EEOC Update Baltimore FEB 2014

1. EEOC UpdateBaltimore FEB 2014 Don Names, Deputy Assistant General Counsel Manpower & Reserve Affairs Department of the Navy

2. 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.

3. 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.

4. 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.

5. 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.

6. Co-worker Harassment • Complainant v. USPS, EEOC No. 0120132144 (11/1/13) • EEOC finds hostile work environment on basis of race (African-American) when co-workers 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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).

13. 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.

14. 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.

15. “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.

16. “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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.