EEO GUIDANCE provides national training and consulting services in the areas of EEO, Affirmative Action, Diversity, and various HR subjects.

NOTE: Both government and private industry EEO/AA cases often apply to both entities; however, to make your research quicker, we have separated them on this site, with exceptions which are found at the bottom on this section.

Starting a new life and searching for a new career isn't easy, but Diane Schroer, a highly-decorated veteran, is no stranger to a challenge.

Schroer was an Airborne Ranger qualified Special Forces officer who completed over 450 parachute jumps, received numerous decorations including the Defense Superior Service Medal, and was hand-picked to head up a classified national security operation. She began taking steps to transition from male to female shortly after retiring as a Colonel after 25 years of distinguished service in the Army.

When she interviewed for a job as a terrorism research analyst at the Library of Congress, she thought she'd found the perfect fit, given her background and 16,000-volume home library collection on military history, the art of war, international relations and political philosophy. Schroer accepted the position, but when she told her future supervisor that she was in the process of gender transition, they rescinded the job offer. The ACLU represented her in a Title VII sex discrimination lawsuit against the Library of Congress.

On September 19, 2008, a federal district judge ruled that the Library of Congress illegally discriminated Schroer, in a groundbreaking decision that found that discriminating against someone for changing genders is sex discrimination under federal law. On April 28, 2009, the judge ordered the government to pay $491K in compensation for the discrimination, which was the maximum he could award in the case.

Dept. of Homeland Security (DHS) Found Guilty of Age Discrimination March 2009

The EEOC found the complainant was subjected to age discrimination when officials of the DHS could not specifically explain why a younger individual was selected for a supervisory position over the complainant, who was over 40.

Johnson v. Department of Homeland Security, U.S. Citizenship and Immigration Services, 109 LRP 6719 (EEOC OFO 12/18/08).

The District Court entered an order enforcing a $257,000 verdict for a court security officer. The jury found he was a joint employee of the DOJ, and that the Agency discriminated against him based on his disability, a hearing impairment.

Court Of Federal Claims Rules Veterans Administration (VA) Nurse Practitioners Could Not Sustain Equal Pay Act Claim

A class of Nurse practitioners employed by the Department of Veterans Affairs (VA) brought suit under the Equal Pay Act (EPA). The Court ruled they could not sustain their claim of being paid lower wages than the VA's physician assistants because of their gender.

The class of nurse practitioners (NPs) was composed of essentially eighty percent females and twenty percent males, while the higher-paid Physician Assistants (PAs) were forty percent female and sixty percent male. Based on these figures, the NPs filed suit contending the NPs and PAs perform fundamentally the same duties but that the predominantly female NPs are paid less, therefore violating the EPA.

The Court of Federal Claims explained that the EPA forbids employers from discriminating between employees on the basis of sex by paying wages to employees at a rate less than the rate at which he pays wages to employees of the opposite sex for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any other factor other than sex.

The VA argued that the EPA was not intended to address pay disparities in mixed gender groups when the gender diversity includes a "substantial" number of both men and women. The court agreed with the VA's position. The Court claimed, “Any other approach to quantifying the ratio of females to males sponsor an application of the EPA to mixed groups. The record on summary judgment presents a situation of two job classifications staffed by both men and women with substantial participation of both sexes in each. The EPA was not intended to remedy such a diffuse situation; rather the EPA addresses unequal pay when the groups are not mixed.” The court granted the VA's motion for summary judgment, ruling in favor of the Agency.

Yant v. U.S., U.S. Court of Federal Claims, No. 08-77C, January 12, 2009

In the past, the Department of Labor/OFCCP has taken the stand that an employer’s seniority system typically takes precedence over accommodating the needs of disabled employees….and according to the Supreme Court, that is correct interpretation of the ADA and other disability related laws/regulations.

At least this was the ruling by the Supreme Court involving a baggage handler for US Airways who injured his back on the job. The baggage handler wanted a job in the mailroom but two co-workers with more seniority were placed in the positions before the employee with a disability. The disabled employee filed a discrimination suit charging that US Airways didn't make a "reasonable accommodation" under the Americans with Disabilities Act. (US Airways v. Barnett, No. 00-1250, April 29, 2002)

Although seniority will typically rule, please understand that the employer should be consistent with actions. If the employer has allowed an accommodation to take precedence over seniority in the past, then that employer has changed the policy and should consider all requested in the same manner.

WOMEN: WHERE ARE OUR VOICES?!?! (For information regarding what you can do, go to the "Private Industry" link off this section for Carol's article on Ledbetter)

The U.S. Supreme Court placed the burden of persuasion on employers in Age Discrimination in Employment Act (ADEA) disparate impact claims, making it more difficult for employers to defend themselves from ADEA impact claims.

This decision encourages employers to take an analytical approach when deciding the factors for reductions in force (RIFs).

During a layoff, Knolls Atomic Power Laboratory, a contractor with the U.S. Navy allowed a buyout for 100 employees; however, Knolls continued to have 31 salaried jobs which needed to be eliminated.

To make their selections, employees were evaluated based upon three factors (performance, flexibility, and critical skills), along with total years of service. Thirty of the thirty-one employees RIFed were over 40 and a disparate impact class action was filed.

The decision of the Supreme Court was the burden of persuasion falls on the person who wants an exemption (to the ADEA) in the law to apply.

Bottom Line: If an employer is considering a RIF, it would behoove that employer to carefully review the criteria for selecting those who will be released. Ensure that a criterion is objective, with little room for subjective evaluation. Also, it would be beneficial to conduct an Impact Ratio Analysis on the statistics prior to taking action.

ADEA: Supreme Court Rules: Basing Disability Benefits on ‘Pension Eligibility,’ is not discriminatory

The Supreme Court ruled that a state’s disability retirement plan that disqualifies employees in hazardous jobs from receiving disability retirement benefits if they become disabled after reaching age 55 does not violate the Age Discrimination in Employment Act (ADEA).

The Supreme Court held that awarding disability benefits based on pension status is not age discrimination unless pension status is a “proxy for age.”

A benefit program will be reviewed independently, apart from the impact it may have on people who are over 40. If it benefits younger people, the court will look at it further to decide if the distinction is age-determined.

The Court noted that an employee claiming disparate treatment must prove that age motivated the employer’s decision. The Court added that ADEA permits an employer to condition pension eligibility upon age, thus it must be decided whether a plan that lawfully makes age in part a condition of pension eligibility and treats workers differently in light of their pension status, automatically discriminates because of age.

The Court found that in the Kentucky case, pension status did not serve as a proxy for age, and the disparity in treatment had a clear non-age-related rationale of treating a disabled worker as if he/she had become disabled after becoming eligible for normal retirement benefits, rather than before.

The Court concluded,” The rule we adopt today for dealing with this sort of case is clear.” “Where an employer adopts a pension plan that includes age as a factor, and that employer then treats employees differently based on pension status, a plaintiff, to state a disparate treatment claim under the ADEA, must come forward with sufficient evidence to show that the differential treatment was ‘actually motivated’ by age, not pension status.”

The U.S. Supreme Court issued two opinions relating to illegal retaliation, as it pertains to EEO issues. The Court decided retaliation is a valid issue and should be allowed protection, even in Age Discrimination in Employment Act (ADEA) cases.

