What A Long, Strange Trip It Has Been

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By Meghan Droste, August 18, 2021

Litigation, even when it all goes according to plan, can end up being a long and winding road.  And when it doesn’t go quite as it should … well, a long, strange trip is one way to describe what can happen.

Randolph A. v. Department of Veterans Affairs, EEOC Pet. No. 2020004882 (June 23, 2021) is a journey filled with many twists and turns. The story starts in September 2010 when the complainant filed a formal complaint regarding a non-selection. The agency investigated the complaint and issued an ROI. The complainant requested a hearing and then subsequently appealed the administrative judge’s grant of summary judgment in favor of the agency. On appeal, the Commission found in favor of the complainant and awarded several remedies, including placement in a position and back pay, and ordered the agency to conduct a supplemental investigation regarding compensatory damages. The agency filed a request for reconsideration, which the Commission denied.

So far everything seems straightforward. But here’s where the journey gets a bit strange: Instead of implementing the Commission’s decision, the agency sent a letter in 2016 to the Commission, asking the Commission to vacate its decision based on a November 2010 global settlement agreement with the complainant. The complainant objected to this and filed a petition for enforcement. The Commission found that the agency’s arguments regarding the settlement agreement were untimely, and that the agency had waived them, having waited until after the investigation, hearing stage, and appellate process to first raise the existence of the agreement. In November 2017, the Commission ordered the agency to comply with the previous order.

Unsatisfied with this result, the agency wrote to the EEOC acting chair in January 2018 to seek review and reversal of the Commission’s decision.  A month later, the agency issued a final order awarding damages. The complainant appealed the award, which the Commission modified.  In response, the agency filed request for reconsideration and again raised the arguments regarding the settlement agreement.

As the Commission notes, “[d]espite repeatedly addressing the Agency’s assertion in prior decisions, the Commission nonetheless provided the Agency with further reasoning and explanation” as to why its very untimely arguments failed. The case then ended up before the Commission yet again because the agency refused to comply with the decision and instead sent its January 2018 letter to the compliance officer.

In its most recent decision, the Commission provided a lengthy discussion of why the agency’s arguments failed, drawing comparisons to the Federal Rules of Civil Procedure to highlight how the agency failed to act with due diligence in 1) keeping track of the 2010 settlement agreement, and 2) timely raising arguments regarding it. The Commission yet again ordered the agency to pay compensatory damages to the complainant. It also informed the agency that if it failed to do so, it might refer the matter to the Office of Special Counsel under the memorandum of understanding (MOU) between to the two agencies. Under the MOU, OSC could initiate disciplinary action.

It’s unclear where the agency will go from here, but hopefully the potential involvement of OSC will prompt the agency to finally follow the Commission’s order and pay the damages it was ordered to pay years ago.

One last thing — the title of this article isn’t just about the Randolph A. case. It’s also because, to borrow from another song and a completely different genre, it’s time for me to say so long, farewell, auf Wiedersehen, and goodbye to the wonderful FELTG community. Starting next month, I will be joining the ranks of many you as a Federal employee.  Thank you to all of you who have joined me in the classroom over the past four years.  I have learned so much from you and will take many fond memories with me.  To paraphrase my source material, what a (not) long (enough), (wonderful) trip it has been – I hope this is more of a see you later rather than a real goodbye. Droste@FELTG.com

Top 10 Tips From the Other Side

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By Meghan Droste, August 18, 2021

The time has come, FELTG readers, for my final Tips from the Other Side.  It has been a pleasure providing you with insights on what to do, and what not to do, and how to do the best job possible when handling a variety of EEO-related issues. I hope you have enjoyed the journey and picked up some valuable lessons along the way.

Before I go, here is a top ten list of sorts. These are in no particular order and the list is not meant to be exhaustive, but I hope you can use this collection of final tips as a roadmap to avoid common pitfalls.

