Theories of Discrimination

The following are the theories of discrimination that guide the EEO investigation and judge's decisions. EEOC decisions, MSPB decisions (on discrimination aspects), and OFO decisions all follow these well established legal theories formulated by years of the precedence setting cases codified in the American legal history.  All judge's decision will cite one or more of these theories in terms of actual case precedence. These are the elements necessary to establish discrimination in your case.

1. Disparate Treatment:

a. You are a member of the protected class(es) you are invoking.  For example, that you are of Asian race, that you are male, that you have disability (see below for the definition of disability), that your age is over 40 (difference of 7 years or more between yourself and your comparison can constitute age discrimination, even though the comparison is over age 40), that you had file prior EEO case or had engaged in prior EEO activity (see below for establishing the “nexus” or causal connection between the prior protected EEO activity and the subsequent act of harm).

b. The discriminator or retaliator knew of your protected class(es).  (E. g., he know that you had disability/your religion or non-religion/your age or race, etc.)

c. Act(s) of harm occurred.  That you were suspended, reprimanded, denied hire (not selected or referred), denied promotion, denied bonus, rated lower, removed, etc.  Match dates with each act of harm.  

d. Others who were similarly situated were not so adversely treated or accorded more favorable treatment.

• i. Show they report(ed) to the same chain of command, if issue is related to performance or discipline.  If not (such as payroll mishap), a much broader pool of the similarly situated individuals may be compared to.
• ii. Show they did similar things based under the same or similar position description and were not disciplined as you were.  Or show they received favorable treatment (i.e., bonuses, rating, promotion) when you were denied such treatment (i.e., bonuses, rating, promotion).  
• iii. A similarly situated person is one whose employment situation is nearly identical in all relevant aspects to that of the complainant.  See, e.g., Payne v. Illinois Central Railroad, 665 F. Supp. 1038, 1043 (W.D. Tenn. 1987); O’Neal v. Postmaster General, USPS, EEOC No. 05910490, 92 FEOR 3011 (July 23, 1991).

e. The stated reasons Agency provided to you (for averse action done to you) or for favoring others similarly situated individuals (for favorable actions done to them but not to you) are pretext (or a cover-up for the underlying discriminatory motive or animus).  

• i. To show pretext, you must show one of the following:

1. The stated reasons did not apply to others similarly situated.
2. The stated reasons cannot be true because there are no basis for stating those reasons (i.e., it did not happen as they claim it did or you did not do it as claimed).  
3. Show that if the same stated reasons were applied to others similarly situated, they too should have been disciplined or denied promotion, etc., but they were spared or granted.  
4. The stated reasons were never applied before (e.g., prior to Complainant making an EEO claim) but were suddenly applied (e.g., soon after Complainant applied, etc.).

2. Harassment:

a. You are a member of a protected class.  

b. The harasser knew of your protected class.  (e.g., if someone did not know that you had a disability, or religion/non-religion, you cannot claim harassment based on your disability or religion/non-religion.)

c. Acts of harm occurred.   Incidents happened either on a “regular and pervasive” basis--meaning they occurred on incremental and on-going bases, daily, weekly, or monthly in such a way that any reasonable person within your protected class would have felt detrimental given same or similar circumstances so as to adversely affect his or her job performance or daily living; or, the incident was “severe”--meaning that even though it occurred only once, it was so severe that any reasonable person within your protected class would be detrimentally affected in work and life given same or similar circumstances.     

d. You were detrimentally affected by the incidents of harassment.  “Detrimental” means your job performance was severely affected due to incidents of harassment or your daily life outside job was severely affected because of the harassing incidents, such as loss of sleep, deterioration of health (to the point of having to seek professional help and/or having to take new or increased dose of prescription medication, etc.), loss of enjoyment of life (e.g., could not go out to meeting friends, theatre, church, etc. or no longer able to enjoy family members, etc.).

