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Ignoring History Will Only Harm You in the Present

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By Meghan Droste, October 14, 2020

Those who cannot remember the past are condemned to repeat it.” I am sure you are familiar with George Santayana’s famous saying, or some version of it. While it might not seem like we are in the business of teaching history — rather than law — here at FELTG, in a lot of ways we are. After all, what is any discussion of what the law is without a review of past decision from the Commission or the courts?  But that’s not the only way in which history plays an important role in what we do here. As we’ll see from a recent EEOC decision, it is important to understand the history of certain words and phrases because they can provide clear evidence of animus.

In Marleen G. v. Department of Justice, the complainant alleged that her first-line supervisor subjected her to discrimination and harassment based on her race and sex. See EEOC App. No. 2019003172 (Aug. 18, 2020). During the investigation, the complainant and several witnesses testified that her supervisor repeatedly screamed at her, chased her down the hall, and on at least two occasions, touched the complainant in a way she found intimidating. The record also showed that the Agency counseled the supervisor and offered her training, but this did nothing to stop the harassment.

As evidence that the harassment was based on her race and sex, the complainant provided several examples of the supervisor’s statements.  These included the supervisor telling the complainant that she lacked common sense and her assumption that this was due to the complainant’s “culture.” Other examples included the supervisor calling the complainant and another Black female employee “uppity,” and her comments about the “ridiculousness of weaves worn by African-American women.” The complainant also shared that in discussing rumors that the complainant was having an affair with a married subordinate, the supervisor stated, “I know it seems unlikely because what would an older white man have with a middle-aged black woman.”

In its Final Agency Decision, the Agency held that there was no evidence that the supervisor’s harassment was directly tied to the complainant’s protected bases and there was nothing to create an inference of animus.  The Commission reversed, finding sufficient evidence in the supervisor’s comments to support a finding of discrimination and harassment. The Commission noted that historically the word “uppity” has had a racial connotation.  The Commission also reflected on the “significant history” of criticism of Black women’s hair, and the “significant trope with an extensive history” of depicting Black people as less intelligent. The supervisor’s use of these historically offensive ideas and language was more than enough for the Commission to conclude that the supervisor’s actions were based on the complainant’s race and sex.

Language changes and evolves over time, which can be a wonderful and helpful thing.  But we are doomed to continue — and agencies will be liable for — a pattern of unlawful harassment if we do not acknowledge that some language has not changed and still carries with it the same offensive meaning as it has in decades past. We would all do well to learn from and about the past as we build a better workplace now and in the future. Droste@FELTG.com

Tips from the Other Side: Accommodate, Don’t Rewrite Position Description

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By Meghan Droste, October 14, 2020

Last month, we looked at Cecille W. v. U.S. Postal Service, in which the Commission held the agency failed to accommodate the complainant because it looked only to the position description, and did not conduct an individualized assessment, when determining the essential functions of the complainant’s position. We have a slightly different spin this month, but the same underlying message: Agencies have an obligation to accommodate employees with disabilities when doing so is not an undue hardship. I recommend you keep that goal in mind as you evaluate requests for accommodations.

In Frederick A. v. Department of Defense, EEOC App. No. 2019002604 (Aug. 18, 2020), the complainant had limited vision due to a damaged retina in one eye, a cataract in the other eye, and glaucoma. When the complainant applied for his position as a Transportation Assistant, the vacancy announcement described the position as sedentary. The complainant passed a physical exam before entering on duty and successfully performed the duties of his position for one year. At that time, the agency directed him to obtain a driver’s license so that he could operate a forklift.

The complainant submitted a request for accommodations but then withdrew it because he did not believe operating a forklift was an essential function of his position — in part because of his position description, and in part because in one year he had never needed to as part of performing his duties. Although he withdrew his request, the complainant submitted medical documentation explaining his vision limitations. In his response, his supervisor asked him what accommodations would allow him to operate a forklift; the complainant again stated that he did not believe doing so was an essential function on his position.

At this point, you might assume that everyone moved on from what was obviously confusion about what the complainant did on a daily basis. However, the complainant’s supervisor took a different approach, rewriting the position description to remove the word “sedentary,” and specifically requiring the complainant to operate a forklift, something he had not needed to do at all during his first year on the job.

