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					                  OEDCA DIGEST
 Vol. IV, No. 3           Department of Veterans Affairs                  Summer 2001
                       Office of Employment Discrimination
                              Complaint Adjudication



Summaries of Selected Decisions Issued by the Office of
 Employment Discrimination Complaint Adjudication



                                 FROM THE DIRECTOR

The Office of Employment Discrimination Complaint Adjudication is an independent, ad-
judication unit created by statute. Located in the Office of the Secretary, OEDCA’s
function is to issue the Department’s final decision or order on complaints of employ-
ment discrimination filed against the Department. The Director, whose decisions are
not subject to appeal by the Department, reports directly to the Secretary of Veterans
Affairs.

Each quarter, OEDCA publishes a digest of selected decisions issued by the Director
that might be instructive or otherwise of interest to the Department and its employees.
Topics covered in this issue include sexual harassment; sexual orientation; retaliation;
disability claims involving current illegal drug use; proving the existence of a disability;
and common issues that arise in selection/promotion cases, such “pre-selection”, the
use of subjective criteria, and the “plainly superior” rule.

Also included in this issue is the seventh in a series of articles concerning frequently
asked questions and answers pertaining to the rights and responsibilities of employees
and employers with regard to requests for reasonable accommodation of a disability.

The OEDCA Digest is available on the World Wide Web at: www.va.gov/orm.


                                   Charles R. Delobe


Case Summaries…………………………………………………………………………….2
Recent Court Cases Involving Sexual Orientation…………………………………..…13
Frequently Asked Questions and Answers on Reasonable Accommodation……....14
                         OEDCA DIGEST

                    I                        (“Board”), which eventually found that
                                             the harasser had frequently subjected
SEXUAL HARASSMENT BY CO-                     the complainants and at least eight oth-
WORKER NOT ADEQUATELY AD-                    er women at the facility to “off-color
DRESSED BY MANAGEMENT                        comments” and “unwelcome hugging of
                                             women, and flat out unwelcome and un-
Two recent cases involving egregious         provoked grabbing of women when they
incidents of sexual harassment by a co-      are alone.” The Board recommended
worker illustrate the consequences for       disciplinary action.
management if it fails to respond
promptly and appropriately when it           During the Board’s consideration of the
learns of sexual harassment in the           matter, management detailed the ha-
workplace.                                   rasser to another area where he would
                                             not come into contact with the complai-
The complainants testified that through-     nants. Later, however, he was allowed
out an eight-month period a male nurs-       to return to work in the same building
ing assistant sexually harassed them by      where the complainants worked and,
repeatedly making obscene comments           according to the complainants, would go
of a sexual nature. They also testified      to their work area and glare at them in
that the coworker repeatedly assaulted       an intimidating manner.
them, including, among other things,
touching or grabbing them in intimate        As did the Board, OEDCA found that the
areas, and by grabbing them from be-         coworker had subjected both complai-
hind and thrusting his pelvis against        nants to egregious conduct of a sexual
their buttocks.                              nature, and that the conduct clearly
                                             constituted sexual harassment, inas-
The harasser admitted to engaging in         much as the harasser’s conduct was
some of the conduct, but only in cases       unwelcome and sufficiently severe and
where there were eyewitnesses. He de-        pervasive to create a hostile work envi-
fended his conduct by stating that it was    ronment.
only “horseplay”, and that the women
involved were active and willing partici-    Moreover, OEDCA found that the De-
pants.                                       partment was liable for the harasser’s
                                             conduct because it failed to take prompt,
The complainants disputed that asser-        appropriate, and effective action, de-
tion, testifying that they clearly and un-   spite knowledge of the harassment. Al-
ambiguously communicated to the ha-          though the medical center had long
rasser that his conduct was unwelcome.       been aware of the harasser’s egregious
Nevertheless, the harassment continued       conduct involving female employees, its
until they subsequently reported it to       prior attempts at corrective action were
their supervisor.                            inappropriate and ineffective, limited to
                                             some verbal and written counseling.
In response to their complaints of ha-       For his conduct in these two cases,
rassment, management convened an             management officials imposed only a
Administrative   Investigation  Board        12-day suspension, a punishment less


                                                                                    3
                           OEDCA DIGEST

than that given other employees for far         away and told him never to do that
less serious offenses. Moreover, they           again.
granted a request to allow the suspen-
sion to span two separate pay periods to        The co-worker admitted to the incident.
lessen the financial impact on the ha-          Although he claimed the touching was
rasser. Finally, they permitted the ha-         not unwelcome, and suggested that
rasser to return to work in the same            there was an intimate relationship, he
building    where    the     complainants       also admitted that the complainant told
worked, where he continued to cross             him that she was going to hit him be-
paths with, and glare at, them.                 cause of the incident.