In Gomez-Perez v Potter, Postmaster General, a45 year old postal worker claimed she was retaliated against after she filed an administrative ADEA complaint. The First Circuit Court of Appeals said that the ADEA prohibits discrimination based on age; however, it does not cover retaliation. The Supreme Court reversed the ruling of the appeals court. For a copy of the decision, go to:
http://www.supremecourtus.gov/opinions/07pdf/06-1321.pdf

In CGOCS West, Inc. v. Humphries, a minority employee complained to his managers that a co-worker was dismissed because of discrimination (race/black). Soon following his allegations Humphries was terminated and he claimed illegal EEO retaliation for his
expression of concern. The Supreme Court agreed with Humphries. For a copy of the decision, go to:
http://www.supremecourtus.gov/opinions/07pdf/06-1431.pdf

EEOC SETTLES SEX BIAS CASE WITH STATE CORRECTIONS DEPARTMENT FOR ALMOST $1 MILLION

Corrections Department Provided Lesser Benefits to Female Corrections Officers Who Gave Birth While on Workers’ Compensation Leave

The New York State Department of Correctional Services will pay nearly $1 million to settle a sex discrimination lawsuit filed by the EEOC and the U.S. Attorney for the Southern District of New York, the two offices announced today. The EEOC and the United States had charged the Corrections Department with violating federal law by providing inferior benefits to female employees on maternity leave.

The EEOC suit, filed under the Equal Pay Act of 1963 (Case No. 07-CV-2587 in U.S. District Court for the Southern District of New York), charged that the Corrections Department gave male employees with work-related injuries up to six months of paid workers’ compensation leave. Female employees could be granted the same leave, but pregnant employees on such leave were involuntarily switched to maternity leave at or around the time they gave birth. The Corrections Department’s maternity leave policy requires that women first use their accrued sick or vacation leave with pay; then, if approved, sick leave with half pay and then sick leave without pay.

The EEOC charged that switching women from workers’ compensation leave to maternity leave resulted in lesser benefits for those women due to their sex, violating the Equal Pay Act (EPA). The EPA is a federal law requiring that employers pay men and women equally for equal work.

The U.S. Attorney for the Southern District of New York joined the lawsuit by adding claims under Title VII of the Civil Rights Act of 1964. The U.S. Attorney’s Office alleged that the Corrections Department engaged in a pattern and practice of employment discrimination on the basis of sex as a result of its categorical determination that a female employee who gives birth to a child should be transferred from workers’ compensation leave and benefits without making a determination whether, on an individual basis, an employee continues to be eligible for workers’ compensation leave and benefits.

The court granted final approval of an Order and Stipulation Providing for Injunction and Affirmative Relief, which provides $972,000 in compensatory damages, liquidated damages, back pay and interest to 23 female Corrections employees. The back pay, which includes the value of leave some women were forced to take, has already been paid.

The Corrections Department agreed to several elements of injunctive relief as to all its facilities statewide. It has amended its workers’ compensation directive to provide that no female Corrections officer shall be removed from workers’ compensation benefits due to pregnancy or the birth of a child, and it will provide anti-discrimination training to employees across the state, along with training in the administration of workers’ compensation benefits to its personnel employees. The Corrections Department will also give to each female employee preparing to take a maternity leave a packet of all applicable policies, procedures and benefits.

Think Training Federal Employees About EEO Complaint Procedures Isn't Important? Read on...

Torres vs Dept. of Army - Torres, the complainant, alleged he was subjected to unlawful discrimination when an agency official made numerous derogatory remarks about Hispanics. The U.S. Army dismissed the complaint after determining the complainant's EEO contact was beyond the 45-day time limit. On appeal, the EEOC reversed the Army's decision and remanded the case for further processing. The complainant claimed he was unaware of the 45-day time limit for seeking EEO counseling, and the Army did not meet its burden of establishing that he had actual or constructive knowledge of the time limit. Although two EEO counselors mentioned a training course, they did not provide documentation to show the materials covered the limitation period. The agency also did not provide a copy of an EEO posting with the time limit. _______________________________

FEDERAL AGENCIES REQUIRED TO USE EMPLOYMENT VERIFICATION
SYSTEM BY OCTOBER 2007

OMB issued guidance which requires federal agencies to begin using

October 1, 2007.

According to an OMB memo (M-07-21), the Employment Eligibility

eligibility of workers.

Formerly known only as the "basic pilot program," E-Verify allows
employers to verify name, birth date, and Social Security numbers.

For non-citizens, it provides immigration information against federal
databases. The program is also expected to tighten controls on

wage and tax reporting.

Agencies are required to provide a contact person to USCIS by

A 5th U.S. Circuit Court of Appeals decision shows when an employee seeks to challenge a facially neutral employment practice as being discriminatory, the claim must be statistically supported.

Greta Crawford applied for an immigration inspector position with the U.S. Department of Homeland Security (DHS) in 2002. When contacted for a background investigation/reference, her previous supervisor stated that she was, “prone to explode in tirades of foul language at the slightest provocation, believed the government was out to get her and demonstrated an aggressive distaste for co-workers.” (not exactly what a hiring official wants to hear~)

The investigation also revealed information indicating that Crawford had an arrest record for an assault and conviction record for public drunkenness. The DHS claimed they made a determination Crawford was “unsuitable for employment.” Subsequently, Crawford filed a lawsuit against the DHS, alleging 23 causes of action (including race and gender discrimination) relating to her rejection for the position. A federal district court dismissed the claims before trial and the appellate court affirmed the dismissal.

The court specifically noted (on the Title VII claims) that Crawford presented no direct evidence of discrimination.

The appellate court also determined Crawford failed to show the DHS’s reason for her rejection was pretextual. No weight was given to her claim that the information provided was erroneous, revealing the courts decision that evidence revealing the employer’s investigation came to an incorrect conclusion is insufficient to maintain a claim of discrimination.

The court rejected Crawford’s claim that the facially neutral policy of conducting background investigations have a disparate impact against female and minority applicants in the general population. The court ruled that disparate impact claims must be based on a comparison of an employer’s workforce and the pool of applicants, not the general population.

Finally, the court decided Crawford failed to make the requisite showing that the DHS background investigations were the cause of a statistical disparity based on her race or gender.

Be sure screening factors for employment are legitimate and necessary for the successful performance of the job to ensure your business doesn’t run into disparate impact case. Also, be sure to run numbers on hires and promotions early, to ensure time to correct potential class action concerns.

IF YOU AND I ARE BOTH OVER 40 AND YOU (60 YR OLD) ARE SELECTED FOR A POSITION OVER ME (51 YR OLD) BECAUSE THE COMPANY/AGENCY IS LOOKING FOR SOMEONE OLDER AND WISER, I WILL MOST LIKELY NOT WIN AN AGE DISCRIMINATION CASE

EEOC Revised their Age Discrimination in Employment Act (ADEA) regulations to conform with a recent Supreme Court ruling.

Dianna B. Johnston, EEOC Assistant Legal Counsel, provided this information discussion, to an inquiry whether a company can advertise for older workers (aged 55 and older):
”The EEOC The issuance of formal interpretations or opinions by the Equal Employment Opportunity Commission (EEOC) under the Age Discrimination in Employment Act (ADEA) is discretionary. See EEOC Procedural Regulations, 29 C.F.R. § 1626.20 (b). The EEOC does not generally assess the legality of particular employment practices outside the context of specific charges of discrimination. This is because the appropriate resolution of discrimination charges involves an analysis of facts that differ from case to case. We can, however, provide you with the following general guidance on applicable principles.

The Age Discrimination in Employment Act, which the EEOC enforces, permits employers to advertise for older workers. Previously, EEOC regulations had stated that such advertisements were unlawful but, in 2004, the Supreme Court ruled that the ADEA only prohibits discrimination based on relatively older age and that employers do not violate the ADEA by favoring older over younger workers. General Dynamics Land System, Inc. v. Cline, 540 U.S. 581 (2004). Accordingly, the EEOC’s has amended its regulations to conform to Cline. With regard to job advertisements, the regulations state in relevant part that:

Employers may post help wanted notices or advertisements expressing a preference for older individuals with terms such as over age 60, retirees, or supplement your pension.