As we learned last month, the position description cannot be the only step in the analysis to determine the essential functions of a position. And while I often appreciate creativity in trying to address an issue, rewriting the position description to include functions that are not actually essential is definitely not going to help an agency. In this case, the administrative judge found that the agency failed to accommodate the complainant and the Commission upheld that decision.

Remember, Congress intended for the federal government to be a model employer when it comes to accommodating employees.  Failing to determine the actual essential functions of position—or trying to alter the record when it doesn’t support your view of essential functions—is not what a model employer should do. Droste@FELTG.com

EEOC Provides Guidance on Processing Conflict Cases

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By Meghan Droste, September 16, 2020

“Today everything’s a conflict of interest.” Sid Vicious’ words are more  than 40 years old, but they do seem appropriate these days. While issues of conflicts of interest have been in the news for the past few months and years, that’s not quite what I’m here to share with you today. Instead I have a more relevant (and possibly less controversial) topic for you — a recent report from the EEOC on how agencies should handle EEO cases that present conflicts of interest.

The Commission’s latest federal sector report, released in June: Best Practices in EEO Conflict Case Management for Federal Agencies, provides recommendations for processing EEO complaints against the head of an agency, an immediate staff member of the head of the agency, the EEO director or a supervisor in the EEO office, or other individuals who hold high-level positions at the agency. The Commission created this guidance based on survey responses from 55 EEO directors, complaints managers, deputy directors, and others connected with the EEO process. The Commission also held two focus group meetings with participants from nine agencies and met with EEO officials from the Department of Agriculture to review the USDA’s process for conflict cases. The EEOC developed five recommended best practices for agencies.

Have a written policy for when and how to process conflict complaints. The process should include a definition of the types of cases that constitute conflicts so that EEO officials and complainants are clear on when the procedures apply. The Commission also recommends that the policy designate the official who will be responsible for making the decision on whether a complaint presents a conflict, and a point of contact, likely outside of the EEO office, for initiating EEO contact in potential conflict cases.

Have a written standard operating procedure for processing conflict complaints. The Commission notes that it is best for the SOP to designate a conflicts case manager and alternate conflicts case manager, and  to outline their responsibilities.  These may include ensuring the timely processing of complaints and serving as a point of contact if the agency sends the complaint to another agency for processing.

Take steps to ensure the confidentiality of conflict cases. This could include password protecting all electronically stored documents in conflict cases and strictly monitoring who has access to the documents. Another step may be to store information about case deadlines and case status in a separate conflict case document to which only the conflicts case manager and alternate have access.

Use memoranda of understanding to set up agreements with other agencies or third parties to process conflicts cases. While many agencies have informal agreements with other sub-agencies, the best practice is to have a written agreement in place, the Commission suggested. The written agreements should be specific on how the agency processing the complaint will ensure timely processing and when and to whom it will provide status updates.

Assign the writing of final agency decisions in conflict cases to another agency or third party. This will apply both when a complainant requests a FAD, and when an administrative judge sends a complaint back to the agency to issue a final action.

Conflict cases may not come across your desk very often, but that highlights the need to have a policy and procedure in place in advance so you don’t lose any of your 30 days to complete counseling or 180 days to investigate a formal complaint trying to set one up. Droste@FELTG.com

Tips from the Other Side: No ‘One Size Fits All’ for Accommodations

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By Meghan Droste, September 16, 2020

This month, I return to our ongoing review of important issues related to reasonable accommodation requests.  Unfortunately, I have seen agencies too often make very avoidable mistakes when it comes to responding to requests for accommodations. Often times these mistakes seem to result from an instinct to apply a one-size-fits-all approach to handling requests. As the Commission has reminded agencies time and again, that strategy just does not work in the area of reasonable accommodations.

One way in which this can come up is in determining the essential functions of a position.  I know it can be tempting to look at the position description (“PD”) and use that as the sole definition of the essential functions for the position at issue, but it’s just not that simple. The Commission’s decision last month in Cecille W. v. U.S. Postal Service, EEOC App. No. 0120181915 (Aug. 6, 2020) is an excellent example of why that approach does not work.