The facility director conceded that many        Initially, the complainant was not in-
officials at the facility were of the opinion   clined to pursue the matter, and al-
that harsher punishment, including re-          though she immediately reported it to
moval, would have been more appropri-           two management officials in her work
ate. Other officials, however, feared           unit, she requested that they refrain
that such action might provoke a union          from taking any action at that point, as
challenge or an appeal to the Merit Sys-        she was of the belief she could handle
tems Protection Board. OEDCA con-               the matter. However, after several sub-
cluded that such fears do not justify or        sequent attempts by the coworker to
excuse a failure to take appropriate ac-        contact her during the following two-
tion. In this case, management’s ac-            week period, she met with management
tions were too little and too late. OED-        officials and requested their assistance.
CA accordingly found in the complai-
nants’ favor and awarded them appro-            In response to the complainant’s re-
priate relief.                                  quest, management immediately reas-
                                                signed the coworker to a different unit
                                                and ordered him to have no further con-
                     II                         tact with the complainant. Next, the fa-
                                                cility head convened an Administrative
EMPLOYEE PROVES SEXUAL HA-                      Investigation Board (“Board) that re-
RASSMENT, BUT MANAGEMENT IS                     viewed the matter and issued a report
NOT LIABLE BECAUSE IT ACTED                     finding that the breast-grabbing incident
PROMPTLY, APPROPRIATELY, AND                    occurred as alleged, that the incident
EFFECTIVELY                                     was unwelcome, and that the harasser
                                                thereafter continued to create a hostile
The complainant alleged that a cowork-          environment for the complainant by re-
er grabbed her breast while giving her a        peated attempts to contact her shortly
congratulatory hug upon learning of             after the incident. Moreover, the Board
some good news she had received con-            found that, despite explicit instructions
cerning her health. Although she al-            from his supervisor to avoid the com-
lowed the hug, she stated that she did          plainant following his reassignment, he
not consent, by word or by action, to the       continued to visit her work area.
breast-grabbing incident. Instead, she
stated that she immediately pushed him          Within 30 days of receipt of the Board’s


                                                                                       4
                                 OEDCA DIGEST

report, management initiated action to                  ers and supervisors who are unable to
terminate the harasser; and within 60                   support the reasons they articulate for
days of the Board’s report, the harasser                the actions they take. It also illustrates
was terminated.                                         the importance of a carefully planned
                                                        and structured interview process.
This case illustrates a few often-
misunderstood principles of sexual ha-                  The complainant, a Lead Patient Ser-
rassment law. First, while a claim of                   vices Assistant, GS-5, applied but was
hostile environment sexual harassment                   not selected for any of four advertised
generally requires proof of more than                   vacancies for the position of Lead Pa-
just an isolated incident or group of iso-              tient Services Assistant, GS 6/7. The
lated incidents, a single incident involv-              individual primarily responsible for the
ing an intimate touching that is unwel-                 complainant’s nonselection was the
come, such as occurred in this case, will               Chief of Ambulatory Care and
suffice to satisfy the legal requirement                Processing (AC&P).
that the unwelcome conduct was “se-
vere or pervasive.”                                     Prior to his nonselection, the complai-
                                                        nant had filed two formal EEO com-
Second, even if a complainant succeeds                  plaints. In the second complaint, he had
in proving that sexual harassment by a                  named the Chief (AC&P) as the respon-
co-worker1 occurred exactly as alleged,                 sible management official (RMO), the
the employer may still avoid liability for              same person responsible for his nonse-
the harassment, provided it takes                       lection in this complaint.
prompt, appropriate, and effective action
upon learning of the harassment. In the                 The complainant satisfied his threshold
first case, management failed to do so;                 burden of presenting a prima facie case
hence it was held liable for the harass-                of retaliation. He had engaged in prior
ment. In this case, management took                     EEO complaint activity, the selecting
prompt, effective, and appropriate ac-                  official was aware of his prior com-
tion, and was thereby able to avoid lia-                plaints, and his nonselection occurred
bility for the harasser’s behavior.                     within a relatively short period of time
                                                        after the filing of his second complaint.

                          III                           The selecting official likewise satisfied
                                                        her legal burden of articulating nondi-
MANAGEMENT’S EXPLANATION IN A                           scriminatory reasons for her selection
SELECTION ACTION FOUND TO BE A                          decision. Specifically, she stated that
PRETEXT FOR RETALIATION                                 the complainant did not possess as
                                                        many skills as the persons selected and,
OEDCA recently issued a final agency                    in a memorandum given to the complai-
decision finding retaliation in a case that             nant, mentioned a few areas in which he
illustrates the consequences for manag-                 was lacking, namely, volunteering and
                                                        working irregular tours.
1
  The rules for employer liability are different when
a supervisor is guilty of the harassment.


                                                                                                5
                          OEDCA DIGEST

At this point, the complainant had the         EEO complaint activity. Again, facts in
burden of proving by a preponderance           the record refuted her assertion. As
of the evidence that the reasons articu-       noted above, one of his prior complaints
lated by the selecting official were not       named her as the official responsible for
the real reasons for her decision, but         the alleged discrimination; and the evi-
were instead a pretext to mask a retalia-      dence showed that both an EEO coun-
tory motive. He succeeded in doing so.         selor and an EEO investigator inter-
                                               viewed her about that complaint.
The selection decision was based, at
least in part, on the results of interviews.   OEDCA concluded that the selecting
The interview process, however, was            official lacked credibility, and that the
poorly structured, interview notes were        reasons she articulated for not choosing
vague and difficult to follow, the criteria    the complainant were pretextual. Ac-
for judging the candidates during the in-      cordingly, OEDCA issued a decision
terviews were unclear, and there was no        finding retaliation and awarded the
apparent system for rating the appli-          complainant appropriate relief.
cants being interviewed.

One of the reasons given for the com-                             IV
plainant’s nonselection was that his res-
ponses were “not of the same caliber as        VA HELD LIABLE WHERE FEMALE
the four individuals selected”, and that       EMPLOYEE SEXUALLY HARASSED
the responses “lacked insight.” No ex-         MALE COWORKERS
planation, however, was offered to sup-
port these vague conclusions.                  The Complainants, both male, alleged
                                               that a female coworker, a secretary who
The primary reason cited by the select-        worked in a nearby area, sexually ha-
ing official was “past performance.” She       rassed them on numerous occasions
noted areas in which she considered the        over a period of several months, begin-
complainant to be deficient, such as not       ning in November 1998. They stated
volunteering, not being willing to work        that the harassment took the form of
odd shifts, and not being a team player.       lewd acts and sexually suggestive
The complainant, however, presented            comments that created an abusive and
documentary evidence refuting these            hostile work environment and interfered
reasons. The documents showed that             with their ability to work.
he had volunteered and had worked ir-
regular shifts. Moreover, he produced a        Both complainants communicated to the
memo written a year earlier in which the       harasser that her conduct was unwel-
selecting official referred to him as a        come, but she typically responded to
“team player.”                                 their objections by laughing at them.

