Don Names, Deputy Assistant General Counsel Manpower and Reserve Affairs Department of the Navy EEO Case Law Update

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 (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 : – 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 (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 (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 (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 (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 (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 (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 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 (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 (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 (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 (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 (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 (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 (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 (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 (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.