See 72 FR 36873, 36875 §1625.4 (July 6, 2007) (emphasis added). Although the ADEA does not prohibit you from advertising for workers age 55 and over, such advertisements may be prohibited by state or local law. Thus, you should contact your Fair Employment Practices Agency to assure that the advertisements do not violate those laws.”

In the case, Cline vs. General Dynamics Land System, Inc., 540 U.S. 581 (2004), employees between the ages of 40 and 49 sued their employer for age discrimination when the employer eliminated its future obligation to pay retiree health benefits for any employee then under the age of 50 years old. Employees age 50 or older were grandfathered by the employer so that their retiree health benefits would be paid. The Supreme Court rejected the claim of the under 40 year old employees, finding the ADEA’s prohibition against age discrimination only prevents discrimination that favors younger workers. It does not prohibit actions that place older workers in a more favorable position, whether or not the younger workers are also in the class.

The EEOC’s revised rules were published in the July 6, 2007 Federal Register, Vol. 72, No. 129, pp. 36873-36875.

Torres vs. DOD/Army - FEDERAL AGENCIES BETTER GET EEO TRAINING IN ORDER TO ENSURE ALL EMPLOYEES ARE FULLY AWARE OF THEIR EEO OBLIGATIONS/RIGHTS

The complainant (Torres) alleged unlawful discrimination when a DOD/Army official made numerous derogatory remarks about Hispanics. DOD dismissed the complaint after determining the complainant had not filed the informal EEO complaint within the required 45 days. On appeal, the EEOC reversed the Army's decision and remanded the case for further processing. The complainant claimed he was unaware of the timeframe for seeking EEO counseling, and DOD/Army did not meet its burden of establishing he had knowledge of the timeframe for filing an informal complaint. DOD/Army did not provide documentation to reveal otherwise, including EEO postings.

Bergren vs. DOT – HOW LONG WILL IT TAKE EMPLOYERS TO REALIZE THAT GENDER CANNOT PLAY A ROLE IN THE SELECTION PROCESS (unless the position has a gender BFOQ)?

DOT was found guilty of sex discrimination, by not promoting complainant, Bergren (an Air Traffic Control Specialist) to the position of Operations Supervisor. After review of the non-selection procedures and facts, the EEOC determined DOT used gender as a deciding factor in the selection. Make whole remedy should include the promotion and the difference in the compensation between the two positions until being placed into the job.

Sever v. U.S. Postal Service (USPS)- MAKING PHYSICAL THREATS AGAINST CO-WORKERS IS NOT PROTECTED BY EEO DISABILIY LAWS

The complainant, Sever, alleged disability discrimination against the USPS based on his mental disability. Sever was terminated after stating that he would “buy a gun and come back,” if he was fired from his job. The agency was entitled to hold Sever to certain "qualification standards" concerning safety, regardless of his disability and the District Court disagreed with the allegations, granting summary judgment in favor of the Postal Service. Sever could not rebut the USPS’s justification that it terminated him for making threats of violence against USPS coworkers.

Dedrick vs. DOD/Army – VIOLENT BEHAVIOR IN THE WORKPLACE WILL NOT BE TOLERATED, NO MATTER THE DISABILITY

The complainant, Dedrick, alleged disability discrimination based on his mental disability when he was removed from his general engineer position. Dedrick alleged his disability, “intermittent explosive disorder” prohibited him from stopping erratic behavior, e.g., overturning his supervisor's desk while the supervisor was seated at the desk, then moving on to his own office and throwing his computer equipment and office supplies on the floor, and "kicking things in." The MSPB upheld the petitioner's removal. The EEOC concurred with MSPB’s decision that the removal was justified.

Brockman vs. Dept. of Treasury (DOT) – ALTHOUGH PREGNANCY SHOULD BE TREATED AS A DISABILITY ACCORDING TO EEO REGULATIONS, DON’T EXPECT IT TO BE THE SAME FOR DISABILITY ACCOMMODATIONS

Brockman, a program analyst, filed a disability complaint against DOT, alleging DOT denied reasonable accommodations for her pregnancy-related disability. She was placed on bed rest by her physician and was told not to walk long distances (something required by her job). She requested an accommodation under the Rehabilitation Act. Brockman was denied her claim because “she did not suffer from a disability.” The court concluded Brockman did not have a disability which limited her major life activity of “walking.” EEOC’s pregnancy regulations information sheet can be found at: http://eeoc.gov/types/pregnancy.html

The Supreme Court could soon clarify the question, "What constitutes a retaliatory employment practice?" The Court's ruling in Burlington Northern Santa Fe Railway Co. v. White, No. 05-259, may answer some crucial questions regarding retaliation for filing EEO claims. How the Supreme Justicies choose to define retaliatory treatment will have a significant effect on discrimination claims against both private industry employers and also government agencies. A strict standard could potentially discourage targeted employees from speaking up about retaliation; however, a broad interpretation could open the EEO door to a signficant increase in unjustified retaliatory complaints.

Logsdon v. Department of Agriculture
The EEOC found the USDA liable for sexual harassment because it responded slow and insufficiently to investigate allegations of discrimination. While the USDA acknowledged that a coworker distributed three sexually explicit, sexually harassing letters about the complainant, they argued the Agency was not liable for the harassment because it took immediate and appropriate action after it had notice of the first letter. EEOC noted the Agency obviously did not effectively deal with the issue since two additional offensive letters were circulated. The EEOC affirmed the AJ's decision.

In a settlement agreement, the U.S. Mint agreed to pay $9 million to female workers at its Denver plant who alleged their bosses demanded sex in exchange for promotions, harassed them and retaliated when they complained.

The settlement will need to be approved by an Equal Employment Opportunity Commission Administrative Law Judge.

Lynn Feiger, the attorney who represented the complainants stated that up to 130 women could share in the settlement if it is approved.

The Mint denies any liability in the case but representatives stated the facility wanted to avoid the expense and delay of EEOC proceedings.

The complaint was filed in 2003 by 32 women who alleged that pornography was openly displayed at the Denver plant and women were subjected to unwanted sexual advances and sexual discrimination by male workers and managers over a period of years.

After the complaint, Mint officials in Washington dispatched a team to search the Denver plant for sexist art and graffiti and to meet with female employees. The Mint also announced a series of changes that included hiring a director for its equal opportunity program, a job that had been vacant for almost two years.

The Department of Transportation did not subject an employee to disability discrimination when it removed her after she was medically disqualified from her air traffic control specialist position. An employee with a medical condition is not necessarily an individual with a disability entitled to the protections of the Rehabilitation Act. To qualify for protection, the employee must provide specific evidence that she is substantially limited in a major life activity, she is regarded by the agency as having such a limitation, or she has a record of such a limitation. Tyson v. Department of Transportation, 106 LRP 8036 (EEOC 02/10/06).

The 7th U.S. Circuit Court of Appeals issued
its decision in the case of Wernsing v. Ill. Dept. of Human Services
(427 F.3d 466, 7th Cir. 2005).�The case has importance because of
its impact on the question of legitimate non-discriminatory pay
differences acceptable under the Equal Pay Act (EPA) (29 U.S.C.
Sec. 206(d))�The 7th Circuit covers the states of Illinois,
Indiana and Wisconsin.�In this case, the employee complained about
the employer's policy of paying new hires in this public sector
organization at least as much as they were earning in their last
position.�Wernsing claimed it was an illegal practice because it
perpetuated unequal treatment of men and women.

The Court said as long as the difference is based on a reason
other than sex there is no illegal discrimination caused by an
employer.�If the employer claims that differences in pay between
individuals in the same job is based on wage history, the
burden falls on the complaining employee to show that such an
argument is merely pretext for illegal discrimination.