e. Harassment was either related to your protected classes (such as sexually suggestive touching if you are claiming harassment based on sex) or was of intimidation in nature so that you were harassed in terms of disparate treatment (such as: you were asked to make coffee every morning for your boss when others were not so asked; you were emailed every day when your boss talks to others in person instead of emailing for the same reasons, you were yelled at and greeted with derision everyday, etc.).  (If you can, try to claim disparate treatment and not harassment.  For example, reprimand is not harassment but a discrete act of disparate treatment.  Denied promotion or team lead position is discrete act of disparate treatment, not harassment.  EEO Directors like to put everything under harassment because harassment is more difficult to prove (more items to prove) and the remedy is smaller (i.e., “cease and desist”)).  

f. If harassment alleged is related to your protected classes (age, sex, religion, disability, etc.), you don’t need comparison (e.g., “I want to sleep with you,” “Protestants should go to hell,” “Pregnant women should stay home,” “Hey, you, blind idiot,” etc.).  If harassment alleged involves disparate treatment (not greet or greeting with sneer, isolation, not talking, talking to death, constant monitoring, etc.), you must compare yourself to others in terms of the harasser’s treatment toward others similarly situated.  In that case, the theory of disparate treatment applies.  See above 1c: “Others who were similarly situated were not so adversely treated” under “Disparate Treatment.”   

g. See the summary of the 2013 U.S. Supreme Court decision on University of Texas Southwestern Medical Center v. Sassar and the EEOC’s variance from the decision.

3. Denied Reasonable Accommodation:

a. You must be a person with disability within the meanings of ADAAA (See below for definition of disability).

b. That you requested something specific as a reasonable accommodation to you supervisor or to an appropriate, designated Reasonable Accommodation coordinator.  The more specific the request, the better; because it is easier to prove that you did request.  (Do not rely on your physician to come up with a reasonable accommodation.  He or she does not know your work.  You know better.  You should come up with accommodations that will help you to perform the essential functions of the job; and you must discuss it with your immediate supervisor who also knows (or supposed to know) your work.  The discussion must be “interactive”--that is, democratic, not dictated unilaterally under threat or else.  Providing a reasonable accommodation is not doing you a favor but fulfilling a legal obligation on the part of the Agency.  It is the law.

c. There must be an “interactive process” between you and the employer/your supervisor to come up with an accommodation which, on one hand,

1.  Won’t pose “undue” hardship on the Agency and which, on the other,
2.  Is effective (that is, workable, suitable, or practical) for performing the essential functions of the job. You must be able to perform the essential functions of the job—with or without an accommodation. A light duty, therefore, is not an accommodation; because it does not help you perform the essential functions of the job for which you were hired or which you have been performing until injury or illness. (If you are denied a light duty, you were not denied a reasonable accommodation; you were treated differently. You can claim disparate treatment based on race, disability, sex, age, etc.)

d. You must prove that the denial was not based on “undue” hardship, or that the undue hardship claim by Agency is flawed, or that what was offered as accommodation is too difficult for you to implement, or that it would result in your injury, or that what was offered would deviate from you performing the essential functions of you job. (Accommodation should be neither a demotion (or erosion of duties) nor a promotion.)

e. If Agency provided no response to your request for reasonable accommodation, consider the lack of response as a denial.  Silence longer than 15 days or 30 days would be a denial.  File an EEO complaint.   Or Agency has a mechanism (such as Reasonable Accommodation Committee, aka RAC, or the so called “internal appeal process”) that delays your request for more than a month and you are still left with more request for medical records or with no response at all (neither given nor not given an accommodation) or indefinitely, then you are denied.  File.   Agency often denied your reasonable accommodation requests based on “insufficient” medical records.  If you show the diagnosis, that’s enough.  No healthcare providers can predict with certainly how long certain impairment will last, whether it would interfere with one or more major life activity, or whether what kind of accommodation would be needed on your job to perform the essential functions of your job.  No physician will visit your workstation and recommend an accommodation. That is a job of a vocational analyst or such.  Do not let the Agency get away with the excuse not to provide you with a reasonable accommodation on the grounds that your medical records showing your diagnosis were “insufficient.”  That is a classic pretext for a denial in violation of ADAAA.

