Don’t Be Suspicious: Remember the Reasonable Suspicion Standard

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By Deryn Sumner, February 15, 2017

Federal employees have a very short statute of limitations to initiate EEO contact: the employee must make contact with an EEO counselor within 45 days from the date of the act thought to be discriminatory.

Luckily there are exceptions that prevent my job from being farmed out to robots.  One of those exceptions occurs when the employee forms a “reasonable suspicion” of discrimination after the 45 day window has elapsed.  Yes, the actual incident occurred past the 45 day timeframe, but the employee did not reasonably suspect that discrimination was afoot until afterwards.  Sometimes, when reviewing whether to accept or dismiss complaints for investigation, EEO specialists may not properly consider whether there’s a basis to extend the deadline to make EEO contact.

The Commission recently addressed such an instance in Leisa C. v. Department of Veterans Affairs, EEOC  No. 0120170391 (January 27, 2017).  There, the complainant made EEO contact on May 2, 2016 alleging that her non-selection for a position as a Nurse Practitioner was motivated by her age and participation in prior EEO activity.  The agency dismissed the formal complaint, noting that complainant learned of her non-selection on November 30, 2015 when she received an email informing her of the non-selection and thus her May 2, 2016 contact was untimely.

The complainant appealed and argued that although she knew of the non-selection back in November 2015, she only suspected discrimination when she learned the identity of the selectee in April 2016 after requesting, and not receiving an explanation for her non-selection several times.  Further, the complainant argued that she only formed a reasonable suspicion of retaliation “after hearing an Agency representative’s remarks in the context of mediation on June 28, 2016.”

The Commission determined that dismissal of the formal complaint was inappropriate because the agency delayed in providing the complainant an explanation for 4.5 months and she did not reasonably suspect discrimination until after receiving the explanation.

A word of caution to the complainant: if the claim of retaliation is based on representations made during mediation, you’re most likely out of luck getting that admitted as evidence.  But at least you can proceed with your case now.

And I will give credit where it is due.  Assuming the dates in the decision are correct, the EEOC addressed and remanded this complaint for processing relatively quickly.  The agency issued a final decision dismissing the complaint on September 22, 2016, and the Commission considered an appeal and issued a decision just about four months later, on January 27, 2017.  Sumner@FELTG.com

Commissioner Lipnic Named Acting Chair of EEOC

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By Deryn Sumner, February 15, 2017

As FELTG has kept you all apprised, the MSPB currently lacks a quorum, which means that it can’t actually issue any decisions on pending petitions for review.  Luckily the halls of the EEOC are not so empty.  The President appointed EEOC Commissioner Victoria A. Lipnic to serve as the Acting Chair of the EEOC on January 25, 2017.  Chair Lipnic has been a Commissioner with the EEOC since 2010 and is serving her second term which ends on July 1, 2020.

Prior to joining the Commission, Chair Lipnic worked as the U.S. Assistant Secretary of Labor for Employment Standards, as well as a committee staffer for the U.S. House of Representative’s Committee on Education and the Workforce.  She previously worked for the Washington, D.C. law office of Seyfarth Shaw LLP, as well as in-house counsel working on U.S. Postal Service cases.

The other currently-appointed Commissioners include Chai Feldblum, who has served as a Commissioner since 2010, Jenny Yang, who served as the Chair of the EEOC from September 1, 2014 through January 22, 2017, and Charlotte Burrows, who has been a Commissioner since December 3, 2014.  There is one vacancy on the Commission, and no one is currently serving as the General Counsel.

Presidents appoint the commissioners, who must be confirmed by the Senate to serve.  No more than three commissioners can be members of the same political party.  Chair Lipnic, unsurprisingly, served as a Republican Commissioner prior to her appointment as the Chair.

Notably, Chair Lipnic served as co-chair of the Select Task Force on the Study of Harassment in the Workforce, which I talked about a few months ago, along with Commissioner Feldblum.  According to a few pieces I read about her appointment, for which I won’t provide links, lest I be caught unaware perpetuating “fake news,” Chair Lipnic is expected to focus on age discrimination claims, equal pay act claims, and ways by which employers can create more jobs.  Sumner@FELTG.com

EEOC Publishes Quality Practices to Improve Federal Sector Complaints Processing

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By Deryn Sumner, February 15, 2017

