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EEOC Update
Baltimore FEB 2014
Don Names, Deputy Assistant General Counsel
Manpower & Reserve Affairs
Department of the Navy
Parade of Cases!
• How to analyze allegations of harassment.
• Lessons to be learned from the EEOC's
recent decisions addressing disability
issues.
• Trends in EEOC decisions addressing
gender stereotyping.
• Retaliation, including chilling conduct.
• Remedies in EEO cases.
Stating a Claim of
Harassment
Arganda v. USPS, EEOC Appeal No.
0120122328 (6/20/13)
Supervisor urinating in vehicle in front of
complainant and stating “I got it on ice”
states claim of harassment.
Single incident may state claim of
harassment if sufficiently egregious… “this
is one of those cases.”
Note: being “male” is not “genetic
information” for purposes of GINA.
Sexual Harassment
Willis, Sampson & Bosley v. USPS, EEOC
No. 0120120339 (8/20/13).
Complainants alleged sexual harassment
by co-worker due to his attire, which
significantly outlined and occasionally
exposed his penis.
EEOC found that management was aware
of this, that a reasonable person would
find this to be a hostile work environment,
and the agency failed to take immediate
and appropriate corrective action.
Supervisory Harassment
Complainant v. Social Security
Administration, EEOC No. 0720120009
(11/24/13)
EEOC finds hostile environment based on
race (African-American) and sex when
supervisor continuously mocked and
stereotyped African-American females.
Harassment included a tangible
employment action, thereby precluding
affirmative defense under Supreme Court
Faragher and Ellerth decisions.
Co-worker Harassment
Complainant v. USPS, EEOC No.
0120132144 (11/1/13)
EEOC finds hostile work environment on
basis of race (African-American) when coworkers wear shirts featuring the
Confederate flag several times a month.
Agency was aware of the activity but
failed to take immediate and appropriate
corrective action, and was therefore found
liable.
Reasonable Accommodation
Denied
Blocher v. VA, EEOC No.
0120111937 (4/17/13)
Agency assertion that
supervisors may not telework
not sufficient to support denial of
request for accommodation.
Improper Disability-Related
Inquiry
Bozeman v. USPS, EEOC No.
0120120923 (5/3/13)
Pre-employment inquiry by
selecting official regarding
complainant’s medical
restrictions violates
Rehabilitation Act.
Rehabilitation Act’s
Confidentiality Provisions
Complainants v. USPS, EEOC Nos.
0120123252 et al. (10/24/13)
EEOC finds agency posting of
complainants’ medical information on
database available to all supervisors a per
se violation of Rehabilitation Act’s
mandate that all employees’ medical
information be kept confidential.
Fitness for Duty Exam
Sanders v. USPS, EEOC No.
0120130214 (04/03/13)
No violation of restrictions on
disability-related medical exams
when complainant posed direct
threat due to medical condition.
Failure to Provide
Reasonable Accommodation
Smith v. USPS, EEOC Appeal No.
0720090050 (9/17/13)
EEOC finds failure to reasonably
accommodate when agency terminates
reassignment and returns complainant to
workplace which triggered mental
impairments.
OFO affirms AJ award of $120,000
damages, and sanctions agency for failure
to produce portions of record on appeal.
Harassment on Basis of Sex:
Gender Stereotypes
Couch v. Department of Energy, EEOC No.
0120131136 (08/13/13)
Co-workers repeatedly referred to
complainant as “fag”, “faggot” and “gay.”
EEOC finds complainant subjected to
harassment on basis of sex (gender
stereotypes of masculinity).
Sexual Orientation Not
Protected Basis
Complainant v. Department of Health and
Human Services (CDC), EEOC No.
0120123000 (11/14/13)
Agency’s dismissal of allegation of
discrimination when she was referred to
by co-worker as a lesbian was affirmed by
EEOC on appeal.
EEOC noted there was no indication that
she was subjected to sex stereotyping
discrimination.
Harassment: Complainant is
Gay and Frequents Gay Clubs
Brooker v. USPS, EEOC No. 0520110680
(5/20/13)
EEOC finds ongoing co-worker comments
that Complainant is gay and frequents gay
clubs and bars states a claim of
harassment.
Commission notes that complainant is
alleging harassment on basis of sex, not
sexual orientation, and therefore the claim
is covered by Title VII.
“Cat’s Paw” Theory Used to
Prove Retaliation
Complainant v. Department of Veterans
Affairs, EEOC No. 0120110544 (9/23/13)
EEOC finds retaliation in non-selection,
notwithstanding selecting official’s lack of
knowledge of complainant’s protected EEO
activity, imputing retaliatory animus of
complainant’s supervisor to selecting
official using “cat’s paw” theory.
“Per Se” Retaliation
King v. International Boundary
and Water Commission, EEOC
No. 0120112384 (3/19/13)
Supervisor informing coworkers
of complaint reasonably likely to
deter protected activity.
More “Per Se” Retaliation
Complainant v. Department of Defense,
EEOC No. 0120132212 (11/08/13)
Supervisor’s comments that “EEO’s are
crap,” “EEO people are crazy,” and “Don’t
be afraid of EEO’s, they’ll go away” found
to be reasonably likely to deter protected
activity.
Finding “per se” violation, EEOC rejects AJ
finding of no unlawful retaliatory animus.
Yet More “Per Se” Retaliation
Beckham v. Department of the Treasury
(U.S. Mint), EEOC No. 0120112323
(05/22/13)
After learning complainant had filed EEO
Complaint supervisor states she “would
have to document more fully what we said
in meetings and that might result in trust
concerns.”
EEOC finds comments reasonably likely to
deter protected activity.
And yet More “Per Se”
Retaliation
Gordon v. Department of the Army, EEOC
No. 0720120040 (8/27/13)
Supervisor statement that complainant
must use annual leave to file EEO
complaint found by EEOC to be reasonably
likely to deter protected activity.
Remedy included $16,000 compensatory
damages.
Contractor NOT Federal
Employee
Murphy v. Department of Veterans Affairs,
EEOC No. 0120132014 (9/17/13)
EEOC finds that contractor, who met the
majority of the factors generally
considered as establishing a joint
employment relationship, was
nevertheless not a federal employee for
Title VII purposes because the contractor
continued to employ him after the agency
terminated his services.
Offer of Resolution
Williams v. Department of Veterans
Affairs, EEOC No. 0120123334 (08/15/13)
Following investigation of sexual
harassment complaint, agency’s offer of
resolution in amount of $48,000 rejected
by complainant.
Amount awarded by EEOC not more
favorable than offer, cutting off attorney’s
fees incurred after expiration of offer.
Posting as Remedy
Complainant v. Department of Veterans
Affairs, EEOC No 0720130007 (11/02/13)
The agency accepted an AJ finding of age
discrimination in non-selection, but
appealed the AJ order to post a notice on
its website of the ADEA violation.
EEOC agreed that the posting is typically
at “the affected facility,” absent
justification for a wider posting, and
modified the AJ order.
No Damages When Not
Proven at Hearing Stage
Cheves v. Department of Veterans Affairs,
EEOC No. 0120113641 (8/21/13)
EEOC AJ finds retaliation in 7-day
suspension and PIP, and agency fully
implements finding.
Complainant appeals, seeking damages.
EEOC denies appeal, noting that
complainant asserted damages at hearing
but failed to present evidence at hearing
to support his claim.