Equal Pay Act Claims: Yes, They Exist in the Federal Sector

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By Meghan Droste, December 11, 2019

The discussion of pay inequality — the fact that women still earn less than men in the American workplace — generally seems to focus only on the private sector. The news, by the way, is not exactly great right now. Latina Equal Pay Day, the day when Latina pay catches up to what white, non-Hispanic men earned the year before, was just last month (November 20, 2019), 18 days later than it was in 2018. It was also far behind the equal pay days for other women: March 5 for Asian women, April 2 for the average for all women, April 15 for white women, August 22 for black women, and September 23 for Native American women. We clearly have a long way to go in this area.

The conversation is generally about how to improve things in the private sector, possibly because there is no private sector or industry-wide General Schedule for those not lucky enough to work for the federal government. That doesn’t mean that pay inequity doesn’t exist in the federal sector.  The EEOC issued decisions in multiple cases involving Equal Pay Act (EPA) claims this year. It’s important to be aware of them.

One initial note about EPA claims: Be careful when dismissing them for timeliness issues. While the 45-day deadline still applies for federal sector complainants, each violation restarts the clock.  That means that an employee has 45 days from each unequal paycheck to contact an EEO counselor. Be sure to keep this in mind when determining whether or not a complaint is timely.

When looking at the merits of an EPA claim, the Commission first determines whether the complainant can satisfy the elements of a prima facie case — the complainant received less pay than an individual of the opposite sex for equal work. Equal work is work that requires “equal skill, effort, and responsibility, under similar working conditions within the same establishment.”  See Mercedez A. v. USDA, EEOC App. No. 0120170574 (Mar. 7, 2019). You might have noticed one thing that is missing from what the complainant must prove: intent.  EPA claims do not turn on intent like disparate treatment claims under Title VII or other statutes.  See Mercedez A. v. USDA, EEOC Req. No. 2019004025 (Oct. 17, 2019) (“[I]ntent to discriminate is not a necessary element to prove an EPA violation.”).

An agency can avoid liability by showing that the difference in pay is due to: 1) a seniority system; 2) a merit system; 3) a system that determines earnings based on quantity or quality of production; or 4) any factor other than sex. See Mercedez A., EEOC App. No. 0120170574. Essentially, an agency “must establish that a gender-neutral factor, applied consistently, in facts explains the compensation disparity.” See id. To meet this burden, the agency must be able to articulate the actual reason for the disparity, not merely point to speculative reasons.

One last note: An applicant’s prior salary is not enough to justify a difference in pay. As the Commission has recognized, relying only on prior salary (also known as “market value”) can simply perpetuate pay disparities, in direct contradiction of the purpose of the EPA.  See EEOC Compliance Manual, 915.003, § 10-IV(F)(2)(g). When justifying why your agency offered a lower salary to one new employee than to another, make sure you have more you can point to, including factors such as education and years of prior experience. Droste@FELTG.com

EEOC’s Fiscal Year 2019 Agency Financial Report

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By Meghan Droste, December 11, 2019

With the year (and the decade!) rapidly coming to a close, I decided to forgo our usual discussion of tips to avoid trouble with the Commission, and instead review some good news from the EEOC. In its recent Agency Financial Report, the Commission touts multiple improvements in the processing of federal sector complaints in FY19, even while it faced a noticeable increase in both hearing requests and appeals.

As any federal sector practitioner can tell you, part of why the EEO process takes so long is the sheer number of cases pending before the Commission at any time. The Commission has been making a significant effort in recent years to reduce the number of cases pending before both administrative judges and the Office of Federal Operations (OFO). The improvements continued in FY19, although not always outpacing those from FY18.

In FY19, the Commission resolved an impressive 10,608 federal sector hearing requests, up from 8,662 in FY18. These decisions resulted in $87.8 million in relief for complainants, a slight increase from $85 million the prior year. The total inventory of pending cases only decreased by 5 percent, down from a decrease of 8.6 percent in FY18, because the Commission saw an increase in the number of hearing requests complainants filed in FY19. The Commission also received a larger number of appeals in FY19, and issued 4,094 decisions. That is a slight decrease from the 4,320 it issued in FY18.

