Agencies: Bring the Right People to the Table to Talk About Settlement and Make Sure They Have Authority!

, ,

By Deryn Sumner

As we’ve talked about a few times in this space, in August 2015 the EEOC released a revised version of its Management Directive 110 (MD-110), which relates to federal sector EEO complaints processing.  One change to MD-110 that not everyone has caught up to yet is the requirement for agencies to identify a settlement authority that is not named as a responsible management official or is otherwise directly involved in the case.  The language in MD-110, Chapter 1, Section V. (emphasis added) states:

The agency must designate an individual to attend settlement discussions convened by a Commission Administrative Judge or to participate in EEO alternative dispute resolution (ADR) attempts. Agencies should include an official with settlement authority during all settlement discussions and at all EEO ADR meetings (Note: The agency’s official with settlement authority should not be the responsible management official (RMO) or agency official directly involved in the case. This is not a general prohibition on those officials from being present at appropriate settlement discussions and participating, only that they are not the officials with the settlement authority.) The probability of achieving resolution of a dispute improves significantly if the designated agency official has the authority to agree immediately to a resolution reached between the parties. If an official with settlement authority is not present at the settlement or EEO ADR negotiations, such official must be immediately accessible to the agency representative during settlement discussions or EEO ADR.

The Commission is clearly stating here that identified RMOs should not be the ones coming to the table with authority to try to settle cases.  That makes sense and is something I recommended prior to the release of the revised MD-110.  Managers who have been identified as alleged discriminating officials are too close to the situation to view it objectively, to consider the employee’s requests for settlement, and to respond in a way that addresses all the reasons why we here at FELTG teach that agencies should be open to settlement discussions, even if it is the agency’s position that it did not do anything wrong.  So make sure you are up to speed on the revised directive and identify someone outside of the RMOs and those directly involved to serve as the settlement authority.

And as a reminder, it is imperative that the individual identified by the agency to have authority to resolve complaints actually have that authority.  The Department of the Air Force recently learned that lesson the hard way. Luann L. v. USAF, EEOC No. 0120161629 (June 23, 2016).  There, the parties entered into a settlement agreement wherein the agency agreed to, in part, process paperwork to reflect that the complainant was detailed to unclassified duties at the GS-14 level for about 5 days and to thereafter temporarily promote her to a GS-14 position “until such time as the vacancy is filled or the Complainant is no longer performing the duties at which time the Complainant will convert to her previous position and pay grade.”

After the complainant filed a breach of the agreement, the agency issued a final decision finding that the settlement authority who attended the mediation did not actually have authority and therefore was not authorized to bind the agency to these terms.  The Commission did not find that argument to be persuasive and noted that an agency must present evidence to prove that the signatory to the agreement actually lacked the authority to agree to its terms. Here, as the agency did not present evidence that the settlement authority was not authorized to bind the agency to the terms of the agreement, the Commission remanded the matter to the agency for specific enforcement of the settlement agreement. Sumner@FELTG.com

EEOC’s Office of Federal Operations Certifies First Federal Sector Class Action of 2016

, ,

By Deryn Sumner

On June 1, 2016, the EEOC’s Office of Federal Operations certified what appears to be the first federal sector EEO class action of 2016 in Candice B., et al. v. Dep’t of Homeland Security, EEOC No. 0120160714 (June 1, 2016).  The Commission reversed the agency’s final action which had accepted the administrative judge’s denial of class certification.  Instead, addressing the four requirements for class complaints (commonality, typicality, numerosity, and adequate representation (although that was only summarily addressed)), the Commission certified a class of women challenging the Department of Homeland Security’s push-up test requirements as being discriminatory against women seeking to become permanent Customs and Border Protection Officers.

In October 2009, the Department of Homeland Security implemented new physical fitness standards for Customs and Border Protection Officers, which included push-up requirements.  The cut-off scores were the same for both male and female applicants and the tests came in three stages of the employment process. (For you fit FELTG newsletter readers wondering how you would stack up, applicants had to complete 12 push-ups in a minute to pass the first fitness test, 17 push-ups in a minute to pass the second, and 24 push-ups in a minute to graduate from the Federal Law Enforcement Training Center (FLETC)).

