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.
Labor Department Sues US Security Associates for Refusing to Comply with Federal Investigation of Employment Practices
OFCCP has filed lawsuits with its Office of Administrative Law Judges to require U.S. Security Associates Inc. to submit documents detailing the company's affirmative action plans for its facilities in Milwaukee, Wisconsin and Portage, Indiana. U.S. Security Associates, based in Roswell, Ga, provides uniformed and trained guards and other emergency responders under federal contract. If the company fails to comply, the Department asks the court to cancel all U.S. Security Associates government contracts and to debar the entire company from entering into future contracts.
The issue of providing OFCCP with access to such information has been affirmed by the courts numerous times. In November 2011, Chief Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia ruled, in a similar case, that "Submission to such lawful investigations is the price of working as a federal contractor."
"Providing OFCCP investigators with access to the documents they need in order to do their jobs is not optional," said OFCCP Director Patricia A. Shiu. "U.S. Security Associates is well aware of its contractual obligation to submit the records we seek, and the company's denial of access at these two facilities is especially perplexing given its cooperation in providing the same documentation in past compliance reviews."
OFCCP settles hiring discrimination case with Parsons Brinckerhoff
OFCCP announced a settlement in a hiring discrimination case involving Parsons Brinckerhoff, a federal contractor responsible for designing, building, operating and maintaining federal facilities and landmarks. The company will pay almost $200,000 to 247 minority workers who were rejected for engineering positions and the company’s headquarters in New York City. The affected class is comprised of 152 Asian Americans, 51 Hispanics, 29 African Americans, 3 Native Americans and 12 individuals who identified as two or more races.
DOL Settles Sex Harassment Case in Puerto Rico
It may be April Fool’s Day, but sexual harassment is no joke. Today, OFCCP announced a settlement with construction company Constructora Santiago in a case involving charges of harassment, retaliation and pay discrimination – including a failure to provide restroom facilities for female carpenters. Constructora Santiago will pay $40,000 to the affected workers and take measures to ensure that this does not happen again.
G&K to Pay Laundry Workers $290K to Settle Wage Discrimination Charges -2014
DOL has reached a settlement with federal contractor G&K Services on allegations of gender-based pay discrimination. An OFCCP investigation determined that G&K officials steered female laundry workers into lower-paying, "light duty" jobs and male workers into higher-paying "heavy duty jobs" – regardless of the respective worker's qualifications. G&K will pay nearly $266,000 to 59 women and almost $24,000 to 331 men who were affected by this unfair practice.
OFCCP Settles Hiring Discrimination Case with Cargill-2014
OFCCP and Cargill Meat Solutions have reached a settlement in a set of hiring discrimination cases at three of the company’s facilities in Arkansas, Colorado and Illinois. Nearly 3,000 African American, Hispanic, Caucasian and female job applicants will share $2.2 million in back wages and interest after OFCCP investigators found that hiring managers at each location used inconsistent and subjective practices to favor one group over another based on race and sex. The settlement also resolves a 2011 lawsuit filed by OFCCP against Cargill for discrimination at its Springdale, Arkansas facility.
Contractor to Pay 3 Female Carpenters Who Were Harassed
Constructora Santiago II Corp., a federal construction contractor in San Juan, Puerto Rico, will make a lump sum payment of $40,000 to three female carpenters who were sexually harassed, retaliated against and denied regular and overtime work hours comparable to those of their male counterparts. The settlement follows an investigation by the Office of Federal Contract Compliance Programs. OFCCP investigators determined that the company violated Executive Order 11246 by discriminating against women in compensation and by permitting sexual harassment and retaliation against employees who complained about a hostile work environment. Additionally, OFCCP found that Constructora Santiago did not provide adequate restroom facilities for female employees and that female workers were subjected to unwelcome, sexually charged comments, teasing, jokes and pressure to go out on dates. "No person — male or female — should have to put up with the degrading and inappropriate treatment these women faced just to get a paycheck," said OFCCP Director Patricia A. Shiu.
RELIGIOUS DISCRIMINATION / RETALIATION
Supreme Court Issues Favorable Ruling on Retaliation Claims
Thanks for this submission by Fisher & Phillips
The Seventh Circuit Court of Appeals, which has jurisdiction in Indiana, recently reversed a district court’s grant of summary judgment for an employer in a religious discrimination case. In a decision underscoring the risks involved in deciding whether to grant a request for a religious accommodation, the court found a jury should decide whether the employee request was religious in nature.
Adeyeye v. Heartland Sweeteners, LLC, No. 12-3820 (7th Cir. July 31, 2013).
The court focused on whether Adeyeye’s request for leave placed Heartland on notice that he desired "religious" accommodation under Title VII of the Civil Rights Act of 1964, as amended. Adeyeye requested unpaid leave to attend his father’s funeral. In his first written request, dated July 19, 2010, he wrote:
I hereby request for five weeks leave in order to attend funeral ceremony of my father. This is very important for me to be there in order to participate in the funeral rite according to our custom and tradition. The ceremony usually cover from three to four weeks and is two weeks after the burial, there is certain rite[s] that all of the children must participate. And after the third week, my mother will not come out until after one month when I have to be there to encourage her, and I have to [k]ill five goats, then she can now come out. This is done compulsory for the children so that the death will not come or take away any of the children's life. I will appreciate if this request is approved.
Heartland denied this request. Adeyeye submitted another request on September 15, 2010 seeking three weeks of unpaid leave and one week of vacation, writing:
I hereby request for my one week vacation and three weeks leave in order to attend the funeral ceremony of my father in my country, Nigeria
—Africa, which is taking place by Oc-tober next month. This is the second time I will inform you and request for this travelling trip from the company but no reply to this matter. Nevertheless, the burial will be taking place by October next month and I have to be there and involved totally in this burial cere-mony being the first child and the only son of the family. I therefore request for this period stated above for this trip and back to my work by November 4th, 2010. Your help towards this matter will be highly appreciated.
Heartland also rejected this request. Adeyeye went to Nigeria anyway, and Heartland terminated his employment.
Under Title VII, an employer must accommodate an employee’s request to participate in a religious observance or prac-tice, if doing so would not cause the employer undue hardship. The court cited a 1965 Supreme Court case, which defined the test for a religious observance or practice as, "whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God." In light of this and other broad definitions of religion, the court con-cluded a reasonable jury could find Adeyeye’s requests gave sufficient notice of the religious nature of his request for leave:
[The] first request referred to a ‘funeral ceremony,’ a ‘funeral rite,’ and animal sacrifice. He explained that participation in the funeral ceremonies was ‘compulsory’ and that the spiri-tual consequence of his absence would be his own and family members’ deaths. A reason-able jury could certainly find that the letter’s multiple references to spiritual activities and
the potential consequences in the afterlife provided sufficient notice to Heartland that Ad-eyeye was making a religious request. The second request was not as specific as the first, but referred to a funeral ceremony and burial ceremony and the importance of his atten-dance as the first child and only son.
