Both government and private industry EEO/AA cases
often apply to both entities; however, to make your
research quicker, we have separated them on this site,
with exceptions which are found at the bottom on this
Sexual stereotyping of transsexual leads to $491,190 award
Starting a new life and searching for a new career isn't easy, but Diane Schroer, a highly-decorated veteran, is no stranger to a challenge.
Schroer was an Airborne Ranger qualified Special Forces officer who completed over 450 parachute jumps, received numerous decorations including the Defense Superior Service Medal, and was hand-picked to head up a classified national security operation. She began taking steps to transition from male to female shortly after retiring as a Colonel after 25 years of distinguished service in the Army.
When she interviewed for a job as a terrorism research analyst at the Library of Congress, she thought she'd found the perfect fit, given her background and 16,000-volume home library collection on military history, the art of war, international relations and political philosophy. Schroer accepted the position, but when she told her future supervisor that she was in the process of gender transition, they rescinded the job offer. The ACLU represented her in a Title VII sex discrimination lawsuit against the Library of Congress.
On September 19, 2008, a federal district judge ruled that the Library of Congress illegally discriminated Schroer, in a groundbreaking decision that found that discriminating against someone for changing genders is sex discrimination under federal law. On April 28, 2009, the judge ordered the government to pay $491K in compensation for the discrimination, which was the maximum he could award in the case.
Dept. of Homeland Security (DHS) Found Guilty of Age Discrimination March 2009
The EEOC found the complainant was subjected to age discrimination when officials of the DHS could not specifically explain why a younger individual was selected for a supervisory position over the complainant, who was over 40.
Johnson v. Department of Homeland Security, U.S. Citizenship and Immigration Services, 109 LRP 6719 (EEOC OFO 12/18/08).
Court officer with disability wins large jury verdict March 2009
The District Court entered an order enforcing a $257,000 verdict for a court security officer. The jury found he was a joint employee of the DOJ, and that the Agency discriminated against him based on his disability, a hearing impairment.
Ruiz v. Department of Justice, 109 LRP 7651 (S.D. Tex. 12/11/08).
Court Of Federal Claims Rules Veterans Administration (VA) Nurse Practitioners Could Not Sustain Equal Pay Act Claim
A class of Nurse practitioners employed by the Department of Veterans Affairs (VA) brought suit under the Equal Pay Act (EPA). The Court ruled they could not sustain their claim of being paid lower wages than the VA's physician assistants because of their gender.
The class of nurse practitioners (NPs) was composed of essentially eighty percent females and twenty percent males, while the higher-paid Physician Assistants (PAs) were forty percent female and sixty percent male. Based on these figures, the NPs filed suit contending the NPs and PAs perform fundamentally the same duties but that the predominantly female NPs are paid less, therefore violating the EPA.
The Court of Federal Claims explained that the EPA forbids employers from discriminating between employees on the basis of sex by paying wages to employees at a rate less than the rate at which he pays wages to employees of the opposite sex for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any other factor other than sex.
The VA argued that the EPA was not intended to address pay disparities in mixed gender groups when the gender diversity includes a "substantial" number of both men and women. The court agreed with the VA's position. The Court claimed, “Any other approach to quantifying the ratio of females to males sponsor an application of the EPA to mixed groups. The record on summary judgment presents a situation of two job classifications staffed by both men and women with substantial participation of both sexes in each. The EPA was not intended to remedy such a diffuse situation; rather the EPA addresses unequal pay when the groups are not mixed.” The court granted the VA's motion for summary judgment, ruling in favor of the Agency.
Yant v. U.S., U.S. Court of Federal Claims, No. 08-77C, January 12, 2009
Found at: http://www.uscfc.uscourts.gov/sites/default/files/CMILLER.YANT011209.pdf
AMERICANS with DISABILITIES ACT and THE STRENGTH OF A SENIORITY SYSTEM
In the past, the Department of Labor/OFCCP has taken the stand that an employer’s seniority system typically takes precedence over accommodating the needs of disabled employees….and according to the Supreme Court, that is correct interpretation of the ADA and other disability related laws/regulations.
At least this was the ruling by the Supreme Court involving a baggage handler for US Airways who injured his back on the job. The baggage handler wanted a job in the mailroom but two co-workers with more seniority were placed in the positions before the employee with a disability. The disabled employee filed a discrimination suit charging that US Airways didn't make a "reasonable accommodation" under the Americans with Disabilities Act. (US Airways v. Barnett, No. 00-1250, April 29, 2002)
Although seniority will typically rule, please understand that the employer should be consistent with actions. If the employer has allowed an accommodation to take precedence over seniority in the past, then that employer has changed the policy and should consider all requested in the same manner.
Religious Accommodation Expected for Employees in Uniform
By Rebecca R. Hastings, SPHR, October 2008
The Washington Metropolitan Area Transit Authority (WMATA), the D.C. region’s public transportation entity, is one of the latest employers being asked to defend the application of its policy on uniforms to employees requesting religious accommodation.
On Sept. 29, 2008, the U.S. Department of Justice (DOJ) announced that it was filing a lawsuit “alleging that WMATA is engaged in a pattern or practice of religious discrimination, in violation of Title VII of the Civil Rights Act of 1964.” Title VII prohibits employment discrimination on the basis of race, color, sex, national origin and religion.
The complaint alleges that WMATA discriminated against Gloria Jones, an applicant for a bus operator position with WMATA and a member of the Apostolic Pentecostal faith, by refusing to hire her when her religious practices conflicted with WMATA’s uniform policy for bus operators.
The web site of the United Pentecostal Church International indicates that female adherents are expected to dress modestly and in such a way that they are identifiable as women.
According to the DOJ announcement, however, it is WMATA’s practice to deny all requests for religious accommodations to its uniform policy regardless of whether reasonable accommodations are available that would resolve the conflict without imposing an undue hardship on WMATA.
The complaint seeks to require WMATA to reasonably accommodate and provide equal employment opportunities for individuals whose religious practices require an accommodation to the uniform policy. The suit seeks monetary damages and other relief for victims of religious discrimination by WMATA.
"Employees should not have to sacrifice their religious practices for their livelihoods," said Grace Chung Becker, acting assistant attorney general for the Civil Rights Division, in the announcement. "While public employers have the authority to require uniforms, they cannot refuse to accommodate an employee’s religious practice when reasonable accommodation is possible."
History Need Not Be Repeated
WMATA might have been able to avoid the complaint had the organization kept abreast of earlier religious discrimination cases and taken steps to anticipate possible challenges to its practices.
Case in point: In January 2003 the U.S. Equal Employment Opportunity Commission (EEOC) announced that the security company Brink’s would be required to pay $30,000 to Carol Grotts, a Pentecostal who was hired as a relief messenger at its Peoria, Ill., area facility.
When Grotts, whose beliefs precluded her from wearing pants, requested a modification of the standard issue uniform—she requested to wear culottes of uniform material purchased at her own expense instead of pants—Brink's refused her request and terminated her employment.
Brinks was required to pay Grotts’ legal fees and to train managers about Title VII's prohibitions on religious discrimination and the company's duty to reasonably accommodate an employee's religious beliefs.
And in January 2008, DOJ settled a related case in which a Muslim guard at the New York State Department of Correctional Services was told he could no longer wear a prayer cap, or kufi, although he had previously been permitted to do so.
The suit alleged that there was no policy in place for the prison agency to review requests for reasonable accommodation of religious practices as required by Title VII of the Civil Rights Act of 1964.
The agency is now required to conduct an individualized review of every request for religious accommodation associated with officers’ uniforms. Denial of a request may be made only after a detailed consideration of the impact of the accommodation on performance of job duties.
The Muslim guard whose case prompted the suit has been permitted to wear a dark blue or black kufi with his uniform while working since shortly after DOJ notified the agency that it was filing a suit.
Guidance Is Readily Available
On July 22, 2008, the EEOC issued a new Compliance Manual Section on religious discrimination under Title VII. The guidance states in part:
“When an employer has a dress or grooming policy that conflicts with an employee’s religious beliefs or practices, the employee may ask for an exception to the policy as a reasonable accommodation. Religious grooming practices may relate, for example, to shaving or hair length. Religious dress may include clothes, head or face coverings, jewelry, or other items. Absent undue hardship, religious discrimination may be found where an employer fails to accommodate the employee’s religious dress or grooming practices.”
“Some courts have concluded that it would pose an undue hardship if an employer was required to accommodate a religious dress or grooming practice that conflicts with the public image the employer wishes to convey to customers,” the guidance continues. “While there may be circumstances in which allowing a particular exception to an employer’s dress and grooming policy would pose an undue hardship, an employer’s reliance on the broad rubric of “image” to deny a requested religious accommodation may in a given case be tantamount to reliance on customer religious bias (so-called “customer preference”) in violation of Title VII.”
