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U.S. District Court for Eastern District of Virginia Rejects EEOC’s Holding in Baldwin

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By Deryn Sumner

Practicing before the EEOC’s federal sector administrative process is a funny thing full of contradictions.  If there’s a Federal Rule of Evidence or Civil Procedure that benefits your argument, then you bring it up to the administrative judge as persuasive and controlling.  If the Federal Rules don’t benefit your argument, you brush it off and tell the administrative judge that they only should be used as a guide and don’t need to be strictly followed.

The EEOC does the same thing in its decisions issued by the Office of Federal Operations.  If case law from the court of appeals and district courts contradicts the holdings the Commission wants to make, it will point out that anything less than Supreme Court case law is not controlling.  You can see a clear example of that in last year’s decision regarding telework as an accommodation in Lavern B. v. Dep’t of Housing and Urban Develop., Appeal No. 0720130029 (February 12, 2015). There, the Commission noted that several circuits have held that an employer does not need to provide reasonable accommodations for commutes.  However, the Commission went on to note that “federal district and circuit court decisions may be persuasive or instructive, but are not binding on the Commission” and held that an employee’s request for an accommodation of teleworking or a shorter commuting time triggers the start of the interactive process.  The decision also reminded federal agencies that they should be model employers “which may require [them] to consider innovation, fresh approaches, and technology as effective methods of providing reasonable accommodation.”

On the flip side, if case law from the circuit or district courts bolsters the argument being made, then the Office of Federal Operations will heavily cite to these cases.  An excellent example of this approach is in Baldwin v. Dept. of Transp., EEOC Appeal No. 0120133080 (July 15, 2015), where the Commission held that claims of sexual orientation should be processed as claims of sex discrimination.  The Commission extensively relied upon case law from the federal courts to support its holding.

Alas for the plaintiff in a recent decision out of the Eastern District of Virginia, the Judge did not find the Commission’s arguments as compelling.  In Hinton v. Virginia Union University, No. 3:15CV569, 2016 WL 3922053 (E.D. Va. July 20, 2016), the plaintiff’s attorney tried to argue that the EEOC’s decision in Baldwin created a matter of first impression in the circuit regarding Title VII’s coverage of sexual orientation discrimination such that summary judgment was not appropriate.  The Judge disagreed that issuance of the Baldwin decision changed anything, noting that the Fourth Circuit’s holding that Title VII does not cover discrimination based on sexual orientation in Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138 (4th Cir. 1996) still applied and that “opinions of the…EEOC…are entitled to deference only to the extent that they have the power to dissuade.”  The Judge did not find that Baldwin served to persuade him.

As I discussed in the March newsletter, the EEOC’s private sector litigation arm filed two lawsuits earlier this year challenging sexual orientation discrimination as sex discrimination based on the decision in Baldwin.  One of those cases, against Pallet Companies, has already been settled for over $200,000. Sumner@FELTG.com

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

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By Deryn Sumner

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

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

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

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

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

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

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By Deryn Sumner

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

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

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

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

Equal Pay for Equal Work: Recent Federal Sector Equal Pay Decisions

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By Deryn Sumner

Although claims of unequal pay occur less in the federal government than in the private sector, thanks to the published salary scales issued by OPM, they do still occur.  As a reminder, EPA claims can be filed by either male or female employees.  In order to succeed on a claim, the complainant must establish that she or he works in a job requiring equal work, skill, effort, and responsibility, under similar working conditions and within the same establishment as an employee of the opposite sex, but for less compensation.  Assuming that showing is made, an agency avoids liability by establishing that the distinction in pay is based on a reason other than sex, such as seniority, a merit system, a system by which pay is determined by quantity or quality of work, or some other differential.

In Heidi B. v. Dep’t of Health and Human Services, EEOC No. 0120152308 (June 3, 2016), the agency was unable to overcome an allegation of an EPA violation where the complainant worked as a GS-0201-12 HR Specialist and alleged she should have been paid at the GS-13 level, as a male HR Specialist was.  The agency argued that an audit revealed that the complainant “did not have the extent of independence and latitude in her classification work which would have been commensurate with performing duties at the GS-13 level of pay. Thus, the Agency argued Complainant did not establish a prima facie case under the EPA.”  The Commission disagreed, noting that audit did not compare the duties the complainant performed as compared to the identified male employee, nor did the record support that the male comparator’s job involved more responsibility. Therefore, the Commission found the complainant established a prima facie case.  The Commission then concluded that the agency failed to establish any defense to the claim.