The Court pointed out that Section 206(d)(1)(vi) permits wage
differentials based on any factor other than sex.�The Court
is not permitted in this instance, it said, to pass judgment
on the acceptability of the business reason offered by the
employer.�It is up to the employee to disprove the employer's
claims.

Here is some of what the Court had to say, "[The employee's]
second argument: that because women earn less than men from
private employment, all market wages must be discriminatory
and therefore must be ignored when setting salaries.�The
premise is correct; many empirical studies show that women's
wages are less than men's on average...But the conclusion is
a non-sequitur.�Wages rise with experience as well as with
other aspects of human capital.�That many women spend more
years in child-rearing than do men thus implies that women's
market wages will be lower on average, but such a difference
does not show discrimination..."

You will find a copy of the Court's opinion at
http://www.ca7.uscourts.gov/tmp/OT0KY8RK.pdf

Postal Service Cannot Back Up Statement of Hiring the Best Qualified Candidate

The record supported an administrative judge's determination that the U.S. Postal Service denied a 69-year-old complainant a postmaster position because of her age and sex. Instead, the agency selected a younger male candidate who was much less qualified. An agency's explanation that it chose the most qualified candidate for a position will not shield it from liability for employment discrimination if the evidence does not support its assertion. Miller v. U.S. Postal Service, 105 LRP 48725 (EEOC OFO 09/28/05).

Good thing EEOC is watching - this further proves how difficult it is for government agencies to be their own watchdogs for equality.

The EEOC modified the Department of Air Force decision awarding the complainant $2,000 in nonpecuniary damages for disability discrimination. It found $10,000 was a more accurate compensation for the complainant's nine months of emotional distress, anxiety and related symptoms. Shobert v. Department of the Air Force, 105 LRP 38898 - EEOC OFO 08/04/05.

August 2005 - EEOC ISSUES HISTORIC DEFAULT JUDGMENT AGAINST TSA FOR FAILURE TO COMPLETE TIMELY EEO INVESTIGATION

(Carol's Note: This decision by the EEOC is on target. There are many flaws to the federal government's internal EEO process - timliness is just one.)

The EEOC issued a highly unusual default judgment against the Transportation Security Administration (TSA) recently, sanctioning the agency for its repeated failure to follow the EEOC judge�s orders to complete it EEO investigation in a timely fashion.

In this case, a TSA security screener alleged unlawful discrimination based on her pregnancy and disability (gestational diabetes) when the agency refused to allow her to take regular breaks to check her blood sugar levels and eat, if necessary, to bring her levels back to normal. When she was later not selected for a promotion for which she applied, the screener added this to her EEO claim as well.

The underlying merits of the case � whether the screener suffered discrimination � is not what makes this decision remarkable, however. In fact, the EEOC did not even address the merits in its decision. Instead, the case is noteworthy because it is a default judgment against the agency for the agency�s failure to complete its investigation into the screener�s allegations of discrimination.

In its decision, the EEOC explained that the screener filed her formal discrimination complaint on January 8, 2004. On September 15, 2004, the screener requested a hearing before an EEOC Administrative Judge because the agency had failed to investigate her complaint within 180 days, as required by law. On October 8, 2004, the agency informed the Supervisory Administrative Judge (SAJ) that it was unaware the screener had filed a formal complaint and that the agency�s Office of Civil Rights (OCR) had not completed any investigation. The agency designated an attorney as its representative on October 18, 2004.

On November 30, 2004, the SAJ ordered the agency to provide a copy of the screener�s complaint file within 15 days, noting that the agency could be subject to sanctions if it failed to comply. On December 8, 2004, the agency responded to the SAJ�s order by stating that because the screener�s formal complaint dated January 8, 2004 was delivered to the Department of Homeland Security (DHS) General Counsel, it never got forwarded to TSA for investigation, and that was the reason no investigation was conducted.

On February 3, 2005, the SAJ ordered the agency to conduct an expedited investigation and have it completed within 60 days. The order contained a warning that the agency must show good cause if it could not produce the investigative report within the required timeframe, and that sanctions up to and including default judgment could be imposed if the deadline was missed. The agency missed the deadline. Two weeks after the deadline passed, the agency asked for an extension, stating that the agency�s attorney contacted TSA�s OCR to confirm that the Report of Investigation (ROI) had been sent to the SAJ, only to learn that the SAJ�s order for an expedited ROI had never been forwarded to OCR. There was no explanation given for this oversight. Thus, the decision stated, as of April 25, 2005, the agency had not begun the investigation. On May 3, 2005, the screener submitted a motion for the imposition of sanctions because the agency �had multiple chances to conduct the required inves
tigation, but failed.� The screener also requested a default judgment be entered against the agency as a sanction.

The EEOC granted the screener�s request, awarding a default judgment against the agency. In its decision, the EEOC outlined seven specific points in time the agency had an opportunity to �correct its mistakes and conduct the investigation.� But the agency repeatedly failed to take the required action. �After all these chances, the Agency still responded and said it couldn�t get it done because of communication problems between DHS and TSA,� the decision stated. �This is clearly an Agency problem and a very serious one. Accordingly, I do not find that the Agency has shown good cause why the sanction of a default judgment should not be entered, and thus, I hereby default the Agency for failing to follow the Orders of the Commission and the SAJ to complete a timely investigation.�

Because the screener voluntarily resigned from her position for personal reasons on August 30, 2004 and never requested any compensatory damages, the EEOC ordered equitable relief. Specifically, the agency was ordered to pay the screener for all leave without pay she had to take; any costs associated with her pregnancy that were not covered by her medical insurance; and the difference between her salary as a security screener and a lead security screener from the time of her non-selection through the date she resigned. The agency was also ordered to pursue corrective action with the �relevant management officials,� including a minimum of 8 hours of EEO awareness training, as well as prominently post a notice of the finding of discrimination at the agency.

The screener was represented by the American Federation of Government Employees, which hailed the decision as �historic.� �Representatives of the Transportation Security Administration consistently have asserted through their actions and their words that the TSA is above the laws of the United States. This decision clearly reaffirms that no agency may violate the laws that prohibit discrimination in the workplace,� said Gony Frieder, the AFGE attorney who represented the screener.

The case is Domingo v. Chertoff, U.S. Equal Employment Opportunity Commission, EEOC No. 340-2004-00589X, August 17, 2005.

May 2005 - MALE CIVILIAN NAVY POLICE OFFICERS CAN SUE FEMALE SUPERVISOR FOR SEXUAL HARASSMENT

Two male civilian police officers who work for the Navy can move forward with their sexual harassment lawsuit against their female supervisor, but another male supervisor cannot sue because she was not his boss, a Connecticut federal district court judge ruled recently.

In this case, three male civilian workers sued their employer, the U.S. Navy, alleging that a female supervisory police officer sexually harassed them by creating a hostile work environment. While a Navy investigation concluded that the female supervisor�s use of profanity and inappropriate language and behavior on the job had created a hostile work environment, the department contended that her behavior did not rise to the level of harassment under Title VII. The court, however, disagreed, finding that a reasonable juror could conclude that the two male subordinates were subjected to an objectively hostile work environment, and that the harassment was attributable at least in part to their gender.

As for the male supervisor, though, the court dismissed his claim, explaining that the female supervisory police officer was not his boss and therefore, he could tell her to stop talking to him or simply walk away from her without fearing any negative repercussions. Accordingly, her treatment of him did not rise to the level of a Title VII violation.

The case is Anderson v. England, U.S. District Court for the District of Connecticut, No. 3:03CV116(MRK), March 9, 2005.

