EEOC Update Baltimor..
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Transcript EEOC Update Baltimor..
EEOC Update
Baltimore FEB 2014
Don Names, Deputy Assistant General Counsel
Manpower & Reserve Affairs
Department of the Navy
Parade of Cases!
• How to analyze allegations of harassment.
• Lessons to be learned from the EEOC's
recent decisions addressing disability
issues.
• Trends in EEOC decisions addressing
gender stereotyping.
• Retaliation, including chilling conduct.
• Remedies in EEO cases.
Stating a Claim of
Harassment
Arganda v. USPS, EEOC Appeal No.
0120122328 (6/20/13)
Supervisor urinating in vehicle in front of
complainant and stating “I got it on ice”
states claim of harassment.
Single incident may state claim of
harassment if sufficiently egregious… “this
is one of those cases.”
Note: being “male” is not “genetic
information” for purposes of GINA.
Sexual Harassment
Willis, Sampson & Bosley v. USPS, EEOC
No. 0120120339 (8/20/13).
Complainants alleged sexual harassment
by co-worker due to his attire, which
significantly outlined and occasionally
exposed his penis.
EEOC found that management was aware
of this, that a reasonable person would
find this to be a hostile work environment,
and the agency failed to take immediate
and appropriate corrective action.
Supervisory Harassment
Complainant v. Social Security
Administration, EEOC No. 0720120009
(11/24/13)
EEOC finds hostile environment based on
race (African-American) and sex when
supervisor continuously mocked and
stereotyped African-American females.
Harassment included a tangible
employment action, thereby precluding
affirmative defense under Supreme Court
Faragher and Ellerth decisions.
Co-worker Harassment
Complainant v. USPS, EEOC No.
0120132144 (11/1/13)
EEOC finds hostile work environment on
basis of race (African-American) when coworkers wear shirts featuring the
Confederate flag several times a month.
Agency was aware of the activity but
failed to take immediate and appropriate
corrective action, and was therefore found
liable.
Reasonable Accommodation
Denied
Blocher v. VA, EEOC No.
0120111937 (4/17/13)
Agency assertion that
supervisors may not telework
not sufficient to support denial of
request for accommodation.
Improper Disability-Related
Inquiry
Bozeman v. USPS, EEOC No.
0120120923 (5/3/13)
Pre-employment inquiry by
selecting official regarding
complainant’s medical
restrictions violates
Rehabilitation Act.
Rehabilitation Act’s
Confidentiality Provisions
Complainants v. USPS, EEOC Nos.
0120123252 et al. (10/24/13)
EEOC finds agency posting of
complainants’ medical information on
database available to all supervisors a per
se violation of Rehabilitation Act’s
mandate that all employees’ medical
information be kept confidential.
Fitness for Duty Exam
Sanders v. USPS, EEOC No.
0120130214 (04/03/13)
No violation of restrictions on
disability-related medical exams
when complainant posed direct
threat due to medical condition.
Failure to Provide
Reasonable Accommodation
Smith v. USPS, EEOC Appeal No.
0720090050 (9/17/13)
EEOC finds failure to reasonably
accommodate when agency terminates
reassignment and returns complainant to
workplace which triggered mental
impairments.
OFO affirms AJ award of $120,000
damages, and sanctions agency for failure
to produce portions of record on appeal.
Harassment on Basis of Sex:
Gender Stereotypes
Couch v. Department of Energy, EEOC No.
0120131136 (08/13/13)
Co-workers repeatedly referred to
complainant as “fag”, “faggot” and “gay.”
EEOC finds complainant subjected to
harassment on basis of sex (gender
stereotypes of masculinity).
Sexual Orientation Not
Protected Basis
Complainant v. Department of Health and
Human Services (CDC), EEOC No.
0120123000 (11/14/13)
Agency’s dismissal of allegation of
discrimination when she was referred to
by co-worker as a lesbian was affirmed by
EEOC on appeal.
EEOC noted there was no indication that
she was subjected to sex stereotyping
discrimination.
Harassment: Complainant is
Gay and Frequents Gay Clubs
Brooker v. USPS, EEOC No. 0520110680
(5/20/13)
EEOC finds ongoing co-worker comments
that Complainant is gay and frequents gay
clubs and bars states a claim of
harassment.
Commission notes that complainant is
alleging harassment on basis of sex, not
sexual orientation, and therefore the claim
is covered by Title VII.
“Cat’s Paw” Theory Used to
Prove Retaliation
Complainant v. Department of Veterans
Affairs, EEOC No. 0120110544 (9/23/13)
EEOC finds retaliation in non-selection,
notwithstanding selecting official’s lack of
knowledge of complainant’s protected EEO
activity, imputing retaliatory animus of
complainant’s supervisor to selecting
official using “cat’s paw” theory.
“Per Se” Retaliation
King v. International Boundary
and Water Commission, EEOC
No. 0120112384 (3/19/13)
Supervisor informing coworkers
of complaint reasonably likely to
deter protected activity.
More “Per Se” Retaliation
Complainant v. Department of Defense,
EEOC No. 0120132212 (11/08/13)
Supervisor’s comments that “EEO’s are
crap,” “EEO people are crazy,” and “Don’t
be afraid of EEO’s, they’ll go away” found
to be reasonably likely to deter protected
activity.
Finding “per se” violation, EEOC rejects AJ
finding of no unlawful retaliatory animus.
Yet More “Per Se” Retaliation
Beckham v. Department of the Treasury
(U.S. Mint), EEOC No. 0120112323
(05/22/13)
After learning complainant had filed EEO
Complaint supervisor states she “would
have to document more fully what we said
in meetings and that might result in trust
concerns.”
EEOC finds comments reasonably likely to
deter protected activity.
And yet More “Per Se”
Retaliation
Gordon v. Department of the Army, EEOC
No. 0720120040 (8/27/13)
Supervisor statement that complainant
must use annual leave to file EEO
complaint found by EEOC to be reasonably
likely to deter protected activity.
Remedy included $16,000 compensatory
damages.
Contractor NOT Federal
Employee
Murphy v. Department of Veterans Affairs,
EEOC No. 0120132014 (9/17/13)
EEOC finds that contractor, who met the
majority of the factors generally
considered as establishing a joint
employment relationship, was
nevertheless not a federal employee for
Title VII purposes because the contractor
continued to employ him after the agency
terminated his services.
Offer of Resolution
Williams v. Department of Veterans
Affairs, EEOC No. 0120123334 (08/15/13)
Following investigation of sexual
harassment complaint, agency’s offer of
resolution in amount of $48,000 rejected
by complainant.
Amount awarded by EEOC not more
favorable than offer, cutting off attorney’s
fees incurred after expiration of offer.
Posting as Remedy
Complainant v. Department of Veterans
Affairs, EEOC No 0720130007 (11/02/13)
The agency accepted an AJ finding of age
discrimination in non-selection, but
appealed the AJ order to post a notice on
its website of the ADEA violation.
EEOC agreed that the posting is typically
at “the affected facility,” absent
justification for a wider posting, and
modified the AJ order.
No Damages When Not
Proven at Hearing Stage
Cheves v. Department of Veterans Affairs,
EEOC No. 0120113641 (8/21/13)
EEOC AJ finds retaliation in 7-day
suspension and PIP, and agency fully
implements finding.
Complainant appeals, seeking damages.
EEOC denies appeal, noting that
complainant asserted damages at hearing
but failed to present evidence at hearing
to support his claim.