Kyle Ingram, Author at Law Office of Kyle Ingram

Disability Pain Must be Accommodated by Agencies

June 1, 2020 by Kyle Ingram

A frequently overlooked aspect of disability accommodations is pain. Many federal employees who have requested reasonable accommodation experience moderate or severe pain even after accommodation. Pain can be a significant issue in obtaining the right accommodation. Pain is also invisible. Many individuals have no way of describing the pain they are experiencing adequately. Many employees … Read more

When Telework is not a Reasonable Accommodation

May 29, 2020 by Kyle Ingram

There are at least two circumstances when an employee is almost certainly not going to be able to get telework as a reasonable accommodation. Needing a security clearance or being required to handle mail and visitors means that full-time telework is likely to be an ‘undue burden.’

Forcing employees to take leave instead of teleworking is an ADA violation

May 29, 2020 by Kyle Ingram

Forcing an employee to take leave is not a reasonable accommodation. The ADA requires employers to make reasonable accommodations to known disabilities of its employees. A specific accommodation, such as a ramp, is not required if providing it would be an undue burden on the employer. The ADA can require a lot of employers. And … Read more

Don’t Accept the Agency’s Reason for Not Hiring You

March 1, 2019 by Kyle Ingram

A lot of people learn that they didn’t pass the physical or some other medical examination when after receiving a conditional offer for a federal job. That’s actually a red flag that disability discrimination might be at work. The Nathan case – the FBI rejects an applicant because of monocular vision. Take the case of … Read more

Paternalism & Disability

March 1, 2019February 7, 2019 by Kyle Ingram

Good intentions can be weaponized by a lack of empathy and understanding.

A lot of what constitutes disability discrimination could be see, in some light, as as simply looking out for people and caring. Keeping an employee with a back injury from using a machine that hurt him. Preventing an employee with pregnancy complications from lifting heavy boxes. This is paternalism.

The idea that we know better. But we don’t. Every time we make a decision that diminishes another person’s options because we think it’s too hard or too dangerous, we rob that person of opportunity. If we do it because we think that person has limitations due to a physical or mental condition, that’s frankly illegal discrimination.

You don’t have to be disabled to be treated like you are.

It doesn’t matter if the person is actually disabled. When people consider someone to be disabled, and we stop the person from doing work, that is a form of disability imposed on the individual by us, by our expectations, by our ignorance and hubris, and our lack of empathy.

This isn’t simply academic to the many people who are on the business end of the subtle discrimination of lowered expectations. Good intentions are weaponized by our lack of understanding and empathy.

Federal laws make it illegal for federal agencies not to hire individuals because of a paternalistic view of what that person is capable of. A couple of cases highlight how this works.

EEOC cases focus on what a person can do, not what the agency assumes.

In the recent case, Johana S. v. Department of Agriculture, EEOC Appeal No. 0120131804 (2016), the federal agency prevented one of its criminal investigators who had a severe back injury from working out in the field. Because she was not permitted to do part of her job, the agency lowered her performance evaluation. The EEOC found that this constituted illegal discrimination against the employee.

Even though the back injury itself did not qualify as a “disability” per se under the law, the anti-discrimination laws extend to protect those who are “regarded as” being disabled. This happens when employers believe and act as if the person had a physical or mental impairment that was substantially limiting. The Supreme Court has stated:

Such an impairment might not diminish a person’s physical or mental capabilities, but could nevertheless substantially limit that person’s ability to work as a result of the negative reactions of others to the impairment. School Board of Nassau County v. Arline, 480 U.S. 273 (1987).

It is the reaction of the agency, not the capabilities of the person, that are limiting.

Agencies have to show a high probability of substantial harm before refusing to hire someone.

In an older case, the agency treated an applicant as if he could not work at all for the postal service, despite that the agency’s own doctor examined him and found that he was “normal in every respect” and had “no current physical limitations or restrictions.” Daniel McManaway v. United States Postal Service, EEOC Appeal No. 01993233 (2002). The EEOC found that this was also unlawful discrimination.