For years, those of us here at FELTG have not been shy about identifying the ways in which the EEOC can improve its federal sector case processing.  Cases can languish for years before getting assigned to administrative judges. And even after one gets assigned, it can take a few more years to get a ruling on a pending motion for summary judgment, scheduled for a hearing, or receive a decision issued after a hearing.  Sometimes, administrative judges issue decisions relying on incorrect application of the law, or award remedies not allowed by the law, such as punitive damages or compensatory damages in age discrimination cases.  Appeals to the EEOC’s Office of Federal Operations can sit for years and inquiries about when a party can expect to receive a decision all receive the same boilerplate letter in response that essentially says, “we have a lot of appeals to deal with and your case is one of them, but we can provide no timeframe by which you can expect to receive a decision.”  I am not exaggerating when I share that a case I worked on as a law clerk while in law school is still pending a decision on an appeal of remedies before the Office of Federal Operations. Further, I am personally aware of decisions issued by the Office of Federal Operations that contained clear misstatements of the factual record.

So given all that, it was heartening to see the EEOC acknowledge that federal sector case processing can improve.  On January 17, 2017, the EEOC announced the publication of Federal Sector Quality Practices.  In the Commission’s own words, the purpose is “to address the quality of the agency’s hearings and appeals in federal employee employment discrimination complaints.”  Given this, I was pretty excited to read the plan.  I allowed myself to dream that this publication would talk about increased refresher training for administrative judges to keep them up-to-date in developments in the law.  Perhaps the EEOC would be rolling out an e-file system like the one the MSPB has used for years?  Maybe the Office of Federal Operations would, as Ernie Hadley has preached for years, start issuing summary decisions on clear-cut cases to speed up the process?  But much like a Falcons fan on the night of the Super Bowl, my dreams were dashed.

The EEOC’s Federal Sector Quality Practices for Effective Hearings, Appeals and Oversight does lay out quality practices for the hearing stage, appeals, and oversight of federal agencies in EEO programs, but there’s nothing groundbreaking in the actual practices laid out.  You can find the Quality Practices here: https://www.eeoc.gov/federal/quality-practices.cfm

  • Administrative judges should oversee discovery and grant summary judgment when appropriate.
  • Administrative judges should also schedule hearings, make “accurate” rulings on evidentiary issues during the hearing, and issue a decision afterwards.
  • Appeals should be acknowledged, Commission staff should follow up on obtaining the record if the agency doesn’t provide it, and decisions on appeal should be accurate and supported by the record.

Sigh.  Yes, these are all good things, but this doesn’t represent much of anything in terms of new developments.  The most notable thing I found in my review was the codification of the requirement to hold initial status conferences that many administrative judges have been holding for years under the EEOC’s Pilot Program.  I do appreciate the efforts by the EEOC to focus on improvements in federal sector case processing; I just wish it went a little farther to set goalposts for change.  Sumner@FELTG.com

EEOC Seeks Public Input on Revising Enforcement Guidance on Harassment Complaints

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By Deryn Sumner, January 18, 2017

Following up on the report issued in 2016 by the EEOC’s Select Task Force on the Study of Harassment in the Workplace, on January 10, 2017, the EEOC announced that it was seeking feedback on a proposed Enforcement Guidance on Unlawful Harassment.  The Commission last issued guidance on harassment claims in June 1999, with its issuance on Vicarious Employer Liability for Unlawful Harassment by Supervisors.  Although the Supreme Court’s decision in Vance v. Ball State, 133 S.Ct. 2434 (2013) narrowed the definition of who is a supervisor for purposes of establishing liability, the Commission’s 1999 Guidance was only updated with a small text box at the top noting what the Supreme Court held in its decision.  This is the same tactic the Commission has taken with its guidance on disability discrimination, which was issued years prior to the passage of the ADA Amendments Act of 2008.

The EEOC seeks public comment on the proposed enforcement guidance, which is intended to replace all the current enforcement guidance on harassment issued by the Commission.  The proposed guidance refers to the EEOC’s Select Task Force in the introduction section and sets out the applicable and most recent case law regarding harassment in the workplace.  The proposed guidance clearly states the EEOC’s position that claims of gender identity discrimination, including discrimination based on transgender status, as well as claims of sexual orientation discrimination state claims of sex discrimination.

The proposed guidance sets forth examples of how claims of actionable harassment must be linked to an employee’s membership in a protected class.  For example, derogatory comments about an employee’s national origin could help make an actionable claim of harassment. A workplace altercation because an employee’s girlfriend broke up with him to date someone else in the workplace is not.  As the proposed guidance states, “Although an employee’s protected status need not be the only basis for the harassment, the EEO statutes do not prohibit harassment unless it is based, at least in part, on a protected characteristic.”

