Tips from the Trenches

Every year, the Commission issues dozens of decisions where the main issue on appeal is whether the award of non-pecuniary compensatory damages to the complainant is too high or too low.

As we often talk about in training sessions, no matter how unlikely a finding of discrimination looks when an agency representative first reviews a case file, it is essential to thoroughly assess what the liability for damages could be. Key witnesses may leave federal service and decline to come back to present the agency’s legitimate non-discriminatory reasons, or they suddenly change their stories putting credibility in question, or something happens with the case processing that opens the door to sanctions, including default judgment.

The law vigorously protects our First Amendment right to freely exercise our religion (or lack thereof), and these protections extend into the employment context. Title VII of the Civil Rights Act of 1964 requires employers to accommodate employees whose sincerely held religious beliefs conflict with an employment requirement, unless accommodation poses an undue hardship on the employer. An employer may establish undue hardship by demonstrating that an accommodation would require more than a de minimis cost or would deny another employee his job shift preference in conflict with a bona fide seniority system, such as those outlined in a valid collective bargaining agreement. See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977); see also 29 C.F.R. § 1605.2(e).

In our practice representing federal employees and agencies, one area where we often see missteps from employers involves employee medical documentation. Employers tend to make errors in three key areas:

The EEOC has signaled its focus on eradicating workplace harassment through the creation of the Select Task Force on the Study of Harassment in the Workplace, which reconvened in June 2018, and the issuance of recent decisions finding agencies subjected complainants to harassment. One such recent case, Sallie M. v. USPS, 118 LRP 47676 (10/16/18), was the subject of spirited discussion at the FDR Training last month. It is a great illustration of what agencies need to do in order to establish an affirmative defense to claims of harassment, or in this case, what not to do.

Has your agency faced this situation? After receiving a formal complaint, an agency fails to conduct its investigation within the timeframes set by the EEOC’s regulations. After 180 days have passed, the complainant requests a hearing with an administrative judge and requests sanctions. Now the question is -- will sanctions be granted? What is the most effective way to defend the agency against sanctions?

While some comments by management regarding the EEO process or current complaints may be made with the intention of being funny, they can violate Title VII’s prohibition against reprisal. Managers should learn that comments about EEO complaints and the EEO process are not just inappropriate, they can lead to a finding of retaliation by the EEOC.

The complainant requested a hearing and the parties have already engaged in discovery. The Administrative Judge has set a hearing date, which is closing in. With only weeks -- or even days -- to go before the hearing, the complainant submits a motion to amend. Is this proper? How should the agency respond?

As attorneys who represent both agencies and employees before the EEOC, MSPB, and other administrative forums, we understand that not all complaints filed by employees have merit and may not pose a litigation risk to agencies. However, many cases do have merit. Also, sanctions issued by an administrative judge or the Office of Federal Operations can quickly turn a case from “no way we can lose,” to “this is going to cost us how much?!?”

Those of us who have been practicing before the EEOC for many years remember when the Commission turned its attention to agencies that failed to complete investigations within the 180-day regulatory timeframe and issued default judgments in the Cox and Royal cases. Key in these decisions was the idea that failing to timely investigate these claims undermined the integrity of the EEO process. In 2018, the Commission again turned its focus towards upholding the integrity of the EEO process by issuing sanctions where agencies improperly interfered with EEO investigations by representing and advising responsible management officials.