0520070398
05-03-2007
Regina Pratt, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Regina Pratt,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Request No. 0520070398
Appeal No. 0720050059
Hearing No. 350-2002-08194x
Agency No. HS050258
DENIAL
The agency requested reconsideration of the decision in Regina Pratt
v. Department of Homeland Security, EEOC Appeal No. 0720050059 (February
23, 2007). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates that: (1) the appellate decision
involved a clearly erroneous interpretation of material fact or law; or
(2) the appellate decision will have a substantial impact on the policies,
practices, or operations of the agency. See 29 C.F.R. � 1614.405(b).
In our prior decision we found that the agency discriminated against
complainant on the basis of sex (female) when she was not selected as an
escort for a male alien detainee to Jamaica. The agency had enacted a
policy that provided that at least two escorts per detainee are required
and that "[a]t least one escort shall be the same sex as the detainee."
The Commission found the policy to be facially discriminatory on the
basis of sex. Furthermore, the Commission rejected the agency's argument
that its policy is permissible because sex is a bona fide occupational
qualification (BFOQ) reasonably necessary to the normal operation of
that particular business or enterprise.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request.
The agency also requests clarification of footnote 7 in the prior decision
which stated:
The Commission recognizes that particular instances may arise where a
requirement for a same-sex assignment for a DEO (Detention Enforcement
Officer) could possibly be appropriate. As a general policy, however, the
agency has failed to justify that sex is a BFOQ in the instant matter.
Id. The agency lists of a myriad of situations and queries whether
such situations would be appropriate for a same-sex escort requirement.
The Commission finds that it is inappropriate to give definitive rulings
to matters that have not been the subject of a hearing, investigation, or
an EEO complaint whereby a complainant could fully litigate the matter.
Nevertheless, we recognize the agency's legitimate concerns regarding
when the mandate of same-sex escort details would be appropriate.
For illustrative purposes only (we make no definitive findings regarding
these scenarios), we shall restate and discuss two of the scenarios
raised by the agency on appeal for clarification:
1. The escort detail will transit through a third country where the
known "secured" holding facility is a general population cell with open
lavatory facilities, and the local rules mandate that the escorts remain
to watch the aliens in the cell, including their use of the lavatory,
otherwise the alien cannot be housed at the facility.
2. The alien has been a victim of a crime by a member of the opposite
sex such as rape.
Regarding scenario 1, one issue the agency should examine is whether
the only way to reasonably deport the alien detainee is through a third
country with the lavatory rule and situation described by the agency.
If yes, then the next question would be the likelihood of the alien
having to using the lavatory during the time in question. It is not
clear from the scenario if the period of time in the third country would
be minutes, hours, or possibly overnight. Finally, the next question for
the agency is whether the escorts' observation of the detainee's "use of
the lavatory" actually requires literally observing the detainee naked.
These are the issues the agency should examine in these situations.
If the agency reasonably concludes that such privacy interests of the
detainee will likely be compromised because there is no reasonable
alternative to protect the detainee's privacy interest, then this is
the type of instance where the requirement of a same-sex assignment of
a DEO could possibly be appropriate.
Regarding scenario 2, we find that the agency has not explained in this
scenario why the escort detail must be the same sex as the detainee.
In order to justify sex as a BFOQ, such an explanation would be required.
These two scenarios were chosen to show the type of analysis the agency
should undertake when it is deciding whether a requirement for a same-sex
assignment of a DEO could possibly be appropriate.
The decision in EEOC Appeal No. 0720050059 remains the Commission's
final decision. There is no further right of administrative appeal on
the decision of the Commission on this request. The agency shall comply
with the Order as set forth herein.
ORDER
The agency is ordered to take the following actions:
1. Within 30 calendar days of the date this decision becomes final, the
agency shall pay complainant $7,000.00 in non-pecuniary, compensatory
damages.
2. Within 30 calendar days of the date this decision becomes final,
the agency shall pay complainant's attorney $19,325.79 in attorney's
fees and costs.
3. The agency shall immediately review its policies and procedures
relating to escort details and revise the policy to protect the rights
of its employees to be free from unlawful discrimination based upon sex.
4. Within 180 days of the date this decision becomes final, the
agency shall train all responsible agency employees, concerning the
identification, prevention, and correction of discrimination on the
basis of sex under Title VII.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include documentation indicating that the
corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Florence Service Processing Center in
Florence, Arizona copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. � 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 3, 2007
__________________
Date
5
0520070398
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036