The class agent passed the first two tests and started basic training at FLETC.  However, she was unable to pass the third test and the Agency terminated her during her probationary employment.  She sought EEO counseling, alleging discrimination based on sex.  After she filed a formal complaint, received an investigation and requested an EEO hearing, she filed a Motion for Class Certification, which the administrative judge denied.  The administrative judge found the class agent did not meet the requirements of typicality, commonality, and numerosity required for class complaints.

The complainant appealed and the Commission found the requirements for class certification were in fact met, based on the evidence provided by the complainant.  Addressing commonality and typicality together, as is often done in the analysis, the Commission found that the complainant was challenging an agency policy, which contained qualifications standards that disparately impacted women.  The prospective class members had a common injury in that if they failed the push-up tests, they would be barred from permanent employment and each female applicant was required to perform the same test.  Addressing numerosity, the Commission referenced evidence in the record that over a two-year period, over 2,100 women performed the push-up tests and over 350 failed them, finding that number to be sufficient to constitute a class. The Commission found the criteria for class certification was met and remanded the complaint to an administrative judge, noting that the judge “shall afford the class agents the opportunity for any additional discovery necessary to ensure the class maintains certification.” Sumner@FELTG.com

Sanctions: When the Agency Fails To Provide the Complaint File on Appeal

, ,

By Deryn Sumner

We’ve come to the end of the road in our series on when sanctions can be issued in federal sector EEO complaints.  And fittingly, this month we’ll discuss sanctions issued at the end of the road in the administrative process: appeals before the EEOC’s Office of Federal Operations.

Either party can file appeals of final actions to the Office of Federal Operations.  Pursuant to 29 C.F.R. 1614.403(e), the agency must submit the complaint file “within 30 days of initial notification that the complainant has filed an appeal or within 30 days of submission of an appeal by the agency.”  Seems simple enough, right?

Well, every year for at least the past several years, the EEOC has issued sanctions against agencies for failing to comply with this regulation to submit the complaint file. For example, in Amina W. v. Dept. of Energy, EEOC No. 0120113823 (November 17, 2015), the EEOC issued default judgment against the agency because it failed to provide copies of the hearing transcript and did not respond to the OFO’s Show Cause Order as to why it hadn’t.  The decision notes that the agency had repeatedly failed to comply with the EEOC’s orders in the case. As it did not have the hearing transcripts, the Commission concluded it was unable to review whether the administrative judge’s finding of no discrimination was supported, and issued default judgment instead.

Yes, even though the agency won the case at a hearing, it ended up liable for discrimination because of a failure to provide the hearing transcript to OFO.  Finding that the complainant established prima facie claims of discrimination, the Commission determined remedies were appropriate, including providing the complainant a retroactive promotion with back pay, an investigation into the complainant’s entitlement to compensatory damages, and eight hours of in-person training to EEO staff “regarding their responsibilities concerning case processing and insuring that the EEOC is provided complete EEO complaint files.”  [Editor’s note: And once more we see why wise agency counsel settles an EEO complaint even when there is no basis on which to find discrimination. One simply cannot predict what will happen before EEOC. Join us for our Settlement Week seminar in November if you want to learn the tricks of the deal-making trade.]

Similarly in Complainant v. Dept. of Air Force, EEOC No. 0120083446 (September 28, 2015), the EEOC overturned the administrative judge’s decision finding no discrimination issued after a hearing and granted default judgment because the agency failed to provide the complete complaint file to OFO, including failing to provide the complete ROI, motions and pleadings from the hearing stage, and the hearing transcript.  The agency also did not respond to the Order to Show Cause as to why sanctions should not be granted, even though someone from the EEOC called the agency to confirm it received the notice.  As part of the grant of default judgment, the Commission ordered the agency to retroactively offer the complainant a position with back pay and conduct an investigation into entitlement to compensatory damages.