The court also concluded Adeyeye presented sufficient evidence that his religious beliefs were sincerely held, that his religious observance caused his termination and that Heartland could not meet its burden of showing that granting unpaid leave would have been an undue hardship. On the last point, Heartland argued that it offered Adeyeye an alternative accommodation in the form of voluntary self-termination with the possibility of being rehired. The court rejected Heartland’s argument:
Heartland had the good sense to relegate this argument to a footnote. It has little to rec-ommend to it. We strain to imagine a situation in which such an offer could be considered an accommodation, nor could we locate a federal court in the country opining that such an accommodation could be reasonable for a religious request. Title VII does not contemplate asking employees to sacrifice their jobs to observe their religious practices. At the risk of belaboring the obvious, Title VII aimed to ensure that employees would
not have to sacrifice their jobs to observe their religious practices. An option of voluntary termination with the right to ask for one’s old job later is not a reasonable accommodation.
There are several takeaways from this decision. "Religion" is an extremely broad concept, and requests for religious accommodation need not mention "religion" or any particular religion (e.g., Islam). Where, in the court’s words, accommodation requests fall outside the scope of "familiar religions," employers should be careful about deciding whether the request is religious in nature. Employers should seek more information if in doubt as to the religious nature of a request. While employers are not neces-sarily required to grant the specific accommodation requested, they should consider how an objective third party would view alterna-tive accommodations—such as the one Heartland proposed.
The foregoing provides an overview of certain legal issues. It is not intended, and cannot be construed, as legal advice for any purpose. For more information contact an attorney in Fisher & Phillips’ Louisville, Kentucky office (502-561-3990).
September 29, 2010
Disability Discrimination Found Against DOD: Denial of Reasonable Accommodation. Complainant was hired as a temporary (one-year appointment) Store Worker, and was responsible for preparing and maintaining stock levels of grocery items. Nine months later, he suffered a heart attack and was required to undergo triple-bypass surgery. The Agency placed Complainant on approved leave during his three month absence. Complainant then returned to work with an indefinite 20 pound lifting restriction. The Agency extended Complainant’s appointment for an additional year, and adjusted his duties to accommodate his lifting restriction. Approximately six months later, Complainant experienced chest pain, and was examined for a possible pulmonary embolism. Complainant’s doctor advised him not to work for five weeks, and restricted him from heavy lifting, and pulling or pushing more than five pounds during that period. After exhausting his leave, Complainant requested Family and Medical Leave Act leave. The Agency, however, terminated Complainant’s appointment, stating that he was unable to perform his duties because of his extended absences.Complainant then filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his disability.
Following a hearing in the matter, the AJ found that Complainant was discriminated against as alleged. The AJ initially determined that Complainant was an individual with a disability based upon the physical limitations he experienced as a result of his heart attack and subsequent complications. The AJ noted that while the Agency initially accommodated Complainant after his surgery by giving him time off, the Agency failed to do so after Complainant’s later setback. On appeal, the Commission affirmed the AJ’s findings. The Commission noted that the evidence showed that Complainant’s request for leave for the pulmonary condition was not the sole consideration in terminating his appointment, and that Complainant’s prior extended absence for his cardiac condition factored heavily into the decision. Complainant’s supervisor testified that he was aware of Complainant’s heart attack and three month absence at the time he proposed Complainant’s removal. In addition, the Agency acknowledged that the decision to terminate Complainant’s appointment was based upon Complainant’s unavailability for work due to his medical conditions.
The Commission stated that Complainant had a record of a disability that had previously been accommodated, and, thus, the decision to terminate Complainant was in large part due to his history of disability-related absences. The Commission noted that an employer may not penalize an employee for work missed during leave taken as a reasonable accommodation. In this case, the Commission found that the agency did just that when it terminated Complainant when he made an additional request for medical leave six months after being accommodated for his heart condition. The Commission rejected the Agency’s assertion that it would have been an undue hardship to accommodate Complainant with additional weeks of leave. The record showed that the Commissary had a large staff, and Complainant’s duties were covered by others after his termination. The Agency was ordered to, among other things, offer Complainant a permanent position as a Store Worker or a substantially equivalent position, with appropriate back pay and benefits, and pay Complainant $4,000 in proven compensatory damages. Ramos v. Dep’t of Def., EEOC Appeal No. 0720090055 (April 12, 2010), request for reconsideration denied, EEOC Request No. 0520100358
ADA Meaning Further Defined
A federal district court in the Northern District of Indiana has held that an employee (Hoffman) with cancer is considered to be disabled under the act, even if his condition is in remission at the time of the alleged adverse action taken by his employer (Carefirst of Fort Wayne Inc.).
Hoffman sued Carefirst under the ADAAA, alleging that his renal cancer—which admittedly was in remission at the time of his firing—was a disability. Carefirst argued that Hoffman was not disabled, based on these facts: Hoffman returned to work without restrictions, worked a full schedule for a year, and did not miss significant time from work during that period.
The ADAAA went into effect on Jan. 1, 2009 and the changes further clarified the requirements of the ADA. However, based on the clear wording of the act , “disability includes impairments “in remission” if the impairment would be a substantial limitation when active,” the court held that Hoffman did not need to show that he was substantially limited in a major life activity at the actual time of his termination, because his cancer would have substantially limited him had it been active. The court found him to be “disabled” for purposes of the ADAAA and denied Carefirst’s motion for summary judgment. Discrimination is to be determined.
Hoffman v. Carefirst of Fort Wayne Inc., N.D.Ind., No. 1:09-cv-00251 (Aug. 31, 2010).
Sexual stereotyping of transsexual leads to $491,190 award
Starting a new life and searching for a new career isn't easy, but Diane Schroer, a highly-decorated veteran, is no stranger to a challenge.
Schroer was an Airborne Ranger qualified Special Forces officer who completed over 450 parachute jumps, received numerous decorations including the Defense Superior Service Medal, and was hand-picked to head up a classified national security operation. She began taking steps to transition from male to female shortly after retiring as a Colonel after 25 years of distinguished service in the Army.
When she interviewed for a job as a terrorism research analyst at the Library of Congress, she thought she'd found the perfect fit, given her background and 16,000-volume home library collection on military history, the art of war, international relations and political philosophy. Schroer accepted the position, but when she told her future supervisor that she was in the process of gender transition, they rescinded the job offer. The ACLU represented her in a Title VII sex discrimination lawsuit against the Library of Congress.
On September 19, 2008, a federal district judge ruled that the Library of Congress illegally discriminated Schroer, in a groundbreaking decision that found that discriminating against someone for changing genders is sex discrimination under federal law. On April 28, 2009, the judge ordered the government to pay $491K in compensation for the discrimination, which was the maximum he could award in the case.
Dept. of Homeland Security (DHS) Found Guilty of Age Discrimination March 2009
The EEOC found the complainant was subjected to age discrimination when officials of the DHS could not specifically explain why a younger individual was selected for a supervisory position over the complainant, who was over 40.
Johnson v. Department of Homeland Security, U.S. Citizenship and Immigration Services, 109 LRP 6719 (EEOC OFO 12/18/08).
Court officer with disability wins large jury verdict March 2009
The District Court entered an order enforcing a $257,000 verdict for a court security officer. The jury found he was a joint employee of the DOJ, and that the Agency discriminated against him based on his disability, a hearing impairment.
Ruiz v. Department of Justice, 109 LRP 7651 (S.D. Tex. 12/11/08).
Court Of Federal Claims Rules Veterans Administration (VA) Nurse Practitioners Could Not Sustain Equal Pay Act Claim
A class of Nurse practitioners employed by the Department of Veterans Affairs (VA) brought suit under the Equal Pay Act (EPA). The Court ruled they could not sustain their claim of being paid lower wages than the VA's physician assistants because of their gender.