EEOC goes on to say that “employers should make efforts to accommodate an employee’s desire to wear a yarmulke, hijab or other religious garb. If the employer is concerned about uniform appearance in a position which involves interaction with the public, it may be appropriate to consider whether the employee’s religious views would permit him to resolve the religious conflict by, for example, wearing the item of religious garb in the company uniform color(s).”
Because religious beliefs and practices vary, as do job responsibilities and uniform requirements, the EEOC recommends that employers make a case-by-case determination as to whether a particular religious accommodation request is reasonable.
The guidance adds that “managers and employees should be trained not to engage in stereotyping based on religious dress and grooming practices and should not assume that atypical dress will create an undue hardship.”
DOJ is responsible for enforcement of Title VII against state and local government employers, while the EEOC enforces Title VII against private employers.
Rebecca R. Hastings, SPHR, is an online editor/manager for SHRM.
ADEA: Supreme Court Decides on Age Discrimination Disparate Impact Case
6/19/08 Meacham v. Knolls Atomic Power Laboratory, No. 06-1505
The U.S. Supreme Court placed the burden of persuasion on employers in Age Discrimination in Employment Act (ADEA) disparate impact claims, making it more difficult for employers to defend themselves from ADEA impact claims.
This decision encourages employers to take an analytical approach when deciding the factors for reductions in force (RIFs).
During a layoff, Knolls Atomic Power Laboratory, a contractor with the U.S. Navy allowed a buyout for 100 employees; however, Knolls continued to have 31 salaried jobs which needed to be eliminated.
To make their selections, employees were evaluated based upon three factors (performance, flexibility, and critical skills), along with total years of service. Thirty of the thirty-one employees RIFed were over 40 and a disparate impact class action was filed.
The decision of the Supreme Court was the burden of persuasion falls on the person who wants an exemption (to the ADEA) in the law to apply.
Bottom Line: If an employer is considering a RIF, it would behoove that employer to carefully review the criteria for selecting those who will be released. Ensure that a criterion is objective, with little room for subjective evaluation. Also, it would be beneficial to conduct an Impact Ratio Analysis on the statistics prior to taking action.
ADEA: Supreme Court Rules: Basing Disability Benefits on ‘Pension Eligibility,’ is not discriminatory
June 2009 Ky. Ret. Sys. v. EEOC, U.S., No. 06-1037
The Supreme Court ruled that a state’s disability retirement plan that disqualifies employees in hazardous jobs from receiving disability retirement benefits if they become disabled after reaching age 55 does not violate the Age Discrimination in Employment Act (ADEA).
The Supreme Court held that awarding disability benefits based on pension status is not age discrimination unless pension status is a “proxy for age.”
A benefit program will be reviewed independently, apart from the impact it may have on people who are over 40. If it benefits younger people, the court will look at it further to decide if the distinction is age-determined.
The Court noted that an employee claiming disparate treatment must prove that age motivated the employer’s decision. The Court added that ADEA permits an employer to condition pension eligibility upon age, thus it must be decided whether a plan that lawfully makes age in part a condition of pension eligibility and treats workers differently in light of their pension status, automatically discriminates because of age.
The Court found that in the Kentucky case, pension status did not serve as a proxy for age, and the disparity in treatment had a clear non-age-related rationale of treating a disabled worker as if he/she had become disabled after becoming eligible for normal retirement benefits, rather than before.
The Court concluded,” The rule we adopt today for dealing with this sort of case is clear.” “Where an employer adopts a pension plan that includes age as a factor, and that employer then treats employees differently based on pension status, a plaintiff, to state a disparate treatment claim under the ADEA, must come forward with sufficient evidence to show that the differential treatment was ‘actually motivated’ by age, not pension status.”
SUPREME COURT DECIDES ON RETALIATION CASES
May 27, 2008
The U.S. Supreme Court issued two opinions relating to illegal retaliation, as it pertains to EEO issues. The Court decided retaliation is a valid issue and should be allowed protection, even in Age Discrimination in Employment Act (ADEA) cases.
In Gomez-Perez v Potter, Postmaster General, a45 year old postal worker claimed she was retaliated against after she filed an administrative ADEA complaint. The First Circuit Court of Appeals said that the ADEA prohibits discrimination based on age; however, it does not cover retaliation. The Supreme Court reversed the ruling of the appeals court. For a copy of the decision, go to:
In CGOCS West, Inc. v. Humphries, a minority employee complained to his managers that a co-worker was dismissed because of discrimination (race/black). Soon following his allegations Humphries was terminated and he claimed illegal EEO retaliation for his
expression of concern. The Supreme Court agreed with Humphries. For a copy of the decision, go to:
EEOC SETTLES SEX BIAS CASE WITH STATE CORRECTIONS DEPARTMENT FOR ALMOST $1 MILLION
Corrections Department Provided Lesser Benefits to Female Corrections Officers Who Gave Birth While on Workers’ Compensation Leave
The New York State Department of Correctional Services will pay nearly $1 million to settle a sex discrimination lawsuit filed by the EEOC and the U.S. Attorney for the Southern District of New York, the two offices announced today. The EEOC and the United States had charged the Corrections Department with violating federal law by providing inferior benefits to female employees on maternity leave.
The EEOC suit, filed under the Equal Pay Act of 1963 (Case No. 07-CV-2587 in U.S. District Court for the Southern District of New York), charged that the Corrections Department gave male employees with work-related injuries up to six months of paid workers’ compensation leave. Female employees could be granted the same leave, but pregnant employees on such leave were involuntarily switched to maternity leave at or around the time they gave birth. The Corrections Department’s maternity leave policy requires that women first use their accrued sick or vacation leave with pay; then, if approved, sick leave with half pay and then sick leave without pay.
The EEOC charged that switching women from workers’ compensation leave to maternity leave resulted in lesser benefits for those women due to their sex, violating the Equal Pay Act (EPA). The EPA is a federal law requiring that employers pay men and women equally for equal work.
The U.S. Attorney for the Southern District of New York joined the lawsuit by adding claims under Title VII of the Civil Rights Act of 1964. The U.S. Attorney’s Office alleged that the Corrections Department engaged in a pattern and practice of employment discrimination on the basis of sex as a result of its categorical determination that a female employee who gives birth to a child should be transferred from workers’ compensation leave and benefits without making a determination whether, on an individual basis, an employee continues to be eligible for workers’ compensation leave and benefits.
The court granted final approval of an Order and Stipulation Providing for Injunction and Affirmative Relief, which provides $972,000 in compensatory damages, liquidated damages, back pay and interest to 23 female Corrections employees. The back pay, which includes the value of leave some women were forced to take, has already been paid.
The Corrections Department agreed to several elements of injunctive relief as to all its facilities statewide. It has amended its workers’ compensation directive to provide that no female Corrections officer shall be removed from workers’ compensation benefits due to pregnancy or the birth of a child, and it will provide anti-discrimination training to employees across the state, along with training in the administration of workers’ compensation benefits to its personnel employees. The Corrections Department will also give to each female employee preparing to take a maternity leave a packet of all applicable policies, procedures and benefits.
Think Training Federal Employees About EEO Complaint Procedures Isn't Important? Read on...
June 20, 2007
Torres vs Dept. of Army - Torres, the complainant, alleged he was subjected to unlawful discrimination when an agency official made numerous derogatory remarks about Hispanics. The U.S. Army dismissed the complaint after determining the complainant's EEO contact was beyond the 45-day time limit. On appeal, the EEOC reversed the Army's decision and remanded the case for further processing. The complainant claimed he was unaware of the 45-day time limit for seeking EEO counseling, and the Army did not meet its burden of establishing that he had actual or constructive knowledge of the time limit. Although two EEO counselors mentioned a training course, they did not provide documentation to show the materials covered the limitation period. The agency also did not provide a copy of an EEO posting with the time limit.
FEDERAL AGENCIES REQUIRED TO USE EMPLOYMENT VERIFICATION
SYSTEM BY OCTOBER 2007
OMB issued guidance which requires federal agencies to begin using
a new program meant
to verify citizenship status for all new hires,
contractors. The program should be implemented by
October 1, 2007.
According to an OMB memo (M-07-21), the Employment Eligibility
Verification Program, or "E-Verify,"
which is operated by U.S.
Citizenship and Immigration Services, is meant to confirm employment
eligibility of workers.
Formerly known only as the "basic pilot program," E-Verify allows
employers to verify name, birth date, and Social Security numbers.
For non-citizens, it provides immigration information against federal
databases. The program is also expected to tighten
wage and tax reporting.
Agencies are required to provide a contact person to USCIS
August 24. For more information, go to:
(you may have to cut and paste this link)
DHS Wins Against Multiple Discrimination Claims Against Hiring Practices
Crawford v. U.S. Dept. of Homeland Security, 5th Cir., No. 06-11387 (Aug. 16, 2007).