So, we know what the worst case scenario is if an agency fails to provide the complete complaint file to OFO.  Let’s look at what an agency can do to avoid such severe sanctions.  The facts in Denese L. v. Dep’t of Interior, EEOC No. 0120130297 (May 13, 2016) start off looking as dire to the agency as the cases discussed above.  When the agency provided the complaint file, it did not include any deposition transcripts, the prehearing report, or discovery documents.  After the EEOC emailed the agency about these omissions, the agency provided a copy of the complainant’s deposition transcripts, but not the remaining transcripts and exhibits.  The EEOC issued a Show Cause Order and unlike in the other two cases, the agency responded by submitting the missing documents and arguing that sanctions should not be imposed because it did not realize any other documentation was missing until February 2016, and it took a long time to obtain the missing documentation because it had to be retrieved from an archive.

The Commission did not credit the agency’s argument that it did not realize until recently that documentation was missing, noting that the agency’s iComplaints administrator received notice on May 19, 2015 and, regardless, the Commission’s regulations require production of the complaint file.  However, the Commission found, “because the Agency ultimately submitted the missing documentation, and the missing documentation was remotely stored in archives, we determine that sanctions are not appropriate in this case. However, the Agency is strongly reminded that failure to submit to the Commission the complete record, within the applicable time frame, may result in sanctions against the Agency in future cases. In particular, the Agency should especially focus on developing procedures that allow it to promptly locate and submit missing documents. Further, the Agency should take particular measures to ensure that it is accounting for and submitting to the Commission all documents from the hearing stage, whether an AJ has issued a decision or remanded the case to the Agency for a decision on the record.”

The Department of Interior escaped with only a scolding because it provided the requested documentation and provided a reason as to why it did not do so prior.  The best practice is to make sure you submit the complete complaint file in the first place.  If facing a Show Cause Order, provide all of the requested information and hope you have a reason why the agency did not do so before. Sumner@FELTG.com

Supreme Court Rules On When 45-Day Time Limitation Begins for Initiating EEO Contact on Claims of Constructive Discharge

, ,

By Deryn Sumner

I previously wrote about the Supreme Court’s grant of certiorari in the case of Green v. Donahoe in May 2015 as well as the oral arguments heard by the Justices in December 2015. The Court took up the case to address a circuit split as to when a federal employee must contact an EEO counselor to allege a claim of constructive discharge: when an employee resigns (as the First, Second, Fourth, Eighth, and Ninth Circuits held), or at the time the employer commits the last act alleged to be discriminatory (as the Seventh, Tenth, and D.C. Circuits held).

To recap the facts of the case, Mr. Green worked for the U.S. Postal Service and filed an EEO complaint in August 2008, arguing that he was not selected for a promotion because he was African-American. He filed another formal complaint alleging retaliation in May 2009. After he filed his formal complaint, the Office of Inspector General began investigating him for delaying the mail.  The IG ultimately concluded that Mr. Green did not commit misconduct; however, his managers placed him on emergency off-duty status after the interview anyway.  A few days later, Mr. Green and the Agency entered into a settlement agreement which provided that he would use leave to stay on the payroll until March 31, 2010, after which time he would either retire or accept a downgrade to a position 300 miles away.  Mr. Green subsequently contacted an EEO counselor to allege that the agency constructively discharged him by forcing him to retire under the settlement agreement.  After exhausting his administrative remedies, he filed in U.S. District Court and it concluded he had not made timely EEO counselor contact.  Mr. Green appealed the decision to the Court of Appeals for the Tenth Circuit and the Court of Appeals agreed that Mr. Green’s EEO counselor contact was untimely because it was beyond the 45 day timeframe.

In a 7-1 decision issued on May 23, 2016, the Supreme Court vacated the decision of the Court of Appeals and held that the 45-day window begins running only after the employee resigns.

The majority opinion began its analysis by reviewing the Commission’s regulation at 29 C.F.R. 1614.105(a)(1), which states, “An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.” The Court did not find that regulation helpful, noting that the reference to “matter” does not identify whether that means the employee’s actions (here, an employee’s resignation) or the employer’s actions (here, the settlement agreement).

Looking to Black’s Law Dictionary and other canons of interpretation, the Court concluded that the “matter alleged to be discriminatory” in cases alleging a constructive discharge claim includes the date of the employee’s resignation.  The Court provided three reasons for this holding: (1) that in a constructive discharge claim, a resignation is part of the “complete and present cause of action” necessary before the 45-day time limit begins to run; (2) the regulation at 29 C.F.R. 105 does not contain any language that is contrary to this idea; and (3) a catch-all of practical considerations, which the Court identified as not making it difficult for a layperson to invoke the protections of the civil rights statutes, to support this conclusion.

