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

Posted: 4:03 am ET
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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.
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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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EEOC Affirms Class Action Certification For Disabled Applicants to the U.S. Foreign Service

— Domani Spero
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In October 2010, we blogged that the Equal Employment Opportunity Commission (EEOC) has certified a class action brought on behalf of all disabled Foreign Service applicants against the U.S. State Department.  (see  EEOC certifies class action against State Dept on behalf of disabled Foreign Service applicants).

Related items:

Meyer, et al. v. Clinton (Department of State), EEOC Case No. 570-2008-00018X (September 30, 2010) (certifying class action based upon disability discrimination in State Department’s Foreign Service Officer hiring)

This past June, the EEOC affirmed the class certification for applicants to the Foreign Service denied or delayed in hiring because of their disabilities, based upon the “worldwide availability” policy.  (see Meyer v. Kerry (Dept. of State), EEOC Appeal No. 0720110007 (June 6, 2014)).

The State Department Disability Class Action now has its own website here.  Bryan Schwartz in San Francisco and Passman & Kaplan in Washington represented the class. The State Department’s Office of Legal Advisor and Office of Civil Rights represented the department.

Below is an excerpt from the class action website:

The EEOC decision found that the Class Agent in the matter, Doering Meyer, has had multiple sclerosis (MS) in remission for decades, without need for treatment, but was initially rejected outright for State Department employment anywhere in the world because the Department’s Office of Medical Services perceived that her MS might cause her problems in “a tropical environment.” This was notwithstanding a Board Certified Neurologist’s report approving her to work overseas without limitation.
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The Department challenged the judge’s initial certification decision because, among other reasons, Meyer eventually received a rare “waiver” of the worldwide availability requirement, with her attorney’s assistance, and obtained a Foreign Service post. She is now a tenured Foreign Service Officer, most recently in Croatia, and being posted to Lithuania. Meyer’s attorney argued to the EEOC that she was still delayed in her career growth by the initial denial in 2006, and missed several posting opportunities over the course of an extended period, losing substantial income and seniority. The EEOC agreed with Meyer – modifying the class definition slightly to include not only those denied Foreign Service Posts, but those “whose employment was delayed pending application for and receipt of a waiver, because the State Department deemed them not ‘worldwide available’ due to their disability.”

Schwartz indicated that the case may ultimately have major implications not only for Foreign Service applicants, and not only in the State Department, but for all employees of the federal government abroad who have disabilities, records of disabilities, and perceived disabilities, and who must receive medical clearance through the Department’s Office of Medical Services. He noted that he has already filed other alleged class cases, also pending at the EEOC – one on behalf of applicants for limited term appointments (who need “post-specific” clearance, but are also denied individualized consideration), and another on behalf of employees associated with people with disabilities, who are denied the opportunity to be hired because of their family members who might need reasonable accommodations (or be perceived as disabled).

The Commission had also received an “Amicus Letter” from a consortium of more than 100 disability-related organizations urging the Commission to certify the class.

Read the full ruling at (pdf) Meyer v. Kerry (Dept. of State), EEOC Appeal No. 0720110007 from June 6, 2014 where the State Department contends that since this complaint was filed, the Office of Medical Services has changed many of its procedures in assessing “worldwide availability.”It also suggested that “many of those individuals who were found not worldwide available in 2006 maybe currently worldwide available under new definitions and procedures.”

The Commission, however, says that it “is not finding that changes made to the Medical Clearance process subsequent to the filing of the instant complaint have remedied any alleged discriminatory policy.”  

The order states (pdf): “It is the decision of the Commission to certify the class comprised of “all qualified applicants to the Foreign Service beginning on October 7, 2006, who were denied employment, or whose employment was delayed pending application for and receipt of a waiver, because the State Department deemed them not “world-wide available” due to their disability.”

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Oh, la vache! U.S. Court on French Embassy’s “transparent ploy” over discrimination case

— Domani Spero

Judge James E. Boasberg of the District Court for the District of Columbia was not happy with the French Embassy in Washington, D.C.. In a court ruling dated April 17, 2014, Judge Boasberg chastised the French Embassy writing that the “defendant may delay these proceedings, but it may not evade trial by means of this transparent ploy”as embassy asserted immunity on the eve of a discrimination trial.

The civil case is between Ashraf-Hassan and the Embassy of France in United States.  The plaintiff is Saima Ashraf-Hassan, a former employee of the French Embassy in Washington, D.C., and a French citizen who was born in Pakistan. According to court papers, she originally came to the United States to complete research for her Ph.D. in law. After arriving in Washington, Ashraf-Hassan obtained an internship with the French Embassy, which later led to an offer of full-time employment:

During her five years of employment, Ashraf-Hassan alleges that she suffered discrimination on the basis of national origin, race, religion, and pregnancy, all in violation of Title VII. See id. at *2. In addition to claims of unlawful termination, Plaintiff alleges that she was subjected to a hostile work environment that was permeated by harassment so severe and pervasive that it altered the conditions of her employment.
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Evidently dissatisfied with this result and with trial looming a few weeks away, the Embassy now invokes the doctrine of sovereign immunity, claiming that after nearly three years of proceedings before this Court, it retains the power to divest itself of the suit at any time it pleases. See ECF No. 51 (Mot. to Dismiss). While at the outset of this litigation, the Embassy acknowledged that it was not entitled to assert immunity, it also stated – somewhat opaquely – that it “reserve[d] the right to raise its immunity should it be necessary to protect the confidential character of [its governmental] activities.” See ECF No. 11 (prior Mot. to Dismiss) at 1. This time has now come, according to Defendant.

