Into the “Frying Pan:” Can the CSRA, Title VII, and the ADA Coexist Simultaneously?

I hope everyone had a great Memorial Day weekend. Today’s blog entry deals with the question of whether the Civil Service Reform Act, Title VII, and the ADA can all coexist at the same time. The case of the day is Lucas v. American Federation of Government Employees decided on March 29, 2023,  lower court opinion here, currently pending before the US Court of Appeals for the D.C. Circuit. As usual, the blog entry is divided into categories and they are: trial court opinion; EEOC amicus brief at the appellate court level detailing why the lower court got it wrong that the CSRA is the exclusive remedy for the plaintiff; EEOC’s view that unions can be liable for a hostile work environment; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Trial Court Opinion

 

The facts of the case are rather straightforward. The plaintiff complained of harassment by her bargaining unit on the basis of sex and disability. She also alleged a hostile work environment. The trial court judge, Amy Berman Jackson, said that the ADA and Title VII claims had to be dismissed because the Civil Service Reform Act mandated that this was the exclusive province of the Federal Labor Relations Authority. Plaintiff appealed and the EEOC weighed in with an amicus brief detailing why in their opinion, the lower court got the decision wrong.

 

II

EEOC’s Amicus Brief at the Appellate Court Level Detailing Why the Lower Court Got It Wrong that CSRA Is the Exclusive Remedy for the Plaintiff

 

1. Discrimination claims under Title VII and the ADA are not at all the same thing as unfair representation claims even when both sets of claims are premised on the same conduct.
2. Discrimination and unfair representation claims are distinct and independent causes of action, each with its own unique requirements for establishing a violation.
3. Considering the distinct requirements, a union’s conduct can constitute discrimination under Title VII or the ADA, but not unfair representation under the CSRA (Civil Service Reform Act).
4. Title VII and the ADA have a broader collection of remedies than what exists under the CSRA, including compensatory and punitive damages, so a federal court may often provide the only form in which a plaintiff can obtain adequate relief or discrimination by a federal-employee union.
5. Both the ADA and Title VII apply to labor unions, including federal-employee unions.
6. Title VII makes it unlawful for a union to exclude or to expel from membership, or otherwise to discriminate against, any individual because of the individual’s race, color, religion, sex, or national origin. It also makes it unlawful for a union to limit, segregate, or classify its membership or applicant for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive an individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect that person’s status as an employee or as an applicant for employment, because of such individual’s race, color, religion, sex, or national origin. It also prohibits unions from causing or attempting to cause an employer to discriminate against an individual in violation of Title VII.
7. The ADA makes similar conduct the unlawful discussed in ¶ 6 immediately above, when based on a disability. The ADA also prohibits additional forms of discrimination, including not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability.
8. The protections afforded by Title VII and the ADA are not limited to union members or members of a particular bargaining unit. After all, Title VII encompasses discrimination against any individual, while the ADA encompasses discrimination again a qualified individual with a disability. Neither statute is limited to discriminatory conduct that breaches a collective bargaining agreement and both encompass harassment claims against unions.
9. A union’s duty of fair representation extends only to employees in the unit it represents.
10. The CSRA encompasses a narrow category of discrimination that prohibits discrimination based on sex or “handicapping condition,” with regard to the terms or conditions of membership in the labor organization.
11. Citing to a variety of cases, including a Ninth Circuit case, a union’s conduct may constitute discrimination even when it does not constitute unfair representation. That is, a plaintiff can still have a Title VII or ADA claim even if she can prove a violation of the labor laws.
12. In a footnote, the EEOC cites to a D.C. Circuit case and notes that a union’s conduct can constitute both discrimination and unfair representation.
13. The standard for proving unfair representation is more rigorous than Title VII and the ADA because courts generally accord deference to a union in the labor context.
14. On the other hand, there is no reason to grant unions the same deference when it comes to determining if they discriminated against their members on the basis of a protected classification. Instead, “plaintiff-friendly pleading standards,” under Title VII and the ADA makes clear that the free hand unions have in labor matters does not extend to discrimination suits. Therefore, proving discrimination may be less difficult than proving unfair representation.
15. The Supreme Court has acknowledged that a breach of the union’s duty of fair representation may prove difficult to establish, thereby making it noteworthy that Congress thought it necessary to afford the protections of Title VII against unions as well as employers.
16. The CSRA, Title VII, and the ADA all have different procedural requirements, including different statute of limitations.
17. Title VII and the ADA have a broader collection of remedies than under the CSRA. For example, compensatory and punitive damages are available under title VII and the ADA, while under the CSRA, they are extremely difficult (compensatory), or impossible (punitive), to obtain under the CSRA.
18. The CSRA does not allow for jury trials while Title VII and the ADA do.
19. Limiting a plaintiff to CSRA remedies when the claims also support Title VII and/or the ADA undermines the central purpose of antidiscrimination statutes, which is making persons whole for injuries suffered on account of unlawful employment discrimination.
20. No indication that Congress intended for the CSRA to foreclose plaintiff from seeking and obtaining remedies available under Title VII or the ADA. In fact, the Supreme Court has noted that legislative enactments in the area have longer evinced a general intent to accord parallel or overlapping remedies against discrimination.
21. EEOC guidance treats the CSRA as a parallel remedy when it specifically notes that when a federal employee files a discrimination charge with the EEOC against a federal union, that employee can also file an unfair labor practice charge as well.
22. Courts have long treated discrimination and unfair representation claims as separate and distinct causes of action. As a result, the CSRA does not extend to discrimination claims under Title VII or the ADA, and the courts have jurisdiction over those claims that could also support an unfair representation claim.
23. Several courts, including the D.C. Circuit, have recognized concurrent jurisdiction in the EEOC and the National Labor Relations Board and this should be no different.

