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The DIGEST Of Equal Employment Opportunity Law

Volume XX, No. 3

Office of Federal Operations

Summer 2009


Inside

Selected EEOC Decisions on:

ARTICLE: RACE AND COLOR DISCRIMINATION ALSO, SUPREME COURT DECISIONS


The Digest of EEO Law is a quarterly publication of EEOC's Office of Federal Operations (OFO)

Carlton M. Hadden, Director, OFO
Douglas A. Gallegos, Acting Director, OFO's Special Services Staff
Digest Staff
Editor: Arnold Rubin
Writers: Robyn Dupont, Gerard Thomson, Arnold Rubin, Joseph Popiden

The Digest is now available online through EEOC's homepage at www.eeoc.gov.


Attorney’s Fees

(See “Findings on the Merits,” in this issue. – Ed.)

Compensatory Damages

(The decisions below are a selected sampling of awards of compensatory damages. See also “Findings on the Merits,” in this issue. – Ed.)

$100,000.00 for Harassment Based on Sex, Age, and Retaliation. The Commission awarded complainant $100,000.00 in nonpecuniary compensatory damages following a finding that she was subjected to harassment based on her sex, age, and prior EEO activity. The record showed that complainant suffered both severe emotional and physical distress over a period of five years, and was diagnosed with irritable bowel syndrome, chronic depression, and anxiety. In addition, complainant was to be treated for these conditions indefinitely. Nancy Sorg v. Department of Commerce, EEOC Appeal No. 0720060065 (July 23, 2008), request for reconsideration denied, EEOC Request No. 0520080765 (December 17, 2008).

$50,000.00 for Retaliatory Harassment. The agency found that complainant was subjected to retaliatory harassment, and issued a decision awarding compensatory damages. On appeal, the Commission modified the award. The Commission noted that complainant provided his own detailed statement and a statement from his wife describing a significant amount of emotional distress. In addition, complainant presented detailed reports from his psychiatrist and psychologist showing that workplace stress caused him to suffer intense emotional pain and suffering, mental anguish, loss of enjoyment of life, and loss of health. Complainant was so incapacitated that he was unable to perform even basic self-care acts such as washing, dressing, and eating. While the record contained evidence of other contributing factors, the agency conceded that the retaliation contributed to complainant’s emotional and physical condition. Thus, the Commission concluded that complainant was entitled to an award of $50,000.00 in nonpecuniary compensatory damages. Brendon M. Stokes v. Department of Homeland Security, EEOC Appeal No. 0120071802 (December 10, 2008).

$10,000.00 for Disability-based Termination. The Commission found that complainant was subjected to disability discrimination when he was terminated from employment. In a subsequent decision, the Commission found that complainant was entitled to an award of $10,000.00 in compensatory damages. According to the record, complainant suffered bouts of depression, withdrawal and headaches following his termination. In addition, complainant submitted an affidavit from his former spouse in support of his claim. Percy J. Brown v. United States Postal Service, EEOC Appeal No. 0120083407 (December 23, 2008), request for reconsideration denied, EEOC Request No. 0520090239 (March 26, 2009).

Dismissals

Failure to Cooperate: Dismissal Improper. The agency initially accepted complainant’s complaint of discrimination on the basis of sex (female), and commenced an investigation. The agency sent complainant a request for an affidavit, along with instructions and forms for its completion. The agency ultimately dismissed the complaint for failure to cooperate, stating that complainant failed to return the requested affidavit. On appeal, the Commission found that the dismissal was improper. The record showed that complainant repeatedly contacted the agency asking for the appropriate telephone number for the EEO Counselor in an attempt to find out if the agency received a fax she had sent. In addition, complainant submitted a document containing answers to the agency’s questions, as well as several other documents which demonstrated that there was confusion as to whom or where the documentation was to be sent. Further, complainant spoke with the agency’s Dispute Resolution Specialist, and provided extensive information regarding her complaint. Thus, the agency should have continued to adjudicate complainant’s claim. Denise A. Stevens v. United States Postal Service, EEOC Appeal No. 0120090879 (March 19, 2009).

Findings on the Merits and Related Decisions

(See by statute, as well as multiple bases, in this issue. –Ed.)

--Under the ADEA—

Age Discrimination Found in Nonselection: Inadequate Agency Explanation for Complainant to Challenge as Pretextual. Complainant filed a formal complaint alleging, among other things, that he was subjected to age (63) discrimination when he was not selected for a supervisory position. According to the record, complainant was one of 10 candidates placed on the Register of Best Qualified, and was interviewed for the position. Complainant and four other candidates were then ranked as highly qualified. Another candidate (under 40) was ultimately chosen for the position. According to the selecting official, the selectee was the best candidate, and possessed past supervisory experience. In addition, she had the “demeanor, professionalism, interpersonal communication skills, organizational skills, and leadership skills to effectively communicate and successfully accomplish the functions of the position.” The Commission noted, however, that it appeared from the record that complainant had similar or better qualifications and experience than the selectee’s.

In addition, the selecting official’s reasons for choosing the selectee were not sufficiently detailed to provide complainant with the opportunity to demonstrate pretext. Specifically, the selecting official described the selectee’s merits in only the broadest terms without providing further explanation as to the reasons for the selection. The Commission found the omissions problematic, especially given that complainant had more supervisory experience than the selectee, as well as a higher performance rating. Thus, the Commission concluded that complainant was subjected to discrimination because of his age. The agency was ordered to offer complainant the position or a substantially similar position, with appropriate back pay and benefits. William L. Klein v. Department of Agriculture, EEOC Appeal No. 0120061721 (October 7, 2008).

