EEO Decisions in the News-Government
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GOVERNMENT EEO ISSUES
October 23, 2008
NASSAU COUNTY POLICE DEPT. TO PAY $450,000 FOR AGE BIAS
EEOC Says County Attempted to Force Out Senior Marine Bureau Police Officers
NEW YORK - The U.S. Equal Employment Opportunity Commission (EEOC) today announced that Nassau County on Long Island will pay $450,000 and agree to significant injunctive relief to settle an age discrimination lawsuit on behalf of several police officers in the Marine Bureau.
In its lawsuit, the EEOC asserted that Nassau County discriminated against Lawrence Coleman, Arthur D’Alessandro, Robert Macaulay, and Joseph Petrella (charging parties) in violation of the Age Discrimination In Employment Act (ADEA). Specifically, EEOC states that on or about July 27, 2006, the county transferred the charging parties out of their Marine Bureau positions and into precincts that were less desirable and replaced them with younger officers.
As a result of the discriminatory transfers, Coleman and Macaulay were forced out of their jobs (constructively discharged) and D’Alessandro and Petrella continued to work in precincts that were less favorable to them. The charging parties’ files contained numerous positive commendations from the public throughout their employment with Nassau County. Moreover, their files contained no negative performance evaluations prior to their transfer or at any time.
“Employers must be mindful of age discrimination and take steps to prevent it, particularly with the graying of the labor force,” said EEOC New York District Director Spencer Lewis. “All individuals deserve the freedom to compete in the workplace based on merit and ability, regardless of age.”
The consent decree resolving the litigation provides $450,000 in total for the charging parties as well as injunctive relief, including anti-discrimination training for more than 400 supervisors and managers in the Nassau County Police Department. The lawsuit was filed in U.S. District Court for the Eastern District of New York on September 24, 2007 (Civil Action No. 07 CV 3980), after the EEOC investigated the case, found that discrimination had occurred, and attempted to reach a voluntary settlement out of court.
“The EEOC hopes this settlement encourages employers to think twice before subtly or overtly pushing senior employees towards retirement in order to save money, or for any other illegal purpose based on age,” said Sunu P. Chandy, the EEOC attorney on the case.
Arthur D’Alessandro, one of the charging parties added, “This experience has been disheartening and embarrassing to our reputations. We all dedicated our lives to this profession and we deserve to be treated with dignity instead of being humiliated in this way. We appreciate the efforts of the EEOC staff that spent many hours resolving our case. It is good to know that because of the efforts of this agency, others in our position will not be treated this way.”
During Fiscal Year 2007, the EEOC received 19,103 age discrimination charge filings, a 15% increase from the prior year and the largest annual increase since FY 2002. The Age Discrimination In Employment Act (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA’s protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.
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OCTOBER 11, 2007
EEOC FORMS FEDERAL ASIAN AMERICAN AND PACIFIC ISLANDER WORK GROUP
WASHINGTON - Naomi C. Earp, Chair of the U.S. Equal Employment Opportunity Commission (EEOC), today announced the formation of an Asian American and Pacific Islander Work Group that will examine this community’s concerns about federal sector employment, special emphasis programs and the complaints process.
“The work group will be tackling these urgent and vexing problems which the Commission plans to address at a meeting to be held in 2008,” Chair Earp said. “Our work will begin with testing perceptions and gathering the realities Asian Pacific Americans face in the federal workplace.”
“The composition of the work group will be diverse in race, ethnicity and gender, and will be comprised of persons from various agencies, grade levels, occupational categories, levels of management, and professions,” Chair Earp added.
The members of the new work group represent a cross section of agencies, departments and external stakeholders and include the following:
- Suzan Aramaki, Director, Office of Civil Rights, U.S. Department of Commerce;
- Linda Bradford-Washington, Director, Office of Departmental Equal Employment Opportunity, U.S. Department of Housing and Urban Development;
- Sherrie Davis, Acting Division Director, Program Policy and Evaluation, Office of Equal Opportunity and Diversity Management, National Institutes of Health;
- Robert Jew, Director of EEO and Diversity Programs, The National Archives and Records Administration;
- Farook Sait, Special Counsel to the Assistant Secretary of Civil Rights, U.S. Department of Agriculture;
- James Su, Senior Vice President for Operations, Federal Asian Pacific American Council; and,
- Sharon Wong, President, Asian American Government Executives Network.
