Caregiving Responsibilities & Employment

Imagine going for a job interview and being told that you are not going to be hired because you are a mother and the employer would not want to take you away from your caregiving responsibilities in the home. Imagine being a father who asks to work part-time to enable you to care for your children, and being told by your boss that childcare is not a man's responsibility. While discrimination based on caregiving responsibilities is rarely this open and blatant, it occurs more often than you might think. This type of discrimination is commonly called Family Responsibility Discrimination (FRD). The Center for WorkLife Law has a very handy fact sheet describing common examples of FRD.

In recognition of the disparate treatment of caregivers, the EEOC has issued an Enforcement Guidance on the Disparate Treatment of Workers With Caregiving Responsibilities . The EEOC's Enforcement Guidance explains that by addressing caregiving responsibilities it is not creating a new protected category, but instead seeks to address situations in which the disparate treatment of a caregiver violates Title VII of the Civil Rights Act, the Americans with Disabilities Act, or the Family Medical Leave Act.

Family Responsibility Discrimination is something that affects men, as well as women. Because of the stereotype of the woman as caregiver, when men are caregivers they often face obstacles in the workplace such as denial of leave, or denial of a part-time position that would allow them to care for a family member.

Of course, this recognition of FRD situations does not mean that employees with caregiving responsibilities need to be given preferential treatment. On the contrary, employers should treat caregivers the same way that they treat non-caregivers.

Caring for family members is a central and important part of many employees' lives. Employers should recognize this and be sure that they do not treat these employees differently. Employees with caregiving responsibilities should be aware that they entitled to be treated just like their counterparts who do not have caregiving responsibilities. If you are experiencing family responsibility discrimination and would like to schedule a consultation, please contact Ms. Whitfield at 301.869.8774, or use our online consultation form.

This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained on this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation.

All About Timing – Federal Sector EEO Complaint Processing

When it comes to filing an EEO complaint, for federal employees it is all about timing. In the federal sector EEO process, there are deadlines for both the employee, as well as the Agency. The following is a brief overview of the federal sector EEO process. Please remember that the process for private sector employees is very different than that of the federal sector employee.

Federal employees have 45 days from the date of the discriminatory action to contact an EEO counselor. This 45-day deadline for federal employees is much shorter than the time period that private sector employees are given to complain about discriminatory actions. While 45 days may sound like a long time, to avoid accidentally missing this deadline, federal employees should contact their EEO counselor as soon as possible after the discriminatory act occurs.

Once the initial contact with the EEO counselor has been made, the employee can chose to engage in Alternative Dispute Resolution, or in traditional EEO counseling. If the employee chooses the traditional counseling route, the Agency has 30 days to complete counseling. If the employee chooses the ADR route, then the Agency has 90 days to complete ADR. After counseling or ADR has been completed, the agency should issue a notice that includes information regarding the employee’s right to file a formal EEO complaint. It is important to remember that the employee has only 15 days from the date this notice is received to file a formal complaint. If the Agency fails to issue this notice within the time period allowed, the employee can ask, in writing, for a notice of right to file a formal complaint.

When the formal complaint has been filed, the Agency has 180 days to complete its investigation of the complaint. At the end of the investigation, the Agency then has to send the employee a copy of the Report of Investigation, as well as a notice of the employee’s right to file a formal EEO complaint. Employees have 30 days from the date that they received the Report of Investigation to request a hearing. If it has been more than 180 days since the formal complaint was filed, the employee can request a hearing before an Administrative Judge, even without first receiving the ROI.

For more information about the processing of EEO complaints for federal employees, a good starting place is your own Agency’s website. In addition, the EEOC’s website has a section specifically for federal sector employees, and on this page you can find detailed information regarding the processing of EEO complaints. To schedule a consultation to discuss your federal sector EEO complaint, please contact Ms. Whitfield at 301.869.8774, or use our online consultation form.

This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained on this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation.

MSPB Waives Deadline for Mentally Incompetent Employee’s Disability Retirement Application

In a recent decision, Creasy v. Office of Personnel Management, MSPB Docket No. DC-831-07-0074-I-1 (September 21, 2007), the Merit Systems Protection Board (MSPB) found that Mr. Creasy was mentally incompetent and therefore waived the deadline for filing and remanded the case to the Office of Personnel Management (OPM).

Mr. Creasy was a Crane Operator Supervisor with the Department of the Navy who resigned in January 2002. In October 2004, Mr. Creasy was admitted to a hospital after an episode of strange behavior, and in April 2005, was readmitted when he stopped taking medication and began to show signs of paranoia, lethargy, auditory hallucinations and erratic behavior. In August 2005, Mr. Creasy, with the assistance of his sister, filed an application for disability retirement benefits under the Civil Service Retirement System (CSRS), citing medical, as well as mental health problems. Mr. Creasy’s application was denied on the grounds that he did not apply within a year of his separation from service.

Federal employees who wish to apply for disability retirement must do so within one year after the date of the employee’s separation from federal service. The deadline for applying for disability retirement is waived only if the employee was mentally incompetent to file within the time frame for filing.

In French v. Office of Personnel Management, 810 F2d 1118 (Fed. Cir. 1987), the MSPB explained to meet the standard for mental incompetence an employee must show that s/he was unable to handle her/his personal affairs because of mental disease or injury. While it is not necessary that the employee is committed to a mental institution to meet the mental incompetence standard, this standard is still not easily met. To determine whether an employee met the standard for mental incompetence, the Board requires the submission of medical evidence to support the employee's assertion that s/he is mentally incompetent.

In support of his case, Mr. Creasy presented not only medical evidence of his mental health condition, but also statements by family members and friends who had witnessed his mental and physical decline. The Board found that the Administrative Judge (AJ) had not give sufficient weight to the testimony of Mr. Creasy’s doctor, and discounted the doctor’s conclusions based upon the AJ’s own reading of the DSM-IV-TR. The Board determined that the AJ, not being a medical doctor, could not override the doctor’s professional conclusion with her own interpretation of the DSM-IV-TR. The Board remanded Mr. Creasy’s case to OPM for a determination on the merits of Mr. Creasy’s application for disability retirement.

For Federal employees who are interested in more information regarding disability retirement, the Office of Personnel Management is a very good place to start. Employees who are qualified under CSRS can find information on this website, and employees who are qualified under FERS can find information on this website. The regulations regarding the application deadline for disability retirement can be found at 5 U.S.C. 8337(b) for employees under the Civil Service Retirement System (CSRS) and 5 U.S.C. 8453 for employees under the Federal Employees’ Retirement System (FERS). To schedule a consultation to discuss disability retirement issues, please contact Ms. Whitfield at 301-869-8774, or use the online consultation request.

This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained on this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation. To arrange a consultation with the Law Offices of Lynette A. Whitfield, LLC, please call 301.869.8774, or click here to make your request for a consultation via my webpage.