The selecting official also claimed that it    Another male employee testified that the
was not possible for her to have reta-         harasser had made sexually suggestive
liated against the complainant because         comments to him, and other witnesses
she was not even aware of his prior            presented testimony concerning the ha-


                                                                                      6
                                 OEDCA DIGEST

rasser’s inappropriate attire in the                     The lesson for victims of sexual ha-
workplace. Although the harasser de-                     rassment is equally clear. Allowing the
nied all of the alleged conduct, the                     harassment to continue for a lengthy pe-
EEOC judge found the complainants to                     riod of time before bringing it to the at-
be more credible than the harasser.                      tention of an appropriate management
                                                         official could result, depending on the
The complainants first mentioned the                     facts of the case, in a finding that the
harasser’s behavior to their supervisor                  employer is not liable, or in a significant
at a meeting in August 1999, but they                    reduction in the amount of any damage
did not clearly communicate either the                   award if there is a finding of liability.
type of behavior involved or that it was
unwelcome. However, they again re-
ported the sexual harassment to the                                          V
same supervisor - this time in specific
detail - during a September 1999 meet-                   APPLICANT WHO TESTED POSITIVE
ing. The supervisor took no action after                 FOR ILLEGAL DRUG USE NOT DIS-
receiving their report.                                  ABLED – HENCE NOT PROTECTED
                                                         BY THE REHABILITATION ACT
OEDCA agreed with the EEOC adminis-
trative judge’s conclusion that the con-                 A veteran patient in the VA’s Compen-
duct in question was unwelcome and                       sated Work Therapy (CWT) program,
sufficiently severe to constitute sexual                 applied for a regular, full-time position
harassment in violation of Title VII of the              as a Federal employee at the hospital
Civil Rights Act of 1964, as amended.                    where he was a patient. He later re-
                                                         ceived an offer of employment as a
OEDCA also agreed that the Depart-                       Housekeeping Aid.
ment is liable for the harassment be-
cause it failed to take prompt, appropri-                Around the same time that he had ap-
ate, and effective action after learning of              plied for the position, he received notifi-
the unlawful behavior. The EEOC judge                    cation of his termination from the CWT
noted, however, that the complainants’                   program for failing to remain free of
failure to report the matter prior to Sep-               substance abuse. When the officials
tember 1999 reduced the amount of                        who hired him were advised of this mat-
their damages award.                                     ter, they withdrew their offer of employ-
                                                         ment. The record shows that they with-
The lesson here for supervisors is ob-                   drew the employment offer after he had
vious. Failure to take prompt, effective,                twice tested positive for cocaine and
and appropriate action upon receipt of a                 other opiates.
report of sexual harassment by a non-
supervisory employee2 will result in the                 The veteran thereafter filed an EEO
VA being held liable for the unlawful                    complaint alleging that the withdrawal of
conduct.                                                 the employment offer constituted dis-
                                                         crimination against him on account of
2
   The rules for employer liability are different when   his drug addiction. Following an agency
a supervisor is guilty of the harassment.                investigation and a subsequent review


                                                                                                  7
                           OEDCA DIGEST

of the complaint by an EEOC adminis-            SULTS IN FINDING OF NO DISCRIMI-
trative judge, OEDCA issued a final or-         NATION.
der agreeing with the EEOC judge’s de-
cision that the complainant had failed to       The complainant was fired from her job
show that he was disabled.                      as a medical supply technician before
                                                the expiration of her probationary pe-
The Rehabilitation Act and The Ameri-           riod. The reasons given for removing
cans with Disabilities Act do afford pro-       her were her leave usage, error rate,
tection to individuals who are participat-      and work productivity.
ing in, or who have successfully com-
pleted a supervised drug rehabilitation         In response, the complainant claimed
program, or who have otherwise been             that her removal was due to her disabili-
rehabilitated successfully, provided they       ty, which she described as a hearing
are no longer engaging in the illegal use       impairment. Her supervisor, however,
of drugs. Also protected are individuals        testified that she did not become aware
who are erroneously regarded as en-             of the hearing impairment until after the
gaging in illegal drug use, but are not         complainant filed an EEO complaint.
engaging in such use.                           She further noted that the complainant
                                                had never indicated there was a prob-
The above laws, however, do not pro-            lem understanding her, and that she had
tect individuals who are currently engag-       observed the complainant talking to co-
ing in illegal drug use, as they specifical-    workers in the break room and never
ly exclude from the definition of the           heard any mention of a hearing impair-
terms disability and qualified individual       ment.
with a disability individuals who are cur-
rently using illegal drugs.                     After reviewing all of the evidence in the
                                                record, OEDCA concluded that, while
In this case it was undisputed that the         the complainant had presented evi-
complainant was engaged in the use of           dence of a hearing impairment – she
illegal drugs at the time the employment        wore hearing aids in both ears – she
offer was withdrawn. Hence, he did not          provided no evidence, despite a request
fall within the definition of a qualified in-   to do so, regarding its severity or the
dividual with a disability, and was thus        degree to which the hearing aids im-
unable to prove that the hospital discri-       proved her ability to hear. Moreover,
minated against him because of a disa-          she presented no evidence that the im-
bility.                                         mediate supervisor who fired her was
                                                aware of the hearing impairment. Final-
                                                ly, although there was some evidence
                     VI                         that her second-level supervisor was
                                                aware of a hearing impairment, there
COMPLAINANT’S FAILURE TO OF-                    was no indication in the record that that
FER PROOF OF SEVERITY OF HEAR-                  individual perceived the complainant as
ING IMPAIRMENT AND MANAGE-                      substantially limited in her ability to hear.
MENT’S AWARENESS OF IT RE-



