EEOC: Sex Discrimination and Reprisal Found in USAID Case

Via The Digest of Equal Employment Opportunity Law | Volume 1Fiscal Year 2019

Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment sex and reprisal discrimination.  McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that s/he was subjected to an adverse employment action under circumstances that would support an inference of discrimination.  McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).  Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination.  McDonnell Douglas, 411 U.S. at 804; St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).”

Sex Discrimination & Reprisal Found.

Complainant, a Senior Fellow, filed an EEO complaint alleging that she was discriminated against based on sex (pregnancy), and reprisal, when her supervisor (S1) made disparaging remarks about her pregnancy; subjected her to increased scrutiny and reporting requirements related to her telework; required her to apply leave retroactively to dates and times when S1 knew she worked; terminated her alternate work schedule (AWS); and did not extend her fellowship. The Commission found that Complainant established a prima facie case of sex and reprisal discrimination, and then demonstrated that the Agency’s reasons were pretext for discrimination. Regarding Complainant’s telework reports, the record showed that she submitted extensive narratives, and clearly met the reporting requirements. Additionally, emails between Complainant and S1 showed that he knew she was working more than eight hours a day, but still asked her to take leave, and did not approve all her work hours. S1 stated that he denied Complainant an AWS due to a lack of coverage. However, the record showed that Complainant was meeting her work requirements, and that she was responsive and accountable while using workplace flexibilities. The Commission found that the Agency did not articulate a legitimate, nondiscriminatory reason for not renewing her fellowship because S1’s assertion that Complainant had performance problems was not supported by any documentation. Further, Complainant had shown pretext because management’s responses were inconsistent. Accordingly, the Commission concluded that the preponderance of the evidence supported Complainant’s claim that she was subjected to sex and reprisal discrimination. The Agency was ordered, among other things, to provide Complainant with a fellowship, or similar position, with an opportunity to extend on a yearly basis (similar to other fellows); conduct a supplemental investigation to determine compensatory damages; and provide training to the responsible management officials. Reita M. v. Agency for Int’l Dev., EEOC Appeal No. 0120161608 (July 17, 2018).

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What about your own embassy staff and employees? Are you urging pregnant women to come home? #Zika

Posted: 2:14 am EDT
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During the February 5 Daily Press Briefing, State Department spox John Kirby talked about the zika virus. And he was asked this:

QUESTION: What about your own embassy staff and employees? Are you urging pregnant women to come home?

MR KIRBY: At this time, I’m not aware of any warning to pregnant U.S. Government employees overseas in terms of coming home. These are obviously decisions that they have to make. But we are, however, just like we would for American citizens, certainly making sure that we’re providing our posts and our employees all the information that they need and that they have – that is available so that they can make these informed decisions. But I’m – I’m not aware of any order or requirement here at the State Department to order them back home.

But there’s a lot going on. And I can tell you Secretary Kerry is very focused on this. We were – he was talking about this just yesterday morning in a – I’m sorry, just this morning in a staff meeting, in a morning staff meeting. So it’s very much on his mind, and we’re going to continue to work with the interagency to do as much as we can. And obviously, it’s an evolving situation. As information becomes available or needs to change, we’ll change that.

We understand that an ALDAC that was sent out on January 21st, that says ALL pregnant USG employees or family members covered under the Department of State Medical Program are authorized voluntary medical evacuation from posts affected by Zika.

 

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CDC Issues Zika Virus Guidance For 14 Countries and Territories in the Western Hemisphere

Posted: 12:58 am EDT
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The Centers for Disease Control on January 15 issued an interim travel guidance related to Zika virus for 14 countries and territories in Central and South America and the Caribbean. Out of an abundance of caution, the CDC is advising pregnant women to consider postponing travel to areas where Zika virus transmission is ongoing.  We have not seen any guidance from the State Department. If you are in the Foreign Service, pregnant, and assigned to these 13 countries in the Western Hemisphere, please contact State/MED for guidance.