A 5th U.S. Circuit Court of Appeals decision shows when an employee seeks to challenge a facially neutral employment practice as being discriminatory, the claim must be statistically supported.
In 2002, Greta Crawford applied for an immigration inspector position with the U.S. Department of Homeland Security (DHS). When contacted for a background investigation/reference, her previous supervisor stated that she was, “prone to explode in tirades of foul language at the slightest provocation, believed the government was out to get her and demonstrated an aggressive distaste for co-workers.” (not exactly what a hiring official wants to hear~)
The investigation also revealed information indicating that Crawford had an arrest record for an assault and conviction record for public drunkenness. The DHS claimed they made a determination Crawford was “unsuitable for employment.” Subsequently, Crawford filed a lawsuit against the DHS, alleging 23 causes of action (including race and gender discrimination) relating to her rejection for the position. A federal district court dismissed the claims before trial and the appellate court affirmed the dismissal.
The court specifically noted (on the Title VII claims) that Crawford presented no direct evidence of discrimination.
The appellate court also determined Crawford failed to show the DHS’s reason for her rejection was pretextual. No weight was given to her claim that the information provided was erroneous, revealing the courts decision that evidence revealing the employer’s investigation came to an incorrect conclusion is insufficient to maintain a claim of discrimination.
The court rejected Crawford’s claim that the facially neutral policy of conducting background investigations have a disparate impact against female and minority applicants in the general population. The court ruled that disparate impact claims must be based on a comparison of an employer’s workforce and the pool of applicants, not the general population.
Finally, the court decided Crawford failed to make the requisite showing that the DHS background investigations were the cause of a statistical disparity based on her race or gender.
Be sure screening factors for employment are legitimate and necessary for the successful performance of the job to ensure your business doesn’t run into disparate impact case. Also, be sure to run numbers on hires and promotions early, to ensure time to correct potential class action concerns.
IF YOU AND I ARE BOTH OVER 40 AND YOU (60 YR OLD) ARE SELECTED FOR A POSITION OVER ME (51 YR OLD) BECAUSE THE COMPANY/AGENCY IS LOOKING FOR SOMEONE OLDER AND WISER, I WILL MOST LIKELY NOT WIN AN AGE DISCRIMINATION CASE
EEOC Revised their Age Discrimination in Employment Act (ADEA) regulations to conform with a recent Supreme Court ruling.
Dianna B. Johnston, EEOC Assistant Legal Counsel, provided this information discussion, to an inquiry whether a company can advertise for older workers (aged 55 and older):
”The EEOC The issuance of formal interpretations or opinions by the Equal Employment Opportunity Commission (EEOC) under the Age Discrimination in Employment Act (ADEA) is discretionary. See EEOC Procedural Regulations, 29 C.F.R. § 1626.20 (b). The EEOC does not generally assess the legality of particular employment practices outside the context of specific charges of discrimination. This is because the appropriate resolution of discrimination charges involves an analysis of facts that differ from case to case. We can, however, provide you with the following general guidance on applicable principles.
The Age Discrimination in Employment Act, which the EEOC enforces, permits employers to advertise for older workers. Previously, EEOC regulations had stated that such advertisements were unlawful but, in 2004, the Supreme Court ruled that the ADEA only prohibits discrimination based on relatively older age and that employers do not violate the ADEA by favoring older over younger workers. General Dynamics Land System, Inc. v. Cline, 540 U.S. 581 (2004). Accordingly, the EEOC’s has amended its regulations to conform to Cline. With regard to job advertisements, the regulations state in relevant part that:
Employers may post help wanted notices or advertisements expressing a preference for older individuals with terms such as over age 60, retirees, or supplement your pension.
See 72 FR 36873, 36875 §1625.4 (July 6, 2007) (emphasis added). Although the ADEA does not prohibit you from advertising for workers age 55 and over, such advertisements may be prohibited by state or local law. Thus, you should contact your Fair Employment Practices Agency to assure that the advertisements do not violate those laws.”
See the EEOC ADEA sheet at: http://www.eeoc.gov/types/age.html
In the case, Cline vs. General Dynamics Land System, Inc., 540 U.S. 581 (2004), employees between the ages of 40 and 49 sued their employer for age discrimination when the employer eliminated its future obligation to pay retiree health benefits for any employee then under the age of 50 years old. Employees age 50 or older were grandfathered by the employer so that their retiree health benefits would be paid. The Supreme Court rejected the claim of the under 40 year old employees, finding the ADEA’s prohibition against age discrimination only prevents discrimination that favors younger workers. It does not prohibit actions that place older workers in a more favorable position, whether or not the younger workers are also in the class.
The EEOC’s revised rules were published in the July 6, 2007 Federal Register, Vol. 72, No. 129, pp. 36873-36875.
Torres vs. DOD/Army - FEDERAL AGENCIES BETTER GET EEO TRAINING IN ORDER TO ENSURE ALL EMPLOYEES ARE FULLY AWARE OF THEIR EEO OBLIGATIONS/RIGHTS
June 20, 2007
The complainant (Torres) alleged unlawful discrimination when a DOD/Army official made numerous derogatory remarks about Hispanics. DOD dismissed the complaint after determining the complainant had not filed the informal EEO complaint within the required 45 days. On appeal, the EEOC reversed the Army's decision and remanded the case for further processing. The complainant claimed he was unaware of the timeframe for seeking EEO counseling, and DOD/Army did not meet its burden of establishing he had knowledge of the timeframe for filing an informal complaint. DOD/Army did not provide documentation to reveal otherwise, including EEO postings.
Bergren vs. DOT – HOW LONG WILL IT TAKE EMPLOYERS TO REALIZE THAT GENDER CANNOT PLAY A ROLE IN THE SELECTION PROCESS (unless the position has a gender BFOQ)?
June 12, 2007
DOT was found guilty of sex discrimination, by not promoting complainant, Bergren (an Air Traffic Control Specialist) to the position of Operations Supervisor. After review of the non-selection procedures and facts, the EEOC determined DOT used gender as a deciding factor in the selection. Make whole remedy should include the promotion and the difference in the compensation between the two positions until being placed into the job.
Sever v. U.S. Postal Service (USPS)- MAKING PHYSICAL THREATS AGAINST CO-WORKERS IS NOT PROTECTED BY EEO DISABILIY LAWS
April 4, 2007
The complainant, Sever, alleged disability discrimination against the USPS based on his mental disability. Sever was terminated after stating that he would “buy a gun and come back,” if he was fired from his job. The agency was entitled to hold Sever to certain "qualification standards" concerning safety, regardless of his disability and the District Court disagreed with the allegations, granting summary judgment in favor of the Postal Service. Sever could not rebut the USPS’s justification that it terminated him for making threats of violence against USPS coworkers.
Dedrick vs. DOD/Army – VIOLENT BEHAVIOR IN THE WORKPLACE WILL NOT BE TOLERATED, NO MATTER THE DISABILITY
February 8, 2007
The complainant, Dedrick, alleged disability discrimination based on his mental disability when he was removed from his general engineer position. Dedrick alleged his disability, “intermittent explosive disorder” prohibited him from stopping erratic behavior, e.g., overturning his supervisor's desk while the supervisor was seated at the desk, then moving on to his own office and throwing his computer equipment and office supplies on the floor, and "kicking things in." The MSPB upheld the petitioner's removal. The EEOC concurred with MSPB’s decision that the removal was justified.
Brockman vs. Dept. of Treasury (DOT) – ALTHOUGH PREGNANCY SHOULD BE TREATED AS A DISABILITY ACCORDING TO EEO REGULATIONS, DON’T EXPECT IT TO BE THE SAME FOR DISABILITY ACCOMMODATIONS
February 13, 2007
Brockman, a program analyst, filed a disability complaint against DOT, alleging DOT denied reasonable accommodations for her pregnancy-related disability. She was placed on bed rest by her physician and was told not to walk long distances (something required by her job). She requested an accommodation under the Rehabilitation Act. Brockman was denied her claim because “she did not suffer from a disability.” The court concluded Brockman did not have a disability which limited her major life activity of “walking.” EEOC’s pregnancy regulations information sheet can be found at: http://eeoc.gov/types/pregnancy.html
The Supreme Court could soon clarify the question, "What
constitutes a retaliatory employment practice?"
The Court's ruling in Burlington Northern Santa Fe Railway
Co. v. White, No. 05-259, may answer some crucial questions
regarding retaliation for filing EEO claims. How the
Supreme Justicies choose to define retaliatory treatment
will have a significant effect on discrimination claims
against both private industry employers and also government
agencies. A strict standard could potentially discourage
targeted employees from speaking up about retaliation;
however, a broad interpretation could open the EEO door
to a signficant increase in unjustified retaliatory
DOESN'T RESPOND TO EEO COMPLAINT EFFECTIVELY
Department of Agriculture
The EEOC found the USDA liable for sexual harassment
because it responded slow and insufficiently to investigate
allegations of discrimination. While the USDA acknowledged
that a coworker distributed three sexually explicit,
sexually harassing letters about the complainant, they
argued the Agency was not liable for the harassment
because it took immediate and appropriate action after
it had notice of the first letter. EEOC noted the Agency
obviously did not effectively deal with the issue since
two additional offensive letters were circulated. The
EEOC affirmed the AJ's decision.
