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Title VII federal-sector provision allows those employees to bring hostile environment claims

By Dave Strausfeld, J.D.

An employee of the Department of Homeland Security could bring a sexual harassment claim notwithstanding the government’s argument that Title VII’s federal-sector provision does not permit such claims because it states “[a]ll personnel actions affecting employees . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin.” The government argued that this language covers only “ultimate employment actions” such as hiring, firing, and promoting. However, without binding precedent to support such an interpretation, a federal magistrate judge in Louisiana was unwilling to accept the government’s reading of the statute, and went on to hold that the Homeland Security employee survived summary judgment on her HWE claim (Daniel v. U.S. Department of Homeland Security, October 5, 2016, Wilkinson, J.).

Government’s argument based on difference in wording. In support of its reading of Title VII’s federal-sector provision, the government relied on the specific wording, which differs from the private-sector provision, and also pointed out that neither the Supreme Court nor the Fifth Circuit has ever expressly held that the federal-sector provision allows a hostile work environment claim based on actions that do not include ultimate employment decisions. The government further asserted that a Fifth Circuit decision, Desdunes v. U.S. Dep’t of Army, stands for the proposition that the federal-sector provision does not authorize HWE claims unless they include ultimate employment decisions.

“Ultimate employment action” test. Rejecting the government’s reliance on Desdunes, the magistrate judge characterized it as an “unpublished, non-binding, and unpersuasive” decision. In his view, Desdunes sowed confusion by “lumping together” the plaintiff’s discrimination, retaliation, and HWE claims and then comparing her allegations to those in another Fifth Circuit case, Dollis v. Rubin, that adopted the “ultimate employment action” test—but without acknowledging “that Dollis was not a hostile work environment case.” In other words, the Desdunes court “did not consider whether sufficient allegations of an ongoing hostile work environment in a different case might warrant a different analysis than Dollis.”

Further buttressing the decision not to follow Desdunes, the magistrate observed that district court decisions in the Fifth Circuit have applied “the standard hostile work environment” analysis to federal employees’ HWE claims, “albeit without ever raising the question” whether the federal-sector provision “requires a different analysis” due to the minor differences in language between it and the private-sector provision.

The bottom line for the magistrate judge was this: “In the absence of clear, binding precedent from the Supreme Court or Fifth Circuit that [the federal-sector provision] precludes a federal employee from bringing a claim that the Supreme Court has recognized under the private sector provisions of Title VII since 1986, I conclude that [the employee] can bring her hostile work environment claim.”

Genuine factual dispute here. On the merits of the Homeland Security employee’s HWE claim, genuine factual disputes existed, the magistrate judge found. She alleged that a coworker who at times was her immediate supervisor sexually harassed her by making sexually oriented comments, remarking about her appearance, implying that he wanted to have a sexual relationship with her, trying on one occasion to kiss her in front of coworkers, calling her after hours and when she was on leave with questions about work, keeping track of her whereabouts, and so forth. A variety of questions would require resolution by a jury, the magistrate found, including whether the harassment was severe or pervasive and whether the alleged harasser was her supervisor within the meaning of Title VII (relevant to the Faragher/Ellerth affirmative defense). Thus the government was not entitled to summary judgment on her HWE claim. The employee’s partial summary judgment motion was denied as well.