 

Justice Sotomayor delivered the opinion of the Court.  Justice Alito filed a concurring opinion and Justice Thomas issued a dissenting opinion.  The Court vacated the grant of summary judgment and remanded the case for further proceedings.  And thus ends, for now at least, the excitement of the Supreme Court delving into the quirky EEO federal sector process.  Sumner@FELTG.com

Non-Pecuniary Compensatory Damages Awards in 2015: A Brief Overview of Trends

, ,

By Deryn Sumner

As I promised last week, here are some facts and figures from decisions awarding non-pecuniary compensatory damages issued by the EEOC’s Office of Federal Operations in calendar year 2015.  I’ll start with a caveat.  This is based on my review of the decisions issued by the EEOC’s Office of Federal Operations which I rely on Westlaw to accurately provide to me.  Although I briefly review every decision that makes it to Westlaw for publication to find the notable ones, it’s entirely possible, and rather likely, I missed a few. 

By my count, in 2015, the Office of Federal Operations issued 40 decisions addressing awards of non-pecuniary damages in either Final Agency Decisions (FADs) or final actions issued after decisions from administrative judges.  The lowest award was, not surprisingly, $0 (Gregg Y. v. TVA, EEOC No. 0120132920 (November 17, 2015)) and the highest award was $250,000 (Augustine S. v. DHS, EEOC No. 0720110018 (October 22, 2015)).  Nineteen decisions addressed appeals of awards issued by agencies in FADS and 21 addressed appeals filed by either party regarding awards issued by administrative judges.  Of the 21 decisions addressing awards issued by administrative judges, the Commission affirmed them with three exceptions: in Complainant v. Dep’t of Transportation, EEOC No. 0120120933 (February 20, 2015) the EEOC increased an award from $45,000 to $60,000 and in Complainant v. DHS, EEOC No. 0720130035 (October 20, 2015), the EEOC increased an award from $55,000 to $125,000.

The only decrease of an award occurred in Complainant v. Dep’t of Air Force, EEOC No. 0720090009 (June 5, 2015), where the EEOC decreased an award from an administrative judge of $100,000 to $25,000, finding the administrative judge’s award was improperly “punitive” in nature.

In the 40 decisions addressed, the EEOC increased the award of compensatory damages in fifteen of those cases.  Twenty-four decisions awarded $50,000 or less in compensatory damages. Only eight of the decisions awarded non-pecuniary compensatory damages of $100,000 or more.  There were some common awards as well, which to me highlighted the imprecise nature of trying to compensate people for emotional and physical harm with money.  Four decisions awarded $10,000; five decisions awarded $50,000; and four decisions awarded $60,000.  Did these employees suffer exactly these specific amounts of harm?  Of course not.  The process is imperfect and based on assumptions and guesswork.

The biggest monetary change as a result of an appeal was Brendon L. v. USPS, EEOC No. 0120141161 (February 3, 2015), where the Commission increased an award of $13,000 issued by an agency in a FAD to $175,000.  Other notable increases were Complainant v. TVA, EEOC No. 0120133384, 0120133385 (September 15, 2015) (increasing an award from $1,000 to $35,000); Complainant v. Dep’t of Veterans Affairs, EEOC No. 0120140216 (February 25, 2015) (increasing the award from $30,000 to $100,000); and Complainant v. USPS, EEOC No. 0120141161 (February 3, 2015) (increasing the award from $13,000 to $150,000).  These cases reflect an agency’s tendency to undervalue claims of damages when issuing awards in FADs.  Sumner@FELTG.com

Agency that Subjected Employee to Racially Motivated Hostile Work Environment Liable for $125,000 in Compensatory Damages

, ,

By Deryn Sumner

I think that it is worthwhile for practitioners who represent employees and employers to be aware of cases awarding higher awards of compensatory damages.  Although $300,000 is the maximum award under the Civil Rights Act of 1991, most non-pecuniary damage awards fall in the range of $5,000 to $50,000 (something I’ll be talking about in more detail in next month’s newsletter).  Having examples of what it takes to actually get a six-figure award can be helpful for agency representatives talking to complainant’s counsel about what may be unrealistic settlement expectations and complainant’s counsel talking to their clients about…well, likely about their unrealistic settlement expectations.  Further, agency representatives should know about these higher awards so that where complainants do present substantial evidence of damages, the agency representative can competently provide a litigation risk assessment to the agency.