The decisions resulted in $12.8 million in relief for appellants, down from $13.6 million in FY18. Perhaps most notably, the Commission reduced the number of appeals pending for more than 500 days from 601 in FY18 to just 97 in FY19.

There is obviously still room for improvement. The numbers of pending hearing requests and appeals are still high, and anecdotally, I can share that attorneys representing complainants have noticed that some of the decrease inventory seems to come from judges issuing summary judgment sua sponte before discovery in cases where it may not be appropriate (which will just lead to an increase in the number of appeals). Even with these caveats, I still think it is worth applauding the Commission’s efforts in 2019. Hopefully this time next year they will have even more good news to share!

And with that, dear readers, I wish you a happy and healthy new year!

Droste@FELTG.com

It’s Beginning to Look a Lot Like … The Holiday Season

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By Meghan Droste, November 13, 2019

Time really flies — it feels like just a few weeks ago I was writing about how the EEO process should be your Valentine and now, all of sudden, we’re about two weeks away from Thanksgiving. Of course, the fact that my neighborhood grocery store put away the Halloween candy and already had Christmas-themed items out days before Halloween certainly doesn’t help with this. Regardless, we cannot ignore that the holiday season and all of its related decorations, festivities, and yummy treats are upon us once again.

To help you prepare for and navigate through this time of the year, here are some helpful decisions from the Commission on things that may or not be problematic:

For those of you wondering whether holiday decorations might be religious displays that are not permitted in government spaces, the answer is not necessarily. As the Commission has noted, according to the Supreme Court, Christmas lights and references to Santa Clause “amount to secular symbols rather than an expression of a religion” and, therefore, federal agencies can display them without running afoul of the First Amendment’s prohibitions against the federal government establishing a religion.  See Garry H. v. Dep’t of Transp., EEOC App. No. 0120181570 (Sept. 24, 2019) (citing County of Allegheny v. ACLU, 492 U.S. 573 (1983)).

As a result, an agency did not discriminate against an employee based on his religion when it removed a “Happy Hanukkah” sign and a garland with stars of David but kept up Christmas lights and a sign that said “Santa is coming to town in [x number] of days.”  See id.

What about accommodating an employee who does not want to see holiday decorations?  The Commission addressed this issue in Ian S. v. Department of Transportation, EEOC App. No. 0120160622 (Apr. 27, 2018). The complainant requested a religious accommodation of being permitted to eat at his desk — employees in his unit were not allowed to have food or uncovered beverages at their desks due to the risk of damaging agency equipment —because he did not want to eat in the breakroom when it was decorated with Christmas decorations.  The agency offered to allow him to eat in a breakroom in another, connected, building, but the complainant argued that this was not an effective accommodation because it would take too long to get to the other room. The Commission found that the agency’s offered accommodation was sufficient, particularly because the complainant had not voiced his concerns about the distance to any of his managers. The Commission also noted that the decorations — a tablecloth and two poinsettias — were secular and not religious in nature.

Finally, a quick reminder that not wanting someone at a holiday party is not a good reason for not hiring them. In Ebonie L. v. Department of Transportation,  EEOC App. No. 0120171469 (Feb. 12, 2019), the complainant’s supervisor reprimanded her for saying that she did not want to hire a male applicant because having a male administrative employee “makes the administrative Christmas lunch and gift exchange awkward.” The Commission rejected her claim that the reprimand was discriminatory or harassing.