In Cecille W., the complainant worked as a rural mail carrier. The PD for that position included a requirement that employees be able to lift up to 70 pounds. When the complainant requested reasonable accommodations, the agency informed her that she was not a qualified individual with a disability because her lifting restrictions (no more than 20 pounds) made her unqualified for her position as a rural carrier. The agency also concluded that the complainant was unqualified for any other positions to which the agency could potentially reassign her, as they all included 70-pound lifting requirement.

After a hearing, the administrative judge found in the agency’s favor. The administrative judge agreed with the agency that the complainant was not qualified because of her lifting restrictions.  The administrative judge also agreed with the agency’s argument that accommodating the complainant would be an undue hardship because it would require the agency to provide significant assistance to the complainant and reduce its production standards. Does this seem like an easy and obvious win for the agency?

The EEOC didn’t think so. The Commission reversed the finding in the agency’s favor because of one big issue — neither the agency nor the administrative judge looked beyond the PD when determining the essential functions of the complainant’s position. If they had, they would have seen that the complainant had been performing her rural carrier duties with a 20-pound lifting restriction for years. She found workarounds to avoid lifting heavy trays of mail and needed minimal assistance to successfully perform her job without any complaints from management.

They also would have seen that the post office had an informal policy that on the rare occasions they received a heavy package, the custodial staff would assist the carriers with delivering the package to customers.

As a result, there was no real need for the complainant to be able to lift anything beyond her 20-pound lifting restriction. The Commission also found that the agency was only speculating when it argued that accommodating the complainant would be an undue hardship, particularly because the record was clear that the complainant had not required significant assistance to perform her duties.

Agencies need to process requests for accommodation quickly. As I discussed in June and July, an unnecessary delay can result in a finding against the agency. But you should not try to meet your obligation to move quickly by just applying a one-size-fits-all approach. You must make sure you process every request with an individualized assessment of the employee’s needs and also of the specific position at issue. Droste@FELTG.com

Blaming the Victim, Or How Not to Respond to a Complaint

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By Meghan Droste, August 19, 2020

While preparing slides for a webinar on involving race, national origin, and religious discrimination, I came across a 2015 Commission decision that is too surprising not to share, even though it doesn’t fit my usual criteria of being a recent decision.  The ultimate outcome of the decision is not a surprise (Spoiler Alert: It did not end in the Agency’s favor), but the Agency’s approach to the entire situation is.

Complainant v. Tennessee Valley Authority, EEOC App. No. 0120123132 (May 14, 2015), involves one of the most invidious forms of race discrimination — a noose in the workplace.  As the Commission recounts, the complainant first observed a noose hanging in the back of an agency vehicle on August 5.  He brought it to the attention to the two coworkers who were in the truck at the time.  Apparently neither of them did anything about it because on August 11, the complainant saw the noose again in the back of the same truck.  He told his supervisor, who responded by informing him that the noose wasn’t a “legal” noose because it only had seven knots instead of 13.

Dissatisfied with this (lack of a) response, the complainant told the yard operations supervisor about the noose. This supervisor showed the noose to four other employees, but remarkably no one removed the noose from the truck. The noose remained up for four more days. On August 19, the complainant’s supervisor read the agency’s anti-harassment policy to the yard staff during a meeting but did not make any reference to the noose or address the issue.  On August 22, a member of management alerted agency security officers about the noose. Officers waited until September, more than a month after the complainant first observed the noose, to begin an investigation.  At some point during this time, the agency issued a write-up to the complainant, admonishing him for not reporting the noose sooner.

As you can expect, the Commission reversed the agency’s FAD which found no discrimination.  In the appeal, the agency argued that it was not liable because it had taken prompt and effective corrective action when it became aware of the noose. The Commission soundly rejected this.  Nothing about the agency’s response was prompt or effective:

  • The agency allowed the noose to remain up for 10 days after the complainant first reported it.
  • The complainant’s supervisor responded to the seeing the noose by declaring it not a “legal” noose.
  • The agency did not address the noose or the seriousness of the issue during the staff meeting.
  • The agency made no effort to investigate the origins of the noose until a month after the complainant reported it.
  • And, of course, the agency disciplined only the complainant and not any of the supervisors who were aware of the noose and failed to take action.