10 – Understand timeliness issues: The EEOC is pretty clear on how long complainants have to contact an EEO counselor, file a formal complaint, request a hearing, etc. While these issues can be confusing for complainants who are unfamiliar with the process, they shouldn’t be for agencies. Remember that harassment complaints include a series of events, so employees have 45 days from any of the events — not necessarily the first one — to contact a counselor. Failure to accommodate claims can also be timely after more than 45 days. Each time an employee needs an accommodation and the agency doesn’t provide it can be a new violation, it restarts the 45-day clock.

9 – Reasonable accommodations must be effective: Speaking of accommodations, remember that agencies are required to provide effective accommodations to qualified individuals. That means that an agency’s obligations don’t end just with providing the accommodation. You need to follow up and make sure that it’s actually effective before you can consider your work done.

8 – Don’t cut corners or jump to conclusions: Far too often, agencies seem eager to dismiss complaints before they should. Don’t dismiss a complaint just because the complainant worked for a contractor; you need to gather enough information to actually do a joint employer analysis and determine whether the agency was an employer. Also, don’t look to the merits of a complaint in order to dismiss it; all you should be doing is determining whether or not the facts could state a claim for relief. Even if you don’t think the complainant will prevail, you still have to accept the complaint if it’s possible they could.  You might be trying to save time or agency resources by getting rid of complaints early, but you will likely create more work for the agency in defending the dismissal and then still have to investigate the complaint in the end.

7- Know what to do with medical information: Agencies may only request medical information from employees in very specific circumstances (when it’s job related and consistent with business necessity). Be sure you don’t ask for it when you’re not entitled to it, and if you do collect, make sure you know what to do with it. Don’t share it with anyone who doesn’t need to know it, and don’t commingle medical documentation with other, non-medical, information.

6 – Retain your documents: More on documents. Make sure you don’t destroy things before you’re allowed to. The Commission’s regulations require agencies to retain documents regarding personnel actions, such as selection and removal decisions, for one year following the action. This retention requirement is extended if there is litigation. If someone involved files an EEO complaint, you will need to keep all of the documents until the end of the litigation. If you destroy them before you should, the agency could face sanctions or find itself in a situation where it cannot adequately explain its actions.

5 – Make sure your investigators create an appropriate record: Agencies are responsible for the quality of the ROIs their investigators produce, even if those investigators are contractors. Be sure to review the ROIs before finalizing them—did the investigator interview all of the relevant witnesses and collect all of the relevant documents? If not, send it back for the investigator to do so. If you don’t, you might find your agency on the end of an unfavorable decision by the Commission.

4 – Meet your deadlines: Another way to end up on the wrong side of the Commission is to miss your deadlines. Agencies have 180 days to complete their investigations and issue ROIs. This is not a suggestion. You also need to be mindful of appeal deadlines, as missing those could result in the Commission rejecting your arguments on appeal without considering them at all.

3 – Take allegations of harassment and discrimination seriously: Agencies need to act promptly when they learn of discrimination or harassment. Don’t delay in separating the individuals, starting an investigation, or issuing discipline if appropriate. Failure to act promptly can result in a finding of liability, but it may also undermine the confidence your employees have in the agency.  Also, don’t forget to make the victim of harassment whole—even if you do everything else right, if you fail to address the harm they suffered, you can still be on the hook.

2 – Follow the Commission’s orders: Orders from the Commission, whether they come from an individual judge or from OFO, aren’t suggestions. Ignoring them can land your agency in (even more) hot water.

1 – Make sure your employees, supervisors, EEO staff (everyone!) is well trained: I promise I’m not saying this because I have been helping to provide that training to agencies for four years. It’s my top tip because I truly believe that if people receive the training they need, they will avoid so many of the common mistakes that end up before the Commission. I’ve been saying for years that in a perfect world I would train my way out of a job, because no one would ever violate the law again.  That hasn’t quite happened, but I hope the past few years have at least made some progress towards that.