Age Discrimination Found in Nonselection: Inadequate Agency Explanation for Complainant to Challenge as Pretextual. The Commission found that complainant was subjected to age (67) discrimination when he was not selected for a supervisory position. The selecting official stated that complainant was not recommended for the position. The recommending official noted that he was looking for a writer with good analytical skills who was knowledgeable about the “work we do,” and would be able to represent the agency with the public and other Federal agencies. The recommending official stated that the selectee (35) had a strong background in immigration law, and inspired confidence that he would “represent the agency in the best light.” The recommending official did not feel complainant’s abilities “rose to that level.” On appeal, the Commission found that the agency failed to set forth, with sufficient clarity, the reasons for complainant’s nonselection such that he was given a full and fair opportunity to show pretext. While the recommending official provided various reasons for choosing the selectee, he did not remember complainant’s application when questioned. The record contained no specific information as to how the recommending official believed complainant’s qualifications compared with those of the selectee or why they fell short. The selecting official stated that he made his selection based upon the individuals recommended to him, and could not recall ever reviewing complainant’s application. Thus, the Commission concluded that the record lacked any explanation as to why complainant was not selected for the position or why he was not the best candidate. The agency failed to articulate a legitimate, nondiscriminatory reason for complainant’s nonselection. The agency was ordered to pay complainant appropriate back pay, with interest. Robert E. Johnson v. Department of Homeland Security, EEOC Appeal No. 0120072888 (December 18, 2008), request for reconsideration denied, EEOC Request No. 0520090241 (March 19, 2009).

--Under the Rehabilitation Act—

Disability Discrimination: Disability-Related Inquiry and Exclusion from Work. Complainant worked for the agency as a Custodial Laborer. He noticed a strong odor while mopping the floor, and subsequently reported to his supervisor that he felt sick to his stomach and had a headache. Complainant completed a workers’ compensation form, and the agency sent him for a medical evaluation. The examining physician determined that complainant was able to return to full duty; however, he noted that complainant believed he was being retaliated against and possibly poisoned. Several days later, complainant was given a letter by his supervisor advising him to provide medical documentation from his doctor clearing him to return to work. The letter did not specify any medical condition or injury. After complainant submitted a letter from a Licensed Physician Assistant releasing him to return to work, he stated that he was told he needed documentation from a psychiatrist stating that he was not a danger to himself or others before he would be allowed to return to work. Complainant ultimately saw a psychologist, who concluded that he did not appear to be a danger to himself or others. The agency’s Medical Unit Director then called the psychologist, and asked complainant to sign a release form so that the report from the initial examining physician could be sent to him. Complainant refused to sign the release, and was given a Notice to Submit Medical Documentation as well as a Notice of Deferred Seven-Day Suspension for failure to follow instructions and being absent without leave. Complainant was ultimately referred for a psychiatric fitness-for-duty examination.

On appeal, the Commission found that the agency violated the Rehabilitation Act by making a disability-related inquiry and not allowing complainant to return to work. While the Commission noted that it was proper for the agency initially to send complainant for a medical evaluation after he filed a workers’ compensation form, the Commission stated that the agency had no basis to keep him out of work once the examining physician concluded that complainant was able to return to duty. The Commission noted that there was no evidence that complainant had any problems performing his work or interacting with his co-workers. Further, the agency’s response to the physician’s comments about complainant’s mental state was extreme and the demands made on him unduly burdensome given the circumstances of the situation. The record contained no evidence that complainant engaged in any action that would have led the agency to reasonably believe that he posed a direct threat or could not perform the essential functions of his position. Finally, the agency’s Threat Assessment Team itself found that complainant was not a threat. The Commission further found that complainant decided to retire solely because the agency kept him out of work, issued progressive discipline, and considered terminating him. The agency was ordered to offer complainant reinstatement to his prior position, with back pay and appropriate benefits. Willard Grayson v. United States Postal Service, EEOC Appeal No. 0720080044 (January 6, 2009).

Disability Discrimination: Harassment and Denial of Accommodation. Complainant, who had previously been diagnosed with Post Traumatic Stress Disorder, was working as an Acting Supervisor when she was informed that a co-worker was suing her for assault. The accusation, which was never substantiated, caused complainant to have a nervous breakdown. Complainant was hospitalized and received various medical treatments. In addition, she was off work for several periods of time. Complainant ultimately returned to full time work several years later. Complainant alleged that her supervisor verbally harassed her regarding her medical disorder, including telling her that she could be pushing carts at Wal-Mart and K-Mart, and assigned her work which aggravated her condition. On appeal, the Commission noted that the agency stipulated that complainant was an individual with a disability. In addition, the record showed that complainant was able to perform the essential duties of her position with reasonable accommodation.

The Commission further found that complainant demonstrated that she was subjected to unwelcome conduct. A witness testified that complainant told her about the supervisor’s comment. In addition, the supervisor was aware that complainant was taking medication that would make it difficult to operate certain machines. The Commission found that the supervisor’s conduct was severe, interfered with complainant’s conditions of employment, and ultimately resulted in her inability to work for the agency. The Commission also concluded that the agency failed to accommodate complainant when it assigned her to work on certain machines. The Commission ordered the agency to pay complainant back pay, and to restore, credit, or reimburse complainant for 25 percent of the leave used during the period in question. In addition, complainant was awarded $79,500.00 in nonpecuniary compensatory damages based upon evidence in the record that the discrimination aggravated complainant’s condition and caused her to suffer weight gain, extreme fatigue, and weakness, such that she was required to take several medications. Linda L. Brown v. United States Postal Service, EEOC Appeal No. 0720060086 (October 31, 2008), request for reconsideration denied, EEOC Request No. 0520091179 (February 5, 2009).

Disability Discrimination: Denial of Reasonable Accommodation. Complainant, a Letter Carrier, filed a formal complaint alleging, among other things, that the agency failed to provide her with reasonable accommodation. Complainant suffered on-the-job injuries to her shoulders and elbows, and, following several surgeries, was assigned modified job duties. Complainant also modified her personal vehicle, and requested that the agency allow her to use her car to deliver her route. According to the record, others were allowed to use their personal vehicles, but complainant’s request was denied. Instead, the agency reassigned complainant to a graveyard shift at another facility. Following a hearing, an AJ found that the agency discriminated against complainant. On appeal, the Commission initially noted that the agency did not challenge an EEOC Administrative Judge’s (AJ’s) finding that complainant was an individual with a disability. The Commission found that complainant was qualified, in that she was able to perform the essential functions of her modified job, with accommodations.

