Art of Resolution

Those of us who are familiar with Federal-sector EEO processing know that EEOC has found that discrimination based on sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964, despite the fact that Title VII does not explicitly include sexual orientation or gender identity in its list of protected bases. It articulates its reasons in the Baldwin v. Department of Transportation decision EEOC Appeal No. 0120133080 (July 15, 2015). The Department of Justice disagrees maintaining Title VII does not protect against sexual orientation or gender identity discrimination.   The Supreme Court will be taking up this issue when it hears three LGBTQ-realted discrimination cases, as discussed in this New York Times Article:

In January 2019, HR-135 was reintroduced and passed the House of Representatives.  The bill is called the Federal Employee Antidiscrimination Act of 2019, and it amends and strengthens the No FEAR Act of 2002.  In its current form, the bill has a few interesting provisions:

1. Agencies have to report to EEOC whether disciplinary action has been initiated against a federal employee as a result of the finding of discrimination (either a final action or appellate decision)
2. The agency must include a notation of the adverse action and the reason for the action in the employee’s personnel record after all appeals have been exhausted.
3. The EEO program must not be under the control, either structurally or practically of a Human Capital or General Counsel office. 
4. An agency’s Human Capital or General Counsel office is not prohibited from providing advice of counsel to Federal agency personnel on the processing and resolution of a  complaint, including providing legal representation to a Federal agency in any proceeding. 
5. The head of each Federal agency’s Equal Employment Opportunity Program shall report directly to the head of the agency.

Provision 4 seems to be at odds with EEOC’s guidance MD-110 regarding the separation of EEO complaint program and agency’s defensive function.  However, provisions 3 and 5 would strengthen EEOC’s guidance.  

We are keeping an eye on the bill and will send an update if and when it passes the Senate.  

The text of the bill is here: https://www.congress.gov/bill/116th-congress/house-bill/135/text

-By Katie Scherner, January 30, 2019

As an intern for Art of Resolution, I have grown to admire its CEO, Rosa Franco. I had the pleasure of interviewing Rosa recently about a variety of topics, including career advice, and her views on some hot topics in the world of EEO and diversity. Click below for the interview.

If you are a certified EEO counselor with at least 2 years of experience, please send your resume, your original certificate and refresher certification to admin@artofresolution.com.  We periodically have a need for EEO counselors who are able to conduct complex Federal EEO counseling within 30 days from date of assignment.  In addition to the technical expertise, we are looking for the following skills:

• High proficiency in Microsoft Word, and Adobe Pro (or similar PDF creator);
• Exceptional time management skills;
• Experience working in a shared drive;
• Ability to follow instructions;
• Open to receiving feedback from a reviewer; and
• Experience applying a wide variety of resolution and facilitation techniques to the EEO dispute under counseling.

Most counselings are conducted telephonically.

Our ideal candidate is available during normal business hours does in order to be able to conduct counseling within the 30-day timeframe.

If you have any questions or are interested, please contact us at admin@artofresolution.com

If you are interested, please send your resume to:   admin@artofresolution.com

Here is a summary of the decision…

Complainant filed an EEO complaint alleging, among other things, that his supervisor made remarks about his EEO activity. On appeal, the Commission found that the supervisor’s actions constituted retaliation. Complainant engaged in protected EEO activity when he contacted an EEO counselor, and the supervisor was aware of that activity. The supervisor then contacted Complainant and made a number of comments about Complainant’s EEO activity including that an email he received regarding the matter was “weighing on [his] mind.” The supervisor acknowledged asking Complainant why he had filed when he did and stating Complainant “pulled the trigger too soon.” The supervisor also stated that the EEO process was probably “not the most enjoyable path for anyone involved.” Further, he appeared to offer Complainant an incentive for withdrawing from the EEO process, by telling him that, if rumors of changes in management occurred and he had a good evaluation in hand, he, the supervisor, would have another conversation with senior management about a position for Complainant. The Commission found that the supervisor engaged in conduct that was designed to intimidate and/or interfere with Complainant’s EEO activity, and the supervisor’s comments would be reasonably likely to deter employees from exercising their EEO rights. The Commission affirmed the Agency’s finding of no discrimination regarding the remaining allegations in the complaint. The Agency was ordered, among other things, to investigate Complainant’s claim for damages, and provide training to the supervisor. Octavio C. v. Dep’t of the Interior, EEOC Appeal No. 0120150460 (Aug. 16, 2017).

 Complainant requested to change to a later shift or be allowed to report one hour later as a reasonable accommodation. Following a hearing, the AJ found that the Agency accommodated Complainant by allowing him to report to work one hour later and use one hour of leave. On appeal, the Commission disagreed with the AJ’s conclusion that the Agency met its reasonable-accommodation obligation, noting that forcing an employee to take leave when another accommodation would permit an employee to continue working a full day is not an effective accommodation. In this case, there was an alternative accommodation that would have allowed Complainant to continue working a full day, specifically allowing Complainant to report for work one hour later and work a full day, and the Agency did not show that it would have incurred a significant difficulty or expense if it had allowed Complainant to do so. There was no evidence that this proposed schedule change would have been unduly disruptive to other employees. The Agency’s assertion that allowing Complainant to report to work one hour later would not be fair to the other employees did not establish undue hardship. Consequently, the Commission found that the Agency denied Complainant a reasonable accommodation when it refused to permit him to report to work at the later time. The Commission separately affirmed the AJ’s finding of no discrimination regarding Complainant’s termination during his probationary period. As a remedy for the Agency’s failure to provide a reasonable accommodation, the Commission ordered the Agency, among other things, to investigate Complainant’s claim for damages, and provide applicable training to the responsible management officials. Lloyd E. v. Dep’t of Transp., EEOC Appeal No. 0120150325 (Aug. 17, 2017).