As I say at the end of all my classes, good luck out there! Droste@FELTG.com

Mamma Mia, Here We Go Again: Commission Reminds Agencies About Joint Employment

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By Meghan Droste, July 21, 2021

Repetition can be a good thing.  That’s why practice makes perfect, and you measure twice before cutting once.  We repeat things to make sure we get them right. But repetition isn’t always a good thing. Sometimes, it means that we’re not learning from our mistakes. And in a recent decision, it seems like the Commission may be tired of repeating itself on the issue of agencies improperly dismissing complaints from contractors.

In Alfredo S. v. Department of the Army, EEOC App. No. 2021001400 (June 7, 2021), the complainant was a Lockheed Martin employee working on a military base. He filed an EEO complaint alleging a hostile work environment and a discriminatory termination of his employment. The agency dismissed the complaint without an investigation in a decision that did not describe “any relevant facts, case law, or analysis …”  The agency merely stated that the complaint failed to state a claim because the complainant was not an employee or applicant for employment.

After reciting the standard description of joint employment and the various factors it weighs in determining whether an agency is a joint employer, while also noting that the agency “has not even touched on any supportive evidence in its decision,” the Commission took issue with having to repeat itself in these types of improper dismissals. It notes that “[t]his is not the first time a dismissal for lack of standing, by this Agency, has been found to be deficient.” (emphasis in original). The Commission addressed the agency’s analysis of the joint employment factors, presented for the first time in its response to the complainant’s appeal. The Commission rejects the analysis, finding it insufficient and not supported by the evidence presented in the appeal. In part, the agency’s argument failed because it did not conduct an investigation and, therefore, did not have relevant documents to support its arguments, including a copy of the contract with Lockheed Martin and documents relating to an earlier complaint raised by the complainant.

Although, in this decision, the Commission is taking issue with this specific agency, it could write the same thing in reference to many other agencies. Unfortunately, this remains a recurring mistake across the federal government, with agencies seemingly automatically dismissing complaints from contractors without any analysis, or with an analysis that places too much emphasis on the language of a contract and fails to acknowledge or address the day-to-day reality of a complainant’s work situation. There are at least seven other decisions already this year involving the same issues with other agencies.

I strongly encourage you not to repeat this mistake as so many others have already. It is not a winning strategy. It only results in delaying the inevitable — a complete investigation of the complainant’s allegations along with evidence regarding joint employment. Droste@FELTG.com

[Editor’s note: For guidance on handling contractor complaints, join FELTG for Day 3 of EEOC Law Week on September 22 from 9 am – 4 pm. For more information or to register, click here.]

Tips From the Other Side: What is Retaliation?

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By Meghan Droste, July 21, 2021

This month, we continue the discussion of retaliation. Last month, the tip was not to do it. While that might seem obvious, it happens regularly and the EEOC has cautioned that may be, in part, due to a lack of training for supervisors on how to manage interactions with employees. This month, we focus on the next question that naturally follows: What is it? In order to stop yourself from doing it, it’s important to know what retaliation actually is.

The easy answer is that a retaliatory action is anything done in response to protected activity that might have a chilling effect. That means, any action that might discourage the complainant from engaging in protected activity in the future. Sometimes, this can be obvious to identify.

For example, in a recent decision, the Commission found per se retaliation due to a supervisor speaking about the complainant’s EEO complaint in an angry voice, and another supervisor telling the complainant that he was offended by her allegations. See Tomeka T. v. Dep’t of the Treasury, EEOC App. No. 2020000390 (June 15, 2021).

So, the first part of this tip is to avoid discussing an EEO complaint with an employee unless there is a specific need to (for example, asking for more information to clarify a request for official time). If you make comments that specifically reference an employee’s complaint, there is a good chance that you are at risk for committing per se retaliation.

One thing that often trips agencies up in the processing of retaliation claims is looking for something “bigger” that has happened and dismissing a claim or finding no retaliation if the retaliatory act seems too small.  While of course not everything will rise to the level of a chilling effect, it is important to remember that the adverse action does not need to be an “ultimate employment action.” It does not have to be something as big as a removal, demotion, or a suspension.  The Commission’s recent decision in Ronnie R. v. Department of Defense, EEOC App. No. 2021001510 (June 14, 2021) is an example of how agencies can make this mistake.