The Commission further determined that the agency failed to accommodate complainant. Complainant’s physician informed the agency that complainant could perform the functions of her position if she were allowed to use her own car. While there was some testimony that complainant’s supervisor believed it would increase the agency’s liability if complainant used her own car, there was no evidence to support that assertion, and the agency failed to establish that it would have been an undue hardship for complainant to use her own car. According to the record, complainant could not take care of her daughter when she was reassigned. Complainant also suffered anxiety, depression, weight gain, physical pain, headaches and elevated blood pressure. Thus, the Commission determined that complainant was entitled to an award of $50,000.00 in nonpecuniary compensatory damages. In addition, the agency was ordered to engage in the interactive process to identify vacant, funded positions complainant was able to perform, and place her into such a position with back pay and appropriate benefits. Sharynn McGee v. United States Postal Service, EEOC Appeal No. 0720060059 (December 3, 2008).

--Under Title VII—

Race and Color Discrimination

(See Article, in this issue. –Ed.)

National Origin Discrimination

National Origin Discrimination Found: Administrative Judge’s Adverse Inference Affirmed. Complainant alleged that the agency discriminated against him based upon, among other things, his national origin (non-Hispanic) when he was terminated from his position prior to finishing his probationary period. At a hearing, agency management officials asserted that complainant’s performance was poor based upon documentation showing that he exceeded the allotted time for delivering mail on his assigned routes. An AJ, however, found that the agency failed to conduct an adequate investigation and engaged in bad faith discovery practices. The investigative report failed to include any comparative data on other employees or the documentation cited by the management officials. In addition, the agency failed to comply in good faith with a pre-hearing order which required the agency to produce comparative evidence. Thus, the AJ concluded that the agency had failed to show that complainant’s productivity was lower than a comparative employee’s, and concluded that complainant was terminated because of his national origin. On appeal, the Commission determined that the AJ properly drew an adverse inference against the agency. The agency failed to conduct its investigation in accordance with the minimal standards set forth in the EEOC’s Management Directive 110, and failed to comply with the Commission’s recordkeeping regulations. The agency also failed to provide comparative evidence on discovery. The record showed that the agency was clearly on notice of the significance of the documentation concerning comparative employees. The agency was ordered to offer complainant reinstatement to his former position, with back pay and appropriate benefits, and pay complainant $10,000.00 in proven compensatory damages. Carl Petersel v. United States Postal Service, EEOC Appeal No. 0720060075 (October 30, 2008).

--Under Multiple Bases—

Race and National Origin Discrimination: Agency Failure to Preserve Records in Promotion Dispute. Complainant filed a formal EEO complaint alleging, among other things, that he was subjected to race (Black) and national origin (African) discrimination when he was not selected for a supervisory position. The selecting official and two other individuals interviewed the five candidates on the promotion certificate. Subsequently, the selecting official independently selected the top three candidates. The selecting official then met with the other two interviewing officials, at which time they discussed the three candidates and came up with the traits of an effective supervisor. The selecting official alone selected another candidate (Asian-American, Caucasian) for the position. On appeal, the Commission found that the agency failed to articulate a legitimate, non-discriminatory reason for its action. The evidence of record showed that complainant’s qualifications appeared similar or superior to the selectee’s. In addition, the selecting official made only vague statements as to why he made his selection. The Commission further noted that the records of the selection process were missing, and there was no reliable documentation explaining the method used by the selecting official to rank the applicants. The record also contained no information concerning the leadership traits developed by the selecting official and the interviewers, or how the candidates were evaluated in relation thereto. The Commission noted that, with regard to claims of nonselection, the EEOC’s regulations require that personnel or employment records be kept by the employer for a period of one year. In addition, the agency is required to preserve all personnel records relevant to a claim of discrimination until the disposition of the claim. Thus, the Commission found that complainant was subjected to discrimination based on his race and national origin. The agency was ordered to offer complainant the position, or a substantially equivalent position, with back pay and benefits. Frederick A. Nyanzi v. Department of Agriculture, EEOC Appeal No. 0120065317 (February 6, 2009).

Sexual Harassment and Retaliation Found: Agency Failed to Assist Complainant for 12 Years and Sought to Deter Her EEO Filing. Complainant alleged that for 12 years she was subjected to a hostile work environment of sexual harassment based on sex. She stated that male co-workers touched her in an inappropriate manner, kissed her, and made sexually offensive comments. In addition, complainant stated that a supervisor also made offensive comments. Female witnesses corroborated complainant’s claim that sexual harassment occurred at the facility. Complainant stated that she continuously reported the harassment to her supervisors and the Postmaster, but they failed to take action to stop the harassment. In addition, after complainant reported the harassment to an EEO Counselor, management attempted to dissuade her from filing a complaint. On appeal, the Commission found that complainant was subjected to unwelcome conduct based on sex. The Commission rejected the co-workers’ assertions that the incidents were taken out of context and that complainant was retaliating against them, noting that witnesses stated that complainant reported the incidents as soon as they happened and immediately reported them to management.

In addition, the Commission concluded that a reasonable person would find that the cumulative effect of the incidents created a hostile work environment. Complainant repeatedly reported the harassment to various managers within the agency, yet no action was taken. Thus, the Commission concluded that the agency was liable for the harassment. In addition, the Commission found that complainant was subjected to reprisal when a supervisor asked complainant’s co-worker to convince complainant to drop her EEO complaint. The Commission found that the supervisor’s request was reasonably likely to deter protected EEO activity. The agency was ordered to investigate complainant’s claim for compensatory damages, and provide sensitivity training to employees and managers at the facility. Rhonda G. Henderson v. United States Postal Service, EEOC Appeal No. 0120083298 (December 10, 2008).

Discrimination Based on Sex and Reprisal: Harassment and Denial of Promotion. The Commission found that complainant was subjected to harassment based on her sex (female) and denied a promotion. According to the record, complainant was intentionally segregated from her co-workers based on her sex. New employees were told to stay away from complainant and not to talk to her, and co-workers testified that complainant was treated so harshly that they attempted to intervene on her behalf. In addition, complainant’s supervisor had a propensity to make sex-based comments whenever complainant had a performance review and called her a “stupid woman.” Complainant and her co-workers reported the harassment to another supervisor on many occasions, but that official failed to take any action. The Commission further found that complainant was subjected to reprisal. According to the record, the second supervisor asked complainant if she realized what a serious thing she had done by filing an EEO complaint and warned her that, if she proceeded, agency attorneys would get involved and she would be considered a troublemaker. The Commission stated that these actions had a chilling effect of the EEO process and were reasonably likely to deter complainant from pursuing her EEO claims. The agency was ordered to pay complainant $65,000.00 in proven compensatory damages, and retroactively promote her, with appropriate back pay and benefits. Stojanka Kessel v. Department of Commerce, EEOC Appeal No. 0120070702 (March 19, 2009), request for reconsideration denied, EEOC Request No. 0520090381 (June 17, 2009).