Let’s consider the recent Commission case of Vaughn C. v. Dept. of Air Force, EEOC No. 0120151396 (April 15, 2016). This decision addressed an agency’s award of $20,000 in non-pecuniary compensatory damages, issued after the Commission previously found in EEOC No. 0120123332 (September 10, 2014) that the complainant had been subjected to six months of egregious racial discrimination by co-workers, including use of the n-word, which caused him to resign. The Commission found the agency was liable for the harassment as the first-line supervisor failed to take prompt and effective action to address the harassment, and further found that the harassment resulted in making the complainant’s work environment so intolerable, a reasonable person would have felt compelled to resign.  After entering a finding of discrimination, the Commission remanded the complaint to the agency for investigation of the complainant’s entitlement to compensatory damages.

The agency instructed the complainant, through his attorney, to submit evidence in support of his claim for compensatory damages. The complainant submitted a statement saying that as a result of the harassment, he “had difficulty concentrating, a loss of appetite, high blood pressure, severe headaches and increased anxiety. He said his physical and emotional relationship with his wife was affected, and that he was frequently short-tempered with her, taking out his issues at work on her. In April 2011, he began to see a professional counselor to help him deal with the effects of the harassment at work.” The complainant also provided notes from his counselor which “indicated that Complainant’s mental status had changed. He worried about work often; felt anxious; developed insomnia; experienced a change in appetite and drinking resulting in a 15-20 pound weight gain; had difficulties with fatigue and focus; and had feelings of hopelessness. He also feared that the coworker would become physically violent towards him and his family, and gave family members pictures of the coworker and told them to make sure they did not allow her into the house and made sure all doors and windows were locked. He even devised a “safety plan” to make sure the coworker did not harm his family. The counselor also noted that the complainant would avoid going to the parking lot until after the coworker left work.

Based on this evidence, the agency found an award of $20,000 to be appropriate, and complainant appealed, seeking an increase of the award to $300,000.  After consideration of the evidence presented by the complainant, the Commission found an increase to $125,000 to be appropriate to compensate the complainant for the physical and emotional harm he suffered as a result of the agency’s actions. The Commission found that the complainant provided support for his claims and the award was consistent with prior Commission precedent.

Now, given my reading of other compensatory damages cases, the award does seem a bit high given that the complainant only provided a statement from himself and notes from his counselor.  I would have expected to see more medical documentation and statements from family members, friends, and perhaps a psychiatrist or psychologist in support of the award.  Keep in mind that when assessing claims for damages, we do not look at the underlying conduct, although the egregiousness of the conduct can sometimes be a factor, but rather the nature of the harm as a result of the conduct.  The Commission found $125,000 appropriate and given the egregious and hateful conduct at issue here, I have no doubt that the complainant suffered from substantial physical and emotional harm as a result of the workplace harassment.  Sumner@FELTG.com

Sanctions: When a Party Generally Just Fails to Follow the Administrative Judge’s Orders

, ,

By Deryn Sumner

So far in this series on sanctions in federal sector EEO complaints, we’ve talked about the EEOC’s authority to issue sanctions against either party, and three different situations that can give rise to sanctions: agencies failing to timely complete investigations, agencies failing to complete thorough and appropriate investigations, and either party failing to cooperate during discovery.  This month, let’s talk about when sanctions are appropriate for a party’s general failure to comply with an administrative judge’s orders in a case and look at some recent cases where administrative judges issued such sanctions.