Zika was reported for the first time in Brazil in May 2015, and the virus has since been reported in 14 countries and territories in Latin America and the Caribbean:  Brazil, Colombia, El Salvador, French Guiana, Guatemala, Haiti, Honduras, Martinique, Mexico, Panama, Paraguay, Suriname, Venezuela, and Commonwealth of Puerto Rico.  For a list of countries that have past and current evidence of the virus, please click here.

Map from cdc.gov

Map from cdc.gov

Below is an excerpt from the CDC announcement:

CDC has issued a travel alert (Level 2-Practice Enhanced Precautions) for people traveling to regions and certain countries where Zika virus transmission is ongoing: Brazil, Colombia, El Salvador, French Guiana, Guatemala, Haiti, Honduras, Martinique, Mexico, Panama, Paraguay, Suriname, Venezuela, and the Commonwealth of Puerto Rico.

This alert follows reports in Brazil of microcephaly and other poor pregnancy outcomes in babies of mothers who were infected with Zika virus while pregnant. However, additional studies are needed to further characterize this relationship. More studies are planned to learn more about the risks of Zika virus infection during pregnancy.

Until more is known, and out of an abundance of caution, CDC recommends special precautions for pregnant women and women trying to become pregnant:

  • Pregnant women in any trimester should consider postponing travel to the areas where Zika virus transmission is ongoing. Pregnant women who must travel to one of these areas should talk to their doctor or other healthcare provider first and strictly follow steps to avoid mosquito bites during the trip.
  • Women trying to become pregnant should consult with their healthcare provider before traveling to these areas and strictly follow steps to prevent mosquito bites during the trip.

Because specific areas where Zika virus transmission is ongoing are difficult to determine and likely to change over time, CDC will update this travel notice as information becomes available. Check the CDC travel website frequently for the most up-to-date recommendations.

Currently, there is no vaccine to prevent or medicine to treat Zika. Four in five people who acquire Zika infection may have no symptoms. Illness from Zika is usually mild and does not require hospitalization. Travelers are strongly urged to protect themselves by preventing mosquito bites:

  • Wear long-sleeved shirts and long pants
  • Use EPA-registered insect repellents containing DEET, picaridin, oil of lemon eucalyptus (OLE), or IR3535. Always use as directed.
    • Insect repellents containing DEET, picaridin, and IR3535 are safe for pregnant and nursing women and children older than 2 months when used according to the product label. Oil of lemon eucalyptus products should not be used on children under 3 years of age.
  • Use permethrin-treated clothing and gear (such as boots, pants, socks, and tents).
  • Stay and sleep in screened-in or air-conditioned rooms.

Read the full announcement here.

CDC is reportedly working with public health experts across the U.S. Department of Health and Human Services (HHS) to take additional steps related to Zika.  In addition, efforts are also underway across HHS to develop vaccines, improved diagnostics and other countermeasures for Zika according to CDC.

 

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Burn Bag: Expectant Parents Still Waiting For Foggy Bottom to Deliver 2015 Pregnancy Cable

Via Burn Bag:

“Dear Ms. Higginbottom: It is now 2016. On behalf of all of the working mothers and fathers out there expecting babies or going through the obstetric medevac process, please release the 2015 pregnancy ALDAC.”

 

Ms. Higginbottom called out in this Burn Bag entry is the State Department’s Deputy Secretary for Management and Resources, the agency’s 3rd highest ranking official.  For readers who are not in the FS (Hi, FSOs’ moms!), an ALDAC is an acronym for “All Diplomatic and Consular Posts.” They are cables (electronic telegrams) sent by the Department of State to every U.S. Government outpost around the world. Read more here.

It looks like the State Department last sent a comprehensive guide for Foreign Service employees and family members who have questions about leave, medical evacuation to the United States and to locations abroad, and other pregnancy-related issues in 13 STATE 101508, an ALDAC dated 7/10/2013.

Don’t know why the 2015 ALDAC is reportedly held up at the 7th Floor. The FAM sections have been updated in July last year, and most recently in November 2015. The changes include  a series of updates on the Family and Medical Leave Act of 1993 and a slew of changes on use of leave. But it does not look like there are many changes on medical travel particularly 16 FAM 315.2 which covers Travel for Obstetrical Care which has not been updated since July 2012.

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