--Retaliation—

Per Se Finding Regarding Statements That Violate Title VII. Complainant filed a formal EEO complaint and ultimately requested an administrative hearing. The record showed that, during a training session, an agency manager made statements that employees had the right to challenge his recent assignments and “could file grievances or EEO complaints, but they will lose.” The manager acknowledged making the statements. The Commission found that the statements violated Title VII, as they were likely to have a chilling effect and deter employees from exercising their EEO rights. The agency was ordered to provide training for the named manager. John Donahue v. Department of Justice, EEOC Appeal No. 0120073680 (February 26, 2009).

Direct Evidence of Reprisal Found in Manager’s Statement. Complainant, who had filed a previous EEO complaint, requested consideration for a transfer to another facility. The Manager subsequently sent complainant a letter stating “I understand this is in litigation through the EEO process; therefore I will wait for the results of that process for action, if necessary.” Complainant then filed a second EEO complaint alleging that he was subjected to reprisal discrimination. On appeal, the Commission found that the statement was direct evidence of reprisal. The Manager acknowledged that he made his determination because a separate request for a transfer was pending in the EEO process. The Commission determined that the statement demonstrated a connection between complainant’s prior EEO activity and the denial of the request at issue. While the agency asserted that the request was merely pending, the Commission found that the inaction was effectively a denial of complainant’s request, and there was nothing in the record showing that a decision was ultimately made. The Commission found that the Manager’s action was reasonably likely to have a chilling effect on protected EEO activity. The agency was ordered to offer complainant the position he was seeking and investigate his claim for compensatory damages. Joseph J. Mulvaney v. United States Postal Service, EEOC Appeal No. 0120071617 (October 9, 2008).

Direct Evidence of Retaliation Contained in Suspension Letter. The Commission found that complainant was subjected to reprisal when he was issued a three-day suspension. The Commission stated that actions and statements by management reflected a retaliatory attitude toward complainant. The suspension letter specifically referred to several instances of protected EEO activity including filing a complaint with the Diversity and Equal Opportunity Advisory Committee, and complainant’s opposition to alleged disability discrimination and harassment. The Commission found that complainant’s actions constituted protected activity, and that complainant was clearly opposing what he believed, in good faith, to be discriminatory treatment. The Commission concluded that, because the suspension letter specifically cited complainant’s protected activity, complainant had provided direct evidence that the suspension was based on a retaliatory animus. The agency failed to show that it would have taken the same action absent the discrimination. The agency was ordered to rescind a charge of absent without leave, and restore all pay and benefits to complainant, as well as expunge all references to the suspension, the proposed suspension, and complainant’s failure to attend a meeting. Daniel L. Chambers v. Department of the Treasury, EEOC Appeal No. 0120064530 (February 27, 2009).

Complainant’s Opposition to Perceived Racial Language Reasonable and Thus Protected. Complainant worked in the telephone scheduling unit at an agency facility. During a conversation, a caller made a reference to “you people.” Complainant inquired as to what the caller meant and explained that the phrase could be used in a racially derogatory manner. The caller subsequently reported complainant, who received a five-day suspension for the incident. Complainant filed a formal EEO complaint alleging that she had been subjected to reprisal with regard to the suspension. The Commission initially noted that the manner in which an individual protests perceived employment discrimination must be reasonable in order for the anti-retaliation provisions to apply. There was no evidence in the record that complainant did not fulfill her major job duty of rescheduling the caller’s appointment, nor was there evidence suggesting that the rescheduling was not done in an accurate and timely manner. While the agency contended that complainant’s reaction was “extreme and unwarranted,” the Commission found that complainant inquired about the comment in a reasonable manner. While one co-worker stated that she heard complainant raise her voice, another co-worker did not make such an observation, nor did the employee who subsequently spoke with the caller about the matter. Complainant testified that she was not rude or disrespectful, and gave the caller a chance to explain what he had meant by the comment. The Commission ordered the agency to remove and expunge the suspension and pay complainant back pay. Helen Payne v. Department of Veterans Affairs, EEOC Appeal No. 0720080053 (October 27, 2008), request for reconsideration denied, EEOC Request No. 0520090141 (January 13, 2009).

Remedies

(See also, “Findings on the Merits,” above. –Ed.)

Back Pay Denied: Complainant Failed to Mitigate Damages. Following a hearing, an AJ found that complainant was discriminated against in reprisal for prior EEO activity when he was ordered to work on the workroom floor while wearing an open-toed shoe in violation of the agency’s safety regulations, was issued discipline, and was removed from his position. The Commission affirmed the AJ’s finding of discrimination on appeal. The Commission, however, found that complainant was not entitled to back pay because he failed to mitigate his damages. Specifically, complainant testified that he did not work after his removal, nor did he apply for any jobs or otherwise attempt to find employment. The agency was ordered to reinstate complainant and remove the suspension and notice of removal from complainant’s official personnel file. Jone Jye Yau v. United States Postal Service, EEOC Appeal No. 0720060087 (October 29, 2008), request to reconsider denied, EEOC Request No. 0520090181 (February 11, 2009).

Sanctions

(See “Findings on the Merits,” above. –Ed.)

SUPREME COURT DECISIONS

Title VII’s Anti-Retaliation Provision Covers Employee Who Speaks Out Against Discrimination in Response to Investigator’s Question. The Supreme Court held that Title VII’s anti-retaliation provision extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during the employer’s internal investigation. In this case, the employer began looking into allegations that one of its supervisors had sexually harassed an employee. The employer asked the petitioner whether she had witnessed any inappropriate behavior, and she described several instances of sexually harassing conduct. The employer took no action against the alleged harasser, but terminated the petitioner soon after finishing its investigation. Petitioner subsequently filed a claim of retaliation.