“This work is extremely important,” said Gazal Modhera, a special assistant to Chair Earp and the newly appointed chair of the work group. “I can’t wait to get moving on this important initiative, and I am so pleased to have the opportunity to guide this extraordinary group.” __________________________________________________
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.
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ADEA: Supreme Court Decides on Age Discrimination Disparate Impact Case
June 19, 2008 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.
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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.”
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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: http://www.supremecourtus.gov/opinions/07pdf/06-1321.pdf
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: http://www.supremecourtus.gov/opinions/07pdf/06-1431.pdf
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EEOC SETTLES SEX BIAS CASE WITH STATE CORRECTIONS DEPARTMENT FOR ALMOST $1 MILLION
May 2008 - 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.
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AUGUST 2007
FINAL RULING: EXPANDS VETERANS COVERAGE AND CHANGES MANDATORY JOB LISTING. The new regulations are effective September 7, 2007.
The Office of Federal Contract Compliance Programs (OFCCP) published its final rule for Veterans’ AAP requirements. Veterans’ affirmative action will now be addressed by two separate sections of 41 Code of Federal Regulations (CFR). The current provisions of Part 60-250 will continue to apply to contracts made on or before December 1, 2003. However, the new section in 41 CFR, Part 60-300, will apply to contracts made after December 1, 2003. The new contract threshold of $100,000 is what contractors must meet before they are required to prepare a written Veterans’ AAP.
For a copy of the OFCCP Questions and Answers page on the changes, go to:
http://www.dol.gov/esa/regs/compliance/ofccp/faqs/jvafaqs.htm
In a nutshell: USERRA Compliance:
–USERRA applies to every employer, regardless of size or business sector. There is no minimum number of employees threshold as in many other employment laws.
–All employers must grant military leave, on request of the service member involved. Employers may ask for documentary proof that the leave is military, which often comes in a letter from the unit’s commander. Leave can be for required training as well as for extended service.
–Leave is unpaid under the law, although some companies pay leave-takers their salary or the difference between their military and civilian pay, for purposes of both patriotism and retention. Employers must also continue to offer health benefits for up to 24 months. The first 31 days are at the employee’s normal rate of contribution. The remainder is handled like COBRA, with the employee liable for 102 percent of the full premium.
–In normal times, the employee’s job is protected for up to 5 years of cumulative military service. When leave-takers return, they must be placed in the position they would have had if they had stayed. Credit toward pensions and seniority must be awarded as if the individual never left.
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August 31, 2007
Interim Guidance on the use of Race and Ethnic Categories in Affirmative Action Programs
Beginning in 2007, employers, including Federal contractors, will report data about the racial, ethnic, and gender composition of their workforces on a revised Standard Form 100, Employer Information Report (commonly referred to as the “EEO-1 Report”). The revised EEO-1 Report must be filed for the first time by September 30, 2007.
OFCCP currently requires contractors to collect and maintain information about the gender, race, and ethnicity of their employees in the five race and ethnic categories used on the previous EEO-1 Report: Blacks, Hispanics, Asians/Pacific Islanders, and American Indians/Alaskan Natives. In light of the changes to the EEO-1 Report, OFCCP is drafting proposed amendments to the recordkeeping and affirmative action program (AAP) regulations at 41 CFR parts 60-1 and 60-2 designed to require the use of consistent race and ethnic categories in the Executive Order 11246, as amended (Executive Order) program.
Comments: OFCCP will publish a proposed regulatory change in the Federal Register “soon,” which means it will be several months before the final rule is published. It is not feasible for the government to expect contractors to have it/report it both ways, therefore, OFCCP will allow the new standards (required by EEOC) to be utilized and no citations (based upon the race and ethnic categories) will be issued if an audit is conducted, i.e., contractors are permitted to prepare AAPs using the racial and ethnic categories provided under the OFCCP regulations or the EEOC new categories. To review this OFCCP guidance, go to their web site at: http://www.dol.gov/esa/regs/compliance/ofccp/EEO1_Interim_Guidance.htm
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AUGUST 10, 2007
EEOC REPORTS ON ALTERNATIVE DISPUTE RESOLUTION IN THE FEDERAL SECTOR COMPLAINT PROCESS
WASHINGTON - The U.S. Equal Employment Opportunity Commission (EEOC) today issued a comprehensive new study examining the effectiveness and efficiency of Alternative Dispute Resolution (ADR) programs used by federal agencies to resolve job disputes. The 38-page report, ADR in the Federal Sector EEO Process for FY 2006, is available on the EEOC’s web site at http://www.eeoc.gov/federal/adr/adr_report_2006/index.html.
