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Baloun v. Kerry: U.S. Equal Employment Protection Do Not Cover Foreign Employees of U.S. Embassies

Posted: 4:03 am ET

 

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.  Discrimination types includes:

Last year, State/OIG did an inspection (PDF) of the State Department’s Office of Civil Rights, an office that reports directly to the secretary of state and is tasked with the following:

… charged with propagating fairness, equity, and inclusion throughout the Department’s workforce. S/OCR answers to the Equal Employment Opportunity Commission (EEOC) and is charged with ensuring a nondiscriminatory workplace environment, investigating Equal Employment Opportunity (EEO) complaints and harassment inquiries, and working with the Bureau of Human Resources to implement federally mandated requirements in the Department’s diversity and disability hiring process. S/OCR is answerable to the EEOC, Congress, and other executive branch agencies in reporting on the Department’s standing in complaint and diversity statistics and recruitment planning.

The report includes a section labeled: EEO Liaisons for Locally Employed Staff Overseas

S/OCR has stepped up efforts to improve counseling and training for locally employed (LE) staff overseas. Providing EEO counseling to LE employees complies with Department policy in 3 FAM 1514.2 (a) and (d) rather than a regulatory mandate and is not included in S/OCR’s external reporting requirements. Nevertheless, in 2013 S/OCR began tracking counseling for these employees; the initial intake is recorded in the EEO counselor SharePoint site. The Intake and Resolution Section is also in the process of revamping LE counselor training; for example, having post EEO counselors train the LE liaisons and improving written training materials for LE staff. S/OCR believes these efforts have increased awareness among LE staff members and led to an increase in the number of complaints from them, although these numbers are not available, since the section only recently began tracking them.

The most recent OIG inspection of the U.S. Embassy in Tashkent, Uzbekistan (PDF) includes the following item on Equal Employment Opportunity:

The names and contact information of the EEO counselor and the EEO liaisons for the locally employed staff members were not publicized, as required by 3 FAM 1514.2a. OIG suggested that this information be added to mission bulletin boards. Also, OIG suggested EEO refresher training for the mission-wide locally employed staff and their EEO liaisons.

The OIG inspection report of the U.S. Embassy Japan (PDF) in 2015 include the following details:

In interviews, the OIG team learned that the embassy did not report three complaints of sexual harassment to the Office of Civil Rights as required. Although embassy officials had taken actions to address these complaints, they were unaware of this reporting requirement and told the OIG team they would report these allegations to the Office of Civil Rights. According to 3 FAM 1525. 2-1 c, supervisors and other responsible Department officials who observe, are informed of, or reasonably suspect incidents of possible sexual harassment must report such incidents immediately to the Office of Civil Rights, which will initiate or oversee a prompt investigation. Without adherence to this requirement, sexual harassment complaints could go unreported to the Department.
[…]
According to 13 FAM 312 c, EEO and diversity training is mandatory for all managers and supervisors, and all employees are strongly encouraged to participate in EEO and diversity awareness training or training containing an EEO and diversity module, on average, every 5 years. EEO and sexual harrassment complaints lower office morale and employee productivity. These compaints/cases are also time consuming and can be costly to settle.

These EEO and diversity trainings — do they include a part where non-U.S. citizen employees of U.S. embassies and agencies operating overseas are told they are not covered by EEO regulations?

So there are trainings and appointed EEOC liaisons but if a local employee file a case, post and the EEOC goes through the motion of investigating; and then sorry, non-U.S. citizens are not covered by these EEOC regulations? Isn’t this just a game of pretense? Below is an EEOC ruling extracted from publicly available court records:

Earlier this year, Dalibor Baloun, the former FSN of US Embassy Prague in this EEOC noncase filed an employment discrimination lawsuit against Secretary Kerry in the District Court for the District of Columbia with the notion — as indicated by the EEOC letter under the “right to request counsel” — that he could ask the court for an appointment of an attorney and waiver of other court costs.

Federal civil rights statutes expressly permit aliens to bring claims of civil rights violations in federal court. And the Sixth Amendment to the United States Constitution provides for the right of counsel in criminal prosecutions but it does not say anything about civil litigations. Has there ever been an instance when a U.S. court granted a a court appointed attorney for a foreign employee of a U.S. Government who is residing overseas? Or is that EEOC letter just template language?

We should note that while we do not have an exhaustive list of all discrimination claims filed against the State Department, we have only been aware of one case filed by a locally hired employee that prevailed in U.S. courts. That locally hired employee is also a U.S. citizen hired overseas.  See Miller v. Clinton: Amcit FSN takes State Dept to Court for Age Discrimination  and Miller v. Clinton: Court Says State Dept Not/Not Exempt from Age Discrimination Law.

 

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