The Supreme Court initially stated that the anti-retaliation provision of Title VII makes it unlawful for an employer to discriminate against any employee because she has opposed any practice made unlawful by the statute. The Court noted that the term “oppose” is not defined in the statute and, therefore, carries its ordinary dictionary meaning of resisting or contending against. The Court stated that a person can “oppose” something by responding to a question, and that nothing in Title VII requires that an employee who reports discrimination on her own initiative be protected while an employee who reports the same discrimination when asked a question is not. The Court noted that, if an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, employees would have a good reason to keep quiet about Title VII offenses. The Court concluded that nothing in the statute would support such an outcome. Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, 129 S.Ct. 846 (2009).

ARTICLE
RACE AND COLOR DISCRIMINATION: A DISTINCTION WITH A DIFFERENCE

(The purpose of this article is to remind readers that although race and color are related and frequently are used interchangeably in common parlance, they are separate legal bases of discrimination. The article is neither an exhaustive study of a complex area of law, nor is it intended as legal advice. The article is generally based on EEOC documents available to the public at the Commission’s website, www.eeoc.gov, as well as on Commission and Federal Court case law. Some decisions cited may have appeared in previous Digests. – Ed.)

BACKGROUND

As the Commission explained in 2006 in its Compliance Manual Section on Race and Color Discrimination,1 Title VII of the Civil Rights Act of 1964 prohibits both race and color discrimination in employment yet does not define either term. The U.S. government generally asks individuals to self-identify which racial category or categories designated by the Office of Management and Budget (OMB) they consider themselves to be a part of for recordkeeping and law enforcement purposes. Race is most commonly understood as referring to a person’s identification as part of one or more of the following categories recognized by the OMB: American Indian or Alaska Native; Asian; Black or African American; Native Hawaiian or Other Pacific Islander; and/or White. (Hispanic or Latino is listed separately as an ethnicity category, as Hispanics can be of any race.) Importantly, as OMB has stated, these categories are simply “socio-political constructs…and should not be interpreted as being genetic, biological, or anthropological in nature.” 2

The concept of race is multifaceted. For example, it can encompass cultural traits such as a person’s name or his or her manner of speech. One recent EEOC private sector3 case makes this point. In EEOC v. Target Corporation,4 three African-American applicants, Kalisha White, Ralpheal Edgeston, and Cherise Brown-Easley, submitted resumes and were told to call the store manager in charge of recruiting for the District for an interview. But when they called, the manager, who had reviewed their resumes, told each of them that he did not have time to interview them. To rebut Target’s argument that the manager could not have discerned the applicants’ race in his discussions on the telephone, the Commission proffered the opinion of a linguistics professor who testified that the applicants were discernable as African-American based on their voices over the telephone. The case also included evidence of race-related name discrimination. One of the applicants, Kalisha White, submitted a second resume under the fictitious name “Sarah Brucker” – a name she constructed from names of Whites she knew – and had a White friend call using this name. The fictitious “Sarah Brucker” was offered an interview even though Kalisha White, the actual applicant, was not.5

Color is clearly one of the most salient racial identifiers. Yet color, which can vary widely even within racial groups, is not identical to race. Title VII recognizes this by listing “color” as a separate basis of prohibited discrimination. The EEOC and the courts interpret the term “color” to have a common sense meaning – pigmentation, complexion, or skin shade or tone.

Recent research shows color discrimination can have a profound impact in the workplace. For example, Professor Joni Hersch of Vanderbilt University has concluded, in a study, that for new lawful immigrants, darker skin color is associated with lower wages.6 The study found a correlation between darker skin color and lower wages even when taking into account factors such as English language proficiency, education, and occupation. The correlation persisted among persons of the same race, ethnicity, and country of origin. Color may become a more commonly alleged basis of discrimination as the United States continues to become more diverse with continued immigration, as well as with an increasing number of interracial marriages.

There is not much case law addressing color as a separate basis of discrimination. Cases that address claims of color discrimination have tended to involve intraracial discrimination. For example, in Walker v. IRS,7 a light-complexioned African-American woman alleged that her dark-complexioned African-American manager singled her out for close scrutiny and terminated her due to her light skin. The employer argued that color means the same thing as race, and that it is not feasible to allow a lawsuit by a light-complexioned African-American alleging discrimination at the hands of a dark-complexioned African-American. The U.S. District Court rejected both arguments, reasoning that Title VII’s separate listing of “race” and “color” made it plain that the concepts were not intended to be redundant, and it would be “ethnocentric and naïve” to suggest that African-Americans cannot be members of subgroups according to color and targeted for illegal discrimination on that basis, even by other African-Americans.

Two cases litigated by EEOC in recent years also are illustrative of the above point that race and color are not synonymous. In February 2009, the Commission settled a case in which EEOC alleged a light-complexioned Black female manager of a discount retail chain subjected darker-complexioned African-American employees to a hostile and abusive work environment because of their color. The lawsuit alleged that the manager told one employee she looked as “black as charcoal” and repeatedly called her “charcoal” until she quit. See EEOC v. Family Dollar Stores, Inc.8 Similarly, in August 2003, the EEOC settled a case on behalf of an African-American former employee of a restaurant who was discriminated against based on his dark skin color by a light-complexioned African-American manager and terminated when he complained to corporate headquarters. See EEOC v. Applebee’s Int’l Inc.9

Intragroup discrimination within other ethnicities – such as South Asians and Hispanics/ Latinos – may also trigger Title VII’s prohibition against color discrimination. For example, in Santiago v. Stryker Corp.10 the court held that a dark-complexioned Puerto Rican citizen who was replaced by a light-complexioned Puerto Rican citizen could establish a prima facie case of color discrimination. According to the court, “[c]olor may be a rare claim, because color is usually mixed with or subordinated to claims of race discrimination, but considering the mixture of races and ancestral national origins in Puerto Rico, color may be the most practical claim to present.”11

FEDERAL SECTOR ADMINISTRATIVE DECISIONS ADDRESSING RACE AND COLOR DISCRIMINATION12

The EEO complaint process is a legal process involving rights and responsibilities according to statutes, regulations, and Commission and court case law precedent. Therefore, precision of language is an important and instructive goal to aim for by complainants, EEO counselors, investigators, agencies, triers of fact, and all other participants in the EEO process. In this section, we note the importance of not only understanding the distinctions between and among bases and Commission precedent with regard to defining bases, but also expressing those distinctions in claiming, counseling, framing, investigating, and adjudicating Title VII allegations of race and color discrimination. We also note that, with regard to federal sector Title VII claims, individuals check off on (or write in) their complaint the protected bases on which they allege discrimination.