The proposed guidance also includes a section on liability standards, guidance that is needed after the Supreme Court’s decision in Vance. It also includes four sub-sections under the heading of “Promising Practices,” to discuss how to avoid complaints of harassment in the first place.  These include “Leadership and Accountability,” “Comprehensive and Effective Harassment Policy,” “Effective and Accessible Harassment Complaint System,” and “Effective Harassment Training.”  These compliment the recommendations of the EEOC’s Select Task Force in the report issued last year, and it is heartening to see the Commission continue to work to update its Guidance.

If you’d like to submit your own comments, you have until February 9, 2017 to do so here: https://www.regulations.gov/docket?D=EEOC-2016-0009. Sumner@FELTG.com

[Editor’s note: if this topic interests you, join FELTG for a very timely webinar on hostile work environment harassment on Thursday, February 2.]

EEOC Issues its List of Notable Cases for Fiscal Year 2016

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By Deryn Sumner, January 18, 2017

A few weeks ago, someone stopped by my office and asked me to list what I considered the most important cases issued by the EEOC’s Office of Federal Operations in 2016.  And I’m pretty sure I looked up from the pile of work I was trying to complete before the holidays with a dazed expression on my face, until the person walked away not expecting an answer.  When I came back to the question a few days later, I still couldn’t come up with much a response.  Past years have seen groundbreaking decisions that expand the coverage of Title VII and grant standing to more employees, like Mia Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012) (holding that claims of transgender discrimination state claims of sex discrimination) or David Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015) (determining that sexual orientation claims should be processed as sex discrimination claims).

But looking back on 2016, I could not easily identify such notable cases.  Luckily, the EEOC did the work for me and a few days ago issued Fiscal Year 2017, Volume 1 of its Digest of Equal Employment Opportunity Law.  You can find the full digest here: https://www.eeoc.gov/federal/digest/vol_1_fy2017.cfm.  Since the cases were pulled from the Commission’s fiscal year, which runs from October 1, 2015 through September 30, 2016, it does include some 2015 cases.  But for our purposes (and since I did see fit in FELTG’s December 2015 newsletter to expound upon my list of notable OFO cases from 2015), I’ll focus on the 2016 cases the EEOC included.  We’ll call it the notable cases of the notable cases of 2016.

First up, in Candice B. v. Department of Homeland Security, EEOC Appeal No. 0120160714 (June 1, 2016), the EEOC certified a class action defined as “all women who were required to take PCE-1, PCE-2, and the FCS and failed to pass the push-up qualification standard at any stage.”  We discussed this case in more detail in the July issue of the newsletter.

In cases involving high awards of non-pecuniary compensatory damages, the Commission affirmed an award of $192,500 to the complainant in Ervin B. v. USPS, EEOC Appeal No. 0720150029 (March 15, 2016).  There, the Commission found the award appropriate based on “the shock, embarrassment, and great upset in being placed in off-duty status, destroying his unblemished record of not getting in trouble with criminal law and what this did to his identity, the humiliation, despondency, extreme anxiety and ruminations resulting from the criminal action and being booked, having an invasive strip search, and being put in a holding cell; the damage to his reputation among neighbors, co-workers and customers on his route because of the criminal action, the worry, hysterical crying spells, and fear of being convicted and having his life destroyed as he knew it, the financial struggles from being put in off-duty status for an extended period, his loss of a sense of having a new start when shortly after returning to work he received a retaliatory seven day suspension, the loss of self-worth and self-esteem and going from jovial to withdrawn, the sleeplessness, nightmares, depression, damage to his marriage and PTSD stemming from the Agency’s actions, the lessening in control of his glucose levels partly as a result of the discrimination, not being able to work for extended periods, and the emotional damage which continues to this day.” This case is a prime example of how even awards at the higher end of the range fail to adequately compensate an employee for what they have experienced.

In Glynda S. v. Department of Justice, EEOC Appeal No. 0120133361 (February 23, 2016), the EEOC issued default judgment in the complainant’s failure because the agency waited over a year to file a Final Agency Decision which the Commission found created an “extreme delay [which] stranded Complainant in a procedural ‘no-man’s land’ wherein she had no recourse within the administrative EEO process until the Agency issued its final decision.”  The Commission has not consistently held agencies accountable for delays in timely completion of investigations, or issuing final agency decisions and final actions, but found it appropriate to grant default judgment in this case because, in part, the Commission had previously warned the Department of Justice that delays in issuing final decisions were concerning.  See Sylvester v. Department of Justice, EEOC Appeal No. 0120101890 (November 18, 2010).