                                                                                           8
                            OEDCA DIGEST

In view of the above, OEDCA concluded             action or matter complained of was
that the complainant failed to prove that         aware of the disability.
her hearing impairment constituted a
disability, as that term is defined by The
Rehabilitation Act of 1973 and The                                    VII
Americans with Disabilities Act of 1990,
and, hence, failed to prove that she was          EVIDENCE PRESENTED BY COM-
a “qualified individual with a disability.”       PLAINANT NOT SUFFICIENT TO
Absent such proof, she was unable to              PROVE THAT REASONS GIVEN FOR
establish even a prima facie case of              NOT PROMOTING HER WERE A
disability discrimination.                        PRETEXT FOR DISCRIMINATION

This case illustrates some common rea-            OEDCA recently accepted an EEOC
sons why complainants are often unable            administrative judge’s decision that a
to prevail on their disability discrimina-        complainant was not discriminated
tion claims. First, it is not enough mere-        against on account of her race, gender,
ly to prove the existence of a physical or        and age in connection with her nonse-
mental impairment. A complainant must             lection for the position of Chief of Volun-
also prove that the impairment sub-               tary Service and Community Relations.
stantially limits a major life activity. An       This case highlights several issues and
impairment substantially limits a major           common misconceptions that frequently
life activity if it: (1) prevents an individual   arise in nonselection and nonpromotion
from performing that activity, or (2) sig-        cases.
nificantly restricts the duration, manner,
or condition under which an individual            Along with several other applicants, the
can perform a particular major life activi-       complainant applied and was found
ty as compared to the average person in           qualified for the above position. Despite
the general population’s ability to per-          her qualifications, she was passed over
form that same major life activity.               in favor of a male applicant who was
                                                  younger and of a different race. The
Second, even if the impairment would              complainant thereafter alleged that her
ordinarily be substantially limiting, it          nonselection was due to her race, age
would not constitute a disability if miti-        and gender.
gating measures, such as the use of
medication or assistive devices, result in        As proof of discrimination, the complai-
no limitation, or a limitation that is no         nant claimed the following: (1) in her
longer substantial.                               opinion her qualifications were superior
                                                  to those of the selectee, (2) the select-
Finally, even if an individual has a sub-         ing official should have given more
stantially limiting impairment and,               weight to her greater length of service,
hence, a disability, an individual cannot         (3) some of the reasons articulated by
prove disability discrimination – not even        the selecting official were “subjective”,
a prima facie case of such discrimina-            and (4) the selectee was “pre-selected.”
tion – if he or she is unable to prove that       The EEOC administrative judge correct-
the person responsible for the personnel          ly dismissed all of these assertions as


                                                                                           9
                          OEDCA DIGEST

insufficient, under the facts of this case,   dard. The term “plainly superior” gener-
to prove discriminatory intent.               ally means a wide disparity in the quali-
                                              fications of a complainant and the selec-
First, the judge noted that the complai-      tee. As the EEOC judge noted, absent
nant’s mere opinion that she is better        a showing that the complainant’s qualifi-
qualified than the selectee – a not un-       cations are “plainly superior”, the judge
common belief among disappointed ap-          has no authority to substitute his or her
plicants –- is not evidence of that fact.     own judgment for that of a selecting offi-
                                              cial, who is in the best position to under-
Second, while the complainant had the         stand the needs of an organization and
necessary qualifications and greater          the qualifications of the applicants.
length of service than the selectee, the
selecting official found the selectee to      As for the subjectivity of some of the
be better qualified because of his con-       reasons given for her nonselection, the
sistently “outstanding” performance rat-      judge reiterated the basic principle that,
ings, recent successes in integrating         while employers may not use subjective
and moving departments and facilities to      reasons as a guise, or pretext, for dis-
new sites, his superior educational at-       criminatory practices, subjective rea-
tainments, his excellent reputation in the    sons for promotion decisions are com-
agency, his facility with public relations,   mon and often appropriate and neces-
and his demonstrated leadership when          sary, especially when management level
he served in the position in an “acting”      jobs are involved, as in this case.
capacity prior to being selected.             Courts have frequently noted that em-
                                              ployers are entitled to make their own
The judge correctly noted that manage-        subjective business judgments, however
ment officials are free to exercise their     misguided or unfair they may appear to
own business judgment as long as that         an observer, for any reason that is not
judgment is not based on discriminatory       discriminatory.
criteria. Thus, although the complainant
had more seniority, and although she          Finally, the judge dismissed the argu-
believed that seniority should have been      ment that the individual chosen was
a decisive factor in her favor, manage-       “pre-selected.” It was clear from the
ment was not required to give that factor     record that the designation of the selec-
equal or more weight than other factors       tee as Acting Chief gave him a competi-
it deemed important and relevant.             tive advantage over other applicants,
                                              given that his performance while acting
Moreover, the judge noted that even if        was a consideration in his selection. It
the complainant could show that she           is even possible, and perhaps probable,
had “superior” qualifications (which she      that the selecting official already had the
was unable to do in this case), such a        selectee in mind for the position when
showing, by itself, would not be suffi-       designating the selectee as “Acting.”
cient to prove discriminatory intent. In-     Such facts, however, do not necessarily
stead, the complainant would have to          prove discriminatory intent.           “Pre-
show that her qualifications were “plainly    selection”, by itself, does not violate Title
superior”, a much more difficult stan-        VII of the Civil Rights Act. Such a viola-