In Gilbert B. v. USPS, EEOC No. 0720150008 (March 18, 2016), the Commission affirmed an administrative judge’s issuance of sanctions where the agency representative failed to properly serve the complainant with a request to continue a settlement conference.  The choice of service was an issue because the agency requested to reschedule the settlement conference just two days prior and served the request by mail to the complainant and his attorney who lived in Guam.  The administrative judge also issued sanctions against the agency for failing to cooperate in settlement discussions in good faith. The agency argued, after the fact, that it had a policy of not voluntarily participating in a settlement conference with an administrative judge who also served as the presiding judge. The Commission agreed that the sanction, attorney’s fees the complainant incurred by not being notified of the change in the settlement conference date and time, to be appropriate.

In Eyrn O. v. Dept. of Veterans Affairs, EEOC No. 0120131752 (January 8, 2016), the Commission affirmed the administrative judge’s sanction against the complainant by dismissing her hearing request where the complainant failed to show good cause for her failure to file a prehearing submission or to attend the prehearing conference.  The complainant did not dispute that she had received notice of the deadlines, but did not notify the parties that she would not appear, nor did she request an extension before the deadline.

And finally in Marquitta B. v. USPS, EEOC No. 0120140518 (December 17, 2015), in a case where I’m just glad I wasn’t involved, the Commission affirmed the administrative judge’s award of sanctions against the complainant because the decision was “supported by an extensively documented record of contumacious conduct on the part of Complainant and her counsel. That conduct included: failure to respond to an instruction to file a motion to amend her complaint; attempting to utilize an unauthorized court reporter to transcribe a pre-hearing teleconference; repetitive, excessive, and overbroad discovery requests; abusive behavior by counsel; resubmission of a motion that had already been denied in a way that expressed contempt for the AJ’s authority; and most important, failure to appear at the hearing itself. Under these circumstances, we find no abuse of discretion on the part of the AJ.”  The Commission affirmed the sanction of dismissal of the hearing request and remand of the case for issuance of a FAD.

Remember, the EEOC provides broad discretion to its administrative judges in conducting hearings.  As MD-110 Chapter 7 states, “The Commission has the authority to issue sanctions in the administrative hearing process because it was granted, through statute, the power to issue such rules and regulations that it deems necessary to enforce the prohibition on employment discrimination. See Waller v. Dep’t. of Transportation, EEOC Appeal No. 0720030069 (May 25, 2007), request for reconsideration denied, EEOC Request No. 0520070689 (Feb. 26, 2009). In this respect, the Commission has determined “that delegating to its Administrative Judges the authority to issue sanctions against agencies, and complainants, is necessary and is an appropriate remedy which effectuates the policies of the Commission. Id.” Ignore the orders of the administrative judge at your own peril.  Sumner@FELTG.com

EEOC Continues to Focus on Protecting Transgender Employees from Discrimination in the Federal Workplace

, ,

By Deryn Sumner

Since its decision in Macy v. Dept. of Justice, EEOC No. 0120120821 (April 20, 2012), the Commission has continued to push the law forward to protect transgender employees from discrimination in the federal workplace.  Last year saw the issuance of the Commission’s decision in Lusardi v. Dept. of Army, EEOC No. 0120133395 (April 1, 2015), where the Commission found the agency subjected the complainant, who had transitioned from male to female, to disparate treatment and harassment based on her sex.  There, the agency had restricted her from using the common female restroom until she could provide “proof” of her complete transition, and her third-level supervisor referred to her by male pronouns and made hostile remarks after she announced her transition.

The latest decision from the Commission addressing claims of sex discrimination raised by a transgender employee came a few weeks ago when the Commission issued Hillier v. Dept. of Treasury, EEOC No. 0120150248 (April 21, 2016). The complainant, a transgender female, worked as a GS-13 Revenue Officer in Richmond, Virginia and was part of an agency employee organization named Christian Fundamentalist Internal Revenue Employees (CFIRE).  This organization met weekly on agency property for Bible study.  The complainant attended these meetings and at some point, informed the leadership of this organization that she was transgender and identified as a female, but attended the group meetings presenting as a male. Complainant asked if she could attend the weekly meetings “in the attire of the gender I believe I am: female” and the organization’s president denied the request.  A few weeks later, the organization’s president, in response to complainant’s request to present at a meeting, responded, “I cannot allow the CFIRE platform to be used to promote your transgender lifestyle.” In response, the complainant stated that she was not planning on presenting anything relating to transgender issues (she sought to present on “a play she recently saw and discuss Judas’ role in God’s plan, and what it means for Christians today”) and would not make the presentation dressed as a woman.  The organization’s president still refused the request and the complainant filed an EEO complaint. The agency dismissed for failure to state a claim, claiming that the organization’s president, not agency management, took the action at issue and therefore his acts were not the actions of the agency.