I hope these tidbits easy your minds and bring you some joy during the upcoming holiday season! Droste@FELTG.com

Tips from the Other Side: November 2019

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By Meghan Droste, November 13, 2019

Long-time fans of FELTG are probably aware that our former president and professor emeritus Bill Wiley and our current fearless leader Deborah Hopkins are fans of alternative methods of discipline — ways to hold employees accountable other than suspensions and removals.  One of the prime examples of alternative discipline is a last chance agreement (LCA). In an LCA, the agency holds a potential disciplinary action, such as a removal, in abeyance for a set period of time. If the employee does not reoffend during that time, the potential discipline goes away.  If they do, the agency moves forward with the action and the employees cannot challenge, having waived their right to by agreeing to the LCA.

Sounds simple, right?  Well, as with so much of what we do, yes and no. The concept is simple, but of course there are certain details that, if ignored, can make things far more complicated.

First, although you can have the employee waive the right to challenge the action and any claims of discrimination or harassment that occurred up to the signing of the LCA, you cannot have the employee waive future claims of harassment. That means if something happens the day after the LCA, the employee can still file a claim of harassment, discrimination, or retaliation based on the new event.

Another wrinkle is making sure that you comply with the Older Workers Benefit Protection Act (OWBPA). The OWBPA, which is part of the Age Discrimination in Employment Act (ADEA), sets out specific requirements for valid waivers of potential age discrimination claims. These requirements, which apply to employees age 40 and older, include a specific waiver of age claims, a period of at least 21 days to consider the waiver, and a 7-day revocation period after signing.  If an agency fails to include a proper OWBPA waiver in an LCA, the employee may raise age discrimination claims that occurred before the LCA. See Jaleesa P. v. Dep’t of Veterans Affairs, EEOC App. No. 2019001777 (Aug. 14, 2019).  This of course defeats at least some of the purpose of having the LCA to begin with.

One way to avoid these issues is to think of the LCA as settlement agreement, because with the waiver of claims that’s essentially what it is, and ensure that you keep in mind the same considerations you would in a traditional settlement agreement.  If you don’t, you may find yourself defending against claims you assumed were waived. Droste@FELTG.com

SCOTUS Watch 2019: Does Title VII Cover Discrimination Based on Sexual Orientation or Gender Identity?

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By Meghan Droste, October 22, 2019

The Supreme Court heard arguments on October 8 in what I am sure will prove to be three landmark cases: Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC. The first two cases, which the Court consolidated for arguments, raise the issue of whether Title VII’s protections against sex discrimination prohibit discrimination on the basis of sexual orientation. The Harris Funeral Homes case raises the question of whether those same protections prohibit discrimination on the basis of gender identity.

These questions are settled law in the federal sector. The Commission concluded in 2012 that Title VII protects gender identity and in 2015 that sexual orientation is covered. Appeals courts were split, however, on these issues as they apply to private and public sector employees. For that reason, the Supreme Court is now poised to answer these questions for the entire country, and potentially reverse EEOC precedents.

The employees in these cases argue that “sex” as understood in Title VII must encompass discrimination on the basis of sexual orientation and gender identity. As the Commission found in the Macy v. Department of Justice and Baldwin v. Department of Transportation cases, the employees assert that these forms of discrimination inherently take into account their sex and, therefore, their employers discriminated against them “because of … sex,” as prohibited by Title VII. They also point to the idea of sex stereotyping, arguing, as the EEOC found, that these forms of discrimination may be due to stereotypes regarding who an individual should be attracted to and what reproductive organs men and women should possess. Finally, the employees pointed to the Supreme Court’s decision in Oncale v. Sundowner Systems, in which the Court rejected arguments that Congress could not have intended to prohibit same-sex sexual harassment, to argue that Congress’s understanding of sex, sexual orientation, and gender identity is not the correct question in these cases.

Those who observed the arguments have reported that it is unclear how the Court will come out on these cases. For example, while Justice Gorsuch appeared to find that taking an employee’s sexual orientation into account necessarily involves sex, he also cautioned against “massive social upheaval.”

