 513 U.S. 1082 (1995)).

48. Id. (citing Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir. 1990) (“a remedial measure that makes the victim of sexual harassment worse off is ineffective per se”)).

49. AR 600-20, supra note 33, para. 4-7d(1).

50. Enforcement Guidance, supra note 22.

51. AR 690-12, supra note 27, app. D-6.

52. Mr. Moore Interview, supra note 37.

53. Id.

54. U.S. Equal Emp’t Opportunity Comm’n, Instructions to Federal Agencies for MD-715, Section 1, The Model EEO Program (last visited Jan. 27, 2020).

55. 5 C.F.R. 724.302 (a)(6) (2006).

56. Id.

57. See 29 C.F.R. 1614.603 (1992); U.S. Equal Emp’t Opportunity Comm’n, Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 chs. 2-14, 3, 12 (Aug. 5, 2015).

58. AR 690-600, supra note 34, para. 1-4e.

59. Mr. Moore Interview, supra note 37.

60. Id.

61. Id.

62. Id.

63. Id.