EEOC Archives - Page 2 of 3 - Law Office of Kyle Ingram

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 Attorneys’ Fees in Federal Employee Disability Cases (ADA)

March 1, 2019January 8, 2019 by Admin

Civil rights law such as the ADA usually include a provision requiring the Agency to pay attorneys’ fees for successful claims. This means that if there is a final determination that the agency has discriminated against an employee, the employee can normally request for payment of the fees his attorney has incurred in bringing the claim.

There are many cases where employees were awarded attorneys’ fees by the EEOC after winning their claims. Here are two decisions with a discussion of the purpose of the provisions under the law.

Spencer v. Department of the Treasury, EEOC Appeal No. 07A10035 (2003)(federal employee awarded attorneys’ fees for disability claim)
Vindiola v. United States Postal Service, EEOC Appeal No. 07A20046 (2003)(federal employee awarded 27,000 in attorneys’ fees after being fired)

Why is this important? In most kinds of lawsuits, each side pays for its own attorneys whether they win or lose. In the average traffic injury case, the attorney is paid a percentage of what the jury awards, and that is constitutes her fee.

Civil Rights, such as protecting individuals from discrimination, are different from other kinds of cases. In this context, there are “fee-shifting” provisions in the law. ‘Shifting’ in this context refers to ‘shifting the burden’ of paying for an attorney from the employee to the defendant employer. It is important for federal employees to understand how these provisions work before hiring an attorney to represent them.

Civil Rights Cases are Important Enough to Ensure that Federal Employees are Made Whole for the Agency’s Discrimination

We as a society have chosen to ensure that an employee can bring a discrimination claim without fearing that he will end up losing even if he wins. The point is that the employee who brings a claim cannot be “made whole” if he has to pay attorneys’ fees. That is, he cannot be put in the same situation as would have existed if there were no discrimination if he bears the cost of doing so. Forcing an employee to pay for an attorney to right the wrong of discrimination puts the burden of social justice on the person whose rights were violated.

For the individual employee, the point of bringing a claim of discrimination is to stop a wrong and make the situation right again. This means that the employee should be paid wages that he was not able to earn because of the discrimination, and should be compensated for the emotional harms that the discrimination caused. But because there are important civil rights issues at stake, the employee should not have to bear the cost of helping to end discrimination for all of us.

Attorneys’ Fees Encourage Federal Employees to Bring Claims Regardless of the Amount of Money at Stake

Another reason attorneys’ fees are important is that it makes sure that employees bring ADA and civil rights cases even if the issue does not involve a lot of money. We as a society have decided that discrimination, even in small amounts, is still bad, regardless of the dollar cost of that discrimination.

In the ADA context, many employees are discriminated against when they are not given full accommodations as required by the law. Beyond being ungenerous and demeaning, failing to provide a reasonable accommodation impacts the employee’s ability to perform his or her job efficiently. Over the years, the employee may miss out on promotional opportunities, training opportunities, and other benefits that he or she would otherwise enjoy. This is to say nothing of the indignity of an ungenerous agency refusing to provide the minimal accommodation required by the law. But at the moment that the failure to accommodate occurs, there may be next to no measurable cost to the employee.

Discrimination damages our society far beyond what each individual discriminatory act costs. Discrimination tells other people that they are not as valuable, and discourages them from investing in their work. Over time, we all pay the costs of discrimination when this kind of discouragement is pervasive. Small acts of discrimination would never get corrected, and we would all suffer the consequences, without employees being able to get justice for them.

Federal Employees Need to be Able to Afford Justice

Obviously, federal employees often need for attorneys’ fees to be paid because it’s expensive to have an attorney bring discrimination claims against the federal government. Every agency has staff attorneys who handle personnel and discrimination matters. The marginal cost of assigning government attorneys to a discrimination case is almost zero.

But an employee has to seek out someone who has experience in the federal employment field and in particular in EEO cases. This can be expensive, and many employees would have to dip into their savings to be able to afford an attorney. Providing attorneys’ fees to successful litigants ensures that Civil Rights do not become too expensive to enforce.

Federal Employees can Find Attorneys who Work on Contingency

Particularly in the ADA context, as noted before, the dollar amounts at issue may not be very large. For many federal employees, an attorney is simply unaffordable if they have to pay out of pocket. And if they have to rely on the underlying money value of lost backpay or emotional damages, attorneys could only the most egregious cases unless they worked pro bono.