And finally, in Ivan V. v. Department of Veterans Affairs, EEOC Appeal No. 0120141416 (June 9, 2016), the Commission found that a supervisor engaged in per se retaliation when he asked the complainant if he planned to “play the Latino card” while investigating a complaint from another employee.  The Commission found that these comments could have a chilling effect on the EEO process and constituted a per se violation of the anti-retaliation provisions of Title VII.

Watch this space to see what 2017 brings us from the Office of Federal Operations.

Sumner@FELTG.com

Practice Tip: Say What You Mean in Drafting Terms of Settlement Agreements

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By Deryn Sumner, January 18, 2017

In issuing one of its last decisions of 2016, the EEOC’s Office of Federal Operations left us with a nice reminder of the importance of being as specific as possible when drafting terms of settlement agreements.  Although everyone in the room might think they have the same understanding of what each side is promising to do, different interpretations can arise after the fact.  At the core, settlement agreements are contracts and are interpreted as such.  The complainant agrees to withdraw his or her EEO complaint with prejudice.  In some instances, he or she even agrees to do more than that, such as resign from the agency as of a specific date.  The agency may agree to a whole host of things (particularly if it is getting the employee to resign as part of the deal) including making monetary payment to the complainant, paying the complainant’s attorneys’ fees and costs, restoring leave, changing personnel files and performance evaluations, providing letters of reference, rescinding suspensions or other disciplinary actions, and even sometimes agreeing to reassign the complainant to a different position away from a specific supervisor.

That’s what the parties agreed to in the case of Ouida L. v. Department of Interior, EEOC Appeal No. 0120162588 (December 30, 2016).  Or at least that’s what the complainant thought she was receiving in exchange for agreeing to settle the case.  The language of the settlement agreement included the following language: “Reassign Complainant under the direct supervision of [the Senior Advisor for Hydropower (“S2”)] instead of [the PRO Manager (“S1”)] effective immediately.”

The decision notes that many of the issues which caused the complainant to file an EEO complaint stemmed from her interactions with her first-line supervisor “S1” and that during the processing of the EEO complaint, the complainant had been placed in a separate chain of command from S1.  After execution of the agreement, the Agency did as agreed and moved the complainant formally to reporting to the S2.  Who, of course, ends up retiring a year later only to be replaced by, you guessed it, S1 who assumes S2’s position.  The complainant contacts the Agency alleging a breach and the Agency finds that considering the plain language of the agreement, no breach occurred.  Which leads us to the appeal of that finding and the EEOC’s decision.

The complainant argued that the intent of the agreement was to place the complainant outside of the chain of command of S1.  The Agency argued that it did as it contracted to do when it reassigned the complainant to the direct supervision of S2, and that the language of the settlement agreement did not say that the complainant would not be in S1’s chain of command.

The Commission, after discussing the Plain Meaning Rule, agreed with the Agency.  It found that removal from S1’s chain of command was not one of the terms of the agreement and that there was no evidence that the settlement agreement was otherwise void, voidable, or that the complainant was misled into signing the agreement, particularly as she was represented by counsel.  The Commission cautioned, as we caution you, readers of the FELTG newsletter now, “if Complainant wanted such constraints imposed on the Agency employee, she should have included such a provision as part of the settlement agreement.”  (internal citations omitted).  Think about the result you want and draft the right language to achieve that result, lest you be stuck litigating enforcement matters forever and ever.  [Editor’s Note: Amen.] Sumner@FELTG.com

EEOC Issues its Own Performance Evaluation for 2016

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By Deryn Sumner, December 14, 2016

The end of the year is a good time for reflection.  What went well, what could have gone better, and how can we turn what we learned in 2016 into lessons learned so we can do better in 2017?  Since Gary Gilbert started the Firm where I work in 2005, we have dedicated at least a day to this reflection exercise every year. In December, every attorney gets sequestered in our large conference room to talk about our accomplishments, our losses, what inspired us, what depressed us, and what we want to be talking about and doing a year from now.