Denver Mint Agrees to Settle Sex-Bias Case for $9 Million
In a settlement
agreement, the U.S. Mint agreed to pay $9 million to
female workers at its Denver plant who alleged their
bosses demanded sex in exchange for promotions, harassed
them and retaliated when they complained.
will need to be approved by an Equal Employment Opportunity
Commission Administrative Law Judge.
the attorney who represented the complainants stated
that up to 130 women could share in the settlement if
it is approved.
The Mint denies
any liability in the case but representatives stated
the facility wanted to avoid the expense and delay of
was filed in 2003 by 32 women who alleged that pornography
was openly displayed at the Denver plant and women were
subjected to unwanted sexual advances and sexual discrimination
by male workers and managers over a period of years.
complaint, Mint officials in Washington dispatched a
team to search the Denver plant for sexist art and graffiti
and to meet with female employees. The Mint also announced
a series of changes that included hiring a director
for its equal opportunity program, a job that had been
vacant for almost two years.
WITH DISABILITY MAY NOT BE CONSIDERED DISABLED UNDER
of Transportation did not subject an employee to disability
discrimination when it removed her after she was medically
disqualified from her air traffic control specialist
position. An employee with a medical condition is not
necessarily an individual with a disability entitled
to the protections of the Rehabilitation Act. To qualify
for protection, the employee must provide specific evidence
that she is substantially limited in a major life activity,
she is regarded by the agency as having such a limitation,
or she has a record of such a limitation. Tyson v. Department
of Transportation, 106 LRP 8036 (EEOC 02/10/06).
CIRCUIT SAY PAY DIFFERENTIAL BASED ON PAY HISTORY IS
The 7th U.S. Circuit Court of Appeals issued
its decision in the case of Wernsing v. Ill. Dept. of
(427 F.3d 466, 7th Cir. 2005). The case has importance
its impact on the question of legitimate non-discriminatory
differences acceptable under the Equal Pay Act (EPA)
Sec. 206(d)) The 7th Circuit covers the states of Illinois,
Indiana and Wisconsin. In this case, the employee complained
the employer's policy of paying new hires in this public
organization at least as much as they were earning in
position. Wernsing claimed it was an illegal practice
perpetuated unequal treatment of men and women.
The Court said as long as the difference is based on
other than sex there is no illegal discrimination caused
employer. If the employer claims that differences in
individuals in the same job is based on wage history,
burden falls on the complaining employee to show that
argument is merely pretext for illegal discrimination.
The Court pointed out that Section 206(d)(1)(vi) permits
differentials based on any factor other than sex. The
is not permitted in this instance, it said, to pass
on the acceptability of the business reason offered
employer. It is up to the employee to disprove the employer's
Here is some of what the Court had to say, "[The employee's]
second argument: that because women earn less than men
private employment, all market wages must be discriminatory
and therefore must be ignored when setting salaries. The
premise is correct; many empirical studies show that
wages are less than men's on average...But the conclusion
a non-sequitur. Wages rise with experience as well as
other aspects of human capital. That many women spend
years in child-rearing than do men thus implies that
market wages will be lower on average, but such a difference
does not show discrimination..."
You will find a copy of the Court's opinion at
Service Cannot Back Up Statement of Hiring the Best
supported an administrative judge's determination that
the U.S. Postal Service denied a 69-year-old complainant
a postmaster position because of her age and sex. Instead,
the agency selected a younger male candidate who was
much less qualified. An agency's explanation that it
chose the most qualified candidate for a position will
not shield it from liability for employment discrimination
if the evidence does not support its assertion. Miller
v. U.S. Postal Service, 105 LRP 48725 (EEOC OFO 09/28/05).
thing EEOC is watching - this further proves how difficult
it is for some government agencies to be their own watchdogs
for fairness and equality. CD
The EEOC modified
the Department of Air Force decision awarding the complainant
$2,000 in nonpecuniary damages for disability discrimination.
It found $10,000 was a more accurate compensation for
the complainant's nine months of emotional distress,
anxiety and related symptoms. Shobert v. Department
of the Air Force, 105 LRP 38898 - EEOC OFO 08/04/05.
2005 - EEOC ISSUES HISTORIC DEFAULT JUDGMENT AGAINST
TSA FOR FAILURE TO COMPLETE TIMELY EEO INVESTIGATION
Note: This decision by the EEOC is on target.
There are many flaws to the federal government's internal
EEO process - timliness is just one.)
The EEOC issued
a highly unusual default judgment against the Transportation
Security Administration (TSA) recently, sanctioning
the agency for its repeated failure to follow the EEOC
judge’s orders to complete it EEO investigation in a
In this case, a TSA security screener alleged unlawful
discrimination based on her pregnancy and disability
(gestational diabetes) when the agency refused to allow
her to take regular breaks to check her blood sugar
levels and eat, if necessary, to bring her levels back
to normal. When she was later not selected for a promotion
for which she applied, the screener added this to her
EEO claim as well.
The underlying merits of the case – whether the screener
suffered discrimination – is not what makes this decision
remarkable, however. In fact, the EEOC did not even
address the merits in its decision. Instead, the case
is noteworthy because it is a default judgment against
the agency for the agency’s failure to complete its
investigation into the screener’s allegations of discrimination.
In its decision, the EEOC explained that the screener
filed her formal discrimination complaint on January
8, 2004. On September 15, 2004, the screener requested
a hearing before an EEOC Administrative Judge because
the agency had failed to investigate her complaint within
180 days, as required by law. On October 8, 2004, the
agency informed the Supervisory Administrative Judge
(SAJ) that it was unaware the screener had filed a formal
complaint and that the agency’s Office of Civil Rights
(OCR) had not completed any investigation. The agency
designated an attorney as its representative on October
On November 30, 2004, the SAJ ordered the agency to
provide a copy of the screener’s complaint file within
15 days, noting that the agency could be subject to
sanctions if it failed to comply. On December 8, 2004,
the agency responded to the SAJ’s order by stating that
because the screener’s formal complaint dated January
8, 2004 was delivered to the Department of Homeland
Security (DHS) General Counsel, it never got forwarded
to TSA for investigation, and that was the reason no
investigation was conducted.
On February 3, 2005, the SAJ ordered the agency to conduct
an expedited investigation and have it completed within
60 days. The order contained a warning that the agency
must show good cause if it could not produce the investigative
report within the required timeframe, and that sanctions
up to and including default judgment could be imposed
if the deadline was missed. The agency missed the deadline.
Two weeks after the deadline passed, the agency asked
for an extension, stating that the agency’s attorney
contacted TSA’s OCR to confirm that the Report of Investigation
(ROI) had been sent to the SAJ, only to learn that the
SAJ’s order for an expedited ROI had never been forwarded
to OCR. There was no explanation given for this oversight.
Thus, the decision stated, as of April 25, 2005, the
agency had not begun the investigation. On May 3, 2005,
the screener submitted a motion for the imposition of
sanctions because the agency “had multiple chances to
conduct the required inves
tigation, but failed.” The screener also requested a
default judgment be entered against the agency as a
The EEOC granted the screener’s request, awarding a
default judgment against the agency. In its decision,
the EEOC outlined seven specific points in time the
agency had an opportunity to “correct its mistakes and
conduct the investigation.” But the agency repeatedly
failed to take the required action. “After all these
chances, the Agency still responded and said it couldn’t
get it done because of communication problems between
DHS and TSA,” the decision stated. “This is clearly
an Agency problem and a very serious one. Accordingly,
I do not find that the Agency has shown good cause why
the sanction of a default judgment should not be entered,
and thus, I hereby default the Agency for failing to
follow the Orders of the Commission and the SAJ to complete
a timely investigation.”
Because the screener voluntarily resigned from her position
for personal reasons on August 30, 2004 and never requested
any compensatory damages, the EEOC ordered equitable
relief. Specifically, the agency was ordered to pay
the screener for all leave without pay she had to take;
any costs associated with her pregnancy that were not
covered by her medical insurance; and the difference
between her salary as a security screener and a lead
security screener from the time of her non-selection
through the date she resigned. The agency was also ordered
to pursue corrective action with the “relevant management
officials,” including a minimum of 8 hours of EEO awareness
training, as well as prominently post a notice of the
finding of discrimination at the agency.
The screener was represented by the American Federation
of Government Employees, which hailed the decision as
“historic.” “Representatives of the Transportation Security
Administration consistently have asserted through their
actions and their words that the TSA is above the laws
of the United States. This decision clearly reaffirms
that no agency may violate the laws that prohibit discrimination
in the workplace,” said Gony Frieder, the AFGE attorney
who represented the screener.
