Class Action Bias Suit Can Proceed
The U.S. Court of Appeals for the District of Columbia recently held that aggrieved federal employees in a class action discrimination case may satisfy the statutory mandate to exhaust their administrative remedies prior to filing suit in federal district court by providing “meaningful information about specific instances of discrimination,” during informal EEO counseling. Artis v. Federal Reserve Board, 2011 WL 67594 (D.C. Cir. 01/11/11). The decision reversed a district court ruling that dismissed a class discrimination complaint for failure to exhaust administrative remedies.
A class of African-American secretaries who were employees or former employees of the Federal Reserve Board brought a Title VII discrimination action against the Board alleging disparate treatment constituting racial discrimination. As part of the initiation of their claims, the secretaries met in two group counseling sessions with their attorneys and the Board’s EEO personnel. Following the first group meeting, the Board requested further information on the secretaries’ claims. In response, the secretaries submitted 14 identical copies of a document outlining the complaints of the class members. The document included allegations that the Board paid the African-American secretaries lower salaries than non-African-American secretaries, awarded them smaller bonuses less frequently, promoted them less frequently, gave them artificially low performance appraisals, failed to provide them comparable training, and inequitably enforced policies on leave and personal phone use against them, among other complaints.
Some class members also provided information on specific instances of disparate treatment they had experienced themselves. For example, one class member described how she had been discouraged from applying for a vacant position because of the college degree requirement on the job’s posting; however, the position was later filled by a white woman who had no college degree. Another class member alleged that Board management humiliated her by describing in detail the circumstances of a leave request to her colleagues, which did not or would not have happened to her white coworkers. Yet another secretary claimed that she did not receive a cash award like her white coworkers, although her performance ratings were excellent.
The court held that the purpose of requiring exhaustion of administrative remedies through participation in EEO counseling is to allow the agency the opportunity to investigate the claims made by the complainants and provide an opportunity to resolve the complaints informally, without formal court processes. The court found that complainants need only provide information sufficient to allow the agency to investigate their claims, and no more. To illustrate, the court noted that a complainant alleging wrongful non-promotion need not even identify the position for which she applied to satisfy the counseling requirement. The court also specified that in class complaints, the evidence necessary to prove the claims against the agency is often statistical and can be gleaned only from information in the sole control of the agency. The court therefore suggested that in class claims, the amount of detail needed to satisfy the counseling requirement may be less than what is required of an individual complainant.
The Board alleged that the secretaries’ participation in EEO counseling was perfunctory and undertaken in bad faith. It alleged that some of the secretaries refused to provide details about specific instances of discrimination, and refused to agree to extend the counseling period to allow the Board to take further action on the complaints. The court ruled, however, that the secretaries’ bad faith was only relevant if it “completely frustrated” the agency’s ability to investigate complaints. The court reiterated the well-established principle of vicarious exhaustion; only one class member need meet the requirements for exhaustion of administrative remedies in order for the whole class to be deemed to have met the requirement. The court found that the information provided to the Board’s EEO counselors was specific enough to satisfy the exhaustion of administrative remedies requirement.