The EEOC also did some reflecting regarding its accomplishments and published a Performance and Accountability Report for fiscal year 2016 on November 15, 2016. I’ve already discussed some of the EEOC’s accomplishments this year in the newsletter, most notably the results of the Commission’s Select Task Force on the Study of Harassment in the Workplace, which was issued in June 2016. We’ve also talked about the EEOC’s deployment of a pilot program to have administrative judges hold initial status conferences instead of issuing Acknowledgment and Orders. The Report notes that these initial status conferences have “been instrumental in increasing settlement rates, reducing the motions practice, providing customer service by informing the parties about the hearings process, and allowing greater time for more complicated cases.”

I love numbers and data, so I was particularly interested in some of the statistics provided by the Report.  The Report noted various achievements regarding the federal sector arm of the Commission, many of which I’ve summarized and highlighted here:

  • Employees and applicants received $76.9 million in relief in federal sector cases;
  • The EEOC received 8,193 requests for hearing;
  • 6,792 complaints were resolved;
  • 3,523 appeals from final agency actions were received, which reflects a 3.45% decrease from the number of appeals filed in Fiscal Year 2015;
  • The EEOC focused on resolving the oldest appeals pending “or those that vindicate employees’ EEO rights and/or preserve their access to the EEO process;”
  • The EEOC resolved 3,751 appeals, of which 47.3% were resolved within 180 days of receipt;
  • The EEOC reversed procedural dismissals in 436 cases, which reflects 22.5% of appeals filed seeking such reversals;
  • The EEOC resolved 1,810, or 54.4%, of appeals that were or would have been 500 or more days old by the end of fiscal year 2016;
  • The EEOC issued 111 findings of discrimination, which reflects a 22.7% increase from last year.

I will admit that I have criticized the Commission for the lengthy delays in receiving decisions, but it is heartening to see a focus on resolving older cases and obtaining relief for victims of discrimination.  The complete Report is available here: https://www.eeoc.gov/eeoc/plan/upload/2016par.pdf. Sumner@FELTG.com

EEOC Understands the Problems Agencies Can Have Implementing Decisions

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By Deryn Sumner, December 14, 2016

I know firsthand the frustration agency representatives can experience when they are being asked about when a payment under a settlement agreement or administrative judge’s order will be made, and they can’t give a clear answer, because their agency isn’t the one that actually makes the payment.  Many agencies rely on other entities such as DFAS or Department of Treasury to effectuate payments, and it can be very hard to get information about when the payments will be made when it’s not in your agency’s control. Or, you are being asked to change personnel records or leave records from many years ago, and those records have been archived or kept in a system that is no longer used by the agency.

The EEOC understands.  In Kristy E. v. Department of Air Force, EEOC Petition No. 0420160005 (November 18, 2016), the petitioner requested enforcement of the EEOC’s prior decision and an award of $75,000 in sanctions for the continued delay in obtaining the ordered relief.  This case has a convoluted and lengthy procedural history.  As I talk about elsewhere in this month’s newsletter, the EEOC made it a priority in fiscal year 2016 to resolve older cases on the docket.  Here, the complainant filed a formal complaint in 2004, received default judgment in her favor in 2008, and is still dealing with this case over a decade after it began.  The Agency rejected the Administrative Judge’s (AJ’s) order granting sanctions and ordering relief and filed an appeal in 2008.  The Office of Federal Operations took until 2015 to issue a decision on the appeal and ordered the Agency to implement the AJ’s decision.  The Agency requested several extensions of time to implement the ordered relief, noting that restoring the ordered 675.75 hours of leave posed a challenge as the employee’s leave records had since been archived.  The employee eventually filed a petition for enforcement and requested monetary sanctions for the delay.

The Commission, although it granted the petition for enforcement and ordered the Agency to comply with its prior Order, did give the Agency a break, and stated:

As we noted in our November 19, 2015, letter, in situations like this, where records have been archived, it can add weeks or even months to an agency’s compliance efforts. As we further noted, the Agency provided good cause, given that it lacked access to Petitioner’s salary records. We note that the Agency, throughout the compliance process, stayed in contact with both the Commission and Petitioner concerning its efforts to obtain compliance with Part 6. Therefore, we decline to sanction the Agency. Also, with respect to Petitioner’s request that the Agency be sanctioned with an additional damages award of $75,000, we note that such a sanction would amount to punitive damages, which are unavailable against the government or a government agency. See Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981(A)(b)(1); Jones v. Dep’t of Health and Human Serv., EEOC Request No. 05940377 (January 23, 1995) (citing Graham v. U.S. Postal Serv., EEOC Request No. 05940132 (May 19, 1994)).