I urge all federal sector practitioners to keep an eye out for the Court’s decisions in these cases. While the Court may issue them as early as January, I expect that we won’t see anything until closer to the end of the term in June. Droste@FELTG.com

Tips From the Other Side: October 2019

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By Meghan Droste, October 16, 2019

Like many other large organizations, the Equal Employment Opportunity Commission issues strategic plans every few years to highlight institutional goals and identify ways in which it hopes to achieve them.  During a recent webinar on EEO updates, I highlighted some of the points from the Commission’s Federal Sector Complement to its Strategic Enforcement Plan for FY 2017-2021. As laid out in the plan, the Commission’s priorities include eliminating barriers in recruitment and hiring, protecting vulnerable workers, and addressing emerging and developing issues.

While I encourage you to review all of the Commission’s priorities to get an insight on the types of cases it will be focusing on in the federal sector, I want to draw your attention in particular to the priority of preserving access to the legal system. For the federal sector, the Commission highlighted that this priority includes improving federal employees’ faith in the integrity of the EEO process.

What does this mean in practice? It means the Commission is going to start sanctioning agencies more.  As noted in the report, “[w]hen Federal agencies repeatedly ignore regulatory requirements to provide files, conduct timely investigations, fail to meet hearing deadlines, etc. and are not held accountable, it erodes employee faith in the EEO program and discourages employees and applicants from accessing the system.” The Commission also noted that it will be on the lookout for “repeat offenders” and considering program evaluations and issues notices of non-compliance to these agencies.

You should, of course, be concerned about meeting deadlines and upholding the integrity of the process just on principle. But if you need a little more incentive in light of the Commission’s stated goal of increased enforcement, consider that default judgment can result in awards of hundreds of thousands of dollars for complainants who never have to prove liability. See, e.g., Dionne W. v. Dep’t of Air Force, EEOC App. No. 0720150040 (2018) (awarding $185,000 in compensatory damages and $155,050 in attorney’s fees); Lauralee C. v. Dep’t of Homeland Sec., EEOC App. No. 0720150002 (2017) (awarding $200,000 in non-pecuniary damages, $223,116.35 in pecuniary damages, and $122,150 in attorney’s fees).

I recommend you calendar every deadline and triple check that they are met, including the uploading of files before a judge is even assigned to the case.  If not, you may find yourself explaining why your agency is on the hook for a six-figure award. Droste@FELTG.com

Knock, Knock. Who’s There? Harassment, And It’s Never Funny

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By Meghan Droste, September 18, 2019

Humor is generally a matter of personal taste.  Knock, knock jokes, for example, are very popular with my nieces, but those of us no longer in the elementary school set generally find them less amusing. While my humor tends toward the more sarcastic, plenty of my friends prefer puns or other types of jokes. Regardless of what tickles our funny bone, I hope we can all agree that harassment is never funny.

Unfortunately for the complainant in Bryant F. v. Department of Homeland Security, his supervisors found his disability rather amusing and repeatedly joked about it.  See EEOC App. No. 0120171192 (July 2, 2019). The complainant, a special agent, broke his wrist on the job. He had to undergo several surgeries to address the injury. Ultimately, he lost all movement in his wrist and hand. While he was recovering from the injury and the surgeries, his first-, second-, and third-line supervisors repeatedly joked about his injury, asking him about his bowling record and calling him “the bowling team captain” because his cast looked like a bowling brace.  When he pushed back against these jokes, which his supervisors subjected him to on a daily basis, his first-line supervisor told him it was “just for fun.”

In addition to “joking” about the complainant’s disability, his first-line supervisor repeatedly attempted to assign him work that went beyond his restrictions. He provided medical documentation to the agency describing his need to remain in the office and not perform field work because of his injury and ultimate loss of mobility. Despite this, his supervisor repeatedly listed him on the roster for field work, causing the complainant to find other agents to cover those duties. The complainant’s second-line supervisor also made comments about the complainant being on light duty, asking if he was “still trying to get out of his duty.”

The complainant initially requested a hearing but withdrew the request before the administrative judge issued a decision and the Commission remanded the case back to the agency for a Final Agency Decision. The agency determined in its FAD that the complainant failed to prove any of his claims of discrimination or harassment.