The class of nurse practitioners (NPs) was composed of essentially eighty percent females and twenty percent males, while the higher-paid Physician Assistants (PAs) were forty percent female and sixty percent male. Based on these figures, the NPs filed suit contending the NPs and PAs perform fundamentally the same duties but that the predominantly female NPs are paid less, therefore violating the EPA.
The Court of Federal Claims explained that the EPA forbids employers from discriminating between employees on the basis of sex by paying wages to employees at a rate less than the rate at which he pays wages to employees of the opposite sex for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any other factor other than sex.
The VA argued that the EPA was not intended to address pay disparities in mixed gender groups when the gender diversity includes a "substantial" number of both men and women. The court agreed with the VA's position. The Court claimed, “Any other approach to quantifying the ratio of females to males sponsor an application of the EPA to mixed groups. The record on summary judgment presents a situation of two job classifications staffed by both men and women with substantial participation of both sexes in each. The EPA was not intended to remedy such a diffuse situation; rather the EPA addresses unequal pay when the groups are not mixed.” The court granted the VA's motion for summary judgment, ruling in favor of the Agency.
Yant v. U.S., U.S. Court of Federal Claims, No. 08-77C, January 12, 2009
Found at: http://www.uscfc.uscourts.gov/sites/default/files/CMILLER.YANT011209.pdf
AMERICANS with DISABILITIES ACT and THE STRENGTH OF A SENIORITY SYSTEM
In the past, the Department of Labor/OFCCP has taken the stand that an employer’s seniority system typically takes precedence over accommodating the needs of disabled employees….and according to the Supreme Court, that is correct interpretation of the ADA and other disability related laws/regulations.
At least this was the ruling by the Supreme Court involving a baggage handler for US Airways who injured his back on the job. The baggage handler wanted a job in the mailroom but two co-workers with more seniority were placed in the positions before the employee with a disability. The disabled employee filed a discrimination suit charging that US Airways didn't make a "reasonable accommodation" under the Americans with Disabilities Act. (US Airways v. Barnett, No. 00-1250, April 29, 2002)
Although seniority will typically rule, please understand that the employer should be consistent with actions. If the employer has allowed an accommodation to take precedence over seniority in the past, then that employer has changed the policy and should consider all requested in the same manner.
WOMEN: WHERE ARE OUR VOICES?!?! (For information regarding what you can do, go to the "Private Industry" link off this section for Carol's article on Ledbetter)
ADEA: Supreme Court Decides on Age Discrimination Disparate Impact Case
6/19/08 Meacham v. Knolls Atomic Power Laboratory, No. 06-1505
The U.S. Supreme Court placed the burden of persuasion on employers in Age Discrimination in Employment Act (ADEA) disparate impact claims, making it more difficult for employers to defend themselves from ADEA impact claims.
This decision encourages employers to take an analytical approach when deciding the factors for reductions in force (RIFs).
During a layoff, Knolls Atomic Power Laboratory, a contractor with the U.S. Navy allowed a buyout for 100 employees; however, Knolls continued to have 31 salaried jobs which needed to be eliminated.
To make their selections, employees were evaluated based upon three factors (performance, flexibility, and critical skills), along with total years of service. Thirty of the thirty-one employees RIFed were over 40 and a disparate impact class action was filed.
The decision of the Supreme Court was the burden of persuasion falls on the person who wants an exemption (to the ADEA) in the law to apply.
Bottom Line: If an employer is considering a RIF, it would behoove that employer to carefully review the criteria for selecting those who will be released. Ensure that a criterion is objective, with little room for subjective evaluation. Also, it would be beneficial to conduct an Impact Ratio Analysis on the statistics prior to taking action.
ADEA: Supreme Court Rules: Basing Disability Benefits on ‘Pension Eligibility,’ is not discriminatory
June 2009 Ky. Ret. Sys. v. EEOC, U.S., No. 06-1037
The Supreme Court ruled that a state’s disability retirement plan that disqualifies employees in hazardous jobs from receiving disability retirement benefits if they become disabled after reaching age 55 does not violate the Age Discrimination in Employment Act (ADEA).
The Supreme Court held that awarding disability benefits based on pension status is not age discrimination unless pension status is a “proxy for age.”
A benefit program will be reviewed independently, apart from the impact it may have on people who are over 40. If it benefits younger people, the court will look at it further to decide if the distinction is age-determined.
The Court noted that an employee claiming disparate treatment must prove that age motivated the employer’s decision. The Court added that ADEA permits an employer to condition pension eligibility upon age, thus it must be decided whether a plan that lawfully makes age in part a condition of pension eligibility and treats workers differently in light of their pension status, automatically discriminates because of age.
The Court found that in the Kentucky case, pension status did not serve as a proxy for age, and the disparity in treatment had a clear non-age-related rationale of treating a disabled worker as if he/she had become disabled after becoming eligible for normal retirement benefits, rather than before.
The Court concluded,” The rule we adopt today for dealing with this sort of case is clear.” “Where an employer adopts a pension plan that includes age as a factor, and that employer then treats employees differently based on pension status, a plaintiff, to state a disparate treatment claim under the ADEA, must come forward with sufficient evidence to show that the differential treatment was ‘actually motivated’ by age, not pension status.”
SUPREME COURT DECIDES ON RETALIATION CASES
May 27, 2008
The U.S. Supreme Court issued two opinions relating to illegal retaliation, as it pertains to EEO issues. The Court decided retaliation is a valid issue and should be allowed protection, even in Age Discrimination in Employment Act (ADEA) cases.
In Gomez-Perez v Potter, Postmaster General, a45 year old postal worker claimed she was retaliated against after she filed an administrative ADEA complaint. The First Circuit Court of Appeals said that the ADEA prohibits discrimination based on age; however, it does not cover retaliation. The Supreme Court reversed the ruling of the appeals court. For a copy of the decision, go to:
In CGOCS West, Inc. v. Humphries, a minority employee complained to his managers that a co-worker was dismissed because of discrimination (race/black). Soon following his allegations Humphries was terminated and he claimed illegal EEO retaliation for his
expression of concern. The Supreme Court agreed with Humphries. For a copy of the decision, go to:
EEOC SETTLES SEX BIAS CASE WITH STATE CORRECTIONS DEPARTMENT FOR ALMOST $1 MILLION
Corrections Department Provided Lesser Benefits to Female Corrections Officers Who Gave Birth While on Workers’ Compensation Leave
The New York State Department of Correctional Services will pay nearly $1 million to settle a sex discrimination lawsuit filed by the EEOC and the U.S. Attorney for the Southern District of New York, the two offices announced today. The EEOC and the United States had charged the Corrections Department with violating federal law by providing inferior benefits to female employees on maternity leave.
The EEOC suit, filed under the Equal Pay Act of 1963 (Case No. 07-CV-2587 in U.S. District Court for the Southern District of New York), charged that the Corrections Department gave male employees with work-related injuries up to six months of paid workers’ compensation leave. Female employees could be granted the same leave, but pregnant employees on such leave were involuntarily switched to maternity leave at or around the time they gave birth. The Corrections Department’s maternity leave policy requires that women first use their accrued sick or vacation leave with pay; then, if approved, sick leave with half pay and then sick leave without pay.
The EEOC charged that switching women from workers’ compensation leave to maternity leave resulted in lesser benefits for those women due to their sex, violating the Equal Pay Act (EPA). The EPA is a federal law requiring that employers pay men and women equally for equal work.