The report, which presents government-wide data (as submitted by agencies), addresses types of ADR techniques, sources of third party neutrals, and types of settlement benefits in the pre-complaint and formal complaint stages of the federal sector process. The report expands on the ADR information provided in the EEOC’s Annual Report on the Federal Work Force for Fiscal Year 2006.
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August 2007
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, including 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 controls on wage and tax reporting.Agencies are required to provide a contact person to USCIS by August 24. For more information, go to: http://www.whitehouse.gov/omb/memoranda/fy2007/m07-21.pdf
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AUGUST 16, 2007
DHS Wins Against Multiple Discrimination Claims Against Hiring Practices Crawford v. U.S. Dept. of Homeland Security, 5th Cir., No. 06-11387.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.Greta Crawford applied for an immigration inspector position with the U.S. Department of Homeland Security (DHS) in 2002. 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.” 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.
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EEOC Revised their Age Discrimination in Employment Act (ADEA) regulations to conform with a recent Supreme Court ruling.
JULY 6, 2007
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.
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Torres vs. DOD/Army
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.
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Bergren vs. DOT
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.
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Sever v. U.S. Postal Service (USPS)
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.
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EEOC Establishes E-RACE Initiative
February 28, 2007
On February 28, 2007, EEOC Chair Earp launched the federal agency’s E-RACE Initiative (Eradicating Racism And Colorism from Employment), a national outreach, education, and enforcement campaign focusing primarily on new and emerging race and color issues in the 21st century workplace. Further information about the E-RACE Initiative is available on the EEOC’s web site at http://www.eeoc.gov/initiatives/e-race/index.html.
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Dedrick vs. DOD/Army
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.
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Brockman vs. Dept. of Treasury
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
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RETALIATION FURTHER DEFINED
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 complaints.
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USDA DOESN’T RESPOND TO EEO COMPLAINT EFFECTIVELY
February 2006
Logsdon v. 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. ________________________________________________________________
U.S. Denver Mint Agrees to Settle Sex-Bias Case for $9 Million
April 3, 2006
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.
The settlement will need to be approved by an Equal Employment Opportunity Commission Administrative Law Judge. Lynn Feiger, 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 EEOC proceedings. The complaint 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.
After the 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. ________________________________________________________________
EMPLOYEE WITH DISABILITY MAY NOT BE CONSIDERED DISABLED UNDER THE LAW EEOC February 10, 2006
The Department 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.
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7th CIRCUIT SAY PAY DIFFERENTIAL BASED ON PAY HISTORY IS OK
October 2005
The 7th U.S. Circuit Court of Appeals issued its decision in the case of Wernsing v. Ill. Dept. of Human Services (427 F.3d 466, 7th Cir. 2005). The case has importance because of its impact on the question of legitimate non-discriminatory pay differences acceptable under the Equal Pay Act (EPA) (29 U.S.C. Sec. 206(d)) The 7th Circuit covers the states of Illinois, Indiana and Wisconsin. In this case, the employee complained about the employer’s policy of paying new hires in this public sector organization at least as much as they were earning in their last position. Wernsing claimed it was an illegal practice because it perpetuated unequal treatment of men and women.
The Court said as long as the difference is based on a reason other than sex there is no illegal discrimination caused by an employer. If the employer claims that differences in pay between individuals in the same job is based on wage history, the burden falls on the complaining employee to show that such an argument is merely pretext for illegal discrimination.
The Court pointed out that Section 206(d)(1)(vi) permits wage differentials based on any factor other than sex. The Court is not permitted in this instance, it said, to pass judgment on the acceptability of the business reason offered by the employer. It is up to the employee to disprove the employer’s claims.
Here is some of what the Court had to say, “[The employee’s] second argument: that because women earn less than men from 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 women’s wages are less than men’s on average…But the conclusion is a non-sequitur. Wages rise with experience as well as with other aspects of human capital. That many women spend more years in child-rearing than do men thus implies that women’s 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 http://www.ca7.uscourts.gov/tmp/OT0KY8RK.pdf
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Postal Service Cannot Back Up Statement of Hiring the Best Qualified Candidate
Oct. 2005
The record 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). ________________________________________________________________
The EEOC modified the Department of Air Force decision awarding the complainant $2,000 in nonpecuniary damages for disability discrimination.