March 2005 - Buttocks Slapping Not Acceptable - $1,000 Worth of Unacceptable

A complainant was appropriately awarded $1,000 in nonpecuniary damages for the harm she suffered after a male supervisor hit her on the buttocks. The complainant's evidence fell short of supporting the larger award of nonpecuniary damages she sought. Her testimony, combined with that of other witnesses, did not establish she suffered long-term harm. Lans v. Social Security Administration, 105 LRP 7611.

Boots v. U.S. Postal Service, 104 LRP 60927.
The EEOC differed with the MSPB's determination that the agency did not subject the petitioner to disability discrimination when it removed him from his tractor-trailer operator position because he takes antiseizure medication. The EEOC found the Department of Transportation regulations cited by the MSPB did not apply to the federal government and were voluntarily adopted by the agency. As such, they could not be used as a reason for the agency's failure to individually assess the petitioner's ability to safely perform the functions of his position.

I have been warning agencies and companies for years now that employment quotas are illegal if they are based upon a discriminatory basis...gender, race, etc. The Air Force apparently found out too late.�They have agreed to pay $880,000 to nine white male workers at Georgia's Robins Air Force Base who claimed that a quota system gave preferential treatment to black and female employees at the base. The Atlanta Journal-Constitution reported that the Air Force settled the case, which was filed in April 2002.

Lee Parks, who represented the workers, said the quotas were part of a system wide problem, however the government settled on behalf of the nine workers because evidence of discrimination against them was particularly strong. Lee cited e-mails from supervisors admitting that they were pressured by Air Force headquarters and the Pentagon "to increase the appraisals of blacks and women and decrease those of other workers," according to the newspaper. "The quota-based performance process went on for a good number of years and affected hundreds, if not thousands, of people," Parks said.�

Hint:�Forget the term, "Reverse Discrimination," as the term does not make sense.�The definition of reverse is:�to turn completely about in position or direction.�If you were to reverse discrimination, you would be eliminating it.� Discrimination against any person based upon race, color, religion, sex/gender, disability, age, national origin, or special veteran status is simply put...discrimination.� Learn what Affirmative Action is and what it is not - it is not a quota in employment, unless the courts have put the agency or company under a consent decree.�For more information, contact us!

Dept. of Homeland Security (DHS) gets a lesson in McDonnell Douglas (burden of proof) ~ Patrick v. Ridge, U.S. Court of Appeals for the Fifth Circuit, No. 04-10194

Note: This is long, but it is an important EEO decision.
In a case in which a Department of Homeland Security (DHS) employee alleged that she was discriminated against because of her age, the agency�s statement that the employee was not �sufficiently suited� for the position she sought was not specific enough to satisfy the agency�s burden of proof under McDonnell Douglas, the Fifth Circuit ruled last month.

In this case, the employee charged DHS with age discrimination and retaliation arising out of the INS�s refusal to promote her to a GS-13 supervisory position for which she had applied. Instead, the agency hired one of her co-workers who was more than 10 years her junior. The employee timely filed an EEO complaint alleging age discrimination. The position later became available, and the employee reapplied. The employee was chosen as one of six finalists to be interviewed for the job by a three-person panel. The panel ultimately decided not to offer the job to any of the six finalists, and instead hired an outside candidate. The employee amended her complaint, adding new charges of age discrimination and retaliation based on the hiring of the outside candidate. When the federal district court granted the DHS�s motion for summary judgment dismissing the employee�s claims, the employee appealed to the Fifth Circuit.

The Fifth Circuit reversed the district court�s decision, concluding that the DHS had not satisfied its burden of producing a legitimate, nondiscriminatory reason for its employment decision. Noting that the ruling it was reviewing was one granting a motion for summary judgment before trial � not a motion for judgment as a matter of law following a merits trial or even the completion of the plaintiff�s case � the Fifth Circuit explained that there was no question the employee had succeeded in making out a prima facie case of both age discrimination and retaliation. Thus, under the case of McDonnell Douglas, the burden then shifts to the employer to produce a legitimate, nondiscriminatory reason for its employment decision. But here, said the appeals court, the DHS simply stated that the employee was not �sufficiently suited� for the job, without clarifying or expanding on that statement. The only other statement that was made, said the court, was a panel member�s statem ent that he evaluated candidates based not only on work credentials and experience, but also on how he thought the candidate would fit into the work group. Again, stated the court, no explanation of what that meant was provided, and the DHS produced no specifics for why the employee would not fit in with the group.

�Fatal to the INS�s position here is the well-established rule that, to meet its burden of production under McDonnell Douglas, an employer must articulate a nondiscriminatory reason with �sufficient clarity� to afford the employee a realistic opportunity to show that the reason is pretextual,� the Fifth Circuit explained. �This does not mean that an employer may not rely on subjective reasons for its personnel decisions. It does mean, though, that to rebut an employee�s prima facie case, a defendant employer must articulate in some detail a more specific reason than its own vague and conclusional feeling about the employee. If the INS believed - and had verbalized - that [the employee] was not �sufficiently suited� to fill the SRS position because of her experience, credentials, attitude, or some other such articulable characteristic, the DHS�s reason might have provided enough detail to enable [the employee] to attempt to show pretext. In the face of the INS�s bald and am orphous statement that [the employee] simply was �not sufficiently suited,� however, neither we nor [the employee] can identify the kind of evidence needed to demonstrate that such a rank generalization is or is not pretextual.�

In addition, said the court, the INS�s statement that the employee was not �sufficiently suited� for the job and that the employee would not �fit in� does not necessarily qualify as a �nondiscriminatory� reason, since the employer�s subjective belief that the employee might not fit in could be based on a protected trait such as age, race, or another protected activity. Accordingly, the court concluded, �We hold as a matter of law that justifying an adverse employment decision by offering a content-less and nonspecific statement, such as that a candidate is not �sufficiently suited� for the position, is not specific enough to meet a defendant employer�s burden of production under McDonnell Douglas. It is, at bottom, a non-reason.�

As for the DHS�s second reason for not promoting the employee � that the DHS selected the �best qualified� candidate by choosing the outside applicant � the Fifth Circuit rejected that rationale as well. It explained that the DHS could not claim that its nondiscriminatory reason for not promoting the employee was that it chose the outside applicant instead because it was undisputed that the outside applicant was not even under consideration for the job at the time the employee was denied the promotion. The appeals court acknowledged that choosing some other candidate because he or she is the best-qualified individual for the job is generally a legitimate, nondiscriminatory reason for an adverse employment decision. Here, though, the court explained that the DHS�s own statements confirm that it had already rejected the employee before it ever identified the outside applicant as a potential candidate. Therefore, the court stated, �We hold as a matter of law that an employer who offers the relative qualifications of the applicants as its legitimate, nondiscriminatory reason must show that, at the time it made the decision adverse to the complaining applicant, it already knew that the ultimately selected individual�s qualifications were superior.�

Accordingly, because the employee established prima facie cases of discrimination and retaliation, and the INS failed to satisfy its burden of producing a legitimate, nondiscriminatory reason for its employment decision, the Fifth Circuit reversed the district court�s decision and remanded the case for further proceedings.

Bottom Line: DHS�S STATEMENT THAT THE EMPLOYEE WAS NOT �SUFFICIENTLY SUITED� FOR THE POSITION WAS NOT SPECIFIC ENOUGH TO SATISFY ITS BURDEN OF PROOF IN THIS AGE DISCRIMINATION CASE

Racial slurs cause hostile environment, but VA was not found liable in the case:
Nicholas v. Department of Agriculture, 104 FEOR 53256 (EEOC OFO 11/04/04).The complainant was subjected to a hostile work environment because of her race, but the agency avoided liability because it acted quickly and appropriately to remedy the problem. Nicholas v. Department of Agriculture, 104 FEOR 53256.

