Fedweek Legal

The Equal Employment Opportunity Commission recently held that an employee need not follow an agency’s “chain of command” in reporting discrimination, and that the IRS committed per se reprisal when it repeatedly disciplined the complainant after she voiced EEO complaints to agency leaders. Complainant v. Jacob J. Lew, Secretary, Department of the Treasury, Appeal No. 0120122603 (May 8, 2015). The Commission did not sustain any of the complainant’s other claims of discrimination and harassment.

The complainant’s supervisors disciplined her after she voiced concerns about EEO issues to high-level officials. The discipline included two counseling memoranda directing her to “follow her immediate chain of command instead of bringing these issues to agency Leadership” and a 10-day suspension. In addition, the agency also directed the complainant to teach a class to her colleagues on the “importance of complying with the chain of command.”


The EEOC ruled that these disciplinary actions comprised reprisal discrimination because the complainant had engaged in protected EEO activity by opposing discrimination by “explicitly communicating to her employer a belief that the agency’s activities constitute employment discrimination.” The Commission also noted that the agency’s actions would be likely to have a chilling effect on the EEO process, as it would likely deter others from opposing discrimination, and deter individuals who believe they are subjected to unlawful harassment by their immediate supervisors from raising the matters to higher level officials.

This decision is an important reminder that Title VII protects federal employees who engage in the EEO process, and that agencies may not discipline or otherwise interfere with or retaliate against an employee who seeks to communicate with high-level agency officials regarding allegations of discrimination.

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