The EEOC 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. ________________________________________________________________
August 2005 - EEOC ISSUES HISTORIC DEFAULT JUDGMENT AGAINST TSA FOR FAILURE TO COMPLETE TIMELY EEO INVESTIGATION
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 timely fashion.
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 18, 2004.
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 investigation, but failed.” The screener also requested a default judgment be entered against the agency as a sanction.
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 17, 2005. ________________________________________________________________
May 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.________________________________________________________________
March 2005 - Buttocks Slapping Not Acceptable - $1,000 Worth of Unacceptable
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.
________________________________________________________________If The Regulation Doesn’t Fit…Don’t Buy Into It - Boots 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
December 15, 2004.
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 statement 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 amorphous 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, a non-reason.”
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. ________________________________________________________________
HOSTILE ENVIRONMENT PROVEN, BUT NO AGENCY LIABILITY
December 2004
Racial slurs 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 agency avoided liability because it acted quickly and appropriately to remedy the problem. Nicholas v. Department of Agriculture, 104 FEOR 53256. ________________________________________________________________
Racially mocking memo makes work environment hostile
December 2004
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. ________________________________________________________________
DOT approving official excludes African-American men
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 LRP 44943. ________________________________________________________________
FAA 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. ________________________________________________________________
USPS Incurs Liability in EEO Case Involving Medical Accommodation
Supervisor 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.
This 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 prevented its employee from using those remedies, a federal district court ruled earlier this month.
The case began on September 19, 2002, when a U.S. Postal Service Customer Service Supervisor had a physical altercation with a co-worker, after consuming large amounts of alcohol during his lunch break. Shortly 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, the resignation agreement stated that the supervisor “agrees to withdraw any current appeals in any administrative forum, including EEO and MSPB and further agrees not to file any future appeals in any administrative forums,
including EEO and MSPB, concerning his employment and/or this settlement 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, the supervisor chose to resign, and signed the agreement.
Subsequently, however, the supervisor filed a complaint in federal district court, claiming that he was forced to resign in violation of the Rehabilitation Act. He further alleged that he had been diagnosed as suffering from a disability, namely alcoholism, depression and anxiety;
that his behavior on September 19th was directly caused by his disability; and that he should have been given a reasonable opportunity for rehabilitation. In responding to the supervisor’s district court complaint, the Postal Service pointed out that under the pertinent laws,
the supervisor should have exhausted his administrative remedies before filing suit. Specifically, the Postal Service claimed that the supervisor should have either filed a complaint with the agency’s Equal Employment Opportunity office or appealed to the U.S. Merit Systems Protection Board, and that he could not proceed with the action in federal district court 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 agreement barring him from filing administrative appeals, and then arguing that his federal suit could not proceed because he had not exhausted his administrative remedies. Noting that equitable relief is appropriate “where an agency
misleads or misdirects a claimant so as to prevent the claimant from seeking an administrative remedy,” the court found that equitable relief 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 procedures,” explained the court. “However, there is surely an anomaly now in having the Postal Service insist on the exhaustion of administrative remedies, which it effectively prevented him from using.” Accordingly, the court 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 istrict 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 1, 2004. ________________________________________________________________
Race 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.
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Bush 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 orientation.”
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 discrimination.
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)
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Disability 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). ________________________________________________________________
Race and Age Discrimination in Nonselection ~ Department of Veterans Affairs
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 damages).
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Retaliation Discrimination ~ USPS
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).
See 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). ________________________________________________________________
Sex-Based Harassment by Co-Worker ~ Social Security Administration
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). ________________________________________________________________
PRIORITY CONSIDERATION UPHELD February 2004
Agency 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 LRP 4158. ________________________________________________________________
QUICK, 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
After 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. ________________________________________________________________
Complainant’s 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 LRP 53944. ________________________________________________________________
Census Bureau (NPC) Ordered to Pay Female Employee $50,000 by EEOC
July 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). ________________________________________________________________
Disability 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). ________________________________________________________________
Disability 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). ________________________________________________________________
Federal Bureau of Prisons Grievant Claims Assignment Decision Violated his Civil Rights.
A 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.
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