The complainant appealed and the Commission vacated the dismissal, reinstated the formal complaint, and remanded it for investigation.  Now some of you may be thinking, why should the agency be liable for the conduct of an employee who was acting in his capacity as an officer of an employee organization?  The Commission addressed that argument in its decision, finding that although the agency viewed the complaint as one of disparate treatment, it should have been framed as a harassment claim, noting that the complainant checked a box marked “harassment (non-sexual)” on the EEO counselor’s report.

The Commission further noted that agencies can be liable for harassment by a co-worker under a theory of harassment and the actions of this organization were related to the complainant’s employment noting, “CFIRE is an employee organization created and recognized under the Agency’s Employee Organization Policy, and sponsored by an executive member of the Agency. In accordance with this policy, employees of the Agency were permitted to organize as a group and use Agency facilities, meeting rooms, interoffice mail, and Agency newsletters. CFIRE members were also permitted to attend conferences and receive compensation by the Agency for travel expenses. As a result, any alleged discrimination from CFIRE and its officers or members is reasonably related to Complainant’s employment with the Agency.”
The Commission then found that the complainant stated a viable claim of harassment, noting “[w]e find that not allowing someone to dress as the gender with which they identify is severe enough to constitute a hostile work environment, as a reasonable person would find it hostile or abusive…Not allowing an employee to dress as the gender with which they identify and forcing them to dress as a gender with which they do not identify can be humiliating and dehumanizing, and it certainly unreasonably interferes with an employee’s work environment. Further, not allowing an individual to present on any topic simply because that individual is transgender causes further alienation and reasonably interferes with an employee’s work environment. Finally, the CFIRE President’s use of the term ‘transgender lifestyle’ can reasonably be perceived as offensive, as it is indicating that transgender people somehow are different from others and have a different lifestyle than others, and as a result, they should be treated differently. Therefore, we find that this complaint states a claim of sex-based harassment.” [Editor’s Note: This employee claimed “non-sexual harassment” and EEOC found “sex-based harassment.” Apparently, the employee’s claims don’t really matter when it comes to the conclusion EEOC will reach to do justice.]

The Commission further disposed of the agency’s arguments that CFIRE’s actions were an exercise of religion, noting that an employer is not required more than a de minimis burden to provide religious accommodation in the workplace. The Commission remanded the complaint for investigation within 150 days of when the decision became final. Sumner@FELTG.com

Reasonable Accommodation: Alternative Effective Accommodations versus Undue Hardship

, ,

By Deryn Sumner

Last week I joined Ernie Hadley and Gary Gilbert for FELTG’s twice-annual open enrollment session, EEOC Law Week in Washington, D.C. On Wednesday, we walked through disability discrimination law, the various theories that can be applied to these claims, and the obligations employers have to accommodate employees with disabilities.

As Ernie and Gary like to say, there are no points awarded for creativity in analyzing disability discrimination claims. First, the employer must determine if the employee is an individual with a disability by establishing he or she has a medical condition which substantially limits a major life activity.  Since the passage of the ADA Amendments Act more than six years ago, this is not an onerous standard for employees to meet.  Next, the employer must determine if the employee is qualified to perform the essential functions of the position with or without an accommodation.  If the employee meets these criteria, remember that an employer must provide an accommodation unless providing the accommodation would pose an undue hardship to the employer.

Based on some of the questions we received during the sessions and the breaks at EEOC Law Week, I wanted to talk a bit more about this requirement that the employer provide an accommodation.  Sometimes in response to a request from an employee for accommodation, the initial reaction is to conclude that the accommodation requested is not reasonable.  That then leads to the decision to argue that it would be an undue hardship to provide the requested accommodation.  And that is going to land the agency in hot water for failing to accommodate the employee.  Instead of focusing on arguing whether the accommodation requested by the employee might pose an undue hardship, agencies should instead focus on how an effective accommodation can be provided.