The takeaway for agencies from this decision: keep in communication with the employee and the assigned compliance officer regarding attempts to comply with the Commission’s orders and if there’s a specific reason for the delay, such as problems obtaining archived records or effectuation of payments being outside of the agency’s control, communicate that.  The Commission understands the challenges that can come along with implementing these orders.  Sumner@FELTG.com

EEOC Issues Updated Enforcement Guidance Regarding National Origin Discrimination

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By Deryn Sumner, December 14, 2016

The EEOC issues guidance on various topics related to discrimination, including harassment, use of arrest and conviction records in employment, and disability discrimination.  As Supreme Court cases and new laws change the landscape of discrimination law, the guidance needs to be updated to reflect these changes.  This is a large undertaking as the guidance is considered official EEOC policy, and the Commission seeks public comment and must obtain approval from the majority of the Commissioners before issuing the guidance.  In the last three years, the EEOC has updated and issued three enforcement guidance areas: pregnancy discrimination and related issues, retaliation and related issues, and now, in November 2016, national origin discrimination and related issues.  Although the enforcement guidance relating to disability discrimination now contain a note stating that the ADA Amendments Act of 2009 made significant changes, the EEOC has not yet issued revised guidance regarding disability discrimination.

The EEOC updated the national origin discrimination guidance for the first time since 2002.  Along with the guidance, it issued a question and answer series and a small business fact sheet.  I find the question and answer series to be very helpful in providing advice to managers and employees, as the questions address likely hypotheticals and are written in plain language.  The EEOC sought public comment in July 2016 before issuing the final revised guidance.

The guidance includes an overview, a section on what national origin discrimination is and how it can intersect with other bases of discrimination, and issues relating to language, accent, and citizenship issues. Although not an issue normally faced in federal sector employment discrimination cases, the EEOC does make clear that Title VII prohibits discrimination against individuals regardless of their citizenship or work authorization, and that immigration status is not relevant to the underlying merits of a charge of discrimination.  Further, threats to report an employee’s immigration status can constitute retaliation if the employee has engaged in protected EEO activity.

I found the section on intersectional discrimination to be the most interesting, because often when consulting with clients or potential clients, it can be difficult to parse through the exact basis that is leading to the disparate treatment or harassment.  For example, a female employee who is a practicing Muslim from an Arab country who objected to workplace comments regarding her religion or country of origin may face discrimination for any one of, or perhaps multiple protected bases.  The Updated Enforcement Guidance regarding national origin discrimination can be found here:

https://www.eeoc.gov/laws/guidance/national-origin-guidance.cfm.

Sumner@FELTG.com

EEOC Survives Motion to Dismiss in Federal Court on Claim of Sex Discrimination

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By Deryn Sumner

In a decision issued on November 4, 2016, the U.S. District Court Judge in EEOC v. Scott Medical Health Center denied the defendant’s motion to dismiss the case and credited the EEOC’s argument that claims of sexual orientation discrimination are claims of sex discrimination under Title VII.  As we’ve talked about several times in this newsletter, the EEOC first articulated this argument in a decision issued by the EEOC’s Office of Federal Operations, Baldwin v. Department of Transportation, Appeal No. 0120133080 (July 15, 2015).

The defendant’s motion to dismiss centered on two arguments: first, that the EEOC’s lawsuit was untimely and that the EEOC failed to meet administrative procedural requirements prior to filing.  The District Court addressed each requirement in turn and found that the EEOC had complied with the necessary procedural requirements and timely initiated the lawsuit.

The defendant’s second argument was that the lawsuit failed to state a claim because Title VII does not prohibit discrimination on the basis of sexual orientation. Considering the EEOC’s response in opposition, the U.S. District Court judge distilled the argument to be “whether, but for Mr. Baxley’s sex, would he have been subjected to this discrimination or harassment. The answer, based on these allegations, is no.”  The complaint alleges that the employee’s supervisor subjected him to verbal slurs based on his sexual orientation and made offensive statements and asked highly intrusive questions of the employee regarding his sex life.

The District Court Judge’s decision addressed the prior Supreme Court precedent and noted the recent district court decisions in other jurisdictions before concluding, “That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate. Because this Court concludes that discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination ‘because of sex,’ Defendant’s Motion to Dismiss on the ground that the EEOC’s Complaint fails to state a claim for which relief can be granted will be denied.”

The EEOC’s argument that sexual orientation claims are claims of sex discrimination under Title VII continues to be successful in district court litigation.  It remains to be seen if these efforts will be sidelined in the coming months by the incoming administration and Congress. Sumner@FELTG.com.