4. To Establish that you are a person with disability under the meaning of ADAAA, you must show that:

a. You have a permanent impairment or an impairment lasting more than 9 months.  Show diagnosis.  (Pregnancy is not a disability.  Complications from pregnancy may qualify as disability under ADAAA, depending if the complication interferes with one or more major life activities, as listed below, and for more than 9 months.  Discrimination based on pregnancy or based on child care need can be claimed as sex discrimination, not as a disability discrimination (unless, as just said, complications were involved)).

b. Your impairment(s) substantially interferes with one or more major life activities such as standing, walking, running, bending, crawling, pushing, pulling, lifting, raising arms above shoulder or head (to comb or wash your hair), gardening, grocery shopping, carrying grocery bags, driving, bathing, brushing teeth, clothing yourself, bathing yourself or a child, eating, cooking, vacuuming, socializing, eating out, going to the theater or church/synagogue/temple, sleeping, concentrating, talking, seeing, procreating, growing properly, living a normal length of life, etc.  (If your OWCP limitations substantially interfere with one or more major life activities for more than 9 months, then you are a person with disability under the meaning of ADAAA.)

5. Retaliation:

a. You must show that you engaged in a prior protected EEO activity such as filing informal or formal discrimination complaint, participating in EEO investigation or in EEOC hearing as a witness, protesting or reporting or sharing your concern about discrimination (without filing), etc.  These are all protected activities. You should not be retaliated against based on them.

b. The Responsible Management Official (RMO) knew about your protected activities prior to the act of harm (you suffered that) you are alleging as retaliatory.

c. Act of harm must have occurred subsequent to your protected activity.  The more immediate the act of harm occurs, subsequent to your protected activity, the stronger the nexus or causal connection can be inferred.

d. Others similarly situated individuals (without known to have engaged in the prior EEO activity) did not suffer the act of harm that you suffered in similar circumstances.

6. Adverse Impact Theory: 

a. You must demonstrate statistically that a policy which on its face looks non-discriminatory but in practice is more harmful to one or more particular (protected) classes of individuals than to those in other classes.

b. To show the adverse impact to one class than to others, you must have statistical proof, showing the harm done to more in one class of people than in other class of people.

c. For example, a policy of attrition that say all those who cannot see colors will be disqualified to perform the job of a textile worker.  This sounds like a valid and non-discriminatory business decision.  So, a colorblind person who had successfully worked in the plant for more than 20 years had been fired.  It turns out that he was able to perform well because he had fine sense of distinguishing the gray scale.  Nonetheless, he was fired. (Okay, this is more of a case of proving a pretext, where the employer acted on a purported non-discriminatory business reason, but the reason turns out to be a pretext to get ride of an old worker who commanded higher salary than others due to his seniority—despite his excellent performance and valuable work experience.)

d. Requiring a voter’s ID, for another example, is a good case of discrimination under the adverse impact theory.  Statistics will show that the elderly voters are disproportionately and adversely impacted than the younger voters.  You need the statistics to show the disparity.

e. Pumping more money into the suburbs than to the cities would be another case of discrimination under the adverse impact theory. Statistically more African-Americans live in the cities than in the suburbs, although that is changing. So, statistically you can show the adverse impact of such a government policy (for whatever reasons it was proposed). Note: you cannot sue the Congress for discriminatory laws and policies.  You may challenge the law by having the judicial system declare it unconstitutional.  (Okay, I am going beyond my ken here.  But the example is a good illustration of the adverse impact theory.)

7. Direct Evidence Theory:

a. No one will admit nowadays on record that he or she did not hire someone because the applicant was woman, because he was African-American, or because she was older than 50.   Some employers still do; but they won’t admit.  

b. Direct evidence cases are where the Responsible Management Official (RMO) states on record or under oath that the applicant was not hired because of such and such protected classes in which the applicant belongs.

c. If anyone says it during the hearing, you need to stop the hearing and find the Agency in violation of Title VII or ADAAA, ADEA, etc.

Disclaimer

• Mr. Lee is not an attorney but can represent clients in federal administrative processes, including EEOC hearings and MSPB hearings.
• Mr. Lee does not practice law and cannot provide attorney-client protection privileges.  However, as any union shop steward can, Mr. Lee can represent federal employees at any administrative proceeding including those referenced above.
• Mr. Lee cannot and does not represent clients at court proceedings.