                                                                                        10
                          OEDCA DIGEST

tion requires proof of discriminatory in-    ronment. He described her appearance
tent.                                        as “garish”, explaining that she dressed
                                             inappropriately, as if she were attending
Indeed, in many cases, evidence of pre-      a cocktail party. He further described
selection can actually prove the ab-         her as a “toucher”, stating the she would
sence of a discriminatory intent. For        shake hands with both hands. Moreo-
example, it is not uncommon for select-      ver, he alleged that she would get too
ing officials to know in advance whom        close to people when speaking to them.
they will select or hire for a particular    He also testified that he once saw her
job, even before they announce a va-         place her arms around the neck of a
cancy and, hence, before they even           young man, and that she fraternizes in-
know the identity and race, gender, age,     appropriately with various individuals.
etc. of other individuals who might ap-      Finally, he testified that she pinched the
ply. Such a situation does not suggest a     buttocks of two of his subordinate em-
discriminatory motive.                       ployees -- one male and one female.
                                             Both employees corroborate that the
Often, “pre-selection” legitimately occurs   pinching incidents occurred. One of
simply because the selecting official has    them, however, the male, did not find it
previously recognized the high-level per-    objectionable; nor did he think the con-
formance and ability of an individual and    duct was sexual in nature. The female
has already made up his or her mind to       employee did complain about the inci-
select that individual before the vacancy    dent, which she claimed occurred in an
is even announced. In such situations,       elevator with several other persons
a factor other than discrimination is the    present.
motive.
                                             The Nurse Executive testified that she is
While pre-selection might, and usually       a “hugger” and, by nature, a “warm per-
does, seem unfair to a disappointed ap-      son.” She denied that any of her con-
plicant, it does not violate civil rights    duct was offensive or sexual in nature.
laws, unless there is persuasive evi-        In addition, she denied pinching the but-
dence that the pre-selection occurred        tock of the female employee, noting that
because of discriminatory reasons.           a subsequent investigation by an admin-
                                             istrative board found insufficient evi-
                                             dence to conclude that the incident hap-
                   VIII                      pened. She opined that the complainant
                                             resented her because she is a woman
FEMALE EMPLOYEE’S APPEAR-                    and because she is “uppity.”
ANCE AND CONDUCT, ALTHOUGH
UNUSUAL, DID NOT CONSTITUTE                  After reviewing the evidence in the
SEXUAL HARASSMENT                            record, OEDCA issued a final agency
                                             decision finding that sexual harassment
The complainant, a physician, alleged        did not occur. The evidence did show
that a female colleague, an Executive        that the Nurse Executive’s appearance
Nurse, subjected him to sexual harass-       and manner were somewhat unusual.
ment, resulting in a hostile work envi-      She tends to stand out in a crowd. The


                                                                                    11
                         OEDCA DIGEST

record also confirmed that she is a          In addition to not being sexual in nature,
“toucher” and that she hugs and kisses       the conduct in question does not appear
others readily. Moreover, despite the        to have occurred because of the com-
administrative board’s finding regarding     plainant’s sex. In most sexual harass-
one of the pinching incidents, OEDCA         ment cases, this element of proof is eas-
concluded that the preponderance of the      ily satisfied because the harassing be-
evidence suggested that both pinching        havior is usually not directed against
incidents probably did occur. Finally,       both sexes. In this case, however, the
the evidence did support the complai-        evidence demonstrated that the Nurse
nant’s contention that the Nurse Execu-      Executive’s manner was not based on
tive shook his hand using both of her        the sex of the complainant or anyone
hands.                                       else. The evidence showed that she is
                                             the way she is, regardless of who is
Although the evidence supported the          present. She hugs and kisses both men
complainant’s assertions regarding the       and women. Even the pinching inci-
Nurse Executive’s conduct, OEDCA             dents involved both sexes. Moreover,
concluded that the conduct did not con-      the only witnesses who found her man-
stitute sexual harassment, as that term      ner objectionable were a male (the
has been defined by several U.S. Su-         complainant) and the female she
preme Court decisions. In order for          pinched.
conduct to rise to the level of unlawful
sexual harassment in violation of Title      Finally, the record did not show behavior
VII of the Civil Rights Act of 1964, the     that was so “severe or pervasive” as to
conduct must be (1) unwelcome, (2)           create an abusive and hostile work envi-
sexual in nature, (3) it must have oc-       ronment for the complainant. The Su-
curred because of the complainant’s          preme Court has stated that Title VII is
sex, and (4) it must be sufficiently se-     not a “general civility code”; and for
vere or pervasive to create an objective-    conduct to be unlawful, “[it] must be ex-
ly hostile environment.                      treme to amount to a change in the
                                             terms and conditions of employment”.
Admittedly, the Nurse Executive’s man-       Here, none of the behavior directed at
ner was unwelcome, at least as far as        the complainant was severe enough to
the complainant was concerned. How-          create an objectively hostile work envi-
ever, except for the two-handed hand-        ronment.
shakes, the complained-of conduct was
directed at other individuals. The com-      A word of caution is in order, lest the
plainant did not identify any incidents or   reader misunderstand the lesson in this
conduct directed at him that could rea-      case. If the above facts were slightly
sonably be construed as sexual in na-        different, the outcome may have been
ture. At most, the evidence showed that      different. The courts and the EEOC
the Nurse Executive was a warm, out-         have held repeatedly that even a single
going, demonstrative, and physical per-      incident involving an intimate touching,
son, who readily invades the “personal       such as the buttocks pinching incidents,
space” of others.                            would be serious enough to satisfy the
                                             requisite “severe or pervasive” standard.