The Commission encourages complainants to be inclusive when making their allegations. As the Compliance Manual states: “All bases of discrimination that are reasonably implicated by the facts should be included in the charge or complaint….Failure to include all possible bases may result in a court dismissing a legitimate claim.”13

The Commission has recognized, in its Compliance Manual, the frequently-accepted common use of such terms as “Black” and “African American”; and “White” and “Caucasian.”14 This discussion is consistent with the Compliance Manual. The premise and purpose of this section are to suggest that, where race and color are being defined interchangeably in the EEO context, it should be so stated by the one defining those bases and that the definition generally be maintained consistently throughout the process. The participants in the process may then be able to have a clear understanding of what is being alleged and what is being found, or not found as the case may be (e.g., a finding of race discrimination but not color discrimination, where complainant has raised both bases), and the evidentiary reasons involved. Several federal sector decisions illustrate the need for clarity.

In Joel Rodriguez v. Department of Energy (National Nuclear Security Administration),15 for example, the complainant alleged that the agency had discriminated against him on the bases of race (Hispanic), national origin (Hispanic), and color (dark brown), and in reprisal for prior protected activity arising under Title VII. In its decision, the Commission noted that the EEOC considers “Hispanic” to be a national origin and cited to its questions and answers on race and color discrimination adapted from EEOC’s Compliance Manual Section on Race and Color Discrimination.16 A question arises as to whether the EEO counselor or investigator had informed complainant of the appropriate designation of the protected classes, yet complainant nonetheless preferred to maintain his own designations. In such event, it would be advisable for the EEO counselor or investigator to note in their reports that they informed complainant of the race/national origin distinction and complainant’s response.

Employment discrimination because of a person’s ancestry can violate Title VII’s prohibition against race discrimination. While there can be considerable overlap between “race” and “national origin,” they are not identical.17 The Compliance Manual cites an example of “discrimination against a Chinese American [that] might be targeted at her Asian ancestry and not her Chinese national origin. In that case, she would have a claim of discrimination based on race, not national origin.”18 A discussion of national origin discrimination, however, is beyond the scope and purpose of this article.

The reader will note that in Rodriguez, supra, complainant identified his color as “dark brown.” As pointed out earlier in this article, a claim can be made by a person of a specified race, against an individual who is a member of the same race whether or not they are of the same color. The point thus bears repeating that race and color are separate and distinct bases even though they clearly overlap and are related.19 Therefore, all participants throughout the EEO process need to frame clearly their allegations and findings.

In Alonzo Artis v. United States Postal Service,20 the Commission found that complainant, a probationary employee, was subjected to race (African-American) and color (Black) discrimination when the agency terminated him from his position of Part-Time Flexible Letter Carrier by an agency official (also African-American) on the recommendation of complainant’s immediate supervisor (Caucasian).21 The Artis decision explains why the evidence supports a finding of race discrimination, but then, without further elaboration, also affirms an AJ’s finding of color discrimination. Although these claims can overlap, this decision does not explain their differences, or why they overlap in this case. The reader may have found it instructive to have the evidence set forth that supported a finding of color discrimination, even if contained only in a simple statement, such as noting that the complainant’s comparators were not only of a different race from the complainant, but also of a different color and, thus, the same substantive analysis supporting a finding of race discrimination also supports a finding of color discrimination.22

There may have been several reasons accounting for why the decision maker could not elaborate on the findings. For one reason, in summarizing this decision, the record on appeal was not before the Digest staff to determine if independent facts pointed to color discrimination aside from the existence of pretext, which the AJ found in the agency’s reasons for terminating complainant, e.g., that complainant took too long to sort and deliver mail, required too much help, and caused unnecessary overtime. The AJ found that complainant’s work performance was comparable to that of more experienced letter carriers; that complainant was held to unarticulated (quality and quantity) and unachievable standards; and that discrepancies in the testimony of complainant’s supervisor (who had requested termination) made that testimony suspect.

Further, while many more race claims than color claims are made each year,23 the same legal analyses apply to both race and color.24 Having found pretext, the AJ in Artis, supra, had the discretion to find discrimination on the bases alleged by complainant. See St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 511 (1993) (“rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination,” emphasis in original, footnote omitted). In affirming the AJ’s finding of race and color discrimination, in Artis, supra, the Commission found that complainant had established a prima facie case of race and color discrimination. The Commission also found that there was substantial evidence in the record to support the AJ’s conclusion that complainant had established, by a preponderance of the evidence, discrimination as alleged, i.e., race and color discrimination. Specifically, the Commission noted that the agency had failed to articulate a legitimate reason for not retaining complainant sufficient to rebut complainant’s prima facie case of race and color discrimination. Thus, the AJ in Artis, supra, was free to find discrimination on the basis of either race or color discrimination or, as in this case, both bases.

The point in this discussion is that if a trier of fact in a case of disparate treatment involving race and color (such as in Artis, supra) is drawing inferences in accordance with the tripartite evidentiary scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applicable to cases where evidence of discrimination is circumstantial, it would be helpful to the reader if the underlying facts that support such findings are expressly set forth based on a fair and adequate record. Alternatively, the trier of fact might conclude that, having sufficient evidence to support an inference of discriminatory animus based on race, s/he was permitted to draw an additional inference of discrimination based on color.

As explained in the Compliance Manual: “Multiple protected bases of discrimination can be raised by the same set of facts, both because negative stereotypes and biases may be directed at more than one protected basis at a time, and because certain protected bases overlap considerably. Thus, for example, a discrimination complaint by an ‘Asian Indian’ can implicate race, color, and national origin, as can, for example, a complaint by a Black person from an African nation, or by a dark-skinned Latino. For Title VII purposes, the question is whether any prohibited factors led to an adverse employment action, alone or combined.25

The complainant in Song Sibell v. United States Postal Service26 alleged discrimination on a half-dozen bases, including race (Korean-Asian), national origin (Korean) and color (yellow) when, inter alia, the agency placed complainant in off-duty status without pay and subsequently removed her. An AJ found that the agency discriminated against complainant based on her race and national origin, but not because of color. Specifically, the AJ found that an agency official disregarded the practice of progressive discipline and terminated complainant for behavior similar to that engaged in by Caucasian employees who were not terminated, but, instead, received progressive discipline. Why did the AJ not also find color discrimination, when, from a reading of the Commission’s decision, it appears that the trier of fact could have so found? The question cannot be answered, since complainant did not appeal the AJ’s finding. On appeal by the agency, the Commission affirmed the AJ.