The U.S. Attorney for the Southern District of New York joined the lawsuit by adding claims under Title VII of the Civil Rights Act of 1964. The U.S. Attorney’s Office alleged that the Corrections Department engaged in a pattern and practice of employment discrimination on the basis of sex as a result of its categorical determination that a female employee who gives birth to a child should be transferred from workers’ compensation leave and benefits without making a determination whether, on an individual basis, an employee continues to be eligible for workers’ compensation leave and benefits.
The court granted final approval of an Order and Stipulation Providing for Injunction and Affirmative Relief, which provides $972,000 in compensatory damages, liquidated damages, back pay and interest to 23 female Corrections employees. The back pay, which includes the value of leave some women were forced to take, has already been paid.
The Corrections Department agreed to several elements of injunctive relief as to all its facilities statewide. It has amended its workers’ compensation directive to provide that no female Corrections officer shall be removed from workers’ compensation benefits due to pregnancy or the birth of a child, and it will provide anti-discrimination training to employees across the state, along with training in the administration of workers’ compensation benefits to its personnel employees. The Corrections Department will also give to each female employee preparing to take a maternity leave a packet of all applicable policies, procedures and benefits.
Think Training Federal Employees About EEO Complaint Procedures Isn't Important? Read on...
June 20, 2007
Torres vs Dept. of Army - Torres, the complainant, alleged he was subjected to unlawful discrimination when an agency official made numerous derogatory remarks about Hispanics. The U.S. Army dismissed the complaint after determining the complainant's EEO contact was beyond the 45-day time limit. On appeal, the EEOC reversed the Army's decision and remanded the case for further processing. The complainant claimed he was unaware of the 45-day time limit for seeking EEO counseling, and the Army did not meet its burden of establishing that he had actual or constructive knowledge of the time limit. Although two EEO counselors mentioned a training course, they did not provide documentation to show the materials covered the limitation period. The agency also did not provide a copy of an EEO posting with the time limit. _______________________________
FEDERAL AGENCIES REQUIRED TO USE EMPLOYMENT VERIFICATION
SYSTEM BY OCTOBER 2007
OMB issued guidance which requires federal agencies to begin using
a new program meant to verify citizenship status for all new hires,
including contractors. The program should be implemented by
October 1, 2007.
According to an OMB memo (M-07-21), the Employment Eligibility
Verification Program, or "E-Verify," which is operated by U.S.
Citizenship and Immigration Services, is meant to confirm employment
eligibility of workers.
Formerly known only as the "basic pilot program," E-Verify allows
employers to verify name, birth date, and Social Security numbers.
For non-citizens, it provides immigration information against federal
databases. The program is also expected to tighten controls on
wage and tax reporting.
Agencies are required to provide a contact person to USCIS by
August 24. For more information, go to:
(you may have to cut and paste this link)
DHS Wins Against Multiple Discrimination Claims Against Hiring Practices
Crawford v. U.S. Dept. of Homeland Security, 5th Cir., No. 06-11387 (Aug. 16, 2007).
A 5th U.S. Circuit Court of Appeals decision shows when an employee seeks to challenge a facially neutral employment practice as being discriminatory, the claim must be statistically supported.
Greta Crawford applied for an immigration inspector position with the U.S. Department of Homeland Security (DHS) in 2002. When contacted for a background investigation/reference, her previous supervisor stated that she was, “prone to explode in tirades of foul language at the slightest provocation, believed the government was out to get her and demonstrated an aggressive distaste for co-workers.” (not exactly what a hiring official wants to hear~)
The investigation also revealed information indicating that Crawford had an arrest record for an assault and conviction record for public drunkenness. The DHS claimed they made a determination Crawford was “unsuitable for employment.” Subsequently, Crawford filed a lawsuit against the DHS, alleging 23 causes of action (including race and gender discrimination) relating to her rejection for the position. A federal district court dismissed the claims before trial and the appellate court affirmed the dismissal.
The court specifically noted (on the Title VII claims) that Crawford presented no direct evidence of discrimination.
The appellate court also determined Crawford failed to show the DHS’s reason for her rejection was pretextual. No weight was given to her claim that the information provided was erroneous, revealing the courts decision that evidence revealing the employer’s investigation came to an incorrect conclusion is insufficient to maintain a claim of discrimination.
The court rejected Crawford’s claim that the facially neutral policy of conducting background investigations have a disparate impact against female and minority applicants in the general population. The court ruled that disparate impact claims must be based on a comparison of an employer’s workforce and the pool of applicants, not the general population.
Finally, the court decided Crawford failed to make the requisite showing that the DHS background investigations were the cause of a statistical disparity based on her race or gender.
Be sure screening factors for employment are legitimate and necessary for the successful performance of the job to ensure your business doesn’t run into disparate impact case. Also, be sure to run numbers on hires and promotions early, to ensure time to correct potential class action concerns.
IF YOU AND I ARE BOTH OVER 40 AND YOU (60 YR OLD) ARE SELECTED FOR A POSITION OVER ME (51 YR OLD) BECAUSE THE COMPANY/AGENCY IS LOOKING FOR SOMEONE OLDER AND WISER, I WILL MOST LIKELY NOT WIN AN AGE DISCRIMINATION CASE
EEOC Revised their Age Discrimination in Employment Act (ADEA) regulations to conform with a recent Supreme Court ruling.
Dianna B. Johnston, EEOC Assistant Legal Counsel, provided this information discussion, to an inquiry whether a company can advertise for older workers (aged 55 and older):
”The EEOC The issuance of formal interpretations or opinions by the Equal Employment Opportunity Commission (EEOC) under the Age Discrimination in Employment Act (ADEA) is discretionary. See EEOC Procedural Regulations, 29 C.F.R. § 1626.20 (b). The EEOC does not generally assess the legality of particular employment practices outside the context of specific charges of discrimination. This is because the appropriate resolution of discrimination charges involves an analysis of facts that differ from case to case. We can, however, provide you with the following general guidance on applicable principles.
The Age Discrimination in Employment Act, which the EEOC enforces, permits employers to advertise for older workers. Previously, EEOC regulations had stated that such advertisements were unlawful but, in 2004, the Supreme Court ruled that the ADEA only prohibits discrimination based on relatively older age and that employers do not violate the ADEA by favoring older over younger workers. General Dynamics Land System, Inc. v. Cline, 540 U.S. 581 (2004). Accordingly, the EEOC’s has amended its regulations to conform to Cline. With regard to job advertisements, the regulations state in relevant part that:
Employers may post help wanted notices or advertisements expressing a preference for older individuals with terms such as over age 60, retirees, or supplement your pension.
See 72 FR 36873, 36875 §1625.4 (July 6, 2007) (emphasis added). Although the ADEA does not prohibit you from advertising for workers age 55 and over, such advertisements may be prohibited by state or local law. Thus, you should contact your Fair Employment Practices Agency to assure that the advertisements do not violate those laws.”
See the EEOC ADEA sheet at: http://www.eeoc.gov/types/age.html
In the case, Cline vs. General Dynamics Land System, Inc., 540 U.S. 581 (2004), employees between the ages of 40 and 49 sued their employer for age discrimination when the employer eliminated its future obligation to pay retiree health benefits for any employee then under the age of 50 years old. Employees age 50 or older were grandfathered by the employer so that their retiree health benefits would be paid. The Supreme Court rejected the claim of the under 40 year old employees, finding the ADEA’s prohibition against age discrimination only prevents discrimination that favors younger workers. It does not prohibit actions that place older workers in a more favorable position, whether or not the younger workers are also in the class.