                                                                                    12
                         OEDCA DIGEST

In this case, however, the complainant                          IX
did not claim that the Nurse Executive
pinched him on the buttock. Had he          FEDERAL APPEALS COURTS WARN
made and proved that claim, and had he      EMPLOYERS THAT HARASSMENT
shown that the Nurse Executive's physi-     AGAINST GAYS MAY, IN CERTAIN
cal conduct against him was because he      CASES, CONSTITUTE DISCRIMINA-
is a male, he would have been able to       TION BECAUSE OF SEX IN VIOLA-
prove that sexual harassment occurred.      TION OF TITLE VII

A further word of caution is in order. We   The U.S. Supreme Court has previously
do not wish to suggest that an individual   ruled that Title VII of the Civil Rights Act
may inappropriately touch employees         of 1964 offers protection to men ha-
and get away with it, as long as he or      rassed by men, and to women harassed
she does it to both males and females.      by women, but not where the harasser’s
Although several appellate courts are of    motive is the victim’s sexual orientation.
the opinion that it is not sexual harass-   For that reason, complaints alleging
ment if the conduct is directed equally     gender discrimination due to sexual
against both males and females, the         orientation have almost always failed.
Equal Employment Opportunity Com-
mission has held, at least in one case,     Recently, however, two Federal circuit
that “equal opportunity harassers” are      courts of appeal, the 3rd and the 9th,
not immune from Title VII’s prohibitions.   have recognized the validity of gender
At the very least, such behavior would      discrimination claims filed by gays, but
constitute serious misconduct, for which    only in certain limited circumstances.
the wrongdoer could and should be pu-       While the two courts still adhere to the
nished.                                     principle that discrimination based on
                                            sexual orientation, per se, is not prohi-
The real lesson here is this: touching      bited by Title VII, they have found that
other employees can be risky business.      discrimination based on nonconformity
As we noted in the Summer 2000 edi-         to the sexual stereotypes of one’s gend-
tion of the OEDCA Digest, employees,        er does constitute discrimination be-
managers, and supervisors should avoid      cause of sex. In both cases, the plain-
touching coworkers or subordinates. An      tiffs were gay men who were harassed
exception may be hugging a subordi-         and abused for behavior that was effe-
nate or coworker at a retirement party.     minate in nature.
We have mentioned before that some
employers have instituted strict policies   The two circuit courts cite as authority
requiring that managers and supervisors     for their holdings an eleven year-old Su-
be disciplined for touching employees,      preme Court decision, Price Water-
even if the touching incidents might not    house v. Hopkins. In the Hopkins case,
have resulted in a finding of sexual ha-    a female accountant claimed that she
rassment under Title VII.                   was told she would never become a
                                            partner in the firm, unless she acted in a
                                            more feminine manner. The Court indi-
                                            cated that such a claim would be ac-


                                                                                     13
                          OEDCA DIGEST

tionable under Title VII, because “in the     tute an “undue hardship” on the em-
specific context of sex stereotyping, an      ployer.
employer who acts on the basis of a be-
lief that a woman cannot be aggressive,
or that she must not be, has acted on         Q.1. Must an employer provide an ac-
the basis of gender.”                         commodation to a disabled employee, if
                                              doing so would cause an undue hard-
Hence, at least in some Federal circuits,     ship on the employer’s business opera-
claims alleging discrimination against        tion?
gays may survive motions to dismiss for
failure to state a claim, if the claim is     A.1. An employer does not have to
based on a departure from sexual ste-         provide a reasonable accommodation
reotypes and if the claim specifically ar-    that would cause an "undue hardship" to
ticulates that basis, rather than merely      the employer. However, generalized
alleging discrimination because of sex-       conclusions by an employer will not suf-
ual orientation.                              fice to support a claim of undue hard-
                                              ship. Instead, undue hardship must be
As noted above, the rulings in these          based on an individualized assessment
cases are limited to gender non-              of current circumstances that show that
conformance claims, and offer no reme-        a specific reasonable accommodation
dy for gay men and women who do not           would cause significant difficulty or ex-
appear gay.                                   pense. A determination of undue hard-
                                              ship should be based on several factors,
                                              including:
                    X
                                                    the nature and cost of the ac-
FREQUENTLY ASKED QUESTIONS                           commodation needed;
AND ANSWERS CONCERNING THE
DUTY TO ACCOMMODATE AN EM-                          the overall financial resources of
PLOYEE’S DISABILITY                                  the facility making the reasonable
                                                     accommodation; the number of
(Complaints concerning an employer’s                 persons employed at this facility;
failure to accommodate an employee’s                 the effect on expenses and re-
disability account for a significant num-            sources of the facility;
ber of discrimination complaints filed
against private and Federal sector em-              the overall financial resources,
ployers. Unfortunately, this is one of the           size, number of employees, and
most difficult and least understood areas            type and location of facilities of
of civil rights law. This is the seventh in          the employer (if the facility in-
a series of articles addressing some fre-            volved in the reasonable accom-
quently asked questions and answers                  modation is part of a larger enti-
concerning the reasonable accommoda-                 ty); the type of operation of the
tion requirement. This article answers               employer, including the structure
some frequently asked questions as to                and functions of the workforce,
when an accommodation might consti-                  the geographic separateness,