In this case, the complainant alleged the agency retaliated against him when his supervisor denied his request for official time to speak with an EEO counselor and instructed him to go to the security office for an investigation of theft involving four bolts.  The agency dismissed the claim for failure to state a claim, finding that “there was not a disciplinary action or harm resulting” from the alleged retaliatory actions.

As the Commission noted in its decision reversing the Agency’s dismissal, “when an individual alleges retaliation in a complaint, they do not need to make a showing of adverse employment action.” The action need only have a chilling effect, or the potential of one, to state a claim of retaliation. That brings us to the second part of the tip: Be careful not to apply the incorrect standard when looking at whether something was retaliatory.  Droste@FELTG.com

EEOC’s Guidance for Vaccines and Returning to Work

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By Meghan Droste, June 16, 2021

Happy almost-summer and Happy Pride Month FELTG readers! What a difference a year makes. This time last year, we were just a few months into the pandemic, with a return to “normal” not even close to being on the horizon for many of us. Now we’re discussing summer plans and even starting to get out and be in the same space as people we’ve only seen on a screen for the past 15 months. We have the wide availability of vaccines to thank for this return to a new normal. And with 53 percent of the 18-plus population in the U.S. fully vaccinated, many people are starting to look at a return to the office in the coming months.

The upcoming back-to-the-office season comes with many questions about what employers can and cannot do with respect to COVID vaccination requirements and issues surrounding them. Fortunately, the EEOC recently updated its COVID-19 guidance to address these issues.

The most commonly asked question seems to be whether an employer may require employees to be fully vaccinated before returning to the workplace? The EEOC says yes. “The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.”

For now, however, it looks like that won’t be the case for most Federal employees. On June 9, the Biden administration released new guidance stating that “[a]t present, COVID-19 vaccination should generally not be a pre-condition for employees or contractors … to work in-person.”

Agencies should continue to monitor this guidance, as it could change over time.

If agencies do require vaccinations for some or, in the future, all employees, these requirements are subject to the reasonable accommodation requirements of the Rehabilitation Act and Title VII. As the Commission states in its most recent information, employers must provide accommodations for employees who are not vaccinated because of a disabling condition or a sincerely held religious belief, unless doing so would pose an undue hardship. [Editor’s note: Get the latest guidance and best practices. Register now for Vexing Vaccine Requirements: Responding to Requests for Exemptions, a 75-minute webinar to be held on July 12.]

As you know from the recent discussions of accommodations in my Tips From the Other Side columns, the appropriate undue hardship analysis depends on whether the requested accommodation is connected to a disability or to a religious belief or practice. Accommodations might include requiring unvaccinated employees to wear masks in the workplace and remain at a social distance from other employees. Agencies do not have to undergo the undue hardship analysis for employees who choose not to get vaccinated for reasons unrelated to disability or religion.

As we’ve all seen in the past year, things can change quickly when it comes to the pandemic and related advice. Be sure to continue to monitor the EEOC’s website for their updated guidance on how to handle return to work issues in the coming months. And in the meantime, enjoy your (hopefully) vaccinated summer! Droste@FELTG.com

Tips From the Other Side: Retaliation Is a Very Real Issue

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By Meghan Droste, June 16, 2021

Have you ever secretly wanted to get revenge for something? Hoped that the coffee shop messes up the order of the person who cut in front of you?  Blamed something on your sibling — and getting them in trouble — as a way to get back at them for taking something of yours? Decided not to go to a friend’s party because they didn’t go to yours?

I imagine that you all can think of at least one example of when you’ve wanted to get even with someone for some slight, real or perceived. It might not be the best look, but it’s a completely human response.