The EEOC’s revised rules were published in the July 6, 2007 Federal Register, Vol. 72, No. 129, pp. 36873-36875.
Torres vs. DOD/Army - FEDERAL AGENCIES BETTER GET EEO TRAINING IN ORDER TO ENSURE ALL EMPLOYEES ARE FULLY AWARE OF THEIR EEO OBLIGATIONS/RIGHTS
June 20, 2007
The complainant (Torres) alleged unlawful discrimination when a DOD/Army official made numerous derogatory remarks about Hispanics. DOD dismissed the complaint after determining the complainant had not filed the informal EEO complaint within the required 45 days. On appeal, the EEOC reversed the Army's decision and remanded the case for further processing. The complainant claimed he was unaware of the timeframe for seeking EEO counseling, and DOD/Army did not meet its burden of establishing he had knowledge of the timeframe for filing an informal complaint. DOD/Army did not provide documentation to reveal otherwise, including EEO postings.
Bergren vs. DOT – HOW LONG WILL IT TAKE EMPLOYERS TO REALIZE THAT GENDER CANNOT PLAY A ROLE IN THE SELECTION PROCESS (unless the position has a gender BFOQ)?
June 12, 2007
DOT was found guilty of sex discrimination, by not promoting complainant, Bergren (an Air Traffic Control Specialist) to the position of Operations Supervisor. After review of the non-selection procedures and facts, the EEOC determined DOT used gender as a deciding factor in the selection. Make whole remedy should include the promotion and the difference in the compensation between the two positions until being placed into the job.
Sever v. U.S. Postal Service (USPS)- MAKING PHYSICAL THREATS AGAINST CO-WORKERS IS NOT PROTECTED BY EEO DISABILIY LAWS
April 4, 2007
The complainant, Sever, alleged disability discrimination against the USPS based on his mental disability. Sever was terminated after stating that he would “buy a gun and come back,” if he was fired from his job. The agency was entitled to hold Sever to certain "qualification standards" concerning safety, regardless of his disability and the District Court disagreed with the allegations, granting summary judgment in favor of the Postal Service. Sever could not rebut the USPS’s justification that it terminated him for making threats of violence against USPS coworkers.
Dedrick vs. DOD/Army – VIOLENT BEHAVIOR IN THE WORKPLACE WILL NOT BE TOLERATED, NO MATTER THE DISABILITY
February 8, 2007
The complainant, Dedrick, alleged disability discrimination based on his mental disability when he was removed from his general engineer position. Dedrick alleged his disability, “intermittent explosive disorder” prohibited him from stopping erratic behavior, e.g., overturning his supervisor's desk while the supervisor was seated at the desk, then moving on to his own office and throwing his computer equipment and office supplies on the floor, and "kicking things in." The MSPB upheld the petitioner's removal. The EEOC concurred with MSPB’s decision that the removal was justified.
Brockman vs. Dept. of Treasury (DOT) – ALTHOUGH PREGNANCY SHOULD BE TREATED AS A DISABILITY ACCORDING TO EEO REGULATIONS, DON’T EXPECT IT TO BE THE SAME FOR DISABILITY ACCOMMODATIONS
February 13, 2007
Brockman, a program analyst, filed a disability complaint against DOT, alleging DOT denied reasonable accommodations for her pregnancy-related disability. She was placed on bed rest by her physician and was told not to walk long distances (something required by her job). She requested an accommodation under the Rehabilitation Act. Brockman was denied her claim because “she did not suffer from a disability.” The court concluded Brockman did not have a disability which limited her major life activity of “walking.” EEOC’s pregnancy regulations information sheet can be found at: http://eeoc.gov/types/pregnancy.html
RETALIATION FURTHER DEFINED
The Supreme Court could soon clarify the question, "What constitutes a retaliatory employment practice?" The Court's ruling in Burlington Northern Santa Fe Railway Co. v. White, No. 05-259, may answer some crucial questions regarding retaliation for filing EEO claims. How the Supreme Justicies choose to define retaliatory treatment will have a significant effect on discrimination claims against both private industry employers and also government agencies. A strict standard could potentially discourage targeted employees from speaking up about retaliation; however, a broad interpretation could open the EEO door to a signficant increase in unjustified retaliatory complaints.
USDA DOESN'T RESPOND TO EEO COMPLAINT EFFECTIVELY
Logsdon v. Department of Agriculture
The EEOC found the USDA liable for sexual harassment because it responded slow and insufficiently to investigate allegations of discrimination. While the USDA acknowledged that a coworker distributed three sexually explicit, sexually harassing letters about the complainant, they argued the Agency was not liable for the harassment because it took immediate and appropriate action after it had notice of the first letter. EEOC noted the Agency obviously did not effectively deal with the issue since two additional offensive letters were circulated. The EEOC affirmed the AJ's decision.
U.S. Denver Mint Agrees to Settle Sex-Bias Case for $9 Million
April 3, 2006
In a settlement agreement, the U.S. Mint agreed to pay $9 million to female workers at its Denver plant who alleged their bosses demanded sex in exchange for promotions, harassed them and retaliated when they complained.
The settlement will need to be approved by an Equal Employment Opportunity Commission Administrative Law Judge.
Lynn Feiger, the attorney who represented the complainants stated that up to 130 women could share in the settlement if it is approved.
The Mint denies any liability in the case but representatives stated the facility wanted to avoid the expense and delay of EEOC proceedings.
The complaint was filed in 2003 by 32 women who alleged that pornography was openly displayed at the Denver plant and women were subjected to unwanted sexual advances and sexual discrimination by male workers and managers over a period of years.
After the complaint, Mint officials in Washington dispatched a team to search the Denver plant for sexist art and graffiti and to meet with female employees. The Mint also announced a series of changes that included hiring a director for its equal opportunity program, a job that had been vacant for almost two years.
WITH DISABILITY MAY NOT BE CONSIDERED DISABLED UNDER THE LAW
The Department of
Transportation did not subject an employee to disability discrimination
when it removed her after she was medically disqualified from
her air traffic control specialist position. An employee with
a medical condition is not necessarily an individual with
a disability entitled to the protections of the Rehabilitation
Act. To qualify for protection, the employee must provide
specific evidence that she is substantially limited in a major
life activity, she is regarded by the agency as having such
a limitation, or she has a record of such a limitation. Tyson
v. Department of Transportation, 106 LRP 8036 (EEOC 02/10/06).
CIRCUIT SAY PAY DIFFERENTIAL BASED ON PAY HISTORY IS OK
The 7th U.S. Circuit Court of Appeals issued
its decision in the case of Wernsing v. Ill. Dept. of Human
(427 F.3d 466, 7th Cir. 2005). The case has importance because
its impact on the question of legitimate non-discriminatory
differences acceptable under the Equal Pay Act (EPA) (29 U.S.C.
Sec. 206(d)) The 7th Circuit covers the states of Illinois,
Indiana and Wisconsin. In this case, the employee complained
the employer's policy of paying new hires in this public sector
organization at least as much as they were earning in their
position. Wernsing claimed it was an illegal practice because
perpetuated unequal treatment of men and women.