Unsurprisingly, the Commission reversed. It concluded that the complainant’s supervisors repeatedly harassed him when they “joked” about his cast and made comments about him being on light duty. It also held that the agency failed to accommodate the complainant when his supervisor repeatedly tried to assign duties that went beyond his physical restrictions and when it failed to look for a reassignment when it became clear that he would not recover mobility in his wrist and hand.

Considering the facts, it was no surprise that the Commission found in the complainant’s favor and also ordered training for several of the people involved. Harassment and disabilities are not good topics for jokes, and I hope the supervisors in the Bryant F. case adjusted their senses of humor after their training.  Droste@FELTG.com

Tips From the Other Side: September 2019

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By Meghan Droste, September 18, 2019

Last week, I had the pleasure of traveling to Nevada to do an onsite training for a fantastic group of HR professionals. In talking through various issues related to harassment, we discussed an agency’s obligation to take prompt and effective corrective action when it substantiates an allegation of harassment (sexual or otherwise).

This is, of course, a legal obligation but it also goes a long way to ensuring that employees have faith in the agency and its willingness and ability to take harassment allegations seriously. If employees see that the agency takes these allegations seriously, they should be more likely to report harassment, hopefully before it rises to the level of legal liability, and less likely to commit harassment. This will result in a more productive work environment and fewer instances of liability for the agency.

During the class, we discussed examples of what would undermine employees’ trust in an agency. One situation that came up was an agency giving an award to an individual after finding the employee had engaged in harassment. From the perspective of a complainant’s representative, this type of situation jumps out at me. I would, of course, use such an award to argue that the agency was not taking the harassment seriously. See Complainant v. James, EEOC App. No. 0120123332 (Sept. 10., 2014) (finding the agency’s failure to discipline the harasser “communicated to employees that the [a]gency did not take racial harassment seriously”).  After all, how could it assert that it took prompt and effective corrective action if it followed any discipline it issued with a reward for the harasser? See Quinn v. Tenn. Valley Auth., EEOC App. No. 01956441 (Jan. 30, 1998) (finding the agency’s promotion of the harasser after the allegations of harassment to be “inexplicable”).

This practice tip grew out of the class discussion: A participant said she recommends that managers send all proposed awards to HR before awarding them so that HR can cross check the potential recipient with any open or recently closed harassment complaints and investigations.  This sounds like a good practice to me.  While I hope that your managers are well-trained and know that giving an award to someone who harassed another employee would be problematic, this extra level of review ensures that the agency does not get tripped up by someone who doesn’t see the big picture. Droste@FELTG.com

‘Legitimate’ Non-discriminatory Reasons – When Preselection is a Defense

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By Meghan Droste, August 14, 2019

Before going to a new restaurant, I always check out the menu online.  Part of this is probably a holdover from when I was a picky eater growing up and I needed to make sure there was at least one thing on the menu I would eat. As an adult with a much more normal range of preferences and a willingness to try new things, I think it’s also just part of being a planner.  I like to know what I’m getting into.  My pre-restaurant menu scanning often leads to me knowing exactly what I’m going to order before I even sit down.

A little strange? Perhaps. But in this case, preselection doesn’t hurt anyone.

In federal employment, however, preselection can hurt an agency. If an agency official provides a wrongful advantage to help an applicant, or to hurt the chances of another applicant, it can rise to the level of a prohibited personnel action. It can also, however, serve as a legitimate, non-discriminatory reason in defending against an EEO complaint, as the Commission held in Cory C. v. Social Security Administration, EEOC App. No. 0120180335 (May 2, 2019).

I urge you to keep in mind as you read about the Cory C. case that “legitimate, non-discriminatory reason” is a term of art in discrimination cases, and not all of those reasons may actually be what we might consider legitimate.