Now let’s change the question a little bit: Have you ever wanted to retaliate against an employee or coworker? I assume that most people will say no to that question. You’re probably thinking to yourself that you would never do that, you know it’s against the law and you’re just not the kind of person who would do that.  While I do hope that all you thinking that are correct, and that you will never engage in retaliation, research shows that the same perfectly human desire for revenge can pop up once someone is accused of having engaged in discrimination or harassment. The person named in the complaint feels wronged and, unfortunately, may act on that feeling.

For the next few months, we’ll be taking a look at relation claims in the Tips From the Other Side.  My first tip is — don’t.  Don’t engage in retaliation. I know, that’s obvious and not much of a tip.  But unfortunately it’s something that needs to be said. Retaliation has been the most frequently alleged basis of discrimination in the Federal sector for more than a decade. In the most recently available EEOC Annual Report on the Federal Workforce, retaliation was alleged in 51 percent of the 15,154 formal complaints filed in FY 2016. No matter how much we all want to believe that we would never engage in retaliation, it is clearly a very real issue.

My next tip is to make sure your agency is providing sufficient training and information to managers.  As the EEOC has noted, it is “important for federal agencies to help their managers understand the behaviors associated with retaliation by incorporating this information into organizational training … Often, managers are not prepared for the inevitable conflicts associated with managing human relations within the work setting.” See Retaliation – Making it Personal, available here. Agencies should also provide information managers at the outset of the complaint process that acknowledges “the potential emotional response involved with being accused of a discriminatory action, as well as the problematic implications of seeking to avenge any perceived offense.”  See id. This information should help managers take a step back and think before taking any retaliatory actions. Droste@FELTG.com

[Editor’s Note: Want more guidance? Register for the 60-minute webinar EEO Reprisal: Handle It, Don’t Fear It, part of our annual Supervisory Webinar Series. It takes place on August 24, from 1-2 pm ET]

The Connections Between COVID-19 and Civil Rights

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By Meghan Droste, May 19, 2021

In January, I mentioned that it seemed like maybe we could see the light at the end of this COVID-19 tunnel. At that time, I honestly didn’t think that light would be any more than a pinprick for many, many months to come.  Surprisingly, it seems to be far brighter now that we’ve reached May. More than a third of the 18+ population is now fully vaccinated, with nearly 60 percent of adults at least partially vaccinated. CDC guidance on masks and group activities is changing somewhat rapidly. It feels like we might actually get back to some version of “normal” relatively soon. This feels like a long time coming, and also very fast.

While I know it’s important to look forward to all of the things we can do soon and all of the people we can see after going far too long without being together, we also shouldn’t be too quick to look away from the past year and the profound impact the pandemic has had, and continues to have, on so many people.  The Commission took a look back recently during a hearing on how the pandemic hurt vulnerable populations. (A summary of the hearing is available here and you can read more about it in Michael Rhoads’ article.)  The Commission heard expert testimony on various impacts of the pandemic, including the disproportionate impact of job losses on women people of color, the significant decline of women’s participation in the workforce, and increases in disability discrimination.

As we’re in the middle of Asian American and Pacific Islander (AAPI) Heritage Month, I also want to highlight the discussion of the significant impact on the AAPI community.  As John C. Yang of Asian American Advancing Justice testified, “[w]ith the dual pandemics of COVID-19 and anti-Asian hate and violence sweeping through Asian American communities nationwide, Asian American workers face significant challenges, including threats to both their lives and their livelihoods.”

As the Anti-Defamation League (ADL) reported the following in March in its annual survey of hate and harassment on social media: “Asian-Americans experienced the largest single rise in severe online hate and harassment year-over-year in comparison to other groups.”