The EEOC affirmed an administrative judge's determination that the agency was liable for a race-based hostile work environment when stereotypically altered versions of a memo were posted in common areas and placed in several employees' mailboxes. The complainants established a prima facie case of race discrimination because the language used in the altered memos was "designed to depict ignorant African-Americans by using stereotypical ebonics" and the posting in the common area was sufficiently severe to create a hostile work environment. The agency had no defense to liability because there was a significant delay before the facility's warden took any action. Flowers v. U.S. Postal Service, 104 LRP 47084.

DOT approving official excludes African-American men
An EEOC AJ did not err in finding the complainant was subjected to race discrimination when he was not selected for a mediator position and to retaliation for EEO activity when he was denied a superior contribution increase award. The complainant was entitled to $50,000 in nonpecuniary damages. The agency claimed it chose the most qualified candidate. However, the evidence established that the approving official had animosity toward African-American men and manipulated the selection process to exclude them. McMillian v. Department of Transportation, 104 LRP 44943.

The FAA was found liable for harassment because it failed to take stronger action in response to sex-based harassment of the complainant, which included a threatening and derogatory letter and an alleged incident in which a heavy jet was misdirected toward the complainant's light aircraft. Although the complainant in this case requested and received reassignment, the EEOC found the agency failed in its duty to take further proactive measures. Boyer v. Department of Transportation, Federal Aviation Administration, 104 LRP 41368.

Supervisor disregards medical restrictions; USPS incurs liability. The complainant was subjected to disability-based harassment when his supervisor persistently overruled his medical restrictions and forced him to do work that eventually led to further injury and emergency surgery. The supervisor additionally retaliated against the complainant for using the EEO process. When supervisors push for productivity and neglect the limitations of reasonable accommodation of disabilities, the agency may be exposed to EEO liability. Hernandez v. U.S. Postal Service, 104 LRP 35000.

This case decision is printed more in depth than typically included on this site. All government agencies should be well aware of what is proper and improper when having employees "sign away" their administrative rights to file complaints.

Equitable relief is appropriate where the U.S. Postal Service insisted on
the exhaustion of administrative remedies, but effectively prevented its
employee from using those remedies, a federal district court ruled earlier
this month.

The case began on September 19, 2002, when a U.S. Postal Service Customer
Service Supervisor had a physical altercation with a co-worker, after
consuming large amounts of alcohol during his lunch break. Shortly
thereafter, on September 25th, the Postal Service told the supervisor he
could either be terminated or resign within the hour, subject to the terms
of a resignation agreement. Among other provisions, the resignation
agreement stated that the supervisor �agrees to withdraw any current
appeals in any administrative forum, including EEO and MSPB and further
agrees not to file any future appeals in any administrative forums,
including EEO and MSPB, concerning his employment and/or this settlement
agreement.� While the agreement referenced �current appeals,� there were
apparently no administrative proceedings pending at the time of the
agreement. Given the choice of being fired or resigning, the supervisor
chose to resign, and signed the agreement.

Subsequently, however, the supervisor filed a complaint in federal
district court, claiming that he was forced to resign in violation of the
Rehabilitation Act. He further alleged that he had been diagnosed as
suffering from a disability, namely alcoholism, depression and anxiety;
that his behavior on September 19th was directly caused by his disability;
and that he should have been given a reasonable opportunity for
rehabilitation. In responding to the supervisor�s district court
complaint, the Postal Service pointed out that under the pertinent laws,
the supervisor should have exhausted his administrative remedies before
filing suit. Specifically, the Postal Service claimed that the supervisor
should have either filed a complaint with the agency�s Equal Employment
Opportunity office or appealed to the U.S. Merit Systems Protection Board,
and that he could not proceed with the action in federal district court
until he exhausted his administrative remedies.

But the court concluded that the Postal Service could not have it both
ways, by asking the supervisor to sign the resignation agreement barring
him from filing administrative appeals, and then arguing that his federal
suit could not proceed because he had not exhausted his administrative
remedies. Noting that equitable relief is appropriate �where an agency
misleads or misdirects a claimant so as to prevent the claimant from
seeking an administrative remedy,� the court found that equitable relief
was proper in this case. �This is not to say that the Postal Service was
barred from reaching a settlement with [the supervisor] in which [the
supervisor] agreed to refrain from using administrative procedures,�
explained the court. �However, there is surely an anomaly now in having
the Postal Service insist on the exhaustion of administrative remedies,
which it effectively prevented him from using.� Accordingly, the court
declared the provision in the resignation agreement barring the supervisor
from pursuing his administrative remedies null and void, and gave him an
opportunity to pursue these administrative remedies while it stayed the
district court action.

The case is Hodgson v. U.S. Postal Service, U.S. District Court for the
Southern District of New York, 03 Civ. 0647 (TPG), April 1, 2004.

The EEOC found the US Postal Service discriminated against the complainant based on race (African American) when it failed to select her for a supervisory position. The EEOC affirmed the AJ's compensatory damages award of $5,000. The selecting official had signed a letter stating he had interviewed the complainant when in fact he had not, and he could not explain his rationale for giving her a "basic" rating. Walker v. U.S. Postal Service, 104 LRP 15829.

The White House affirmed President Bush's support for protecting gay federal workers from discrimination because of their sexual orientation — a month after the official he appointed to enforce that policy put it on hold.
"The president believes that no federal employee should be subject to unlawful discrimination," White House spokesman Trent Duffy said. "That's long-standing federal policy that prevents discrimination based on sexual orientation."
On Wednesday, a group of Democrats in Congress urged Bush to overturn a decision by Scott Bloch, head of the Office of Special Counsel, to deny federal workers legal recourse through his agency for sexual-orientation discrimination.
The independent agency investigates and prosecutes claims by federal employees and job applicants about discrimination, sexual harassment and retaliation against whistleblowers.
Asked whether the White House would ask or direct the agency to restore sexual orientation to its list of "race, color, religion, sex, national origin, age or handicapping condition" that can be causes of discrimination claims, Duffy said, "That would be speculation."
A 1998 executive order by President Clinton explicitly prohibited sexual orientation discrimination in the federal government. That policy remains in effect at the Office of Personnel Management, which oversees the federal workforce. (AP)

Disability Discrimination: Denial of Reasonable Accommodation; Agency Defenses of Direct Threat and Undue Hardship Rejected; Medical Confidentiality Violated ~ USPS

The Commission found complainant to be a qualified individual with a disability (valvular disease), in that she could perform the essential functions of her position, keying, with or without reasonable accommodation. EEOC found that complainant needed the agency to excuse her from certain non-essential functions i.e., prepping and load sweeping, which conflicted with her medical restrictions, in order to perform the duties of the position. The agency refused to grant the accommodation. In finding that the agency violated the Rehabilitation Act, the Commission rejected the agency's proffered defenses of direct threat and undue hardship. The EEOC found that the agency failed to meet its burden of proving a significant risk of substantial harm, and conducting an individualized assessment to show that complainant's keying 6-8 hours a day, as she had done in the past, would expose her to carpal tunnel syndrome. The agency also failed to show undue hardship on its operations by allowing complainant to perform her duties without doing prepping or load sweeping. The evidence showed that employees had been previously excused from various duties, including prepping. Finally, the EEOC found that the agency violated the Rehabilitation Act when it improperly disseminated her medical diagnosis and work restrictions. By way of relief, EEOC directed the agency to offer complainant the position, with reasonable accommodation; back pay; consider disciplining the employee responsible for the discrimination; and remanded for a hearing the issues of attorney's fees and compensatory damages. Forde v. United States Postal Service, EEOC Appeal No. 01A12670 (October 9, 2003).

