FEDweek

Class Certification Upheld in Foreign Service Case

On February 19, 2015, the EEOC’s Office of Federal Operations (OFO) issued its decision in Meyer et al. v. Department of State, EEOC Request No. 0520140506.OFO upheld class certification for a claim against the State Department of alleged disability discrimination in hiring for Foreign Service positions.

Class action discrimination complaints procedurally differ from individual discrimination complaints. As the EEOC explains:

For class complaints, there is a four-stage process. The first stage is the establishment of a class complaint. At this stage, the class agent is required to seek counseling from an agency EEO Counselor. The second stage is a determination from a commission administrative judge, subject to agency final action, as to whether to certify the complaint as a classaction. The third stage, assuming that the complaint has been certified as a class action, involves a recommended decision from an administrative judge on the merits of the class complaint, subject to final agency actionin the form of a final decision. The fourth stage, where there has been a finding of class-based discrimination, is the determination of the claims for relief of the individual class members. MD-110, Ch. 8, § I.

The Meyer class action claims that the department engaged in disability discrimination in hiring for career Foreign Service positions–specifically, that it allegedly either refused to hire disabled individuals who did not receive a “Class 1–Unlimited Clearance for Worldwide Assignment” medical clearance, or else delayed the applicants’ appointments pending successful receipt of an agency waiver of this “Class 1” clearance. This policy allegedly violated the Rehabilitation Act by failing to conduct any individualized assessment of possible reasonable accommodation for the applicants’ disabilities, covering all such “Class 1” clearance denials from October 2006 to present.

The OFO’s decision concludes the second stage of its class claim process.Class agency Meyer initiated an individual EEO complaint in November 2006, and then moved for class certification in 2008. An EEOC administrative judge certified the class. In 2010, the agency issued its final decision rejecting class certification.Meyer then appealed to OFO. In a decision issued by the Executive Secretariat (i.e. issued directly by the Commissioners of the EEOC rather than by OFO staff), the EEOC reversed the agency’s final decision and certified the class.Meyer et al. v. Dept. of State, EEOC Appeal No. 0720110007 (June 6, 2014). The agency then requested reconsideration.On request for reconsideration, OFO affirmed the earlier decision, finding that the agency had raised no new arguments warranting reconsideration.OFO accordingly remanded the case to an administrative judge for the third stage (merits determination).

The class in Meyer is represented by Passman & Kaplan Founding Principal Joseph V. Kaplan and by Bryan Schwartz Law.

* This information is provided by the attorneys at Passman & Kaplan, P.C.