By Deryn Sumner

On June 1, 2016, the EEOC’s Office of Federal Operations certified what appears to be the first federal sector EEO class action of 2016 in Candice B., et al. v. Dep’t of Homeland Security, EEOC No. 0120160714 (June 1, 2016).  The Commission reversed the agency’s final action which had accepted the administrative judge’s denial of class certification.  Instead, addressing the four requirements for class complaints (commonality, typicality, numerosity, and adequate representation (although that was only summarily addressed)), the Commission certified a class of women challenging the Department of Homeland Security’s push-up test requirements as being discriminatory against women seeking to become permanent Customs and Border Protection Officers.

In October 2009, the Department of Homeland Security implemented new physical fitness standards for Customs and Border Protection Officers, which included push-up requirements.  The cut-off scores were the same for both male and female applicants and the tests came in three stages of the employment process. (For you fit FELTG newsletter readers wondering how you would stack up, applicants had to complete 12 push-ups in a minute to pass the first fitness test, 17 push-ups in a minute to pass the second, and 24 push-ups in a minute to graduate from the Federal Law Enforcement Training Center (FLETC)).

The class agent passed the first two tests and started basic training at FLETC.  However, she was unable to pass the third test and the Agency terminated her during her probationary employment.  She sought EEO counseling, alleging discrimination based on sex.  After she filed a formal complaint, received an investigation and requested an EEO hearing, she filed a Motion for Class Certification, which the administrative judge denied.  The administrative judge found the class agent did not meet the requirements of typicality, commonality, and numerosity required for class complaints.

The complainant appealed and the Commission found the requirements for class certification were in fact met, based on the evidence provided by the complainant.  Addressing commonality and typicality together, as is often done in the analysis, the Commission found that the complainant was challenging an agency policy, which contained qualifications standards that disparately impacted women.  The prospective class members had a common injury in that if they failed the push-up tests, they would be barred from permanent employment and each female applicant was required to perform the same test.  Addressing numerosity, the Commission referenced evidence in the record that over a two-year period, over 2,100 women performed the push-up tests and over 350 failed them, finding that number to be sufficient to constitute a class. The Commission found the criteria for class certification was met and remanded the complaint to an administrative judge, noting that the judge “shall afford the class agents the opportunity for any additional discovery necessary to ensure the class maintains certification.” [email protected]

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