The EEOC found that complainant was discriminated against on the bases of race (African-American) and age (56) when she was not selected for the position of Computer Clerk. The agency's selecting officials had provided subjective reasons for the challenged selection, such as "ability to learn new things" and "enthusiasm." An EEOC AJ found that the selecting officials lacked credibility, and that the complainant had experience performing many of the duties of the position and was a more qualified candidate. The EEOC ordered the agency to retroactively place complainant in the position and provide back pay and other benefits, as well as $10,000 in compensatory damages. Williams v. Department of Veterans Affairs, EEOC Appeal No. 07A20076 (September 22, 2003). See also: Jones v. United States Postal Service, EEOC Appeal No. 07A20004 (September 22, 2003) (failure to provide light duty assignment based on race; $15,000 awarded in compensatory damages); Franco v. Department of Veterans Affairs, EEOC Appeal No. 07A30012 (September 24, 2003) (nonselection for Computer Specialist position based on national origin; award of $10,000 in compensatory damages).

Complainants were subjected to retaliation for engaging in protected EEO activity when the agency delayed their pay. The Commission found that no other employees were shown to have experienced the number of leave-related pay errors to which complainants were subjected. By way of relief, the Commission ordered the agency to provide complainants with interest compounded from the dates of the agency's unlawful conduct through the date of payment to complainants of such interest; as well as attorney's fees and costs. Barbagallo and Yost v. United States Postal Service, EEOC Appeal Nos. 07A20012 and 07A20013 (October 2, 2003).

See also Huie v. Federal Communications Commission, EEOC Appeal No. 01A22474 (September 29, 2003) (nonselection for collateral duty EEO Counselor because of pending EEO complaints; appointment ordered); and Vasquez v. Department of Homeland Security , EEOC Appeal No. 07A20097 (September 4, 2003) (supervisor's rescheduling of complainant's meeting with EEO Counselor could have potentially chilling effect on complainant's EEO activity; EEOC ordered training for supervisor, $1,200 in pecuniary and nonpecuniary compensatory damages, plus attorney's fees and costs).

The Commission found that complainant was subjected to hostile environment, gender-based harassment by a co-worker who treated her in a rude and threatening manner, and affirmed an award of $5,000 in compensatory damages. Liu v. Social Security Administration, EEOC Appeal No. 07A20052 (September 16, 2003).

Agency failed to show good reason for not selecting grievant. The FLRA denied the agency's exceptions. The agency failed to justify its disregard of a settlement agreement that granted priority consideration to the grievant. The parties agreed the grievant should receive priority consideration for the next available GS-14 position. However, he was not selected. The agency failed to prove it had legitimate, job-related reasons for not selecting the grievant. Department of Justice, Federal Bureau of Prisons, U.S. Penitentiary, Leavenworth, KS and AFGE, Local 919, Council of Prisons Locals, Council 33, 104 LRP 4158.

AN EXAMPLE OF HOW GOOD TRAINING AND FAST ACTION CAN ELIMINATE OR REDUCE LIABILITY IN EEO CLAIMS:

QUICK, EFFECTIVE ACTION SHIELDS USPS FROM HARASSMENT LIABILITY

The complainant was subjected to an incident involving verbal and physical sexual harassment by a coworker. The agency avoided liability by insuring managers were properly trained on sexual harassment policies/procedures and by taking prompt and appropriate action. Although the incident involved was severe, the agency had no reason to suspect the coworker would act in such a manner. It took prompt and appropriate action by sending the coworker home, conducting an investigation, issuing the coworker a notice of removal and assuring the complainant she would not have to work with him again. This quick action shielded it from liability. Archie v. U.S. Postal Service, 103 LRP36442.

After a bench trial, the U.S. District Court, Northern District of Texas, found the plaintiff was subjected to sexual harassment by a male coworker who repeatedly made unwelcome advances that were not addressed by the agency despite the plaintiff's numerous complaints. The court awarded the plaintiff $50,000 in nonpecuniary damages. An agency cannot avoid liability if officials are aware of unlawful harassment,but fail to make an effort to stop it. O'Brien v. Department of the Treasury, 104 LRP 1908.

The complainant was not subjected to disability discrimination when he was found ineligible for an immigration inspector position because of his physical limitations. In order to fall within the protection of the Rehabilitation Act, the complainant must show he is a "qualified" individual with a disability. The complainant was not qualified for the position because his physical impairments limited his ability to perform the types of actions necessary to prevent people from illegally entering the United States. Reyes v. Department of Homeland Security, 103 LRP 53944.

July 2003 - The EEOC ruled that the Census Bureau (NPC), Jeffersonville, Indiana, was guilty of allowing a female clerk to be harassed by two male supervisors, thus creating a hostile working environment. Census (NPC) had conducted it's own internal investigation, as required by Commerce harassment policy, and determined there was no harassment by the supervisors. The clerk (Cain) claimed she had complained to management about the harassment, but the Agency failed to take corrective action. In addition to the $50K, the Census Bureau (NPC) will also pay the legal fees for the complainant, which is estimated to be $36K, provide training in equal opportunity requirements to the supervisors, and post the non-discrimination policy for all employees (for at least 60 days).

Unnecessary Fitness-for-Duty Examination Violates the Rehabilitation Act. The Commission found that the agency violated the Rehabilitation Act, when it ordered complainant to undergo a fitness-for-duty examination and then suspended her for not submitting to the examination. The Commission noted that, irrespective of whether an employee is an individual with a disability, an agency may only make a disability-related inquiry or require a medical examination if it is job related and consistent with business necessity. The Commission awarded complainant $50,000 for non-pecuniary harm. Amen v. United States Postal Service, EEOC Appeal No. 07A10069 (January 6, 2003).

Complainant Unlawfully Denied Reasonable Accommodation. The Commission found that the agency violated the Rehabilitation Act when it failed to provide complainant, a deaf employee who uses sign language to communicate, with an interpreter during a safety talk. The Commission found no evidence to support a finding that the provision of interpreter services would have caused an undue hardship. EEOC also noted that the agency failed to provide evidence that it attempted to contract the services of an interpreter in contemplation of the safety talk. As part of the relief ordered, the Commission directed the agency to train its management officials as to their obligations under the Rehabilitation Act; to notify complainant of his right to submit objective evidence in support of his claim for compensatory damages; and to consider disciplining the responsible management official(s). Saylor v. United States Postal Service, EEOC Appeal No. 01A05281 (November 15, 2002); see also Holton v. United States Postal Service, EEOC Appeal No. 01991307 (November 7, 2002) (denial of services of interpreter for hearing impaired employee for presentation of new automation concept violated Rehabilitation Act).

Federal Bureau of Prisons Grievant Claims Assignment Decision Violated his Civil Rights.

A male grievant's request to be assigned to supervise a detail of female-only inmates was denied by the agency. The arbitrator agreed with the agency. The union's claim that the award violated the Civil Rights Act was dismissed by the FLRA. The position would occasionally require that strip searches be performed on female inmates. Having a male officer conduct these searches "could violate the inmates' privacy rights," the FLRA determined. AFGE, Local 3584 and Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Dublin, CA, 103 LRP 15926.

SUPREME COURT SAYS OLDER WORKERS CAN BE TREATED BETTER THAN YOUNGER WORKERS ~ March 2004

The U.S. Supreme Court has issued a decision saying the "Age Discrimination in Employment Act (ADEA) does not prohibit employers from treating older workers better than younger workers.� The ruling came from the case of General Dynamics Land Systems, Inc. v. Cline (No 02-1080), and Justice David H. Souter was the majority opinion.�The vote was 6-3.�In 2002, the 6th U.S. Circuit Court of Appeals heard the case and said a group of 200 employees over the age of 40 could proceed with their age discrimination suit against the company.�At issue was the claim that the company cut off rights to retiree medical benefits for everyone except those over 50 years of age on the qualifying date.�Those who filed the class action case were ages 40 - 49.�

Be careful, however, before revising your retirement packages without first consulting legal advisors.�There could be impact on the Employee Retirement Income Security Act (ERISA) requirements.�

Proposition 54, the Racial Privacy Initiative, which would have prohibited state and local governments from using race, ethnicity, color or national origin to classify current or prospective students, contractors or employees in public education, contracting, or employment operations, was defeated. California voters rejected the measure that would have ended collection of racial data.