The EEOC rejected USPS’s argument that there was a possibility of injury to the applicant, and that was sufficient reason not to hire him. The EEOC instead found that unless an applicant has a “high probability of substantial harm” to himself or others (sometimes known as a ‘direct threat’), the agency is just relying on bare speculation about a future that is unlikely to occur. Part of the reason for the ADA and other anti-discrimination laws is to prevent employers from refusing to hire people because of their assumptions about what a person is capable of.

Paternalism is, unfortunately, alive and well. But every time we take action and do something about it, we shine light on a small corner of darkness.

Fighting Inadequate & Delayed EEO Investigations

March 1, 2019January 25, 2019 by Kyle Ingram

When federal employees file formal EEOC complaints, regulations require that the agency conduct an investigation within 180 days. (29 C.F.R. § 1614.108). The investigation must “develop an impartial and appropriate factual record” that enables the agency to make findings and, in appropriate cases, to award compensation to the victim.

Unfortunately, agencies are responsible for conducting investigations against themselves. Agencies will sometimes delay investigations well beyond the 180 days that they are permitted under the regulations, and/or the agency will conduct an inadequate investigation. Employees become responsible for requiring the agency to conduct the investigation they should be legally entitled to. The cases below show that the EEOC is taking steps to ensure that agencies cannot just ignore employee’s discrimination complaints and attempt to sweep allegations of discrimination under the rug.

Inadequate Investigations

Most investigations are conducted by outside contractors, although many of the DOD components and the VA have internal investigators (who are often quite good, in my experience). Contract investigators often have little incentive to develop evidence on behalf of the complainant employee. Two recent cases highlight how this can become a problem.

The Agency Interviews None of the Employee’s Witnesses

In Julius P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120162827 (Mar. 6, 2018), a VA employee based in Texas was told that he could no longer use annual leave in place of sick leave, which had been exhausted. He was later told that he could only take leave for service-connected medical appointments. The supervisor began charging him AWOL when he was late to work instead of allowing him to take annual leave. Demoralized by his supervisor’s callous treatment, the employee began missing work, and requested Family and Medical Leave (FMLA). However, the agency charged him with AWOL.

During the investigation, the employee provided the EEO investigator with a list of six witnesses to interview. The investigator failed to interview any one of these witnesses. Instead, the investigator only sought information from the supervisor and other management witnesses.

The EEOC’s regulations require that an investigator identify and obtain “all relevant evidence from all sources regardless of how it may affect the outcome.” In this case, the EEOC found that this investigation “unfairly restricted the [employee’s] ability to prove . . . discrimination[.]” The EEOC noted that:

An investigation must include “a thorough review of the circumstances under which the alleged discrimination occurred; the treatment of members of the Complainant’s group as compared with the treatment of similarly situated employees . . . and any policies and/or practices that may constitute or appear to constitute discrimination, even though they have not been expressly cited by the complainant.”

The EEOC remanded the investigation back to the agency to interview these witnesses and to conduct a thorough investigation as required under federal regulations.

Agencies can Ignore Witnesses only if Interviews are Shown to be ‘Unduly Burdensome’

In a similar case, Emiko S. v. Dep’t of Commerce, EEOC Appeal No. 0120170543 (Apr. 27, 2017), the EEOC reversed the agency’s finding of no discrimination where the agency failed to interview nine of the ten witnesses identified by the complainant employee. The one witness who was interviewed stated that she saw a “downward spiral” in the relationship between the employee and his managers after the employee began to complain about her treatment. Despite this, the investigator claimed that the other witnesses probably did not have relevant information.

The EEOC found instead that there was no basis for the investigator to fail to interview these witnesses identified by the complainant employee. An investigator may only ignore witnesses identified by the complainant employee if contacting the witnesses would have been “overly burdensome”—meaning that information to be provided by these employees was clearly outweighed by the time and effort needed to conduct the interview. The investigator must include a reason why this is the case.

Employees face an uphill battle in getting investigations completed by the agency. Unfortunately, it has in many instances become the job of the employee to hold the agency to account for investigators failing to do their job adequately. Fortunately, the EEOC is policing the agencies and requiring complete investigations.

See also:

Dixie K. v. Dep’t of Justice, EEOC Appeal No. 0120150443 (Feb. 28, 2018)(EEOC ordered the agency and administrative judge to frame complainant’s issues correctly and to address them on remand).
Darius C. v. U.S. Postal Serv., EEOC Appeal No. 0120162461 (Jan. 26, 2018)(EEOC ordered a supplemental investigation by the agency where officials refused to respond to the investigator’s questions).