The reader would have been helped in understanding the reasoning behind the decision not to find color discrimination had complainant appealed that finding, albeit a finding of the additional basis of discrimination, in this case color, would not likely have added to the relief awarded complainant. Moreover, the AJ’s finding and the Commission’s decision are consistent with the Compliance Manual, where the finding was grounded in race (Asian) and national origin (Korean). One might speculate that the basis of color (yellow) was not considered the target of the agency’s alleged discrimination against complainant. The target of the alleged discrimination was, instead, complainant’s race (Asian, compared to the Caucasian comparators) and national origin (Korean compared to, one can reasonably infer, the non-Korean comparators). The Sibell decision highlights the need for a precise record in a case throughout the many steps in the EEO process.

Discrimination based on race (White) is also actionable under Title VII, i.e., Title VII prohibits race discrimination against all persons, including Caucasians. This type of claim has often been referred to as “reverse discrimination.” Complainants/plaintiffs may prove a claim of discrimination through direct or circumstantial evidence. Some courts, however, take the position that if a White person relies on circumstantial evidence to establish a reverse discrimination claim, s/he must meet a heightened standard of proof.27 The Commission, in contrast, applies the same standard of proof to all race discrimination claims, regardless of the alleged victim’s race or the type of evidence used. In either case, the ultimate burden of persuasion remains always on the person alleging a violation of Title VII.28

In Paul L. Terban v. Department of Energy,29 complainant alleged discrimination based on race (Caucasian) in connection with workplace incidents. Complainant, who retired during the pendency of his litigation, asserted that he was subjected to race-based harassment and constructively discharged. An EEOC AJ, who presided over a hearing requested by complainant, found that he had been discriminated against based on race.30 In affirming the AJ’s decision, the EEOC noted that complainant had been subjected to a pattern of race-based harassment by his immediate supervisor for a period of more than two years as summarized by the AJ. For example, the AJ found that the supervisor had made various racial remarks, including referring to complainant’s home address as being in “some white enclave,” telling complainant that he would be replaced by Black men, and constantly referring to complainant as a “White Baboon.”

While the posture of Terban, supra, was grounded in race, the remarks cited as evidence of race discrimination may have also supported a finding of color discrimination. Yet this basis apparently was not pursued. Without having the entire record available, one cannot say why color was not included as part of complainant’s claim. Was he not sufficiently informed by the EEO counselor of the applicable EEO bases? Or was complainant satisfied that his claim could be addressed within the context of race? If such were the case, one might understand why color was not pursued as a basis. Perhaps there was found no need to draw a distinction here between race and color.

Another interesting case is Sherry L. Rhodes v. Department of Defense (Army & Air Force Exchange Service),31 where the claim was discrimination based on race (African-American) and color (brown), where the comparators were Caucasian employees. An AJ found that complainant, a forklift operator, was discriminated against on the bases alleged when she was subjected to a disciplinary downgrade at a substantial loss in pay due to accidents, while Caucasian employees with similar accident records were not given disciplinary downgrades. The agency issued a final order accepting the AJ’s finding of discrimination.32

Also on point is Shawn Adams v. Department of Homeland Security,33 wherein an AJ found both race (Black) and color (black) discrimination regarding complainant’s termination. As an illustration of this article’s theme, it is instructive to note that in Adams, supra, “Black” was both a basis of race and of color discrimination and identified separately. The Commission dismissed the agency’s appeal from the AJ’s finding of discrimination as untimely. Thus, the AJ’s decision became the agency’s final action by operation of law.

Whereas “African-American” has been used to denote race, the words “Black” and “White” have been used to denote both race and color. For example, the complainant in Myron L. Hayes v. United States Postal Service34 alleged discrimination based on race (African-American) when he was terminated during his probationary period for poor performance. He also alleged that he had not received the proper training to meet expectations. An AJ found it disturbing that the only Black35 employee at the location and the Assistant Union Steward were told not to help complainant. Further, the AJ indicated that the uncontroverted testimony during the hearing was that complainant, the only Black probationary employee employed in the last 10 years, was given only 50 days of on-the-job training, while every White probationary employee was given the full 90 days to learn the job. The AJ also found it significant that testimony from coworkers supported complainant’s claim that he had been treated less favorably than White probationary employees. Accordingly, the AJ found that the agency discriminated against complainant on the basis of race. The agency, in a Notice of Final Action, agreed to implement fully the AJ’s decision, and the Commission affirmed the final agency order.36

A case where “Black” and “White” appear to have been used as proxies for race is Lewis Mallet, Jr. v. Department of Veterans Affairs.37 In this case, the complainant alleged discrimination based on race (Black) when he was not selected for a promotion to one of two vacant positions of supervisory housekeeping aid. The selectee for one position was White, and the agency decided to re-advertise the second slot. An AJ found that the selectee and complainant were equally qualified, but, rather than promote complainant, the agency discriminatorily withdrew the second slot. The AJ recited testimony by a housekeeping aid that he overheard one of the rating panel members tell the selectee to apply for the position and he would get the job. The AJ found this testimony more persuasive than the rater’s testimony that she did not recall the conversation. Similarly, the AJ found incredible the recommending official’s testimony that he did not know the complainant’s race despite the official’s numerous contacts with complainant.

Further, the AJ noted that there were no Black supervisory housekeeping aids when the selection occurred. The AJ also cited the testimony of a co-worker of complainant’s that Black males were routinely denied promotions in the recommending official’s department and testimony of a supervisory housekeeping aid, who formerly supervised complainant, that he believed that race sometimes played a factor in promotions and that complainant was better qualified than the selectee. On appeal, the Commission deferred to the AJ’s credibility findings and, determining that the AJ’s finding of discrimination was supported by substantial evidence, affirmed the AJ’s decision. The point of discussing the above decisions is to suggest that where a decision maker is using color as a proxy for race (e.g., Black for African-American, and White for Caucasian) s/he would be advised to so inform the reader and, perhaps, suggest his or her reasoning underlying that determination.