 

III

EEOC’s View that Union Can be Liable for a Hostile Work Environment

 

1. Both Title VII and the ADA make it unlawful for unions to discriminate against individuals based on sex or disability.
2. The phrase “discriminate against,” in ordinary usage encompasses harassment as harassment includes distinctions or differences in treatment among protected individuals. Every Court of Appeals has said as much. Same goes for retaliation when a hostile work environment is a part of it.
3. The statutory text of the CSRA is actually broader than Title VII and the ADA when it comes to discrimination that is prohibited, because it does not include the restriction that the conduct must be related to terms, condition, or privileges of employment.

 

IV

Thoughts/Takeaways

 

1. In case you were wondering where the title for this blog entry comes from, we have seen this argument before. In Fry, the Supreme Court said that an individual needing a service animal did not have to exhaust the administrative remedies of IDEA. We also discussed how the Supreme Court in Perez said that a person seeking compensatory damages also does not have to exhaust administrative remedies associated with IDEA. Both of those decisions went off on the argument that the same set of facts could give rise to claims that address very different purposes. I must confess I was a bit surprised that the EEOC did not reference either of these Supreme Court decisions in their amicus brief.
2. It seems to me that the EEOC has a very strong argument in light of the analogous Supreme Court opinions mentioned in IV1 of this blog entry. Also, considering those Supreme Court decisions, and the current configuration of this court, it would not surprise me in the least if the EEOC ultimately prevails on its argument should this case get to the Supreme Court.
3. One wonders if the Supreme Court or even the appellate court would adopt a similar approach to Fry when deciding whether to allow claims to go ahead under Title VII and the ADA when a claim could also be unfair representation. It is perfectly logical to me how the same reasoning could be easily applied to this context. In other words, seeking out what is the gravamen of the complaint, asking hypothetical questions, etc.
4. It also makes sense to me considering the configuration of the current Supreme Court, that the Supreme Court would find unions could be liable for creating a hostile work environment.
5. Definitely looking forward to seeing how the D.C. Court of Appeals ultimately decides this case. Fascinating to me how Fry and Perez’s reasoning can be extended to other areas of the law.
6. While I get the point EEOC was making about pleading standards under the various laws, I would not call Title VII and particularly the ADA, plaintiff friendly pleading standards.