Delayed Investigations

Another problem that federal employees face is an agency that delays or completely fails to conduct any investigation at all. The agency has a legal obligation under the regulations to conduct an investigation and to do so in a timely manner. Failure to do so not only deprives the employee of the opportunity to obtain evidence to support a discrimination claim, it prevents the EEOC from effectively overseeing federal agencies’ compliance with the anti-discrimination laws.

In Complainant v. Deborah Lee James (Air Force), EEOC Appeal No. 0720090009, the EEOC issued sanctions against the Air Force for delaying in providing the EEOC with the complainant’s file. The agency claimed that it had tried to contact the administrative judge about the case. However, the administrative judge noted that she had been present in the office the entire week and her email and phone number had been provided to the agency’s attorney. The other excuses that the agency provided for its failure to comply with requirements were found not to be a ‘good cause’ for delaying the case.

The EEOC has issued default judgment in certain cases where the agency had no good cause for failing to investigate allegations of discrimination properly. That is, it has found in favor of the employee without allowing the agency to provide evidence in its own favor.

Ross v. USPS, EEOC Case No. 0720180001 (2018)(the availability of discovery to the employee did not cure the deficiencies in the agency’s own investigations, and default judgment was proper).
Candace C. v. GSA, EEOC Case No. 0720160013 (2016)(alleged mail room issue was not addressed until appeal, which was too late).

The EEOC has issued this ultimate punishment in EEOC cases where the agency has simply ignored its obligation to conduct an impartial investigation. Hopefully more cases like these will not have to be decided by the EEOC before the agencies get the message.

Employees need to stay vigilant

The EEOC can only issue sanctions against the agency when the employee comes forward and holds the agency’s feet to the fire. Employees who are facing long waits and uphill battles with agencies should consider filing for sanctions. These cases should provide employees with ammunition to get sanctions and to hold agencies accountable.

Getting Your FMLA Approved: Avoid The ‘Negative’ Forms And Doctor Mistakes, And Get ADA Accommodations To Return To Work

May 29, 2021January 15, 2019 by Kyle Ingram

Many federal employees know that if they (or a family member) gets really sick or goes to the hospital, the FMLA provides protected leave that will cover them even if they don’t have enough sick leave. But before an employee can take FMLA leave, she has to request leave and then provide a doctor’s certification of the need for leave at the employer’s request. (See 29 C.F.R. § 825.301). The Department of Labor provides a certification document that employers and employees can use on its website: https://www.dol.gov/whd/forms/wh-380-e.pdf

A problem can arise if the employee does not get the correct certification from the doctor. FMLA leave can be denied even to a deserving employee if the employee does not get the correct certification. The problem arises when the employee provides her employer with a doctor’s certification, but the certification says the employee does not need to miss work or does not have a “serious health condition.” This is known as a “Negative Certification,” meaning that the doctor certified the opposite of what the employee wanted—that there was no reason for the employee to take leave. Under the FMLA, a negative certification from a doctor means that the employer does not have to provide any FMLA leave.

Here are a couple of case examples where courts reviewing FMLA claims have found that the employee’s own doctor has disqualified them by providing a ‘negative certification.’

In Tayag v. Lahey Clinic Hosp., Inc., 632 F.3d 788, 793 (1st Cir. 2011),the court held that the employer “was justified in denying FMLA leave” in part because the employee’s “cardiologist had disavowed the need for any leave.”
In Brady v. Potter, 476 F. Supp. 2d 745, 757-58 (N.D. Ohio 2007), the court held that the employer was permitted to rely on a “negative certification” in denying FMLA leave because the certification “did not indicate a serious health condition that rendered her unable to perform her job functions.”

These examples show what can happen when an employee goes to see the doctor and is not careful to make clear to the doctor what the purpose of the forms is. Moreover, many doctors’ offices will hand off this responsibility to a nurse or other practitioner, who fills out the forms based on little experience with the patient and the doctor simply signs off on it.

Here are some pointers for employees who are getting their FMLA forms filled out.