The Commission found that the Agency discriminated against Complainant based on her disability when it asked Complainant to remove a Crown of Thorns from her cubicle. The Agency did not dispute Complainant’s assertion that other employees were allowed to have religious symbols at their desks. While a supervisor stated that Complainant’s co-workers complained, the Agency did not present any statements from co-workers to corroborate this assertion. The Commission found that the Agency asked Complainant to remove the item because of the perception that Complainant was “unstable” and the Crown could be used as a weapon. Based upon the record, however, the supervisor had no more reason to believe that Complainant would become violent than any other employee. The Commission concluded that the supervisor’s decision appeared grounded in stereotypes about people with mental health conditions, and the Agency conceded that it directed Complainant to remove the Crown based upon the alleged perception by co-workers about Complainant’s condition. The Commission affirmed the Agency’s finding that it did not deny Complainant a reasonable accommodation, and found that Complainant failed to prove her claim of harassment. The Agency was ordered, among other things, to investigate Complainant’s claim for compensatory damages, take steps to ensure that all disability discrimination ceases and desists in the facility, permit Complainant to display the Crown of Thorns in her workspace, and provide training for management officials at the facility. Matilde M. v. Soc. Sec. Admin., EEOC Appeal No. 0120140147 (Jan. 17, 2017) .

This recent settlement of a class action disability discrimination lawsuit highlights the importance of employers not having a blanket policy that bars employees with medical restrictions from returning to work without an interactive dialogue to determine if they could have been returned to work with a reasonable accommodation…

PRESS RELEASE
11-20-17

American Airlines and Envoy Air to Pay $9.8 Million to Settle EEOC Disability Suit

Airlines’ Policies Discriminated Against Disabled Employees, Federal Agency Charges

PHOENIX – American Airlines and Envoy Air will pay $9.8 million in stock, which is worth over $14 million if cashed in today, and provide other significant relief to settle a nationwide class disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC’s suit said the airlines unlawfully denied reasonable accommodations to hundreds of employees.

“This matter highlights the critical role of the Americans with Disabilities Act in getting people back to work as quickly as possible,” said EEOC Acting Chair Victoria A. Lipnic. “The parties deserve credit for working diligently to bring this matter to resolution.”

According to the EEOC’s suit, American and Envoy violated federal law by requiring their employees to have no restrictions before they could return to work following a medical leave. Under this policy, if an employee had restrictions, American and Envoy refused to allow them to return to work and failed to determine if there were reasonable accommodations that would allow the employee to return to work with restrictions.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability and also requires an employer to provide reasonable accommodation to employees with disabilities unless doing so would cause significant difficulty or expense for the employer. If employees with disabilities are not able to do their current job, even with a reasonable accommodation, employers are obligated to look for a reassignment to another position for those employees.

The EEOC filed suit in U.S. District Court for the District of Arizona, Civil Action No. 17-cv-04059-SPL, after first attempting to reach a pre-litigation settlement through its conciliation process and continued negotiations prior to filing suit. The consent decree resolves the EEOC’s lawsuit and several charges of discrimination filed by individuals with the EEOC. The systemic investigation was conducted by the EEOC’s Phoenix District Office.

In addition to the $9.8 million in stock, the two-year decree includes injunctions against engaging in any future discrimination or retaliation based on disability, and requires the companies to adopt policies that ensure reasonable accommodations are provided to persons with disabilities. American and Envoy will provide mandatory periodic training on the ADA to employees. The settlement applies to all American and Envoy employees throughout the country.

EEOC Deputy General Counsel James L. Lee said, “We are pleased the parties were able to resolve this important case without resorting to prolonged and expensive litigation, and we are proud of the Commission’s long record of protecting people with disabilities from workplace discrimination.”

Elizabeth Cadle, district director for the Phoenix office, added, “This settlement demonstrates the need for employers to have good ADA policies. That means policies which consider employers’ obligations to provide reassignment without competition as a reasonable accommodation for employees with disabilities who become unable to do their current job even with accommodations.”

EEOC Regional Attorney Mary O’Neill added, “This consent decree is the result of productive and thoughtful negotiations with American. We appreciate American and Envoy working with the EEOC to reach a settlement. In addition to providing meaningful monetary relief for hundreds of former employees, the settlement contains important equitable relief, including company policy changes and training designed to provide people with disabilities equal opportunities in the workplace.”

https://www.eeoc.gov/federal/digest/vol_4_fy17.cfm#article