By Deryn Sumner

Practicing before the EEOC’s federal sector administrative process is a funny thing full of contradictions.  If there’s a Federal Rule of Evidence or Civil Procedure that benefits your argument, then you bring it up to the administrative judge as persuasive and controlling.  If the Federal Rules don’t benefit your argument, you brush it off and tell the administrative judge that they only should be used as a guide and don’t need to be strictly followed.

The EEOC does the same thing in its decisions issued by the Office of Federal Operations.  If case law from the court of appeals and district courts contradicts the holdings the Commission wants to make, it will point out that anything less than Supreme Court case law is not controlling.  You can see a clear example of that in last year’s decision regarding telework as an accommodation in Lavern B. v. Dep’t of Housing and Urban Develop., Appeal No. 0720130029 (February 12, 2015). There, the Commission noted that several circuits have held that an employer does not need to provide reasonable accommodations for commutes.  However, the Commission went on to note that “federal district and circuit court decisions may be persuasive or instructive, but are not binding on the Commission” and held that an employee’s request for an accommodation of teleworking or a shorter commuting time triggers the start of the interactive process.  The decision also reminded federal agencies that they should be model employers “which may require [them] to consider innovation, fresh approaches, and technology as effective methods of providing reasonable accommodation.”

On the flip side, if case law from the circuit or district courts bolsters the argument being made, then the Office of Federal Operations will heavily cite to these cases.  An excellent example of this approach is in Baldwin v. Dept. of Transp., EEOC Appeal No. 0120133080 (July 15, 2015), where the Commission held that claims of sexual orientation should be processed as claims of sex discrimination.  The Commission extensively relied upon case law from the federal courts to support its holding.

Alas for the plaintiff in a recent decision out of the Eastern District of Virginia, the Judge did not find the Commission’s arguments as compelling.  In Hinton v. Virginia Union University, No. 3:15CV569, 2016 WL 3922053 (E.D. Va. July 20, 2016), the plaintiff’s attorney tried to argue that the EEOC’s decision in Baldwin created a matter of first impression in the circuit regarding Title VII’s coverage of sexual orientation discrimination such that summary judgment was not appropriate.  The Judge disagreed that issuance of the Baldwin decision changed anything, noting that the Fourth Circuit’s holding that Title VII does not cover discrimination based on sexual orientation in Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138 (4th Cir. 1996) still applied and that “opinions of the…EEOC…are entitled to deference only to the extent that they have the power to dissuade.”  The Judge did not find that Baldwin served to persuade him.

As I discussed in the March newsletter, the EEOC’s private sector litigation arm filed two lawsuits earlier this year challenging sexual orientation discrimination as sex discrimination based on the decision in Baldwin.  One of those cases, against Pallet Companies, has already been settled for over $200,000. Sumner@FELTG.com

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