CONCLUSION

Although frequently used interchangeably and at times overlapping, race and color are separate and distinct bases of unlawful discrimination under Title VII of the Civil Rights Act of 1964, as amended. Moreover, these bases encompass all aspects of terms, conditions, and privileges of employment. Therefore, all participants in the EEO process need to be aware of and to be clear about the fact that race and color are distinct bases and should be identified separately where appropriate to do so.


Footnotes

1 See EEOC Compliance Manual, Section 15: Race & Color Discrimination (4/19/2006), available online at: http://www.eeoc.gov/policy/docs/race-color.html; see also Questions and Answers About Race and Color Discrimination in Employment, at http://www.eeoc.gov/policy/docs/qanda_race_color.html.

2 See Office of Management and Budget, Provisional Guidance on the Implementation of the 1997 Standards for Federal Data on Race and Ethnicity 6-7 (12/15/2000).

3 Although the processes involving private sector and federal sector Title VII claims of discrimination are different, the substantive law in terms of protected classes (in this article, race and color) is essentially the same.

4 460 F.3d 946 (7th Cir. 2006).

5 The case was settled in December 2007.

6 See Joni Hersch, Profiling the New Immigrant Worker: The Effects of Skin Color and Height, vol. 26, issue 2, Journal of Labor Economics (2008). According to the U.S. Department of Labor’s Bureau of Labor Statistics, in 2008 foreign-born workers made up 15.6% of the U.S. workforce. See http://www.bls.gov/news.release/forbrn.nr0.htm.

7 713 F. Supp. 403 (N.D. Ga. 1989), aff’d, 953 F.2d 650 (11th Cir. 1992).

8 No. 07 C 6996 (N.D. Ill. Feb. 17, 2009).

9 No. 1:02-CV-829 (D. Ga. Aug. 7, 2003).

10 10 F. Supp. 2d 93 (D.P.R. 1998)

11 Santiago, 10 F. Supp. 2d at 96 (internal quotation marks omitted).

12 Each of the decisions cited in this part of the article involved a finding of unlawful discrimination under Title VII. The decisions were issued by the Commission’s Office of Federal Operations’ (OFO’s) Appellate Review Programs (ARP), from 2007 through 2009. The Digest acknowledges the support of OFO Information Management Specialist John Matics and Holly Wilson, EEOC Research Librarian, in the preparation of this article. The EEOC’s federal sector decisions are available online at: http://www.eeoc.gov/federal/decisions.html. There is no private sector equivalent to these decisions because, as noted earlier, private sector charge processing is handled differently under Title VII. However, a list of Significant EEOC Race/Color Cases can be found at http://www.eeoc.gov/iniatives/e-race/caselist.html

13 Compliance Manual, Section 15 at 6 (footnote omitted).

14 The Compliance Manual, Section 15 at 33, fn. 2, uses the following terms “due to their frequent and accepted vernacular usage”: “Black” and “African American”; “White” and “Caucasian”; “Asian” and “Asian American”; “American Indian”; and “Latino” and “Hispanic.” The Manual refers to non-Whites generally as “people of color.”

15 EEOC Appeal Nos. 0120071173 and 0120072378 (March 6, 2009).

16 Questions and Answers About Race and Color Discrimination in Employment, at http://www.eeoc.gov/policy/docs/qanda_race_color.html. The Commission also found evidence of retaliatory harassment, and noted that the agency had failed to analyze the incidents alleged as a single harassment claim; instead, the Commission pointed out, the agency chose to fragment and analyze the incidents as individual disparate treatment claims. As part of the relief awarded, the Commission directed the agency to investigate the question of compensatory damages, provide Title VII training to all officials involved in the case, and consider taking appropriate disciplinary action against the responsible management officials.

17 See The Compliance Manual, Section 15 at 4, footnote omitted.

18 Id.

19 See The Compliance Manual, Section 15 at 6, footnote omitted.

20 EEOC Appeal No. 0720070032 (February 4, 2008).

21 Although complainant was a probationary employee, the record reflected that he worked at the same—or more productive—level as full-time white letter carriers. The Commission noted that, while these white carriers were not similarly situated to complainant, the standards to which they were held were relevant to whether complainant had provided sufficient evidence from which an inference of discrimination could be drawn. Further, the Commission found that the agency failed to provide a legitimate, nondiscriminatory reason for terminating complainant because the responsible management official failed to specify a standard to which complainant was compared when he determined that complainant was not performing at an acceptable level. The Commission ordered the agency to reinstate complainant to his position with back pay.

22 Compliance Manual, Section 15 at 6.

23 Id.

24 Id.

25 Id. Footnote omitted.

26 EEOC Appeal No. 0720080020 (April 16, 2009).

27 See, e.g., Mattioda v. White, 323 F.3d 1288 (10th Cir. 2003), cited in the Compliance Manual, Section 15, at 35, fn. 23, where Caucasian plaintiff was unable “to establish a prima facie case because he did not present ‘background circumstances that support an inference that the defendant is one of those unusual employers who discriminates against the majority.’”

28 Compliance Manual, Section 15, at 5. Footnotes omitted.

29 EEOC Appeal No. 0720040117 (April 3, 2008).

30 During the pendency of the appeal, the parties reached a settlement of the matter, except for the issue of the AJ’s award of compensatory damages. While the parties stipulated to Title VII liability, and, thus, the Commission stated that it need not address the issue of liability, the Commission did review the facts giving rise to Title VII liability in order to determine compensatory damages.

31 EEOC Appeal No. 0720070049 (January 3, 2008).

32 The Commission affirmed the finding of discrimination and reversed the agency as to remedies.

33 EEOC Appeal No. 0720070061 (December 19, 2008).

34 EEOC Appeal No. 0120070965 (January 3, 2008).

35 This article has italicized “Black” and “White” for emphasis.

36 On appeal by complainant, the Commission ordered the agency to pay complainant back pay with interest, to the extent it had not already done so.

37 EEOC Appeal No. 0720080058 (January 30, 2009).