Courts Agree With Employer Who Banned Confederate Flag From Workplace

2003: Coburg Dairy in Charleston, SC, won a lawsuit filed by Matthew Dixon, complaining that his constitutional rights and the public policy of South Carolina had been violated when he was fired for refusing to remove confederate flag stickers from his toolbox. The U.S. Court of Appeals for the Fourth Circuit made two critical points when making the decision for the employer: 1) The First Amendment to the U.S. Constitution protects citizens only from government or state interference with their rights to free speech. Coburg Dairy is not a state entity, and therefore any actions they take would not violate the Constitution. 2) Even if Dixon were a state employee, he still could have been lawfully fired for his refusal to remove the decals, and the employer acted in an effort to keep conflict among its employees at a minimum and to avoid potential liability for racial harassment under federal law.

NOTE: Sexual harassment cases seem to be escalating. Several of the recent EOC rulings have included settlements in favor of the complainants. To emphasize the seriousness of these decisions (and the high dollar awards), we have provided more in depth information relating to a few of the cases (below). Remember: Employers are responsible for establishing effective sexual harassment policies and training employees and managers to fully understand requirements.

July 2003 - The EEOC announced the settlement of a sexual harassment lawsuit against Pizza Hut, the national restaurant chain based in Dallas, Texas, for $360,000 on behalf of four female former employees who were subjected to a sexually hostile work environment. The settlement also includes a number of anti-discrimination training obligations, review of appropriate complaint procedures, and record-keeping and reporting obligations to be monitored by the EEOC over the duration of the two year term of the Consent Decree.
Among other things, the EEOC's lawsuit alleged that former female employees were sexually harassed by a co-worker at a Pizza Hut restaurant in Diamond Bar, Calif. The harassment included sexual touching and groping.
The lawsuit also alleges that Pizza Hut had notice of the sexual harassment and failed to prevent and/or promptly correct the unlawful behavior. In addition, the suit charged the employer with the constructive termination of the women.

EEOC Wins $1.55 Million Dollar Jury Verdict in Sexual Harassment Suit Against Florida Restaurant

The EEOC today announced that a jury in Federal District Court in Tampa, Florida, has returned a $1,550,000 verdict in a major sexual harassment lawsuit brought by the EEOC and the private law firm of Florin, Roebig & Walker, P.A. The lawsuit was originally brought against Applebee's International, Inc., Rio Bravo International, Inc. and Innovative Restaurant Concepts, Inc. for sexual harassment occurring from approximately 1994 until early 1998 at their formerly owned Rio Bravo Cantina restaurant in Clearwater, Fla.
The jury rendered a verdict in favor of the EEOC and private plaintiffs, awarding $10,000 each to the five women represented in the case to compensate them for the emotional pain and suffering they endured, and awarded punitive damages against the remaining two corporate defendants in the amount of $500,000 each forthree of the five women.
The EEOC lawsuit, filed in 1999, said that former waitresses and hostesses were subjected to egregious acts of verbal and physical sexual conduct on the part of one of the employer's assistant managers and, despite repeated complaints to management, the corporate defendants failed to take necessary steps to stop the harassment. The harassment of the young women included touching, groping and rubbing their breasts, legs and buttocks in a sexually offensive manner; forcing the women to sit on the assistant manager's lap before leaving their shifts; attempting to kiss them; and making graphic, offensive sexual remarks. EEOC asserted that the women repeatedly complained to management about the sexually offensive conduct; however, thecorporate defendants failed to implement corrective action, allowing the behavior to continue and escalate.

On April 24, 2003, the Supreme Court struck down a ban on gay sex, ruling that the law was an unconstitutional violation of privacy.

The 6-3 ruling reverses course from a ruling 17 years ago that states could punish homosexuals for what such laws historically called deviant sex. Laws forbidding homosexual sex, once universal, now are rare. Those on the books are rarely enforced but underpin other kinds of discrimination, lawyers for two Texas men had argued to the court. The men ''are entitled to respect for their private lives,'' Justice Anthony M. Kennedy wrote. ''The state cannot demean their existence or control their destiny by making their private sexual conduct a crime,'' he said.

Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer agreed with Kennedy in full. Justice Sandra Day O'Connor agreed with the outcome of the case but not all of Kennedy's rationale. Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas dissented.

The Affirmative Action ruling is finally in from the Supreme Court Justices! In one of the most significant affirmative-action decisions in over a decade, the Supreme Court has upheld diversity as a "compelling state interest." However, the court overturned the use of an affirmative-action point system which has been in place for the University of Michigan �s undergraduate programs.

The AP reported that the long awaited ruling (upheld by Justices Stevens, O�Conner, Souter, Ginsburg and Breyer) endorsed the University of Michigan �s law school program which was created to ensure a �critical mass� of students of color on campus. The Justices agreed, in a 5-4 vote that the program is not an illegal quota. However, the court rejected the use of a point system now in place at the University of Michigan �s undergraduate level. Many believe this decision will provide direction for schools of higher education which will clarify the contradictory affirmative action decisions which have been passed down for years.

Jonathan Alger, assistant general counsel to the University of Michigan stated, "This is a significant victory for higher education and provides us with guidance so we know how to design programs that are constitutionally sound.� "The university will obviously comply with the court's decision."

What does this mean for you, the federal contractor/subcontractor? Nothing changes�goals, as written and required by Executive Order 11246 are alive and well. Keep up your good faith efforts.

A Florida judge ruled Friday that a Muslim woman cannot wear a veil in her driver's license photo, agreeing with state authorities that the practice could help terrorists conceal their identities.

After hearing three days of testimony last week, Circuit Judge Janet C. Thorpe ruled that Sultaana Freeman's right to free exercise of religion would not be infringed by having to show her face on her license. Thorpe said the state "has a compelling interest in protecting the public from criminal activities and security threats," and that photo identification "is essential to promote that interest."

04/09/2003: EEOC Announced Largest Sexual Harassment Settlement Ever in New York

On April 9, 2003, the U.S. Equal Employment Opportunity Commission (EEOC) announced its largest sexual harassment settlement ever in the state of New York for $5.425 million and significant remedial relief on behalf of a class of female workers at Lutheran Medical Center (Lutheran), a hospital based in Brooklyn, New York.

In the lawsuit filed under Title VII of the Civil Rights Act of 1964 (EEOC v. Lutheran Medical Center, No. 01-5494, E.D.N.Y.), EEOC alleged that Dr. Conrado Ponio, during his employment at Lutheran, abused his authority by sexually harassing a class of female employees when conducting employment related medical examinations. The sexual harassment included invasive touching and intrusive questions about the employees' sexual practices. Additionally, the EEOC alleged that Lutheran knew or should have known of the sexual harassment and failed to take adequate measures to prevent such harassment. Eight female employees had filed charges with EEOC that led to the litigation, which was filed after the agency exhausted its conciliation efforts to reach a voluntary pre-litigation settlement.

04/07/2003: Muslim Worker Targeted for Religious Discrimination Before and After 9/11, EEOC Lawsuit Says

The U.S. Equal Employment Opportunity Commission (EEOC) today filed its fourth post-9/11 backlash discrimination lawsuit against Norwegian American Hospital for subjecting Charging Party Rashidah Abdullah to harassment, discriminatory discipline, retaliation, and termination because of her religion, Islam.