It is hard to imagine any other ways in which the agency could have mishandled this incident.  The only good that I can see from this is that we can all look to this as an example of everything an agency should not do when confronted with harassment. Droste@FELTG.com

Tips from the Other Side: What’s Acceptable During a Pandemic

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By Meghan Droste, August 19, 2020

Last month, the return-to-work efforts at several federal agencies made the news, with employees and some members of the Senate expressing concerns about the safety of these plans.  With the ongoing risks of the coronavirus still present across the country, there will be some significant changes for those employees who transition back to their offices in the coming months. Because we are still in the midst of a pandemic, some of the rules regarding medical exams and medical information are a bit different than usual. I highlighted below some key guidance from the EEOC on what is and what is not acceptable during this time:

  • Agencies may ask employees if they are experiencing symptoms of COVID-19. Normally an employer is not permitted to ask employees if they are sick, but the rules are different during a pandemic. If employees will be in the workplace, agencies may ask if they are currently experiencing the recognized symptoms such as fever, chills, a cough, shortness of breath, and a sore throat. The Commission advises that employers continue to check the CDC’s guidance to stay current on what the known symptoms are. Agencies should also remember that some people with an active infection will be asymptomatic.
  • Agencies may check employees’ temperatures. Temperature checks are medical exams so employers cannot usually require all employees to submit to them before entering the workplace. The pandemic changes things. As long as a fever remains a recognized symptom (something that seems unlikely to change), employers may require temperature checks. But again, the Commission reminds us that not everyone who has COVID-19 will have a fever.
  • An agency may require employees to take a COVID-19 test and provide the results to the agency. While agencies may require COVID-19 tests because the virus poses a direct threat to others in the workplace, agencies may not require employees to undergo antibody testing. The Commission has specifically stated that antibody tests, which do not provide information about an active infection, do not meet the job-related and consistent with business necessity standard.
  • Agencies may order symptomatic employees to go home. An agency may direct an employee who is displaying any of the recognized symptoms of COVID-19 to go home and may require a doctor’s certification before allowing the employee to return. As the Commissions notes, employers should remember that employees may experience significant delays in receiving test results or being able to see a doctor during this time.
  • Agencies may delay start dates for new employees who have COVID-19 symptoms. An agency may also withdraw a job offer if there is a need for the applicant to start immediately and it is not possible to wait the required quarantine period before the applicant enters the workplace. An agency should not, however, delay or withdraw an offer for an asymptomatic applicant who will start working remotely and not report to a duty station.
  • Agencies may not delay a start date or withdraw a job offer simply because an applicant is in a high-risk category. If an applicant in a high-risk category is willing to enter the workplace and has no symptoms, there is no justification to delay a start date or withdraw an offer. Doing so could result in a finding of discrimination based on sex, age, or disability, depending on the specific applicant’s protected category.

For those of you who will be returning to work soon, I wish you good luck and good health.  And for everyone else who will be moving into their sixth month of remote work soon, stay strong! Droste@FELTG.com

Supreme Court: Employer Who Fires Individual for Being Gay or Transgender Violates Title VII

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By Meghan Droste, July 15, 2020

You’ve probably heard the phrase “model employer” in connection with the federal government.  Although the phrase comes from the Rehabilitation Act, the idea is now broader than just the area of disability rights — the federal government should set an example for all other employers when it comes to being an inclusive employer and in rooting out harassment and discrimination.

The federal government has been just that in the area of LGBTQ rights. The EEOC ruled in 2012 that Title VII prohibits discrimination on the basis of gender identity, and in 2015 that it prohibits discrimination on the basis of sexual orientation. Last month, the Supreme Court agreed.  Following the Court’s decision in Bostock v. Clayton County, Georgia, private and public sector employees across the country now have the same protections federal employees have had for years.

The Court’s decision in Bostock was the result of three consolidated cases: Bostock and Altitude Express, Inc. v. Zarda addressed the question of whether Title VII prohibits discrimination on the basis of sexual orientation; R.G. & G.R. Harris Funeral Home v. EEOC focused on whether gender identity discrimination is prohibited. The Court concluded that discrimination on the basis of sexual orientation or gender identity is a form of sex discrimination and, therefore, is impermissible.