The Court said as long as the difference is based on a reason
other than sex there is no illegal discrimination caused by
employer. If the employer claims that differences in pay between
individuals in the same job is based on wage history, the
burden falls on the complaining employee to show that such
argument is merely pretext for illegal discrimination.
The Court pointed out that Section 206(d)(1)(vi) permits wage
differentials based on any factor other than sex. The Court
is not permitted in this instance, it said, to pass judgment
on the acceptability of the business reason offered by the
employer. It is up to the employee to disprove the employer's
Here is some of what the Court had to say, "[The employee's]
second argument: that because women earn less than men from
private employment, all market wages must be discriminatory
and therefore must be ignored when setting salaries. The
premise is correct; many empirical studies show that women's
wages are less than men's on average...But the conclusion
a non-sequitur. Wages rise with experience as well as with
other aspects of human capital. That many women spend more
years in child-rearing than do men thus implies that women's
market wages will be lower on average, but such a difference
does not show discrimination..."
You will find a copy of the Court's opinion at
Service Cannot Back Up Statement of Hiring the Best Qualified
The record supported
an administrative judge's determination that the U.S. Postal
Service denied a 69-year-old complainant a postmaster position
because of her age and sex. Instead, the agency selected a
younger male candidate who was much less qualified. An agency's
explanation that it chose the most qualified candidate for
a position will not shield it from liability for employment
discrimination if the evidence does not support its assertion.
Miller v. U.S. Postal Service, 105 LRP 48725 (EEOC OFO 09/28/05).
thing EEOC is watching - this further proves how difficult
it is for government agencies to be their own watchdogs for
The EEOC modified
the Department of Air Force decision awarding the complainant
$2,000 in nonpecuniary damages for disability
discrimination. It found $10,000 was a more
accurate compensation for the complainant's nine months of
emotional distress, anxiety and related symptoms. Shobert
v. Department of the Air Force, 105 LRP 38898 - EEOC OFO 08/04/05.
2005 - EEOC ISSUES HISTORIC DEFAULT JUDGMENT AGAINST TSA FOR
FAILURE TO COMPLETE TIMELY EEO INVESTIGATION
Note: This decision by the EEOC is on target. There are many flaws to the federal government's internal
EEO process - timliness is just one.)
The EEOC issued
a highly unusual default judgment against the Transportation
Security Administration (TSA) recently, sanctioning the agency
for its repeated failure to follow the EEOC judge’s orders
to complete it EEO investigation in a timely fashion.
In this case, a TSA security screener alleged unlawful discrimination
based on her pregnancy and disability (gestational diabetes)
when the agency refused to allow her to take regular breaks
to check her blood sugar levels and eat, if necessary, to
bring her levels back to normal. When she was later not selected
for a promotion for which she applied, the screener added
this to her EEO claim as well.
The underlying merits of the case – whether the screener suffered
discrimination – is not what makes this decision remarkable,
however. In fact, the EEOC did not even address the merits
in its decision. Instead, the case is noteworthy because it
is a default judgment against the agency for the agency’s
failure to complete its investigation into the screener’s
allegations of discrimination.
In its decision, the EEOC explained that the screener filed
her formal discrimination complaint on January 8, 2004. On
September 15, 2004, the screener requested a hearing before
an EEOC Administrative Judge because the agency had failed
to investigate her complaint within 180 days, as required
by law. On October 8, 2004, the agency informed the Supervisory
Administrative Judge (SAJ) that it was unaware the screener
had filed a formal complaint and that the agency’s Office
of Civil Rights (OCR) had not completed any investigation.
The agency designated an attorney as its representative on
October 18, 2004.
On November 30, 2004, the SAJ ordered the agency to provide
a copy of the screener’s complaint file within 15 days, noting
that the agency could be subject to sanctions if it failed
to comply. On December 8, 2004, the agency responded to the
SAJ’s order by stating that because the screener’s formal
complaint dated January 8, 2004 was delivered to the Department
of Homeland Security (DHS) General Counsel, it never got forwarded
to TSA for investigation, and that was the reason no investigation
On February 3, 2005, the SAJ ordered the agency to conduct
an expedited investigation and have it completed within 60
days. The order contained a warning that the agency must show
good cause if it could not produce the investigative report
within the required timeframe, and that sanctions up to and
including default judgment could be imposed if the deadline
was missed. The agency missed the deadline. Two weeks after
the deadline passed, the agency asked for an extension, stating
that the agency’s attorney contacted TSA’s OCR to confirm
that the Report of Investigation (ROI) had been sent to the
SAJ, only to learn that the SAJ’s order for an expedited ROI
had never been forwarded to OCR. There was no explanation
given for this oversight. Thus, the decision stated, as of
April 25, 2005, the agency had not begun the investigation.
On May 3, 2005, the screener submitted a motion for the imposition
of sanctions because the agency “had multiple chances to conduct
the required inves
tigation, but failed.” The screener also requested a default
judgment be entered against the agency as a sanction.
The EEOC granted the screener’s request, awarding a default
judgment against the agency. In its decision, the EEOC outlined
seven specific points in time the agency had an opportunity
to “correct its mistakes and conduct the investigation.” But
the agency repeatedly failed to take the required action.
“After all these chances, the Agency still responded and said
it couldn’t get it done because of communication problems
between DHS and TSA,” the decision stated. “This is clearly
an Agency problem and a very serious one. Accordingly, I do
not find that the Agency has shown good cause why the sanction
of a default judgment should not be entered, and thus, I hereby
default the Agency for failing to follow the Orders of the
Commission and the SAJ to complete a timely investigation.”
Because the screener voluntarily resigned from her position
for personal reasons on August 30, 2004 and never requested
any compensatory damages, the EEOC ordered equitable relief.
Specifically, the agency was ordered to pay the screener for
all leave without pay she had to take; any costs associated
with her pregnancy that were not covered by her medical insurance;
and the difference between her salary as a security screener
and a lead security screener from the time of her non-selection
through the date she resigned. The agency was also ordered
to pursue corrective action with the “relevant management
officials,” including a minimum of 8 hours of EEO awareness
training, as well as prominently post a notice of the finding
of discrimination at the agency.
The screener was represented by the American Federation of
Government Employees, which hailed the decision as “historic.”
“Representatives of the Transportation Security Administration
consistently have asserted through their actions and their
words that the TSA is above the laws of the United States.
This decision clearly reaffirms that no agency may violate
the laws that prohibit discrimination in the workplace,” said
Gony Frieder, the AFGE attorney who represented the screener.
The case is Domingo v. Chertoff, U.S. Equal Employment Opportunity
Commission, EEOC No. 340-2004-00589X, August 17, 2005.
2005 - MALE CIVILIAN NAVY POLICE OFFICERS CAN SUE FEMALE SUPERVISOR
FOR SEXUAL HARASSMENT
Two male civilian police officers who work for the Navy can
move forward with their sexual harassment lawsuit against
their female supervisor, but another male supervisor cannot
sue because she was not his boss, a Connecticut federal district
court judge ruled recently.
In this case, three male civilian workers sued their employer,
the U.S. Navy, alleging that a female supervisory police officer
sexually harassed them by creating a hostile work environment.
While a Navy investigation concluded that the female supervisor’s
use of profanity and inappropriate language and behavior on
the job had created a hostile work environment, the department
contended that her behavior did not rise to the level of harassment
under Title VII. The court, however, disagreed, finding that
a reasonable juror could conclude that the two male subordinates
were subjected to an objectively hostile work environment,
and that the harassment was attributable at least in part
to their gender.