                                                                                    14
                            OEDCA DIGEST

       and the administrative or fiscal
       relationship of the facility involved     A.3. No. An employer cannot claim
       in making the accommodation to            undue hardship based on employees'
       the employer;                             (or customers') fears or prejudices to-
                                                 ward the individual's disability. Nor can
      the impact of the accommodation           undue hardship be based on the fact
       on the operation of the facility.         that provision of a reasonable accom-
                                                 modation might have a negative impact
                                                 on the morale of other employees. Em-
Q.2. What sources of funding must an             ployers, however, may be able to show
employer consider when assessing                 undue hardship where provision of a
whether an accommodation would be                reasonable accommodation would be
too costly?                                      unduly disruptive to other employees’
                                                 ability to work.

A.2. The legislative history of the                   Example A:        An employee with
Americans with Disabilities Act (ADA)            breast cancer is undergoing chemothe-
indicates that Congress wanted em-               rapy. As a consequence of the treat-
ployers to consider all possible sources         ment, the employee is subject to fatigue
of outside funding when assessing                and finds it difficult to keep up with her
whether a particular accommodation               regular workload. So that she may fo-
would be too costly. Undue hardship is           cus her reduced energy on performing
determined based on the net cost to the          her essential functions, the employer
employer. Thus, an employer should               transfers three of her marginal functions
determine whether funding is available           to another employee for the duration of
from an outside source. Also, to the ex-         the chemotherapy treatments.           The
tent that a portion of the cost of an ac-        second employee is unhappy at being
commodation causes undue hardship,               given extra assignments, but the em-
the employer should ask the individual           ployer determines that the employee
with a disability if s/he will pay the differ-   can absorb the new assignments with
ence.                                            little effect on his ability to perform his
                                                 own assignments in a timely manner.
If an employer determines that one par-          Since the employer cannot show signifi-
ticular reasonable accommodation will            cant disruption to its operation, there is
cause undue hardship, but a second               no undue hardship.
type of reasonable accommodation will
be effective and will not cause an undue             Example B: A convenience store
hardship, then the employer must pro-            clerk with multiple sclerosis requests
vide the second accommodation.                   that he be allowed to go from working
                                                 full-time to part-time as a reasonable
                                                 accommodation because of his disabili-
Q.3. May an employer take into ac-               ty. The store assigns two clerks per
count employees’ or customers’ fears or          shift, and if the first clerk's hours are re-
prejudices toward the individual’s disa-         duced, the second clerk's workload will
bility?                                          increase significantly beyond his ability


                                                                                           15
                          OEDCA DIGEST

to handle his responsibilities. The store     ness. Thus, the employer can deny the
determines that such an arrangement           requested accommodation, but should
will result in inadequate coverage to         discuss with the employee if there are
serve customers in a timely manner,           other possible accommodations that
keep the shelves stocked, and maintain        would not result in undue hardship.
store security. Thus, the employer can
show undue hardship based on the sig-              Example B: A computer programmer
nificant disruption to its operations and,    works with a group of people to develop
therefore, can refuse to reduce the em-       new software. There are certain tasks
ployee's hours. The employer, however,        that the entire group must perform to-
should explore whether any other rea-         gether, but each person also has indi-
sonable accommodation will assist the         vidual assignments. It is through habit,
store clerk without causing undue hard-       not necessity, that they have often
ship.                                         worked together first thing in the morn-
                                              ing. The programmer, due to her disa-
                                              bility, requests an adjustment in her
Q.4. Must an employer modify the              work schedule so that she works from
work hours of an employee with a disa-        10:00 a.m. - 7:00 p.m. rather than 9:00
bility if doing so would prevent other        a.m. - 6:00 p.m. In this situation, the
employees from performing their jobs?         employer could grant the adjustment in
                                              hours because it would not significantly
A.4. No. If the result of modifying one       disrupt the operations of the business.
employee's work hours (or granting            The effect of the reasonable accommo-
leave) is to prevent other employees          dation would be to alter when the group
from doing their jobs, then the significant   worked together and when they per-
disruption to the operations of the em-       formed their individual assignments.
ployer constitutes an undue hardship.

    Example A: A crane operator, due to       Q.5. Can an employer deny a request
his disability, requests an adjustment in     for leave when an employee cannot
his work schedule so that he starts work      provide a fixed date of return?
at 8:00 a.m. rather than 7:00 a.m., and
finishes one hour later in the evening.       A.5. Providing leave to an employee
The crane operator works with three           who is unable to provide a fixed date of
other employees who cannot perform            return is a form of reasonable accom-
their jobs without the crane operator. As     modation. However, if an employer is
a result, if the employer grants this re-     able to show that the lack of a fixed re-
quested accommodation, it would have          turn date causes an undue hardship,
to require the other three workers to ad-     then it can deny the leave. In certain
just their hours, find other work for them    circumstances, undue hardship will de-
to do from 7:00 to 8:00, or have the          rive from the disruption to the operations
workers do nothing. The ADA does not          of the entity that occurs because the
require the employer to take any of           employer can neither plan for the em-
these actions because they all signifi-       ployee's return nor permanently fill the
cantly disrupt the operations of the busi-    position. If an employee cannot provide