The Civil Rights laws, including the ADA, change this equation. By shifting the cost to employers, the law allows attorneys to be paid for their hard work even if the employee cannot afford it up front. Contingency fee arrangements make it possible for attorneys to take on ADA cases with little or no money being paid by employees. This is particularly important where the employee has lost his or her job and has no income to be able to afford an attorney.

Finding the right Lawyer for an ADA case

Many attorneys (and even some judges) may not be aware that Civil Rights cases provide for payment of attorneys’ fees to employees. That does not mean that all lawyers take ADA cases on contingency, or that a particular ADA claim is right for a contingency arrangement. A client who needs to have a contingent fee arrangement to be able to fund the case may want to ask up front about contingency fees and whether an attorney would consider taking the case on for a contingent fee.

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.

Breach of EEO Settlement Agreements

June 8, 2018April 5, 2018 by Admin

Here is the situation that some federal employees find themselves in: the employee has previously brought a claim of discrimination and retaliation against the agency that they were working for, and the agency settled that claim through a settlement agreement. That settlement agreement included that the agency was going to remove disciplinary documents from the employees file. Years later, the employee applies for a new job and is mysteriously denied that job. The employee thinks that the agency failed live up to its commitments under the settlement agreement. What can an employee do?

This is the situation that a federal employee recently found himself in. In Tommy R. v. McDonald (Veterans’ Affairs), Appeal No. 0120162117 (EEOC 2016), Tommy suspected that the VA was in breach of its agreement with him to remove disciplinary documents from his file. He brought a claim for breach of the agreement directly with the EEOC’s Office of Federal Operations in Washington, D.C. He claimed that he was frequently being passed over in job applications, and this was likely because of the old disciplinary documents in his file. He did not, however, get a copy of his personnel file to see whether the documentation at issue had in fact been removed.

Lessons about getting the Agency to comply with a settlement agreement

The EEOC held that Tommy had not proven that the agency was in breach of its obligations under its settlement agreement with him. This case has a number of lessons that any Federal employee who has an active EEO settlement agreement with a federal agency should know.

Find out whether there has actually been a breach. When an employee believes that there’s been a breach of the settlement agreement, there may be ways of finding out whether the agreement has actually been breached. For Tommy, he could have pulled a copy of his personnel file to check whether the discipline had actually been removed. By not doing this, he had no evidence that the agency had failed to live up to its commitment to remove the disciplinary documents from his file. Employees who believe that there is been a breach should immediately try to obtain evidence, if possible, that they can use to show a breach.
File with the EEO Office Director at the agency first. Before an employee can bring a claim a breach of a settlement agreement to the EEOC, the employee must first seek compliance through the agency’s EEO Office Director. In Tommy’s case, he failed to contact EEO Office Director first before going to the EEOC. The EEOC’s Office of Federal Operations only deals with appeals after the federal agency has had an opportunity to review the case. An Employee cannot file first with the EEOC’s Office of Federal Operations. The EEOC can dismiss a case for failing to file with the EEO office director first.
File with the EEO Office Director within 30 days. A federal employee only has 30 days after he learns of the breach of his settlement agreement to notify the EEO office director that the agency is in breach of its agreement. Even if the employee only suspects that there has been a breach of the agreement, the employee should still file within 30 days. Otherwise, the EEOC will not be able to hear any appeals if the agency continues not to comply with its obligations under the settlement agreement.
Show how the agency breached its agreement. The EEOC is able to require the agency to live up to its commitment under the settlement agreement. However, the employee must show that the agency has actually failed to live up to its commitment. In Tommy’s case, he put two and two together and realized that when he applied for jobs within the VA in other locations, the hiring manager may have been relying on the documents that should have been removed from his personnel file. The problem for Tommy was that he could not prove based on his speculation that the agency had in fact failed to live up to the requirements under the agreement without evidence. He could have obtained this evidence by asking for his personnel file. The EEOC therefore could not conclude that the agency had breached its agreement with him, and dismissed the case.

This case shows shows how difficult it can be for employees to require federal agencies to comply with settlement agreements in EEO cases. The EEOC regulations require that employees jump through a number of procedural hoops and present legally sufficient evidence before the EEOC will act to require the agency to comply with the settlement agreement.

Having a lawyer on your side who is experienced in handling federal EEO matters greatly increases the likelihood that the EEOC will require the agency to comply with its obligations under settlement agreements. If you believe that a federal agency has breached its settlement agreement with you, you should act quickly to make sure that you meet the strict deadlines for filing with the agency and the EEOC.