In the Cory C. case, the agency announced a vacancy for a supervisory management analyst position. Prior to the announcement, the second-line supervisor (S2) for the position promised the position to the eventual selectee (EV). She did so even though the person in the position at the time reported that EV was not qualified. Once the agency announced the position, the complainant made the best qualified list and was interviewed by the selection panel. The complainant received perfect scores and all of the panel members ranked him highest. Despite this, when the panel recommended the complainant to the selecting official, he ignored common practice and directed the panel to conduct additional reference checks.

When the panel provided positive references for the complainant, the selecting official conducted his own investigation and spoke with a colleague who had worked with the complainant in the past. Based on negative feedback from the colleague, the selecting official rejected the panel’s recommendation and selected EV instead. The complainant filed an EEO complaint, alleging discrimination based on race and sex, and retaliation.

The Commission found that the complainant established a prima facie case of discrimination because EV was outside of his protected classes, and found the selecting official’s reasons for deviating from common practice in the agency to be not credible.  The agency still prevailed. Although there was evidence of pretext, there was no evidence that the selection, or preselection, was because of a protected basis.

The clear preselection for the position, which pre-dated the complainant applying for the position, was a non-discriminatory reason that the complainant could not overcome.

It makes sense that the Commission found in the agency’s favor on this one. While it is unfortunate that the agency failed to select the best qualified candidate, there is no evidence that it engaged in discrimination in doing so.

That being said, I would hesitate to call this non-discriminatory reason “legitimate.” Droste@FELTG.com

Tips From the Other Side: August 2019

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By Meghan Droste, August 14, 2019

According to the EEOC’s federal sector data, harassment is the most common issue in federal sector EEO complaints, with over 8,000 filed in fiscal year 2018.  See Form 462 Complaints Tables.

Unfortunately, the improper fragmentation of harassment claims is one of the most common errors agencies make when dismissing complaints and claims. Based on data from fiscal years 2009-2012, 57 percent of the reversals of agency dismissals were in cases involving dismissals for failure to state a claim, while 24 percent were in cases involving dismissals for untimely EEO contact.  See Preserving Access to the Legal System: Common Errors by Federal Agencies in Dismissing Complaints of Discrimination on Procedural Grounds.

Fragmentation — the breaking up of a hostile work environment claim into separate and distinct events and claims — is a common cause of these improper dismissals. Although the Commission has tried to correct the issue for years, agencies, unfortunately, continue to fragment claims.

The Commission’s decision in Reita M. v. Department of Transportation, EEOC App. No. 2019001791 (June 4, 2019), provides an example of what fragmentation can look like and why the Commission will ultimately reverse an agency’s dismissal that is a result of fragmentation.  In support of her complaint, the complainant provided 38 pages of incidents of harassment.  From that, the agency identified only two claims, one of disparate treatment based on six events that took place in September-November 2016 and February 2018, and one of harassment based on seven incidents that occurred from June 2015 through April 2018.  The agency then dismissed the disparate treatment claim as untimely, finding that all of the incidents occurred more than 45 days before the complainant contacted a counselor, and dismissed the harassment claim for failure to state a claim because the incidents were sporadic and not sufficiently severe or pervasive. I have seen agencies do this far too many times (most recently a few weeks ago).  It is unsurprising that the Commission reversed the dismissal in the Reita M. case. The agency clearly ignored that the complainant was alleging a pattern of ongoing harassment and instead looked at only a handful events, and then broke them down further into two distinct claims.

If you will permit me to stand on my soapbox for a moment, I cannot say strongly enough that agencies must try harder to avoid fragmenting claims. From the complainant perspective, it incorrectly prevents them from pursuing otherwise valid claims of harassment and results in drawing out an already lengthy process if they file an appeal. From the agency perspective, it “substantially increases case inventories and workloads when it results in the processing of related matters as separate complaints.”  See EEOC Management Directive 110, Ch. 5, § III. If nothing else, you can save yourself the headache of defending an appeal the agency will lose if the agency accepts hostile work environment claims without fragmentation. Droste@FELTG.com