                                                                                     16
                         OEDCA DIGEST

a fixed date of return, and an employer      eight weeks of leave for surgery for his
determines that it can grant such leave      disability. The employer grants the re-
at that time without causing undue hard-     quest. During surgery, serious compli-
ship, the employer has the right to re-      cations arise that require a lengthier pe-
quire, as part of the interactive process,   riod of recuperation than originally antic-
that the employee provide periodic up-       ipated, as well as additional surgery.
dates on his/her condition and possible      The employee contacts the employer
date of return. After receiving these up-    after three weeks of leave to ask for an
dates, employers may reevaluate              additional ten to fourteen weeks of leave
whether continued leave constitutes an       (i.e., a total of 18 to 22 weeks of leave).
undue hardship.                              The employer must assess whether
                                             granting additional leave causes an un-
In certain situations, an employee may       due hardship.
be able to provide only an approximate
date of return. Treatment and recupera-
tion do not always permit exact time-        Q.6. Does a cost-benefit analysis de-
tables. Thus, an employer cannot claim       termine whether a reasonable accom-
undue hardship solely because an em-         modation will cause undue hardship?
ployee can provide only an approximate
date of return. In such situations, or in    A.6. No! A cost-benefit analysis as-
situations in which a return date must be    sesses the cost of a reasonable ac-
postponed because of unforeseen med-         commodation in relation to the per-
ical developments, employees should          ceived benefit to the employer and the
stay in regular communication with their     employee. Neither the statute nor the
employers to inform them of their            legislative history supports a cost-
progress and discuss, if necessary, the      benefit analysis to determine whether a
need for continued leave beyond what         specific accommodation causes an un-
might have been granted originally.          due hardship. Whether the cost of a
                                             reasonable accommodation imposes an
    Example A: An experienced chef at        undue hardship depends on the em-
a top restaurant requests leave for          ployer's resources, not on the individu-
treatment of her disability but cannot       al's salary, position, or status (e.g., full-
provide a fixed date of return. The res-     time versus part-time, salary versus
taurant can show that this request con-      hourly wage, permanent versus tempo-
stitutes undue hardship because of the       rary).
difficulty of replacing, even temporarily,
a chef of this caliber. Moreover, it
leaves the employer unable to deter-         Q.7. Can an employer claim that a
mine how long it must hold open the po-      reasonable accommodation imposes an
sition or to plan for the chef's absence.    undue hardship simply because it vi-
Therefore, the restaurant can deny the       olates a collective bargaining agreement
request for leave as a reasonable ac-        (CBA)?
commodation.

   Example B: An employee requests           A.7.   No.    First, an employer should


                                                                                       17
                           OEDCA DIGEST

determine if it could provide a reasona-        tionship between the employer and
ble accommodation that would remove             property owner requires the owner's
the workplace barrier without violating         consent to the kinds of changes that are
the CBA. If no reasonable accommoda-            required, or prohibits them from being
tion exists that avoids violating the CBA,      made, then the employer must make
then the ADA requires an employer and           good faith efforts either to obtain the
a union, as a collective bargaining rep-        owner's permission or to negotiate an
resentative, to negotiate in good faith a       exception to the terms of the contract. If
variance to the CBA so that the employ-         the owner refuses to allow the employer
er may provide a reasonable accommo-            to make the modifications, the employer
dation, except if the proposed accom-           may claim undue hardship. Even in this
modation unduly burdens the expecta-            situation, however, the employer must
tions of other workers (i.e., causes un-        still provide another reasonable accom-
due hardship). Undue hardship must be           modation, if one exists, that would not
assessed on a case-by-case basis to             cause undue hardship.
determine the extent to which the pro-
posed accommodation would affect the                Example A: X Corp., a travel agen-
expectations of other employees.                cy, leases space in a building owned by
Among the relevant factors to assess            Z Co. One of X Corp.'s employees be-
would be the duration and severity of           comes disabled and needs to use a
any adverse effects caused by granting          wheelchair. The employee requests as
a variance and the number of em-                a reasonable accommodation that sev-
ployees whose employment opportuni-             eral room dividers be moved to make
ties would be affected by the variance.         his workspace easily accessible.      X
                                                Corp.'s lease specifically allows it to
                                                make these kinds of physical changes,
Q.8. Can an employer claim undue                and they are otherwise easy and inex-
hardship solely because a reasonable            pensive to make. The fact that X Corp.
accommodation would require it to make          does not own the property does not
changes to property owned by someone            create an undue hardship and therefore
else?                                           it must make the requested accommo-
                                                dation.
A.8. No, an employer cannot claim
undue hardship solely because a rea-                Example B: Same as Example A,
sonable accommodation would require it          except that X Corp.'s lease requires it to
to make changes to property owned by            seek Z Co.'s permission before making
someone else. In some situations, an            any physical changes that would involve
employer will have the right under a            reconfiguring office space. X Corp. re-
lease or other contractual relationship         quests that Z Co. allow it to make the
with the property owner to make the             changes, but Z Co. denies the request.
type of changes that are needed. If this        X Corp. can claim that making the phys-
is the case, the employer should make           ical changes would constitute an undue
the changes, assuming no other factors          hardship. However, it must provide any
exist that would make the changes too           other type of reasonable accommoda-
difficult or costly. If the contractual rela-   tion that would not involve making phys-


                                                                                       18
                          OEDCA DIGEST

ical changes to the facility, such as find-
ing a different location within the office
that would be accessible to the em-
ployee.

An employer should remember its obli-
gation to make reasonable accommoda-
tion when it is negotiating contracts with
property owners. Similarly, a property
owner should carefully assess a request
from an employer to make physical
changes that are needed as a reasona-
ble accommodation because failure to
permit the modification might constitute
"interference" with the rights of an em-
ployee with a disability. In addition, oth-
er ADA provisions may require the
property owner to make the modifica-
tions.




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