Recall, at this point, the agency has already determined that the employee is qualified to perform the position with or without accommodation.  So, the employee can perform the job and the question turns to what accommodations the agency can provide.  The law is clear that the employee does not need to be provided with the accommodation of his or her choice, but merely an effective accommodation.  So instead of preparing to argue as to how the requested accommodation poses an undue hardship, the agency should engage in the interactive process and figure out what the agency can reasonably do to allow the employee to perform the essential functions of the job.  Don’t focus on how the employee’s requested accommodation is unreasonable; look to what effective accommodations can be provided.  This is the part of the process where creativity is encouraged.  Different accommodations work for different people with different medical conditions working in different positions.

And a final reminder: undue hardship is a defense to a claim of disability discrimination and should not be asserted without being very confident that it really would be an undue hardship to accommodate the employee.  The Commission’s regulations at 29 CFR 1630.2 state the factors that should be considered in such an analysis:

  1. The nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding;
  2. The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources;
  3. The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities;
  4. The type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and
  5. The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

Proceed down this path at your own risk.  Instead, if the accommodation requested by the employee is not feasible, the agency should focus on what alternative effective accommodations can be offered to allow this employee to perform his or her job. Sumner@FELTG.com

Career Lessons Learned from My Father

, ,

By Deryn Sumner

Note: When I first started contributing to this newsletter, Bill told me I had liberty to write about pretty much whatever I wanted.  I’m going to take him up on that this month and depart a bit from my usual arena of EEO law to talk about my father’s career and the lessons I’ve learned from him. [Editor’s Note: I am so smart.]

On April 18, 2016, my father, Dave Sumner, retires from his position as the Chief Executive Officer of the American Radio Relay League (ARRL).  Those of you who know what ham radio is likely know about ARRL.  Those of you who are ham radio operators may even know of my dad, even if you know him only by his call sign, K1ZZ.  In his role leading this non-profit, he traveled all over the United States and the world attending conferences, meetings, and conventions spreading the mission of ARRL: to advance the art, science, and enjoyment of Amateur Radio.

My dad has been a ham radio operator since the age of 13. He held his first job at ARRL during the summer of 1968 and joined the staff full-time in 1972.  Some people work to live and some people live to work.  My father was fortunate enough to make a career of his passion for ham radio.  That’s not to say that he enjoyed every aspect of the job.  However, last week my husband and I flew up to Connecticut to attend my father’s retirement party.  I had the pleasure of hearing some very touching tributes to my dad’s work over the many decades he has been with ARRL.  Some common themes emerged during these speeches that caused me to reflect on what makes a good supervisor that will cause people to travel (some from other countries) on a rainy Thursday evening to wish you well at the end of your career.  I thought these themes I came away with would be helpful for some of the supervisors in the FELTG audience.

Don’t take credit for the work of others, and go out of your way to make sure those who do good work get proper credit for it.  Be a mentor to other employees.  Hearing so many people say what a mentor my dad had been to them in their careers was a delight.  If someone comes to you with a problem, don’t make that person feel silly or demeaned for asking you for help.  Assist with working to come up with a solution and make sure they have the tools to get there.  Keep calm, even when things get contentious.  Know your stuff or know where to look it up.  Everyone may not have the encyclopedic memory of my dad (I know I don’t) but you should speak with authority and credibility.

At its core, employment discrimination law is about the relationships between people.  It is one of the best (and of course, one of the worst) aspects of the job representing employers and employees in EEO complaints.  Employees feel disrespected, even harassed, by how their supervisor treats them.  A supervisor tries to hold accountable an employee who feels defensive, or that the criticism is unwarranted, or that they haven’t been given the proper tools to succeed.  Sometimes these interactions are motivated by unlawful animus because of someone’s membership in a protected class.  And sometimes it’s because two people have a poor working relationship or there is disrespect on either side.  Being in a room with a group of people who respected my dad and will miss working with him was certainly a highlight for me.  Supervising people is hard work, but remembering that they are people and part of your job as a supervisor is to nurture their careers, can go a long way to fostering healthy working relationships. Sumner@FELTG.com