EEOC Upholds Sexual Orientation Claim

For years retirees and survivors have been advised to call OPM if they have a question or a problem writes benefits expert Reg Jones. “While you can still call OPM, they have developed an online system that can handle many of your requests on demand.” he writes. You’ll find his column at www.fedweek.com

Federal Legal Corner: EEOC Upholds Sexual Orientation Claim
The EEOC reaffirmed the view that claims of discrimination based on an individual’s non-conformity with traditional gender stereotypes are actionable under Title VII of the Civil Rights Act. In Appeal No. 0120132452 (November 18, 2014), the EEOC reversed the agency’s dismissal of the complainant’s case, finding that the complainant, a postal employee, stated an actionable claim of sex discrimination with his allegations that colleagues mocked him with anti-gay slurs and comments.

The Commission noted that many courts of appeals as well as the Commission itself now recognize that Title VII’s prohibition of discrimination on the basis of sex includes discrimination on the basis of “gender,” i.e., claims based on discrimination “because an individual fails to conform to gender-based expectations, stereotypical or otherwise.” Here, the Commission found that the co-workers –allegedly encouraged by the supervisor—used words held to be particularly offensive, insulting, and degrading sex-based epithets against gay men.

The Commission vacated the agency’s dismissal and returned the case to the agency for further processing. It Commission found that the agency violated Commission regulations by failing to develop an impartial and appropriate record, specifically by failing to obtain affidavits from five out of six witnesses the complainant named. The agency had requested affidavits from only four of six co-workers, and did not follow up with the three co-workers who failed to return their affidavits.

The Commission reiterated an agency’s “affirmative obligation to ensure that its employees cooperate with the investigation into the Complaint.” The Commission specifically ordered the agency to conduct a supplemental investigation obtaining sworn affidavits from all employees who previously failed to cooperate as well as any witnesses identified by the complainant in an earlier, related complaint; ordered the agency to obtain sworn affidavits from all persons present at the meeting where a supervisor made certain comments; and ordered the agency to obtain a rebuttal statement from the complainant.

In addition to reiterating the Commission’s commitment to enforce the law prohibiting gender-stereotyped-based sex discrimination, this decision is an important reminder that agencies are obliged to conduct thorough investigations of discrimination claims and face consequences for shirking that duty.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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