Compare that to the result in Vaughn C. v. Dep’t of Veterans Affairs, EEOC No. 0120152918 (June 23, 2016). There, the complainant was a GS-11 Clinical Applications Coordinator (CAC) and during a conference call, became aware that a white, female CAC in another location was paid as a GS-12. The Commission did not bother to address whether the complainant established a prima facie case and assuming that he did, found that the VA established that the female comparator was required to perform additional and more complex duties, which established a factor other than sex in the salary discrepancy.

EPA claims require a clear step-by-step analysis to both bring and defend against.  During the investigation and in discovery if needed, be sure to identify the comparators, get the information about the position itself (don’t just rely on the position description), and address each element of both the prima facie claim and the affirmative defenses. Sumner@FELTG.com

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

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By Deryn Sumner

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

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

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

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

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

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

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

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

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

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By Deryn Sumner

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

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

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

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

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

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

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By Deryn Sumner

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

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

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

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

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

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

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By Deryn Sumner

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

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

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

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

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

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

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By Deryn Sumner

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

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

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

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

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

EEOC Files Two Private Sector Lawsuits Alleging Sexual Orientation Discrimination Based On Theory Asserted in Federal Sector Case

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By Deryn Sumner

Although most of us interact with EEOC on the federal sector side of the house, EEOC is also responsible for investigating charges of discrimination filed against covered private sector employers and for filing lawsuits in U.S. District Court on behalf of employees if it finds discrimination but is unable to settle the case after making a finding. This month, EEOC announced that it has filed two lawsuits alleging that private sector employers subjected employees to sex based discrimination under Title VII because of their sexual orientation, a theory the Commission articulated in last year’s Office of Federal Operations’ decision, Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015).

The first lawsuit is against Scott Medical Health Center and alleges that the employer subjected a male employee to harassment because of his sexual orientation, including subjecting the employee to anti-gay epithets and comments about his sexuality and sex life in the workplace. The suit alleges the employee’s supervisor did nothing to respond to the employee’s complaints of harassment and the employee quit after the conduct continued for weeks. The EEOC filed suit in the U.S. District Court for the Western District of Pennsylvania.

The second lawsuit is against IFCO Systems and is filed in the U.S. District Court for the District of Maryland, Baltimore Division. There, the lawsuit alleges that a supervisor made numerous comments to a lesbian employee regarding her sexual orientation, including, “I want to turn you back into a woman” and “you would look good in a dress.” The supervisor is also alleged to have blown a kiss at the employee and circled his tongue at her in a suggestive manner.  The employee was terminated just days after she called an employee hotline to complain about the harassment.

The EEOC’s decision to bring these lawsuits under a theory of sex discrimination continues its position articulated last year in Baldwin. In that decision, after lengthy analysis and detailing of the history of sex discrimination claims, EEOC concluded that as sexual orientation discrimination involves treating employees differently because of their sex, it should be considered sex based discrimination under Title VII. EEOC’s press release announcing these lawsuits references the Baldwin decision.  It also mentions the guide the Commission released in 2015, in conjunction with OPM, OSC, and the MSPB, for federal agencies on how to address sexual orientation and gender identity issues in the federal government, which we discussed in the June 2015 newsletter.

Using the concepts of sex stereotyping to argue sex-based discrimination is not a new theory. The Supreme Court’s decision from 1989 in Price Waterhouse v. Hopkins, 490 U.S. 228, held that the employer violated Title VII when it denied a promotion to Ann Hopkins for her lack of adherence to gender norms, including that she did not walk femininely, talk femininely, dress femininely, wear make-up, style her hair, or wear jewelry. EEOC has relied upon this theory that claims of an individual failing to identify to gender norms (such as marrying someone of the opposite sex, see Veretto v. USPS, EEOC Appeal No. 0120110873 (2011)) necessarily relate back to sex and are covered by Title VII.  We’ll be waiting to see how these district courts respond to the Commission’s theory. Sumner@FELTG.com