The harassment of the AAPI community tied to the pandemic has been widespread and tragically, violent at times. Recent news stories depict physical attacks on members of the AAPI community in locations literally coast-to-coast. The harassment has also been verbal, with reports of people yelling “China-virus” or “go home” to people who appear to be Asian American.  Agencies, of course, have an obligation to prevent harassment in the workplace and correct it if it occurs.  This includes addressing microaggressions (“Where are you really from?”) as well as more open and obvious harassment (“Go back to Communist China.”).  I encourage you to keep this in mind as we all start to look forward to the end of the worst of the pandemic. Droste@FELTG.com

Tips from the Other Side: Religious Accommodations for the Nonreligious

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By Meghan Droste, May 19, 2021

This month, I’m wrapping up our discussion of issues regarding religious accommodations.  To recap, we’ve discussed the definition of an undue hardship in the context of religious accommodations (January), how far an agency can inquire into the sincerity of the religious beliefs or practices at issue (February), what an agency must do before raising an undue hardship defense (March), and the difference between a religious practice being part of a sincerely held belief and a voluntary activity that does not require accommodations (April).  For our last look at this topic, we’ll examine a slight twist on the issue — whether people who are not a member of a religious group are entitled to accommodations.

As you know by now, agencies have an obligation to provide accommodations, if doing so is not an undue hardship, to accommodate the sincerely held religious beliefs of employees. Unsurprisingly, we usually discuss accommodations in the context of an employee seeking to practice a specific religion (e.g. Judaism, Buddhism, Islam, Christianity). However, employees who are not members of a specific religion, and whose religious beliefs are that they do not believe in a higher being/divine spirit/god, may also be entitled to accommodations. How can this be? The Commission’s decision in Harmon v. Department of Transportation, EEOC App. No. 01950755 (Feb. 2, 1998), provides a good example.

In the Harmon case, the agency required employees with substance abuse issues to attend a mandatory drug rehabilitation program, specifically 12-Step Narcotics Anonymous (NA) meetings.  The problem for the complainant was that the NA meetings were religious-based; as an agnostic he found that the NA meetings caused him “extreme emotional turmoil and distress.”  In addition to compensatory damages he suffered as a result of the required participation in the NA meetings, the complainant sought an order directing the agency not to use religious-based drug rehabilitation programs for its employees.

In its decision, the Commission noted that an agency’s “duty of reasonable accommodation includes efforts to eliminate any conflicts between an employee’s religious beliefs and employment requirements, and to preserve the employee’s employment status.” The Commission then found that rather than ordering the agency not to offer religious-based rehabilitation programs, the appropriate approach was to offer non-religious programs as an accommodation to those employees, like the complainant, for whom religious-based programs conflicted with their beliefs.

In other words, the agency was required to provide secular programs to accommodate the complainant’s religious beliefs that the existence of god is unknowable or the beliefs of other employees that there is no god. Entitlement to religious accommodations (and freedom from harassment or discrimination based on religion) extend to those who do not identify with any religion — if they didn’t, many employees could be forced to participate in activities that violate their sincerely held beliefs, or treated differently simply because those beliefs do not take the form of a religion. Droste@FELTG.com

Being a Member of Protected Class Is Not a Free Pass to Harass Others

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By Meghan Droste, April 20, 2021

It’s hard to believe it’s been more than a year since I’ve been able to teach a class in person. I’m so grateful that we live in a time when technology makes it possible for us to continue teaching and learning in a virtual environment. Even in this past year of dramatic changes, there have been a few constants — my cat still demands treats regularly, the weather in New England remains unpredictable (I’ve received reports from friends that it is snowing there today, and yes, it’s mid-April as I write this), and many people still have questions and concerns about holding an employee accountable when there is the possibility the employee might file an EEO complaint.

I get the hesitation. Who wants to invite a complaint, and the time and effort it requires to respond to one, if there is a way to avoid it? That’s an understandable concern. But as a recent Commission decision reminds us, not holding an employee accountable can lead to consequences as well. In Zora T. v. Department of Justice, EEOC App. No. 0120171654 (Mar. 23, 2021), the complainant alleged that a coworker harassed her repeatedly based on her sex.  The harassment included following the complainant in what multiple employees perceived as a stalking manner, physically blocking the complainant from leaving a room, repeatedly invading the complainant’s personal space, and grabbing the complainant from behind and lifting her off the floor in a “bear hug.”  The agency verbally reprimanded the coworker and proposed a five-day suspension that it mitigated to one day. Despite this, the harassment continued. The complainant’s supervisor testified that management was afraid to discipline the coworker because she served as the LGBT Program Manager.