The Court’s decision turned on the “ordinary public meaning” of the word “sex” in Title VII.  Looking to the definition and usage of the word in 1964, the Court concluded that it referred to “biological distinctions between male and female.” From there, the Court found that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”  As the Court illustrated in several examples, an employer cannot look to an employee’s sexual orientation or gender identity without taking into account the employee’s sex.  As a result, any employment action based on either sexual orientation or gender identity is inherently because of sex, and therefore is not permitted under Title VII.

The Court provided several examples to explain its point. In one that I found most helpful, the Court considered a company that has a policy firing gay or lesbian employees because of their sexual orientation. In the hypothetical, the company has a model employee with whom the company has no issues. The model employee then introduces a woman as the employee’s spouse at a company party. The question of whether the employer will fire the model employee turns on the employee’s sex. If the model employee is a man, the company will not take any action. If the model employee is a woman, the company will fire her based on its policy of not employing anyone who is a lesbian.  The Court noted that although the company’s intention is to fire the model employee because of the employee’s sexual orientation, the company will intentionally treat the employee worse because of her sex in order to achieve its goal.

The Bostock decision is great news for employees everywhere—now private and public sector employees enjoy the same protections, and federal sector employees know that their rights will not change or be undermined. Droste@FELTG.com

Tips From the Other Side: How Long is Too Long to Provide Accommodations … in the Time of COVID?

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By Meghan Droste, July 15, 2020

In last month’s Tips From the Other Side, I covered the factors the Commission uses to determine how long is too long to providing a reasonable accommodation. (Quick recap: It depends, but you should move as quickly as possible. The Commission will look at who caused the delay and what the Agency did in the meantime, so ensure you have clear documentation of the steps the Agency took to provide the accommodation and provide interim accommodations when possible.)

Here’s a follow up question for you: How long is too long in the time of COVID? Or put more precisely, do agencies get a free pass on processing requests for accommodations that are only needed in the office while everyone is working from home? In its COVID-related guidance, the Commission has said no, that’s not quite how it works. Agencies are allowed to prioritize requests for accommodations employees need right now as they telework or for those employees who have continued to work in agency facilities throughout the pandemic. But that does not mean you should just stick all other requests in a drawer until sometime when employees are back at their (office) desks.

The Commission recommends that employers still engage in the interactive process during the pandemic and gather all of the necessary information to process the request. Agencies should, of course, keep in mind that employees may need a lot more time than usual to obtain medical documentation, as doctors may be overwhelmed with other appointments and employees who cannot meet virtually with care providers may have limitations on seeing a provider in person.  Agencies should also use this time to start making arrangements for approved accommodations, such as ordering any necessary equipment as delivery times may be extended due to the pandemic.

For those employees who need accommodations right now — whether for working from home or for those employees at or returning to the worksite — the Commission also recommends considering temporary or interim accommodations without undergoing the interactive process so as to provide accommodations as quickly as possible during this unusual and difficult time. If your agency chooses to do provide these types of accommodations, the Commission recognizes that it may be appropriate to put an end date on the accommodation, such as a specific date or when an employee returns to the office. Once you reach that point, or ideally as you are coming up to the end date, you can check in with the employee about any ongoing or new needs for accommodations and engage in the more traditional interactive process at that time.

The Commission’s COVID-related guidance is available here. I encourage you to read it along with the Commission’s other pandemic-related resources. Droste@FELTG.com

 

EEOC Decisions and Resolution Affirm: Black Lives Matter

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By Meghan Droste, June 17, 2020

No matter where you live, there likely have been protests in or near your city or town in the past two weeks addressing ongoing issues with policing and racial justice. In DC, we have seen large numbers of people brave the current health risks to stand together in support of Black lives. In my opinion, it has been profoundly moving to see such a call to action, even in this uncertain time.