The case is Domingo v. Chertoff, U.S. Equal Employment
Opportunity Commission, EEOC No. 340-2004-00589X, August
2005 - MALE CIVILIAN NAVY POLICE OFFICERS CAN SUE FEMALE
SUPERVISOR FOR SEXUAL HARASSMENT
Two male civilian police officers who work for the Navy
can move forward with their sexual harassment lawsuit
against their female supervisor, but another male supervisor
cannot sue because she was not his boss, a Connecticut
federal district court judge ruled recently.
In this case, three male civilian workers sued their
employer, the U.S. Navy, alleging that a female supervisory
police officer sexually harassed them by creating a
hostile work environment. While a Navy investigation
concluded that the female supervisor’s use of profanity
and inappropriate language and behavior on the job had
created a hostile work environment, the department contended
that her behavior did not rise to the level of harassment
under Title VII. The court, however, disagreed, finding
that a reasonable juror could conclude that the two
male subordinates were subjected to an objectively hostile
work environment, and that the harassment was attributable
at least in part to their gender.
As for the male supervisor, though, the court dismissed
his claim, explaining that the female supervisory police
officer was not his boss and therefore, he could tell
her to stop talking to him or simply walk away from
her without fearing any negative repercussions. Accordingly,
her treatment of him did not rise to the level of a
Title VII violation.
The case is Anderson v. England, U.S. District Court
for the District of Connecticut, No. 3:03CV116(MRK),
March 9, 2005.
2005 - Buttocks Slapping Not Acceptable - $1,000 Worth
A complainant was appropriately
awarded $1,000 in nonpecuniary damages for the harm
she suffered after a male supervisor hit her on the
buttocks. The complainant's evidence fell short of supporting
the larger award of nonpecuniary damages she sought.
Her testimony, combined with that of other witnesses,
did not establish she suffered long-term harm. Lans
v. Social Security Administration, 105 LRP 7611.
February 2005 - Air
Force settles discrimination Case Filed by Non-minority
I have been warning agencies and companies for
years now that employment quotas are illegal if they
are based upon a discriminatory basis...gender, race,
etc. The Air Force apparently found out too late. They
have agreed to pay $880,000 to nine white male workers
at Georgia's Robins Air Force Base who claimed that
a quota system gave preferential treatment to black
and female employees at the base. The Atlanta Journal-Constitution
reported that the Air Force settled the case, which
was filed in April 2002.
Lee Parks, who represented the workers, said
the quotas were part of a system wide problem, however
the government settled on behalf of the nine workers
because evidence of discrimination against them was
particularly strong. Lee cited e-mails from supervisors
admitting that they were pressured by Air Force headquarters
and the Pentagon "to increase the appraisals of blacks
and women and decrease those of other workers," according
to the newspaper. "The quota-based performance process
went on for a good number of years and affected hundreds,
if not thousands, of people," Parks said.
Hint: Forget the term, "Reverse Discrimination,"
as the term does not make sense. The definition
of reverse is: to turn completely about in position
or direction. If you were to reverse discrimination,
you would be eliminating it. Discrimination against
any person based upon race, color, religion, sex/gender,
disability, age, national origin, or special veteran
status is simply put...discrimination. Learn what
Affirmative Action is and what it is not - it is not
a quota in employment, unless the courts have put the
agency or company under a consent decree. For more
information, contact us!
The Regulation Doesn't
Fit...Don't Buy Into It
v. U.S. Postal Service, 104 LRP 60927.
The EEOC differed with the MSPB's determination that
the agency did not subject the petitioner to disability
discrimination when it removed him from his tractor-trailer
operator position because he takes antiseizure medication.
The EEOC found the Department of Transportation regulations
cited by the MSPB did not apply to the federal government
and were voluntarily adopted by the agency. As such,
they could not be used as a reason for the agency's
failure to individually assess the petitioner's ability
to safely perform the functions of his position.
Dept. of Homeland Security
(DHS) gets a lesson in McDonnell Douglas (burden of
proof) ~ Patrick v. Ridge, U.S. Court of Appeals for
the Fifth Circuit, No. 04-10194
This is long, but it is an important EEO decision.
In a case in which a Department of Homeland Security
(DHS) employee alleged that she was discriminated against
because of her age, the agency’s statement that the
employee was not “sufficiently suited” for the position
she sought was not specific enough to satisfy the agency’s
burden of proof under McDonnell Douglas, the Fifth Circuit
ruled last month.
In this case, the employee charged DHS with age discrimination
and retaliation arising out of the INS’s refusal to
promote her to a GS-13 supervisory position for which
she had applied. Instead, the agency hired one of her
co-workers who was more than 10 years her junior. The
employee timely filed an EEO complaint alleging age
discrimination. The position later became available,
and the employee reapplied. The employee was chosen
as one of six finalists to be interviewed for the job
by a three-person panel. The panel ultimately decided
not to offer the job to any of the six finalists, and
instead hired an outside candidate. The employee amended
her complaint, adding new charges of age discrimination
and retaliation based on the hiring of the outside candidate.
When the federal district court granted the DHS’s
motion for summary judgment dismissing the employee’s
claims, the employee appealed to the Fifth Circuit.
The Fifth Circuit reversed the district court’s decision,
concluding that the DHS had not satisfied its burden
of producing a legitimate, nondiscriminatory reason
for its employment decision. Noting that the ruling
it was reviewing was one granting a motion for summary
judgment before trial – not a motion for judgment as
a matter of law following a merits trial or even the
completion of the plaintiff’s case – the Fifth Circuit
explained that there was no question the employee had
succeeded in making out a prima facie case of both age
discrimination and retaliation. Thus, under the case
of McDonnell Douglas, the burden then shifts to the
employer to produce a legitimate, nondiscriminatory
reason for its employment decision. But here, said the
appeals court, the DHS simply stated that the employee
was not “sufficiently suited” for the job, without clarifying
or expanding on that statement. The only other statement
that was made, said the court, was a panel member’s
statem ent that he evaluated candidates based not only
on work credentials and experience, but also on how
he thought the candidate would fit into the work group.
Again, stated the court, no explanation of what that
meant was provided, and the DHS produced no specifics
for why the employee would not fit in with the group.
“Fatal to the INS’s position here is the well-established
rule that, to meet its burden of production under McDonnell
Douglas, an employer must articulate a nondiscriminatory
reason with ‘sufficient clarity’ to afford the employee
a realistic opportunity to show that the reason is pretextual,”
the Fifth Circuit explained. “This does not mean that
an employer may not rely on subjective reasons for its
personnel decisions. It does mean, though, that to rebut
an employee’s prima facie case, a defendant employer
must articulate in some detail a more specific reason
than its own vague and conclusional feeling about the
employee. If the INS believed - and had verbalized -
that [the employee] was not ‘sufficiently suited’ to
fill the SRS position because of her experience, credentials,
attitude, or some other such articulable characteristic,
the DHS’s reason might have provided enough detail
to enable [the employee] to attempt to show pretext.
In the face of the INS’s bald and am orphous statement
that [the employee] simply was ‘not sufficiently suited,’
however, neither we nor [the employee] can identify
the kind of evidence needed to demonstrate that such
a rank generalization is or is not pretextual.”
In addition, said the court, the INS’s statement that
the employee was not “sufficiently suited” for the job
and that the employee would not “fit in” does not necessarily
qualify as a “nondiscriminatory” reason, since the employer’s
subjective belief that the employee might not fit in
could be based on a protected trait such as age, race,
or another protected activity. Accordingly, the court
concluded, “We hold as a matter of law that justifying
an adverse employment decision by offering a content-less
and nonspecific statement, such as that a candidate
is not ‘sufficiently suited’ for the position, is not
specific enough to meet a defendant employer’s burden
of production under McDonnell Douglas. It is, at bottom,
As for the DHS’s second reason for not promoting
the employee – that the DHS selected the “best qualified”
candidate by choosing the outside applicant – the Fifth
Circuit rejected that rationale as well. It explained
that the DHS could not claim that its nondiscriminatory
reason for not promoting the employee was that it chose
the outside applicant instead because it was undisputed
that the outside applicant was not even under consideration
for the job at the time the employee was denied the
promotion. The appeals court acknowledged that choosing
some other candidate because he or she is the best-qualified
individual for the job is generally a legitimate, nondiscriminatory
reason for an adverse employment decision. Here, though,
the court explained that the DHS’s own statements
confirm that it had already rejected the employee before
it ever identified the outside applicant as a potential
candidate. Therefore, the court stated, “We hold as
a matter of law that an employer who offers the relative
qualifications of the applicants as its legitimate,
nondiscriminatory reason must show that, at the time
it made the decision adverse to the complaining applicant,
it already knew that the ultimately selected individual’s
qualifications were superior.”
