Transcript EEO Case Law Update

EEO Case Law Update
Don Names, Deputy Assistant General Counsel
Manpower and Reserve Affairs
Department of the Navy
The Lay of the Land
 EEOC’s Annual Report on the Federal Workforce (FY 2012)
 15,837 EEO complaints
 Most common bases: retaliation, age and race (African-
American)
 Most common issues: harassment, non-selection, terms and
conditions
 Government-wide, the number of EEO complaints decreased
5.5% over 5 years
Supreme Court Interprets Pregnancy
Discrimination Act
• Young v. UPS, Inc., No. 12-1226 (3/25/15)
• Pregnant employee with 20-pound lifting restriction informed by
employer that she could not work while under the lifting
restriction.
• Supreme Court clarifies that under Title VII of the Civil Rights Act
of 1964, a pregnant employee alleging that an employer is in
violation of the Act can establish a prima facie case of disparate
treatment, following the analysis set out in McDonald Douglas Corp.
v. Green by showing:
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she is a member of a protected class;
she requested accommodation;
the employer did not provide accommodation; and
the employer accommodated others "similar in their ability to work."
The Problem with Procedurals
 EEOC Reports that nearly half of all procedural dismissals
are reversed on appeal (44.9%).
 Of these reversals, most are dismissals for failure to state a
claim (57%) and timeliness (24%).
 Let’s take a look at a few of these decisions for some lessons
learned.
Employee “Aggrieved” by Changed
Assignment
 Complainant v. USPS, EEOC No. 0520120403 (4/7/2014)
 Agency argued that complainant was not aggrieved by change in
his mail delivery route, and dismissed his complaint.
 EEOC disagreed, finding that the change in his route made it
physically difficult to perform, and therefore he suffered a “harm
or loss with respect to a term, condition or privilege of
employment” which stated a justiciable claim.
Stating a Claim of Harassment
 Complainant v. Army, EEOC No. 0120142868 (1/8/2015)
 Complainant’s allegation of discrimination when she had to wear
a sign which read “Ride ‘em Hard” at an office holiday party was
dismissed for failure to state a claim (single incident).
 EEOC reversed, finding that the sign incident and co-worker
comments following the party stated an actionable claim of
harassment.
Agency Joint Employer of Contractor
 Complainant v. Navy, EEOC No. 0120122698 (5/20/2014)
 Nurse employed by private staffing firm at agency hospital
alleged race discrimination when she was disciplined and
ultimately fired.
 Agency dismissed for failure to state a claim, asserting
complainant was not a federal employee or applicant.
 EEOC reversed, finding agency exercised sufficient control over
complainant to qualify as joint employer.
Supervisory Harassment
 Petitioner v. Interior, EEOC No. 0320110050 (7/16/2014), aff’d
121 MSPR 438 (8/15/2014)
 EEOC differs with MSPB, finding that supervisor engaged in
harassment based on race, sex and retaliation when she harassed
and ultimately removed complainant.
 EEOC states that S.Ct. decision in Nassar requiring “but for”
proof of retaliation does not apply in federal sector.
Co-Worker Harassment
 Complainant v. DoD (DIA), EEOC No. 0120084008 (6/6/2014)
 EEOC finds hostile work environment created by co-worker
based on sex and retaliation, and agency failed to take immediate
and appropriate corrective action.
 EEOC sanctions agency for failure to issue FAD within
regulatory time period and agency counsel for interference with
investigation (4 hours of EEO training ordered).
Disparate Treatment and Harassment
of Transgender Employee
 Complainant v. Army, EEOC No. 0120133395 (4/1/2015)
 EEOC finds unlawful disparate treatment of transgender
employee when she was denied access to common women’s
restroom.
 Transgender employee was subjected to hostile work
environment based on sex when team leader intentionally
and repeatedly referred to her by male names and pronouns.
Disability – Essential Function of Position
 Alvara v. DHS, Spec. Panel (9/29/2014), see EEOC No.
0320110053
 Essential functions of job are outcomes to be achieved.
 Attendance and timing of duties are not essential functions.
 Special Panel affirmed EEOC’s decision.
Disability – Reasonable Accommodation
 Complainant v. DOT, EEOC Appeal No. 0120081003 (5/9/2014)
 Agency rescinded flexible schedule accommodation when
complainant’s cancer was in remission.
 Commission finds that complainant is disabled due to ongoing
effects of cancer medication.
 Agency violated Rehabilitation Act when it rescinded flexible
work schedule.
Improper Disability-Related Inquiry
 Complainant v. Dept. of Education, EEOC No.
0720130002 (8/27/2014)
 Pre-employment inquiry in USAJobs
application process regarding candidates’
disabilities violates Rehabilitation Act.
Rehabilitation Act’s Confidentiality
Provisions
 Complainant v. DOJ (Bureau of Prisons), EEOC No. 0520130125
(4/25/2014)
 Agency placed documentation identifying complainant’s
diagnosis and symptoms in a non-medical adverse action file in
its Human Resources Department.
 Violation found based on failure to maintain medical information
in separate files, even in the absence of an unauthorized
disclosure.
Fitness for Duty Exam
 Complainant v.TVA, EEOC No. 0120120140 (5/1/2014)
 Agency violated restrictions on pre-employment inquiries and
medical exams when it ordered complainant to undergo FFDE
following “extreme behavior” during investigative interview.
 Commission found agency failed to provide persuasive evidence
that complainant posed “direct threat” or could not perform
essential functions.
Retaliation
 Complainant v. DOJ (FBI), EEOC No. 0120123111 (3/27/2014)
 “Per se” violation of anti-retaliation provisions of Title VII found
when agency official threatens to disband the unit if “problems”
(EEO complaints) continued.
 Intentional retaliation also found when complainant was denied
use of government vehicle, while co-workers who had not
engaged in protected EEO activity were allowed to use
government vehicles.
Religious Accommodation
 Complainant v. USPS, EEOC No. 0120141486 (8/15/2014)
 EEOC finds agency failed to reasonably accommodate
complainant’s religious beliefs when it denied his request to
not work on Saturdays (his Sabbath).
Sanctions
 Complainant v. Broadcasting Board of Governors, EEOC No.
0120110117 (11/6/2014)
 EEOC imposes sanction of default judgment when agency fails to
provide EEO complaint file to Commission on appeal.
 Finding that complainant had established a prima facie case of
reprisal, the Commission ordered a supplemental investigation
on the complainant’s entitlement to compensatory damages.
Sanctions
 Complainant v. Health and Human Services, EEOC No.
0720130003 (6/16/2014)
 EEOC sanctions agency for failure to preserve interview
notes in challenged non-selection.
 Sanction of adverse inference led to finding of race and age
discrimination.
 Remedies included retroactive placement in position, back
pay and $84,000 in attorney’s fees.
Remedies: $200,000 Damages Award
 Complainant v. DHS, EEOC No. 0720130039 (8/7/2014)
 Following a hearing, an EEOC AJ found that complainant had
been discriminated based on her sex when terminated.
 Complainant was awarded $200,000 in compensatory damages,
based upon extensive testimony and evidence of emotional
distress, physical symptoms of distress, the demise of her
marriage, economic harm and harm to her reputation.