While I won’t use this space to engage in a discussion of these pressing issues, it is important to recognize that race discrimination continues be an issue in the workplace, including in the Federal government. Here are just a few of the decisions from the past two years finding evidence of race discrimination:

Glenna D. v. Department of the Air Force, EEOC App. No. 0720180026 (June 6, 2019): The complainant, who is Black, was the only employee assigned to a lead position at a lower grade (GS-12 instead of GS-13) “and not coincidentally, [was] also the only employee who was not Caucasian.” The Commission upheld the administrative judge’s finding that the agency discriminated against the complainant on the basis of race.

Sol W. v. Department of Defense, EEOC App. No. 0720180018 (August 15, 2018): The agency removed the complainant, who is Black, during his probationary period after he reported misconduct by a white coworker. The Commission reversed the agency’s rejection of the administrative judge’s finding of race discrimination.

Tona C. v. Department of Veterans Affairs, EEOC App. No. 0120151847 (April 4, 2018): The complainant’s supervisor repeatedly referred to the complainant and other Black employees as “ninjas,” telling the complainant, “Ninjas is a term I use for [n-word] who do not deserve a desk job.  A ninja is supposed to be pushing brooms and cleaning toilets.”  The Commission reversed the administrative judge’s grant of summary judgment in the agency’s favor.

Minnie M. v. Department of Veterans Affairs, EEOC App. No. 0120140003 (March 20, 2018): The agency selected three white employees to remain on a more prestigious team while reassigning all of the Black and Asian employees to a less prestigious team. The Commission reversed the administrative judge’s summary judgment, finding there was enough evidence to proceed to a hearing.

Elmer C. v. Department of Transportation, EEOC App. No. 0120150721 (February 15, 2018): The complainant learned during the EEO process that a memo ranking candidates for a position he applied to included the notation “black” next to his name, with no other similar notations for any other candidates.  The Commission found the administrative judge improperly failed to consider this evidence of racial bias when issuing a decision in the agency’s favor without a hearing.

Because of the recent deaths of George Floyd, Breonna Taylor, and Ahmaud Arbery, and, I imagine, in part because there are still complaints like the above, the Commission issued a resolution on June 9, 2020 confirming that it “cannot be silent about things that matter” and stating clearly that “Black lives matter.”  The Commission also resolved to “redouble [its] efforts to address institutionalized racism, advance justice, and foster equality of opportunity in the workplace.”  I encourage you all to read the full resolution, which is available here. Droste@FELTG.com

Tips From the Other Side: How Long is Too Long to Provide Accommodation?

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By Meghan Droste, June 17, 2020

How long is too long to wait? As with so many things that we do in the practice of law, the answer is: It depends. If we’re talking about morning caffeine, an hour might be too long for many of us. If we’re talking about seeing the new TV show that everyone is watching, a day or two might be too long, depending on how good your friends are with not spoiling things. And if we’re contemplating when to get a haircut, well, these days, a month or two might be OK. Context, and what we need, is really key in determining how long is too long.

Continuing our discussion of reasonable accommodation issues from last month, let’s figure out how long is too long to wait to provide an accommodation. Just like the above examples, context matters, and will determine whether there will be a finding that an agency is liable for a failure to accommodate because it waited to provide an accommodation.

The Commission considers five factors in deciding whether there was an improper delay: 1) the reason for the delay; 2) the length of the delay; 3) how much the employee and the agency each contributed to the delay; 4) what the agency was doing during the delay; and 5) whether the accommodation was simple or complex to provide.  See Ruben T. v. Dep’t of Justice, EEOC App. No. 0120171405 (March 22, 2019).

So how long is too long? Two months can be too long when the accommodation is relatively straightforward. See Aldo B. v. Dep’t of Health & Human Servs., EEOC App. No. 0120172838 (February 21, 2019) (two-month delay in providing sign language interpreters). But three months can be OK if the agency has to order special equipment and the delay is because of the manufacturer and not because of the agency. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, No. 915.002 (October 17, 2002) at Q. 10.

The key is to work as quickly as possible and to maintain good documentation of what the agency is doing to provide the accommodation. Not only will this help if there is litigation, but it will also help to ensure that you are accommodating employees in ways that let them perform their jobs as soon as possible. That will be a win for everyone involved. Droste@FELTG.com