As for the male supervisor, though, the court dismissed his
claim, explaining that the female supervisory police officer
was not his boss and therefore, he could tell her to stop
talking to him or simply walk away from her without fearing
any negative repercussions. Accordingly, her treatment of
him did not rise to the level of a Title VII violation.
The case is Anderson v. England, U.S. District Court for the
District of Connecticut, No. 3:03CV116(MRK), March 9, 2005.
2005 - Buttocks Slapping Not Acceptable - $1,000 Worth of
A complainant was appropriately awarded $1,000 in nonpecuniary
damages for the harm she suffered after a male supervisor
hit her on the buttocks. The complainant's evidence fell short
of supporting the larger award of nonpecuniary damages she
sought. Her testimony, combined with that of other witnesses,
did not establish she suffered long-term harm. Lans v. Social
Security Administration, 105 LRP 7611.
The Regulation Doesn't Fit...Don't
Buy Into It
v. U.S. Postal Service, 104 LRP 60927.
The EEOC differed with the MSPB's determination that the agency
did not subject the petitioner to disability discrimination
when it removed him from his tractor-trailer operator position
because he takes antiseizure medication. The EEOC found the
Department of Transportation regulations cited by the MSPB
did not apply to the federal government and were voluntarily
adopted by the agency. As such, they could not be used as
a reason for the agency's failure to individually assess the
petitioner's ability to safely perform the functions of his
February 2005 - Air Force
settles discrimination Case Filed by Non-minority Males
I have been warning agencies and companies for years
now that employment quotas are illegal if they are based upon
a discriminatory basis...gender, race, etc. The Air Force
apparently found out too late. They have agreed to pay $880,000
to nine white male workers at Georgia's Robins Air Force Base
who claimed that a quota system gave preferential treatment
to black and female employees at the base. The Atlanta Journal-Constitution
reported that the Air Force settled the case, which was filed
in April 2002.
Lee Parks, who represented the workers, said the quotas
were part of a system wide problem, however the government
settled on behalf of the nine workers because evidence of
discrimination against them was particularly strong. Lee cited
e-mails from supervisors admitting that they were pressured
by Air Force headquarters and the Pentagon "to increase the
appraisals of blacks and women and decrease those of other
workers," according to the newspaper. "The quota-based performance
process went on for a good number of years and affected hundreds,
if not thousands, of people," Parks said.
Hint: Forget the term, "Reverse Discrimination," as
the term does not make sense. The definition of reverse is: to
turn completely about in position or direction. If you were
to reverse discrimination, you would be eliminating it. Discrimination
against any person based upon race, color, religion, sex/gender,
disability, age, national origin, or special veteran status
is simply put...discrimination. Learn what Affirmative Action
is and what it is not - it is not a quota in employment, unless
the courts have put the agency or company under a consent
decree. For more information, contact us!
of Homeland Security (DHS) gets a lesson in McDonnell Douglas
(burden of proof) ~ Patrick v. Ridge, U.S. Court of Appeals
for the Fifth Circuit, No. 04-10194
is long, but it is an important EEO decision.
In a case in which a Department of Homeland Security (DHS)
employee alleged that she was discriminated against because
of her age, the agency’s statement that the employee was not
“sufficiently suited” for the position she sought was not
specific enough to satisfy the agency’s burden of proof under
McDonnell Douglas, the Fifth Circuit ruled last month.
In this case, the employee charged DHS with age discrimination
and retaliation arising out of the INS’s refusal to promote
her to a GS-13 supervisory position for which she had applied.
Instead, the agency hired one of her co-workers who was more
than 10 years her junior. The employee timely filed an EEO
complaint alleging age discrimination. The position later
became available, and the employee reapplied. The employee
was chosen as one of six finalists to be interviewed for the
job by a three-person panel. The panel ultimately decided
not to offer the job to any of the six finalists, and instead
hired an outside candidate. The employee amended her complaint,
adding new charges of age discrimination and retaliation based
on the hiring of the outside candidate. When the federal district
court granted the DHS’s motion for summary judgment dismissing
the employee’s claims, the employee appealed to the Fifth
The Fifth Circuit reversed the district court’s decision,
concluding that the DHS had not satisfied its burden of producing
a legitimate, nondiscriminatory reason for its employment
decision. Noting that the ruling it was reviewing was one
granting a motion for summary judgment before trial – not
a motion for judgment as a matter of law following a merits
trial or even the completion of the plaintiff’s case – the
Fifth Circuit explained that there was no question the employee
had succeeded in making out a prima facie case of both age
discrimination and retaliation. Thus, under the case of McDonnell
Douglas, the burden then shifts to the employer to produce
a legitimate, nondiscriminatory reason for its employment
decision. But here, said the appeals court, the DHS simply
stated that the employee was not “sufficiently suited” for
the job, without clarifying or expanding on that statement.
The only other statement that was made, said the court, was
a panel member’s statem ent that he evaluated candidates based
not only on work credentials and experience, but also on how
he thought the candidate would fit into the work group. Again,
stated the court, no explanation of what that meant was provided,
and the DHS produced no specifics for why the employee would
not fit in with the group.
“Fatal to the INS’s position here is the well-established
rule that, to meet its burden of production under McDonnell
Douglas, an employer must articulate a nondiscriminatory reason
with ‘sufficient clarity’ to afford the employee a realistic
opportunity to show that the reason is pretextual,” the Fifth
Circuit explained. “This does not mean that an employer may
not rely on subjective reasons for its personnel decisions.
It does mean, though, that to rebut an employee’s prima facie
case, a defendant employer must articulate in some detail
a more specific reason than its own vague and conclusional
feeling about the employee. If the INS believed - and had
verbalized - that [the employee] was not ‘sufficiently suited’
to fill the SRS position because of her experience, credentials,
attitude, or some other such articulable characteristic, the
DHS’s reason might have provided enough detail to enable [the
employee] to attempt to show pretext. In the face of the INS’s
bald and am orphous statement that [the employee] simply was
‘not sufficiently suited,’ however, neither we nor [the employee]
can identify the kind of evidence needed to demonstrate that
such a rank generalization is or is not pretextual.”
In addition, said the court, the INS’s statement that the
employee was not “sufficiently suited” for the job and that
the employee would not “fit in” does not necessarily qualify
as a “nondiscriminatory” reason, since the employer’s subjective
belief that the employee might not fit in could be based on
a protected trait such as age, race, or another protected
activity. Accordingly, the court concluded, “We hold as a
matter of law that justifying an adverse employment decision
by offering a content-less and nonspecific statement, such
as that a candidate is not ‘sufficiently suited’ for the position,
is not specific enough to meet a defendant employer’s burden
of production under McDonnell Douglas. It is, at bottom, a
As for the DHS’s second reason for not promoting the employee
– that the DHS selected the “best qualified” candidate by
choosing the outside applicant – the Fifth Circuit rejected
that rationale as well. It explained that the DHS could not
claim that its nondiscriminatory reason for not promoting
the employee was that it chose the outside applicant instead
because it was undisputed that the outside applicant was not
even under consideration for the job at the time the employee
was denied the promotion. The appeals court acknowledged that
choosing some other candidate because he or she is the best-qualified
individual for the job is generally a legitimate, nondiscriminatory
reason for an adverse employment decision. Here, though, the
court explained that the DHS’s own statements confirm that
it had already rejected the employee before it ever identified
the outside applicant as a potential candidate. Therefore,
the court stated, “We hold as a matter of law that an employer
who offers the relative qualifications of the applicants as
its legitimate, nondiscriminatory reason must show that, at
the time it made the decision adverse to the complaining applicant,
it already knew that the ultimately selected individual’s
qualifications were superior.”