Accordingly, because the employee established prima
facie cases of discrimination and retaliation, and the
INS failed to satisfy its burden of producing a legitimate,
nondiscriminatory reason for its employment decision,
the Fifth Circuit reversed the district court’s decision
and remanded the case for further proceedings.
Line: DHS’S STATEMENT THAT THE EMPLOYEE WAS NOT
“SUFFICIENTLY SUITED” FOR THE POSITION WAS NOT SPECIFIC
ENOUGH TO SATISFY ITS BURDEN OF PROOF IN THIS AGE DISCRIMINATION
ENVIRONMENT PROVEN, BUT NO DHS LIABILITY
cause hostile environment, but VA was not found liable
in the case:
Nicholas v. Department of Agriculture, 104 FEOR 53256
(EEOC OFO 11/04/04).The complainant was subjected to
a hostile work environment because of her race, but
the agencyavoided liability because it acted quickly
and appropriately to remedy the problem. Nicholas v.
Department of Agriculture, 104 FEOR 53256.
mocking memo makes work environment hostile
The EEOC affirmed an administrative judge's determination
that the agency was liable for a race-based hostile
work environment when stereotypically altered versions
of a memo were posted in common areas and placed in
several employees' mailboxes. The complainants established
a prima facie case of race discrimination because the
language used in the altered memos was "designed to
depict ignorant African-Americans by using stereotypical
ebonics" and the posting in the common area was sufficiently
severe to create a hostile work environment. The agency
had no defense to liability because there was a significant
delay before the facility's warden took any action.
Flowers v. U.S. Postal Service, 104 LRP 47084.
Manager Doesn't Get It
DOT approving official excludes African-American
An EEOC AJ did not err in finding the complainant was
subjected to race discrimination when he was not selected
for a mediator position and to retaliation for EEO activity
when he was denied a superior contribution increase
award. The complainant was entitled to $50,000 in nonpecuniary
damages. The agency claimed it chose the most qualified
candidate. However, the evidence established that the
approving official had animosity toward African-American
men and manipulated the selection process to exclude
them. McMillian v. Department of Transportation, 104
falls short after alleged harassment by aircraft
The FAA was found liable for harassment because it failed
to take stronger action in response to sex-based harassment
of the complainant, which included a threatening and
derogatory letter and an alleged incident in which a
heavy jet was misdirected toward the complainant's light
aircraft. Although the complainant in this case requested
and received reassignment, the EEOC found the agency
failed in its duty to take further proactive measures.
Boyer v. Department of Transportation, Federal Aviation
Administration, 104 LRP 41368.
Incurs Liability in EEO Case Involving Medical Accommodation
disregards medical restrictions; USPS incurs liability.
The complainant was subjected to disability-based harassment
when his supervisor persistently overruled his medical
restrictions and forced him to do work that eventually
led to further injury and emergency surgery. The supervisor
additionally retaliated against the complainant for
using the EEO process. When supervisors push for productivity
and neglect the limitations of reasonable accommodation
of disabilities, the agency may be exposed to EEO liability.
Hernandez v. U.S. Postal Service, 104 LRP 35000.
case decision is printed more in depth than typically
included on this site. All government agencies
should be well aware of what is proper and improper
when having employees "sign away" their administrative
rights to file complaints.
Equitable relief is appropriate where
the U.S. Postal Service insisted on
the exhaustion of administrative remedies, but effectively
employee from using those remedies, a federal district
court ruled earlier
The case began on September 19, 2002, when a U.S. Postal
Service Supervisor had a physical altercation with a
consuming large amounts of alcohol during his lunch
thereafter, on September 25th, the Postal Service told
the supervisor he
could either be terminated or resign within the hour,
subject to the terms
of a resignation agreement. Among other provisions,
agreement stated that the supervisor “agrees to withdraw
appeals in any administrative forum, including EEO and
MSPB and further
agrees not to file any future appeals in any administrative
including EEO and MSPB, concerning his employment and/or
agreement.” While the agreement referenced “current
appeals,” there were
apparently no administrative proceedings pending at
the time of the
agreement. Given the choice of being fired or resigning,
chose to resign, and signed the agreement.
Subsequently, however, the supervisor filed a complaint
district court, claiming that he was forced to resign
in violation of the
Rehabilitation Act. He further alleged that he had been
suffering from a disability, namely alcoholism, depression
that his behavior on September 19th was directly caused
by his disability;
and that he should have been given a reasonable opportunity
rehabilitation. In responding to the supervisor’s district
complaint, the Postal Service pointed out that under
the pertinent laws,
the supervisor should have exhausted his administrative
filing suit. Specifically, the Postal Service claimed
that the supervisor
should have either filed a complaint with the agency’s
Opportunity office or appealed to the U.S. Merit Systems
and that he could not proceed with the action in federal
until he exhausted his administrative remedies.
But the court concluded that the Postal Service could
not have it both
ways, by asking the supervisor to sign the resignation
him from filing administrative appeals, and then arguing
that his federal
suit could not proceed because he had not exhausted
remedies. Noting that equitable relief is appropriate
“where an agency
misleads or misdirects a claimant so as to prevent the
seeking an administrative remedy,” the court found that
was proper in this case. “This is not to say that the
Postal Service was
barred from reaching a settlement with [the supervisor]
in which [the
supervisor] agreed to refrain from using administrative
explained the court. “However, there is surely an anomaly
now in having
the Postal Service insist on the exhaustion of administrative
which it effectively prevented him from using.” Accordingly,
declared the provision in the resignation agreement
barring the supervisor
from pursuing his administrative remedies null and void,
and gave him an
opportunity to pursue these administrative remedies
while it stayed the
district court action.
The case is Hodgson v. U.S. Postal Service, U.S. District
Court for the
Southern District of New York, 03 Civ. 0647 (TPG), April
discrimination leads to $5,000 award
The EEOC found the US Postal Service discriminated against
the complainant based on race (African American) when
it failed to select her for a supervisory position.
The EEOC affirmed the AJ's compensatory damages award
of $5,000. The selecting official had signed a letter
stating he had interviewed the complainant when in fact
he had not, and he could not explain his rationale for
giving her a "basic" rating. Walker v. U.S. Postal Service,
104 LRP 15829.
Gay Discrimination Policy Affirmed (3/04)
The White House affirmed President Bush's support for
protecting gay federal workers from discrimination because
of their sexual orientation — a month after the official
he appointed to enforce that policy put it on hold.
"The president believes that no federal employee should
be subject to unlawful discrimination," White House
spokesman Trent Duffy said. "That's long-standing federal
policy that prevents discrimination based on sexual
On Wednesday, a group of Democrats in Congress urged
Bush to overturn a decision by Scott Bloch, head of
the Office of Special Counsel, to deny federal workers
legal recourse through his agency for sexual-orientation
The independent agency investigates and prosecutes claims
by federal employees and job applicants about discrimination,
sexual harassment and retaliation against whistleblowers.
Asked whether the White House would ask or direct the
agency to restore sexual orientation to its list of
"race, color, religion, sex, national origin, age or
handicapping condition" that can be causes of discrimination
claims, Duffy said, "That would be speculation."
A 1998 executive order by President Clinton explicitly
prohibited sexual orientation discrimination in the
federal government. That policy remains in effect at
the Office of Personnel Management, which oversees the
federal workforce. (AP)
Discrimination: Denial of Reasonable Accommodation;
Agency Defenses of Direct Threat and Undue Hardship
Rejected; Medical Confidentiality Violated ~ USPS
The Commission found complainant to
be a qualified individual with a disability (valvular
disease), in that she could perform the essential functions
of her position, keying, with or without reasonable
accommodation. EEOC found that complainant needed the
agency to excuse her from certain non-essential functions
i.e., prepping and load sweeping, which conflicted with
her medical restrictions, in order to perform the duties
of the position. The agency refused to grant the accommodation.
In finding that the agency violated the Rehabilitation
Act, the Commission rejected the agency's proffered
defenses of direct threat and undue hardship. The EEOC
found that the agency failed to meet its burden of proving
a significant risk of substantial harm, and conducting
an individualized assessment to show that complainant's
keying 6-8 hours a day, as she had done in the past,
would expose her to carpal tunnel syndrome. The agency
also failed to show undue hardship on its operations
by allowing complainant to perform her duties without
doing prepping or load sweeping. The evidence showed
that employees had been previously excused from various
duties, including prepping. Finally, the EEOC found
that the agency violated the Rehabilitation Act when
it improperly disseminated her medical diagnosis and
work restrictions. By way of relief, EEOC directed the
agency to offer complainant the position, with reasonable
accommodation; back pay; consider disciplining the employee
responsible for the discrimination; and remanded for
a hearing the issues of attorney's fees and compensatory
damages. Forde v. United States Postal Service, EEOC
Appeal No. 01A12670 (October 9, 2003).
and Age Discrimination in Nonselection ~ VA
The EEOC found that complainant was discriminated against
on the bases of race (African-American) and age (56)
when she was not selected for the position of Computer
Clerk. The agency's selecting officials had provided
subjective reasons for the challenged selection, such
as "ability to learn new things" and "enthusiasm."