Make sure the employer has filled out “job functions” accurately. For example, if you are expected to lift 20 pounds at work, and that is why you need to take leave, make sure that the employer has included that information.
Make sure that the doctor identifies in Question 3 all of the ‘essential functions’ that the you (or the patient/family member) cannot perform. Make sure that the language the doctor uses to identify the essential functions matches the employer’s description of the ‘essential functions.’ For example, instead of ‘lifting heavy weight,’ use ‘lift 20 pounds’ to match the employer’s description.
Make sure before leaving the doctor’s office that the entire form is filled out. An employer may reject the form if it is not filled out in full.
Review the FMLA form before giving it to the employer. If the form is filled out incorrectly, then you will need to go back to your healthcare provider and get it corrected.

The cases above highlight what happens when an employee relies on faulty FMLA paperwork. Many employees just assume that the doctor has approved them for the A leave they expected, but the doctor may not have. Ensuring that the forms are filled out correctly in the first place can save you (and your employer and healthcare provider) a lot of trouble down the road.

Medical Certifications that are Only for Intermittent leave

A similar issue can arise where the employee is seeking to take continuous leave, but the doctor only certifies intermittent leave, i.e., that the employee needs to take leave on some but not all days. The FMLA permits employees to take both continuous leave and intermittent leave, depending ont he

This is a ‘negative certification’ of sorts, but it does not mean that the employee is not entitled to leave, only that the leave must be intermittent, not continuous. In a recent case before the federal court in Washington, D.C., Hodges v. Dist. of Columbia, 172 F. Supp. 3d 271 (D.D.C. 2016), Judge Tanya Chutkan found that the employee’s certification for intermittent leave did not meet the requirement for continuousFMLA leave, but did meet the requirement for intermittentleave.

Because the employee had this certification, it triggered a number of requirements for the employer. (See 29 C.F.R. § 825.300). These protections required the employer to notify the employee of his eligibility for FMLA leave, explaining her rights and responsibilities, and to notify the employee of what leave would be designated as FMLA-protected leave. Because the employer did not provide these protections, the court found that it ran afoul the requirements of the FMLA.

Consider ADA Accommodations in Addition to FMLA leave.

Not all conditions require FMLA leave. Many conditions that do not require leave may still qualify as a disability under the ADA, and an employee may be entitled to accommodations for that disability.

As a recent example, the federal appeals court in Virginia found that an employee who had suffered a major, but temporary, injury to his legs was entitled to ADA accommodations. (See Summers vs. Altarum Institute Corp., No. 13-1645 (4th Cir., 2014)). In other cases, employees who have disabilities such as severe nearsightedness that do not require leave from the employer are still entitled to accommodations under the ADA. (See Sawhney v. Vocus, Inc., Case No. PWG-11-3328 (D. Md. 2013).

Combining FMLA leave and ADA accommodations can also be a good idea. By asking for ADA accommodations before returning to work from FMLA leave, an employee can ensure that the transition from leave back to work is as painless as possible.

Finding Help

Getting FMLA paperwork filled out correctly certainly does not require a lawyer. But a lawyer familiar with the FMLA and the ADA can help you by reviewing what you are going to present to the employer before it creates any problems. A lawyer can also help you understand whether FMLA leave is the right course of action, or if it would be more advantageous to get an ADA accommodation instead of or in addition to the FMLA leave.

Effective ADA Accommodation: What are Federal Employees Entitled To?

July 24, 2018 by Kyle Ingram

Subway disabled sign with "Effective ADA Accommodations" over it

The Americans with Disabilities Act (ADA) requires federal agencies as employers to provide effective ADA accommodations for its employees. The law requires agencies to provide employees with accommodations that will allow the employee to perform the essential functions of the position – this is the definition of an effective ADA accommodation. However, if the employee cannot perform the essential functions even with the accommodation, the agency is not required to provide that accommodation. In that case, there would be no effective ADA accommodation for that employee. This can mean that a federal employee who produces sub-standard work while being accommodated can be denied that accommodation in the future. Employees are required to participate in the ADA interactive process with their employer in finding an accommodation that works. The EEOC cases below illustrate how this works in practice.