In his memorandum opinion, Judge Boasberg writes:

In May of 2011, Plaintiff Saima Ashraf-Hassan brought this suit, alleging that her employer, the Embassy of France in the United States, had violated Title VII by discriminating against her on account of her national origin, race, religion, and pregnancy. In the intervening years, the parties have conducted discovery, attempted to solve their dispute through mediation, and filed assorted motions and other pleadings. Indeed, Defendant has previously moved to dismiss and has also sought summary judgment, but it has repeatedly failed to convince the Court to deny Plaintiff a trial on her discrimination claims.

Now, three years into this litigation and on the eve of trial, Defendant seeks to secure dismissal by claiming for the first time that the Court no longer has subject-matter jurisdiction. Despite its early concessions to the contrary, the Embassy now suggests that it never fully ceded its sovereign immunity when it hired Ashraf-Hassan or when it willingly entered into this litigation. The Embassy contends that it reserved the right to assert immunity at any time of its choosing and that it has the unfettered ability to walk away whenever it deems the claims to be meritless or the proceedings unfair. It protests, moreover, that this suit is now an affront to its dignity, yet Defendant offers no colorable basis to justify dismissal on sovereign-immunity grounds. This case falls squarely within multiple exceptions to the Foreign Sovereign Immunities Act, a reality that no amount of invective and indignation can change. Defendant may delay these proceedings, but it may not evade trial by means of this transparent ploy.

Read the case here: Ashraf-Hassan v. Embassy of France in United States Civil Action No. 11-805 (JEB).

 

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Shea v. Clinton: Title VII Discrimination Claim on 1990’s Mid-Level Minority Hiring Program

Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of race and color as well as national origin, sex, or religion.   It is unlawful to discriminate against any employee or applicant for employment because of race or color in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment.  Title VII also prohibits both intentional discrimination and neutral job policies that disproportionately exclude minorities and that are not job related.

Not sure when this case was originally filed but this was first dismissed in 2003 until the decision was reversed and remanded two years later, so it has to be at least a decade old.

Below extracted from court files:

This is a Title VII discrimination claim brought by pro se plaintiff William Shea, a White career Foreign Service officer, against the Department of State (“State”). Compl., Mar. 3, 2002, ECF No. 1. State had a Mid-Level Minority Hiring Program (“MLAAP”) in force when it hired Shea in 1992. Mid-level hiring allowed State to hire a Foreign Service candidate directly into a higher grade, rather than into an entry-level grade. Mid-level hiring required a “certification of need” either that an outside hire was required, or the candidate was a member of a specified minority group under the MLAAP. Candidates for mid-level hiring were also required to (a) have substantial professional experience, (b) receive a passing grade on an oral examination, and (c) pass a background check. Shea alleged that he would have passed the screening process, but was excluded from consideration solely because of his race, as there was no certification of need. Specifically, Shea alleged harm because his hiring at entry-level rather than mid-level grade has subjected him to lower pay and fewer promotion opportunities than members of minority groups admitted under the MLAAP, in violation of his rights under Title VII. Shea also alleged constitutional violations, but the Court dismissed those claims and Shea did not appeal the dismissal. The Title VII claim is the only one still before the Court. See Shea v. Clinton, 850 F. Supp. 2d 153, 156 (D.D.C. 2012) (providing factual and procedural history of case).

The Court originally granted State’s Motion to Dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) because the statute of limitations had expired. Mem. & Order, Sept. 30, 2003, ECF Nos. 15 & 16. On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed and remanded. Shea v. Rice, 409 F.3d 448 (D.C. Cir. 2005) (holding that each time employer pays employee less than another for discriminatory reason, that pay event is a discrete discriminatory event with own statute of limitations).

In light of the Supreme Court’s subsequent decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007)—which brought the D.C. Circuit’s analysis into question—this Court granted State’s Motion for Summary Judgment. Shea v. Rice, 587 F. Supp. 2d 166 (D.D.C. 2008). While this case was again on appeal, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111–2, 123 Stat. 5 (2009), which abrogated the Supreme Court’s holding in Ledbetter. The D.C. Circuit remanded for reconsideration in light of this intervening change. Shea v. Clinton, No. 08–5491, 2009 WL 1153448, at *1 (D.C. Cir. Apr. 2, 2009). This Court then denied the remaining portions of both parties’ Motions for Summary Judgment. 3 Mem. Order, Aug. 11, 2009, ECF No. 69. The Court also denied State’s subsequent Motion for Reconsideration. Order, Aug. 20, 2009, ECF No 71.

On July 23, 2010 the plaintiff moved to hold discovery deadlines in abeyance until resolution of his latest motions for reconsideration. ECF No. 86. In response, the Court stayed the entire matter until an April 6, 2011 status conference. Minute Order, Mar. 9, 2011. At that conference, the Court orally extended this stay. The stay remained in effect until the Court resolved plaintiff’s motions for reconsideration and motion for application of judicial estoppel. See Mem. Op. & Order Denying Pl.’s Mots. Reconsideration, Mar. 23, 2012, ECF Nos. 113 & 114; Mem. & Order Denying Pl.’s Mot. Judicial Estoppel, July 30, 2012, ECF No. 118.

On August 17, 2012, State filed a second Motion for Summary Judgment, ECF No. 120, raising the affirmative defense of mitigation of damages, id. at 34–36. Plaintiff objected to State first raising this affirmative defense in a dispositive motion, rather than in a pleading. Pl.’s Opp’n to Def.’s Second Mot. Summ. J. 34, Aug. 30, 2012, ECF No. 123. In response, the defendant submitted the present Motion to Amend Answer to add the affirmative defenses of laches and mitigation of damages to its Answer. Def.’s Mot. Am., Sept. 20, 2012, ECF No. 129. The Court will grant this motion, as allowing the amendments will not unduly prejudice plaintiff.

Read in full here.

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