An EEOC AJ found that the selecting officials lacked
credibility, and that the complainant had experience
performing many of the duties of the position and was
a more qualified candidate. The EEOC ordered the agency
to retroactively place complainant in the position and
provide back pay and other benefits, as well as $10,000
in compensatory damages. Williams v. Department of Veterans
Affairs, EEOC Appeal No. 07A20076 (September 22, 2003).
See also: Jones v. United States Postal Service, EEOC
Appeal No. 07A20004 (September 22, 2003) (failure to
provide light duty assignment based on race; $15,000
awarded in compensatory damages); Franco v. Department
of Veterans Affairs, EEOC Appeal No. 07A30012 (September
24, 2003) (nonselection for Computer Specialist position
based on national origin; award of $10,000 in compensatory
Complainants were subjected to retaliation for engaging
in protected EEO activity when the agency delayed their
pay. The Commission found that no other employees were
shown to have experienced the number of leave-related
pay errors to which complainants were subjected. By
way of relief, the Commission ordered the agency to
provide complainants with interest compounded from the
dates of the agency's unlawful conduct through the date
of payment to complainants of such interest; as well
as attorney's fees and costs. Barbagallo and Yost v.
United States Postal Service, EEOC Appeal Nos. 07A20012
and 07A20013 (October 2, 2003).
also Huie v. Federal Communications
Commission, EEOC Appeal No. 01A22474 (September 29,
2003) (nonselection for collateral duty EEO Counselor
because of pending EEO complaints; appointment ordered);
and Vasquez v. Department
of Homeland Security, EEOC Appeal No.
07A20097 (September 4, 2003) (supervisor's rescheduling
of complainant's meeting with EEO Counselor could have
potentially chilling effect on complainant's EEO activity;
EEOC ordered training for supervisor, $1,200 in pecuniary
and nonpecuniary compensatory damages, plus attorney's
fees and costs).
Harassment by Co-Worker ~ Social Security
The Commission found that complainant was subjected
to hostile environment, gender-based harassment by a
co-worker who treated her in a rude and threatening
manner, and affirmed an award of $5,000 in compensatory
damages. Liu v. Social Security Administration, EEOC
Appeal No. 07A20052 (September 16, 2003).
CONSIDERATION UPHELD ~ Bureau of Prisons
failed to show good reason for not selecting grievant. The
FLRA denied the agency's exceptions. The agency failed
to justify its disregard of a settlement agreement that
granted priority consideration to the grievant. The
parties agreed the grievant should receive priority
consideration for the next available GS-14 position.
However, he was not selected. The agency failed to prove
it had legitimate, job-related reasons for not selecting
the grievant. Department of Justice, Federal Bureau
of Prisons, U.S. Penitentiary, Leavenworth, KS and AFGE,
Local 919, Council of Prisons Locals, Council 33, 104
EXAMPLE OF HOW GOOD TRAINING AND FAST ACTION CAN ELIMINATE
OR REDUCE LIABILITY IN EEO CLAIMS:
EFFECTIVE ACTION SHIELDS USPS FROM HARASSMENT LIABILITY
The complainant was subjected to an incident
involving verbal and physical sexual harassment by a
coworker. The agency avoided liability by insuring managers
were properly trained on sexual harassment policies/procedures
and by taking prompt and appropriate action. Although
the incident involved was severe, the agency had no
reason to suspect the coworker would act in such a manner.
It took prompt and appropriate action by sending the
coworker home, conducting an investigation, issuing
the coworker a notice of removal and assuring the complainant
she would not have to work with him again. This quick
action shielded it from liability. Archie v. U.S. Postal
Service, 103 LRP36442.
IRS fails to
stop decade-long stop sexual harassment by coworker
a bench trial, the U.S. District Court, Northern District
of Texas, found the plaintiff was subjected to sexual
harassment by a male coworker who repeatedly made unwelcome
advances that were not addressed by the agency despite
the plaintiff's numerous complaints. The court awarded
the plaintiff $50,000 in nonpecuniary damages. An agency
cannot avoid liability if officials are aware of unlawful
harassment,but fail to make an effort to stop it. O'Brien
v. Department of the Treasury, 104 LRP 1908.
disqualification is not disability discrimination ~
The complainant was not subjected to disability discrimination
when he was found ineligible for an immigration inspector
position because of his physical limitations. In order
to fall within the protection of the Rehabilitation
Act, the complainant must show he is a "qualified" individual
with a disability. The complainant was not qualified
for the position because his physical impairments limited
his ability to perform the types of actions necessary
to prevent people from illegally entering the United
States. Reyes v. Department of Homeland Security, 103
Bureau (NPC) Ordered to Pay Female Employee $50,000
2003 - The EEOC ruled that the Census Bureau (NPC),
Jeffersonville, Indiana, was guilty of allowing a female
clerk to be harassed by two male supervisors, thus creating
a hostile working environment. Census (NPC) had
conducted it's own internal investigation, as required
by Commerce harassment policy, and determined there
was no harassment by the supervisors. The clerk
(Cain) claimed she had complained to management about
the harassment, but the Agency failed to take corrective
action. In addition to the $50K, the Census Bureau
(NPC) will also pay the legal fees for the complainant,
which is estimated to be $36K, provide training
in equal opportunity requirements to the supervisors,
and post the non-discrimination policy for all employees
(for at least 60 days).
Law - Fitness for Duty (USPS)
Unnecessary Fitness-for-Duty Examination Violates the
Rehabilitation Act. The Commission found that the agency
violated the Rehabilitation Act, when it ordered complainant
to undergo a fitness-for-duty examination and then suspended
her for not submitting to the examination. The Commission
noted that, irrespective of whether an employee is an
individual with a disability, an agency may only make
a disability-related inquiry or require a medical examination
if it is job related and consistent with business necessity.
The Commission awarded complainant $50,000 for non-pecuniary
harm. Amen v. United States Postal Service, EEOC Appeal
No. 07A10069 (January 6, 2003).
Law - Reasonable Accommodation (USPS)
Complainant Unlawfully Denied Reasonable Accommodation.
The Commission found that the agency violated the Rehabilitation
Act when it failed to provide complainant, a deaf employee
who uses sign language to communicate, with an interpreter
during a safety talk. The Commission found no evidence
to support a finding that the provision of interpreter
services would have caused an undue hardship. EEOC also
noted that the agency failed to provide evidence that
it attempted to contract the services of an interpreter
in contemplation of the safety talk. As part of the
relief ordered, the Commission directed the agency to
train its management officials as to their obligations
under the Rehabilitation Act; to notify complainant
of his right to submit objective evidence in support
of his claim for compensatory damages; and to consider
disciplining the responsible management official(s).
Saylor v. United States Postal Service, EEOC Appeal
No. 01A05281 (November 15, 2002); see also Holton v.
United States Postal Service, EEOC Appeal No. 01991307
(November 7, 2002) (denial of services of interpreter
for hearing impaired employee for presentation of new
automation concept violated Rehabilitation Act).
Bureau of Prisons Grievant Claims Assignment Decision
Violated his Civil Rights.
male grievant's request to be assigned to supervise
a detail of female-only inmates was denied by the agency.
The arbitrator agreed with the agency. The union's claim
that the award violated the Civil Rights Act was dismissed
by the FLRA. The position would occasionally require
that strip searches be performed on female inmates.
Having a male officer conduct these searches "could
violate the inmates' privacy rights," the FLRA
determined. AFGE, Local 3584 and Department of Justice,
Federal Bureau of Prisons, Federal Correctional Institution,
Dublin, CA, 103 LRP 15926.
FOR BOTH PRIVATE INDUSTRY
COURT SAYS OLDER WORKERS CAN BE TREATED BETTER THAN
YOUNGER WORKERS ~ March 2004
U.S. Supreme Court has issued a decision saying the
"Age Discrimination in Employment Act (ADEA) does not
prohibit employers from treating older workers better
than younger workers. The ruling came from the case
of General Dynamics Land Systems, Inc. v. Cline (No
02-1080), and Justice David H. Souter was the majority
opinion. The vote was 6-3. In 2002, the 6th U.S. Circuit
Court of Appeals heard the case and said a group of
200 employees over the age of 40 could proceed with
their age discrimination suit against the company. At
issue was the claim that the company cut off rights
to retiree medical benefits for everyone except those
over 50 years of age on the qualifying date. Those who
filed the class action case were ages 40 - 49.
careful, however, before revising your retirement packages
without first consulting legal advisors. There could
be impact on the Employee Retirement Income Security
Act (ERISA) requirements.