Accordingly, because the employee established prima facie
cases of discrimination and retaliation, and the INS failed
to satisfy its burden of producing a legitimate, nondiscriminatory
reason for its employment decision, the Fifth Circuit reversed
the district court’s decision and remanded the case for further
Line: DHS’S STATEMENT THAT THE EMPLOYEE WAS NOT “SUFFICIENTLY
SUITED” FOR THE POSITION WAS NOT SPECIFIC ENOUGH TO SATISFY
ITS BURDEN OF PROOF IN THIS AGE DISCRIMINATION CASE
ENVIRONMENT PROVEN, BUT NO AGENCY LIABILITY
Racial slurs cause
hostile environment, but VA was not found liable in the case:
Nicholas v. Department of Agriculture, 104 FEOR 53256 (EEOC
OFO 11/04/04).The complainant was subjected to a hostile work
environment because of her race, but the agency avoided liability
because it acted quickly and appropriately to remedy the problem.
Nicholas v. Department of Agriculture, 104 FEOR 53256.
mocking memo makes work environment hostile
The EEOC affirmed an administrative judge's determination
that the agency was liable for a race-based hostile work environment
when stereotypically altered versions of a memo were posted
in common areas and placed in several employees' mailboxes.
The complainants established a prima facie case of race discrimination
because the language used in the altered memos was "designed
to depict ignorant African-Americans by using stereotypical
ebonics" and the posting in the common area was sufficiently
severe to create a hostile work environment. The agency had
no defense to liability because there was a significant delay
before the facility's warden took any action. Flowers v. U.S.
Postal Service, 104 LRP 47084.
Manager Doesn't Get It
DOT approving official
excludes African-American men
An EEOC AJ did not err in finding the complainant was subjected
to race discrimination when he was not selected for a mediator
position and to retaliation for EEO activity when he was denied
a superior contribution increase award. The complainant was
entitled to $50,000 in nonpecuniary damages. The agency claimed
it chose the most qualified candidate. However, the evidence
established that the approving official had animosity toward
African-American men and manipulated the selection process
to exclude them. McMillian v. Department of Transportation,
104 LRP 44943.
falls short after alleged harassment by aircraft
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.
Incurs Liability in EEO Case Involving Medical Accommodation
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.
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" their administrative rights to file
is appropriate where the U.S. Postal Service insisted on
the exhaustion of administrative remedies, but effectively
employee from using those remedies, a federal district court
The case began on September 19, 2002, when a U.S. Postal Service
Service Supervisor had a physical altercation with a co-worker,
consuming large amounts of alcohol during his lunch break.
thereafter, on September 25th, the Postal Service told the
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
appeals in any administrative forum, including EEO and MSPB
agrees not to file any future appeals in any administrative
including EEO and MSPB, concerning his employment and/or this
agreement.” While the agreement referenced “current appeals,”
apparently no administrative proceedings pending at the time
agreement. Given the choice of being fired or resigning, the
chose to resign, and signed the agreement.
Subsequently, however, the supervisor filed a complaint in
district court, claiming that he was forced to resign in violation
Rehabilitation Act. He further alleged that he had been diagnosed
suffering from a disability, namely alcoholism, depression
that his behavior on September 19th was directly caused by
and that he should have been given a reasonable opportunity
rehabilitation. In responding to the supervisor’s district
complaint, the Postal Service pointed out that under the pertinent
the supervisor should have exhausted his administrative remedies
filing suit. Specifically, the Postal Service claimed that
should have either filed a complaint with the agency’s Equal
Opportunity office or appealed to the U.S. Merit Systems Protection
and that he could not proceed with the action in federal district
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
him from filing administrative appeals, and then arguing that
suit could not proceed because he had not exhausted his administrative
remedies. Noting that equitable relief is appropriate “where
misleads or misdirects a claimant so as to prevent the claimant
seeking an administrative remedy,” the court found that equitable
was proper in this case. “This is not to say that the Postal
barred from reaching a settlement with [the supervisor] in
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
which it effectively prevented him from using.” Accordingly,
declared the provision in the resignation agreement barring
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,
discrimination leads to $5,000 award
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.
Gay Discrimination Policy Affirmed (3/04)
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)
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,
and Age Discrimination in Nonselection ~ VA
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
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,
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
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).
Harassment by Co-Worker ~ Social Security
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.
EXAMPLE OF HOW GOOD TRAINING AND FAST ACTION CAN ELIMINATE
OR REDUCE LIABILITY IN EEO CLAIMS:
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.
IRS fails to stop decade-long
stop sexual harassment by coworker
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
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.
Bureau (NPC) Ordered to Pay Female Employee $50,000 by EEOC
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).
Law - Fitness for Duty (USPS)
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).
Law - Reasonable Accommodation (USPS)
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).
Bureau of Prisons Grievant Claims Assignment Decision Violated
his Civil Rights.
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.
FOR BOTH PRIVATE INDUSTRY AND GOVERNMENT
COURT SAYS OLDER WORKERS CAN BE TREATED BETTER THAN YOUNGER
WORKERS ~ March 2004
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.
however, before revising your retirement packages without
first consulting legal advisors. There could be impact on
the Employee Retirement Income Security Act (ERISA)
REQUIREMENTS FOR MANAGEMENT AND EMPLOYEES:
Proposition 54 Rejected - October 2003
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
Agree With Employer Who Banned Confederate Flag From Workplace
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.
A NUTSHELL: Recent OFCCP Settlements in Southeast
- Perdue Farms, Dillon, South Carolina
- Affected Class (hiring) (gender and race) - Total $1.7
- Jimmy Dean Foods, Newbern, Tennessee
- Affected Class (hiring) (gender-women) Total
- Oliver Rubber, Asheboro, NC - Affected
Class (gender - women) - Total $336,324
- McKesson Atlanta Distribution Center,
Atlanta, GA - Affected Class (hiring) (gender - women) -
- Boise Cascade, Charlotte, North
Carolina - Affected Class (hiring) (race - minorities) Total
- The Medical University of South
Carolina (MUSC), Charleston, SC - Disparate Impact (gender-women)
- Pictsweet Frozen Foods, Bells, Tennessee
- Affected Class (hiring) (black and white Applicants)-
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).
Employers are responsible for establishing effective sexual
harassment policies and training employees and managers to
fully understand requirements.
Hut to Pay $360,000 for Settlement of Sexual Harassment Complaint
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
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.
Wins $1.55 Million Dollar Jury Verdict in Sexual Harassment
Suit Against Florida Restaurant
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.
Supreme Court Decides On Constitutionality of Gay Sex Law
April 24, 2003, the Supreme Court struck down a ban on gay
sex, ruling that the law was an unconstitutional violation
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.
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.
Court Upholds Affirmative Action as “Compelling State
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
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.
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."
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.
2003 EEO Guidance, Inc.® ~ Carol A. Dawson
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
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."
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,
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
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.