An effective accommodation must allow the employee to perform the essential functions of the job

An effective ADA accommodation is one that allows the employee to perform the essential functions of the position. This requires federal agencies to provide their employees with various alternatives, such as teleworking, assistive devices, and leave, if those accommodations would allow the employee to perform the core functions of the job successfully. The EEOC has stated:

An “effective” accommodation either removes a workplace barrier, thereby providing an individual with an equal opportunity to apply for a position, to perform the essential functions of a position, or to gain equal access to a benefit or privilege of employment. EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship (revised October 17, 2002) at question 9.

An agency cannot ignore an accommodation that it does not want to provide if the accommodation is effective at enabling the employee to perform these essential functions.

In McCoy v. Department of Veterans Affairs, an education program manager in Utah was ordered to cease teleworking because the agency had determined that the overall teleworking program was not working. The employee requested a reasonable accommodation due to her multiple sclerosis (MS), which was unpredictable in its effects. This made it difficult or impossible for her to commute to work. Nevertheless, the agency failed to provide teleworking and labeled teleworking merely a ‘convenience.’ The EEOC, however, concluded that the agency failed to provide a reasonable accommodation. Teleworking was effective by allowing the employee to avoid commuting and continuing to work at home. The agency’s priority, bringing all teleworking employees back to work at the facility regardless of the reason, conflicted with the requirements of the ADA. An ADA accommodation that does not rise to the level of meeting the employee’s need is not effective. McCoy v. Department of Veterans Affairs, EEOC Appeal No. 01A20346 (May 12, 2003).

Employees who need an accommodation to work in the federal government are entitled to an accommodation that meets their needs and enables them to work. The ADA does not allow the agency to deny an employee an accommodation because it wants to apply a blanket policy to all its employees. When there is a conflict between an agency’s priorities and the employee’s need for an accommodation, the agency’s priority must give way to the accommodation.

“Effective” accommodation means that the employee is enabled to perform his job functions

A federal agency is not required to provide a reasonable accommodation where the employee is un able to perform his job at a satisfactory level. If the employee is failing to come to work on time or has attendance issues, the agency can view a request that could exacerbate these tendencies as ineffective if it impacts the employee’s work. In such a case, there is no effective ADA accommodation that allows the employee to

In Petition No. 0320150024, a patent attorney with OCD requested a reasonable accommodation of working at home via telework. Several managers testified, however, that the employee previously had issues with time and attendance while teleworking. The EEOC concluded that because the employee had prior difficulties that showed that he was unable to meet the basic functions of the job, the telework accommodation was not effective. The employee was not entitled to this accommodation. Petitioner v. Deborah Lee James, EEOC Petition No. 0320150024 (May 19, 2015).

Federal employees are entitled to a reasonable accommodation that will enable them to perform the essential functions of their position. If the employee would not be able to perform those functions with the accommodation, it is not effective. Agencies are not required to provide ineffective accommodations.

Performing the essential functions is a requirement even with an accommodation

The ADA does not require an agency to accommodate an employee if there is no possible “effective” accommodation—that is, where the employee cannot perform the essential functions of the job. In Charlie Love v. Donohoe, the employee was a janitor with the U.S. Postal Service. The employee requested permanent light duty and requested that other positions in his locale be found. Based on the evidence, however, the EEOC found that the employee was unable to perform the essential functions of his position because of the restrictions caused by his disability. Therefore, the EEOC concluded that the employee was not entitled to an ADA reasonable accommodation. Charlie Love v. Donohoe, EEOC Case No. Appeal No. 0120093794 (Dec. 9, 2011).

Employees who are seeking an accommodation need to be aware that if they cannot perform the essential functions of the job, there is no effective ADA accommodation. This is the reverse of what “effective” means—an accommodation that permits the employee to perform the essential functions of the job. In such a case, like in Charlie Love, the employee is not entitled to any ADA accommodations because there is no effective ADA accommodation.