REQUIREMENTS FOR MANAGEMENT AND EMPLOYEES:
Proposition 54 Rejected - October 2003
54, the Racial Privacy Initiative, which would have
prohibited state and local governments from using race,
ethnicity, color or national origin to classify current
or prospective students, contractors or employees in
public education, contracting, or employment operations,
was defeated. California voters rejected the measure
that would have ended collection of racial data.
Agree With Employer Who Banned Confederate Flag From
Coburg Dairy in Charleston, SC, won a lawsuit filed
by Matthew Dixon, complaining that his constitutional
rights and the public policy of South Carolina had been
violated when he was fired for refusing to remove confederate
flag stickers from his toolbox. The U.S. Court
of Appeals for the Fourth Circuit made two critical
points when making the decision for the employer:
1) The First Amendment to the U.S. Constitution protects
citizens only from government or state interference
with their rights to free speech. Coburg Dairy
is not a state entity, and therefore any actions they
take would not violate the Constitution. 2) Even
if Dixon were a state employee, he still could have
been lawfully fired for his refusal to remove the decals,
and the employer acted in an effort to keep conflict
among its employees at a minimum and to avoid potential
liability for racial harassment under federal law.
A NUTSHELL: Recent OFCCP Settlements in
- Perdue Farms, Dillon, South
Carolina - Affected Class (hiring) (gender and race)
- Total $1.7 million
- Jimmy Dean Foods, Newbern,
Tennessee - Affected Class (hiring) (gender-women) Total
- Oliver Rubber, Asheboro,
NC - Affected Class (gender - women) - Total $336,324
- McKesson Atlanta Distribution
Center, Atlanta, GA - Affected Class (hiring) (gender
- women) - Total $156,215
- Boise Cascade, Charlotte,
North Carolina - Affected Class (hiring) (race -
minorities) Total $181,718
- The Medical University of
South Carolina (MUSC), Charleston, SC - Disparate
Impact (gender-women) Total $115,720
- Pictsweet Frozen Foods,
Bells, Tennessee - Affected Class (hiring) (black
and white Applicants)- Total $2,388,059
Sexual harassment cases seem to be escalating.
Several of the recent EOC rulings have included settlements
in favor of the complainants. To emphasize the
seriousness of these decisions (and the high dollar
awards), we have provided more in depth information
relating to a few of the cases (below). Remember:
Employers are responsible for establishing effective
sexual harassment policies and training employees and
managers to fully understand requirements.
Hut to Pay $360,000 for Settlement of Sexual Harassment
2003 - The EEOC announced the settlement of a sexual
harassment lawsuit against Pizza Hut, the national restaurant
chain based in Dallas, Texas, for $360,000 on behalf
of four female former employees who were subjected to
a sexually hostile work environment. The settlement
also includes a number of anti-discrimination training
obligations, review of appropriate complaint procedures,
and record-keeping and reporting obligations to be monitored
by the EEOC over the duration of the two year term of
the Consent Decree.
Among other things, the EEOC's lawsuit alleged that
former female employees were sexually harassed by a
co-worker at a Pizza Hut restaurant in Diamond Bar,
Calif. The harassment included sexual touching and groping.
The lawsuit also alleges that Pizza Hut had notice of
the sexual harassment and failed to prevent and/or promptly
correct the unlawful behavior. In addition, the suit
charged the employer with the constructive termination
of the women.
Wins $1.55 Million Dollar Jury Verdict in Sexual Harassment
Suit Against Florida Restaurant
EEOC today announced that a jury in Federal District
Court in Tampa, Florida, has returned a $1,550,000 verdict
in a major sexual harassment lawsuit brought by the
EEOC and the private law firm of Florin, Roebig &
Walker, P.A. The lawsuit was originally brought against
Applebee's International, Inc., Rio Bravo International,
Inc. and Innovative Restaurant Concepts, Inc. for sexual
harassment occurring from approximately 1994 until early
1998 at their formerly owned Rio Bravo Cantina restaurant
in Clearwater, Fla.
The jury rendered a verdict in favor of the EEOC and
private plaintiffs, awarding $10,000 each to the five
women represented in the case to compensate them for
the emotional pain and suffering they endured, and awarded
punitive damages against the remaining two corporate
defendants in the amount of $500,000 each forthree of
the five women.
The EEOC lawsuit, filed in 1999, said that former waitresses
and hostesses were subjected to egregious acts of verbal
and physical sexual conduct on the part of one of the
employer's assistant managers and, despite repeated
complaints to management, the corporate defendants failed
to take necessary steps to stop the harassment. The
harassment of the young women included touching, groping
and rubbing their breasts, legs and buttocks in a sexually
offensive manner; forcing the women to sit on the assistant
manager's lap before leaving their shifts; attempting
to kiss them; and making graphic, offensive sexual remarks.
EEOC asserted that the women repeatedly complained to
management about the sexually offensive conduct; however,
thecorporate defendants failed to implement corrective
action, allowing the behavior to continue and escalate.
Supreme Court Decides On Constitutionality of Gay Sex
April 24, 2003, the Supreme Court struck down a ban
on gay sex, ruling that the law was an unconstitutional
violation of privacy.
6-3 ruling reverses course from a ruling 17 years ago
that states could punish homosexuals for what such laws
historically called deviant sex. Laws forbidding homosexual
sex, once universal, now are rare. Those on the books
are rarely enforced but underpin other kinds of discrimination,
lawyers for two Texas men had argued to the court. The
men ''are entitled to respect for their private lives,''
Justice Anthony M. Kennedy wrote. ''The state cannot
demean their existence or control their destiny by making
their private sexual conduct a crime,'' he said.
John Paul Stevens, David Souter, Ruth Bader Ginsburg
and Stephen Breyer agreed with Kennedy in full. Justice
Sandra Day O'Connor agreed with the outcome of the case
but not all of Kennedy's rationale. Chief Justice William
H. Rehnquist and Justices Antonin Scalia and Clarence
Court Upholds Affirmative Action as “Compelling
Affirmative Action ruling is finally in from the Supreme
Court Justices! In one of the most significant affirmative-action
decisions in over a decade, the Supreme Court has upheld
diversity as a "compelling state interest."
However, the court overturned the use of an affirmative-action
point system which has been in place for the University
of Michigan ’s undergraduate programs.
AP reported that the long awaited ruling (upheld by
Justices Stevens, O’Conner, Souter, Ginsburg and Breyer)
endorsed the University of Michigan ’s law school program
which was created to ensure a “critical mass” of students
of color on campus. The Justices agreed, in a 5-4 vote
that the program is not an illegal quota. However, the
court rejected the use of a point system now in place
at the University of Michigan ’s undergraduate level.
Many believe this decision will provide direction for
schools of higher education which will clarify the contradictory
affirmative action decisions which have been passed
down for years.
Alger, assistant general counsel to the University of
Michigan stated, "This is a significant victory
for higher education and provides us with guidance so
we know how to design programs that are constitutionally
sound.” "The university will obviously comply with
the court's decision."
does this mean for you, the federal contractor/subcontractor?
Nothing changes…goals, as written and required by Executive
Order 11246 are alive and well. Keep up your good faith
2003 EEO Guidance, Inc.® ~ Carol A. Dawson
Florida judge ruled Friday that a Muslim woman cannot
wear a veil in her driver's license photo, agreeing
with state authorities that the practice could help
terrorists conceal their identities.
hearing three days of testimony last week, Circuit Judge
Janet C. Thorpe ruled that Sultaana Freeman's right
to free exercise of religion would not be infringed
by having to show her face on her license. Thorpe said
the state "has a compelling interest in protecting
the public from criminal activities and security threats,"
and that photo identification "is essential to
promote that interest."
On April 9, 2003, the U.S. Equal Employment Opportunity
Commission (EEOC) announced its largest sexual harassment
settlement ever in the state of New York for $5.425
million and significant remedial relief on behalf of
a class of female workers at Lutheran Medical Center
(Lutheran), a hospital based in Brooklyn, New York.
In the lawsuit filed under Title VII of the Civil Rights
Act of 1964 (EEOC v. Lutheran Medical Center, No. 01-5494,
E.D.N.Y.), EEOC alleged that Dr. Conrado Ponio, during
his employment at Lutheran, abused his authority by
sexually harassing a class of female employees when
conducting employment related medical examinations.
The sexual harassment included invasive touching and
intrusive questions about the employees' sexual practices.
Additionally, the EEOC alleged that Lutheran
knew or should have known of the sexual harassment and
failed to take adequate measures to prevent such harassment.
Eight female employees had filed charges with EEOC that
led to the litigation, which was filed after the agency
exhausted its conciliation efforts to reach a voluntary
The U.S. Equal Employment Opportunity Commission (EEOC)
today filed its fourth post-9/11 backlash discrimination
lawsuit against Norwegian American Hospital for subjecting
Charging Party Rashidah Abdullah to harassment, discriminatory
discipline, retaliation, and termination because of
her religion, Islam.