The case was before the Commission on an appeal from the administrative judge’s grant of summary judgment in the agency’s favor.  The Commission noted that summary judgment was not appropriate in part because there was a dispute of fact as to whether the agency took appropriate corrective action against the coworker. From the facts presented in the decision on the appeal, it seems clear that the agency’s actions were not sufficient to avoid liability, if for no other reason than that the harassment continued. While management may have been concerned that the coworker would have filed a complaint of sex discrimination if they took more severe disciplinary action, that concern does not change the agency’s obligations to the complainant. Regardless of whether the harasser might subsequently file a complaint, an agency still has an obligation to take prompt and effective corrective action when it learns of harassment.

Sometimes, despite your best efforts, employees will file EEO complaints. That’s their right and there is nothing inherently wrong with that. What is wrong is failing to act simply because you are concerned that a harasser will file a complaint if you hold her accountable. Droste@FELTG.com

Tips From the Other Side: Employee Responsibility and Religious Accommodation Requests

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By Meghan Droste, April 20, 2021

Welcome to the latest installment of our discussion of religious accommodations. So far, we have looked at various obligations agencies have when processing requests for accommodations, namely what an agency needs to prove in order to successfully defend against a failure to accommodate claim, and when agencies should not ask for more information or question the need for an accommodation.  This month, we’re going to take a look at part of what an employee needs to show in order to prove an entitlement to an accommodation.

When requesting an accommodation, an employee must point to a religious practice or belief that conflicts with a work requirement (think back to our February discussion of EEOC v. Consol Energy, Inc. and Mr. Butcher’s belief that using a hand scanner would violate his religious faith regarding the Mark of the Beast). One key component to this is the employee providing enough information to show that a religious practice is actually part of the employee’s belief — in other words, that not being able to engage in the practice would violate the employee’s sincerely held religious beliefs.

As the Commission has explained, an agency is not required to provide accommodations for a voluntary activity that is connected with religion. For example, in Nesbitt v. U.S. Postal Service, EEOC App. No. 01996248 (Sept. 19, 2000), the complainant sought changes to his schedule  to accommodate attending church services on Sundays, a teaching service on Wednesdays, and choir practice on Thursdays. The Commission upheld the administrative judge’s conclusion that the teaching service and choir practice “were more akin to ‘extra-curricular’ activities than fundamental tenets or obligations of faith.” Therefore, the agency did not have an obligation to provide accommodations for those activities. As the Commission explained, for the purposes of accommodations, there is a distinction between “a church member’s belief in the tenets of the religion” and participation in activities, like religious study or choir practice, that occur “as a desire of the participant.”

This does not mean, however, that the only activity an agency must accommodate is attending services. In Yau v. U.S. Postal Service, EEOC App. No. 07A50063 (May 24, 2006), the complainant requested leave to attend a Buddhist conference. The agency denied the request, stating that it was an “optional religious activity,” and, therefore, it did not have a duty to provide an accommodation for it. The Commission upheld the administrative judge’s finding of religious discrimination. Although a conference might appear to be similar to other “optional” activities, the record demonstrated that the complainant considered attendance at the conference to be a mandatory part of his religious practice. As the Commission noted, the complainant testified “regarding the commencement of his multi-year training to become a Buddhist Temple Master and Service Man and noted that his attendance at the conference was required of participants in the training program and those who maintained a temple in their home, which complaint and his wife did.”

What does all of this mean for agencies? As always, you should handle requests for accommodations on a case-by-case basis. While the employee needs to show that the activity in question is required and not optional, the agency should not jump to conclusions or make assumptions just because an activity is something other than attending services. Droste@FELTG.com