The agency can choose among effective accommodations, not necessarily the employee’s favored accommodation

An employee is entitled to an “effective” accommodation, but if there is more than one effective accommodation, the agency may choose which to provide. The Agency ultimately has the final say in what effective accommodation is provided:

It is the [EEOC’s] position that if more than one accommodation is effective, “the preference of the individual with a disability should be given primary consideration; however, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations.” 29 C.F.R. § 1630.9

In Schulz v. Potter, a custodian suffered from sinusitis and allergies because of workplace dust. He requested that the agency provide a mechanical-filtered respirator. However, the agency only provided a dust mask. The EEOC concluded that the dust-mask was at least minimally effective, and therefore the custodian was not entitled to the accommodation of his choice. Schulz v. Potter, EEOC Appeal No. 0120073186 (Jan. 15, 2008).

In Glenda Wearre v. Panetta, an accounting technician requested to be moved away from certain smells and smokers in her workplace. The agency moved the employee once. When that location did not work, the agency offered numerous other locations. The employee rejected all of these, but never explained why they were not effective. The EEOC concluded that the employee was not entitled to the accommodation of her choice, so long as the accommodations offered were effective. The employee had rejected the accommodations without explanation. Hence, she could not demonstrate that the offered accommodation was not effective. Therefore, she was not entitled to further accommodation. Glenda Wearre v. Panetta, Appeal No. 0120100926 (Jan. 5, 2012).

Finding an effective accommodation can be a process, and managers often do not understand this

Employees are entitled to be accommodated. This often means in practice that an employee may have to try out different accommodations to find one that works, or the employee may have to explain why the accommodations offered by the Agency do not work for that employee.

Federal employers often do not understand these requirements. Supervisors rely on advice from Labor-Management Relations Specialists who may not be aware of all of the circumstances of an individual’s case. Managers can often ignore unseen but very real disabling issues for employees. The EEOC case law features many cases where supervisors ignored employees’ requests for reasonable accommodation because they thought all employees had to be treated the same. Knowing the right approach is critical to complying with the ADA.

Teleworking up to 100% of Work Time can be Required for Federal Employees under the ADA

July 25, 2018June 8, 2018 by Kyle Ingram

Recently the federal government has sought to limit telework for federal employees. However, the ADA still requires agencies to provide telework, even 100% telework, to disabled employees who need it. Many Managers often wrongly assume that working from home is not really working. Managers often use spurious excuses to prevent employees from using telework. The Americans with Disabilities Act (ADA) requires federal agencies to offer disabled employees telework if they need it. Two recent cases show that federal agencies who try to prevent disabled workers from teleworking face serious sanctions for failing to provide reasonable accommodations.

100% Telework can be required under the ADA

In 2015, the EEOC required the Department of Housing and Urban Development to compensate an employee who requested telework because of his Ankylosing Spondylitis. This condition made it painful for the employee to drive long distances to and from work. He therefore requested to work 100% telework. HUD argued that the functions of the position required the employee to be on the road to check in on troubled housing locations and to come into the office for meetings with colleagues. The EEOC rejected these arguments, noting that the evidence contradicted that these were serious concerns justifying denying telework. Mail could be scanned and emailed to the employee and meetings could be attended effectively by phone. Therefore, the agency violated the ADA by not providing 100% telework. See Lavern B. v. Castro, EEOC Appeal No. 0720130029 (Feb. 12, 2015).

Telework can be combined with a lateral move to meet ADA requirements

In another recent case, the EEOC required the Department of the Interior to compensate an employee because it had not considered a teleworking accommodation in conjunction with offering him a different position. The employee in this case had a similar disability preventing him from driving long distances. Before litigation, the agency offered the employee two potential alternative worksites. Because driving to these worksites would violate his medical restrictions, the employee declined the moves. The agency then terminated the employee. The EEOC found that if the agency had continued to work with the employee to find an accommodation, as it was required to do, the agency could have offered the employee the two positions and telework 100% of the time. This would have accommodated his needs and met the agency’s obligations. The EEOC stated:

In allowing an employee to telework[,] an employer “may need to reassign some minor job duties or marginal functions . . . if they cannot be performed outside of the workplace.” . . . [A]n employer should not, however, deny a request to telework as a reasonable accommodation solely because a job involves some contact and coordination with other employees. [] Frequently, meetings can be conducted effectively by telephone and information can be exchanged through e-mail. Harvey G. v. Jewell, EEOC Appeal No. 0120150844 (Feb. 4, 2016).

