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

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

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.

Sexual Orientation Discrimination Covered by Title VII

Gay Pride Flag

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.