EEO Logic >> We Help You Navigate the Maze

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.

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" there 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.

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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.

Complainant's disqualification is not disability discrimination ~ Homeland Security

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.

Perdue Farms, Dillon, South Carolina - Affected Class (hiring) (gender and race) - Total $1.7 million
Jimmy Dean Foods, Newbern, Tennessee - Affected Class (hiring) (gender-women) Total $1,140,000
Oliver Rubber, Asheboro, NC - Affected Class (gender - women) - Total $336,324
McKesson Atlanta Distribution Center, Atlanta, GA - Affected Class (hiring) (gender - women) - Total $156,215
Boise Cascade, Charlotte, North Carolina - Affected Class (hiring) (race - minorities) Total $181,718
The Medical University of South Carolina (MUSC), Charleston, SC - Disparate Impact (gender-women) Total $115,720
Pictsweet Frozen Foods, Bells, Tennessee - Affected Class (hiring) (black and white Applicants)- Total $2,388,059

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.

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