Federal agencies should be model employers in providing accommodations, including telework

The EEOC has reminded agencies that federal agencies are not just any employer—they are to serve as models for the rest of the American workforce. Telework is becoming a reality for many federal agencies, despite recent attempts to limit federal employees from working from home. Many federal agencies assume, often without evidence, that working from home is not really working. But even if the agencies severely limit teleworking, the ADA still requires agencies to provide teleworking as an accommodation for disabled employees.

If you feel that you have been denied a reasonable accommodation or have otherwise been discriminated against, contact a lawyer experienced in handling EEO matters for federal employees. You have a limited time to contact and EEO counselor.

Sexual Orientation Discrimination Covered by Title VII

July 25, 2018April 7, 2018 by Kyle Ingram

Recent cases before the Equal Employment Opportunity Commission enforce anti-discrimination rights for LGBTQ federal employees. For many years, federal employees were not protected from discrimination based on their sexual orientation. Employees who were gay, lesbian, bisexual, or transgender faced discrimination in Federal employment. These employees had few protections under the law because they could not rely on state laws forbidding discrimination based on sexual orientation.

More recently, however, federal agencies have been required to recognize that Title VII’s prohibition on”sex” discrimination includes a prohibition on discrimination based on an employee’s sexual orientation. In 2015, the EEOC decided in Baldwin v. Foxx, Appeal No. 0120133080 (EEOC July 15, 2015), that title VII did in fact prohibit sexual orientation discrimination. The EEOC is responsible for ensuring that federal agencies comply with federal anti-discrimination laws.

The EEOC relies on ‘sex stereotyping’ to recognize sexual orientation discrimination

Underlying the Baldwin decision is the 1989 supreme Court decision in Price Waterhouse v. Coopers. In that case, a six-justice majority concluded that title VII’s prohibition on sex discrimination included both the physical sex of the person and that person’s gender. In that case, the employee had been told that she would have to act more feminine around the office in order to be successful in her job. This kind of sex stereotyping was held to be unlawful under title VII.

Many of the Courts of Appeals that are underneath the Supreme Court have interpreted this as prohibiting discrimination based on characteristics of an individual’s gender. Moreover, in a 1998 case, the Supreme Court held that male-on-male discrimination could still be considered sex-based discrimination. More recently, the Seventh Circuit has held that “sex” discrimination also includes discrimination based on sexual orientation, in Hively v. Ivey Tech Community College, 853 F. 3d 339 (7th Cir. 2017).

The EEOC points to three theories to support sexual orientation discrimination coverage under Title VII

The EEOC relied on three different theories of discrimination to support its reasoning why sex discrimination included discrimination based on sexual orientation.

Comparative discrimination. Because any action taken based on an employee’s sexual orientation would necessarily refer to that employee’s sex (male or female), the EEOC concluded that sexual orientation was forbidden under title VII. The EEOC justified its decision by pointing out that if a (straight) male and (lesbian) female employees were each to post a picture of his and her wife, but only the female employee was punished, that would constitute a different treatment based solely on the employee’s sex. This kind of comparative analysis is frequently used in determining whether an employee is being harassed based on his or her sex.

Associational Discrimination. The EEOC also based its analysis of title VII on the prohibition against what is called “associational discrimination.” It is unlawful under title VII to discriminate against a person because that person associates with members of a different race, national origin, or the like. The same logic applies, according to the EEOC, to people who romantically associate themselves with members of their own sex.

Stereotype-based Discrimination. If an employer expects an employee to act in a way that conforms with a stereotype of that person’s gender, that is also discrimination. For example, employees who did not act ‘manly’ enough or ‘feminine’ enough to fit the employer’s expectations. Discriminating against a gay, lesbian, or transgender person almost always involves assumptions about what is masculine or feminine behavior. The EEOC concluded that taking action based on and employees failure to conform to this gender stereotypes constituted unlawful sex-based discrimination under Title VII.

Many employers may not be aware that sexual orientation discrimination is considered to be unlawful under Title VII. Federal employers are prohibited from taking employment actions based on the employees sexual orientation.

If you believe that you have been the victim of sexual orientation discrimination, whether at a federal agency or in any other kind of employment, you should contact your EEO counselor as soon as possible. And attorney can be helpful in analyzing the facts of your case and helping you to obtain the protections of the law that are your right.