DEBRA D’AGOSTINO, FOUNDING PARTNER OF THE FEDERAL PRACTICE GROUP, PENS A COLUMN FOR GOVEXEC ON GOOD NEWS FOR FEDS IN 2020
Posted By fedpractice || 14-Jul-2020
The most notable legal rulings for federal employees this year came in the form of two pro-employee U.S. Supreme Court decisions. But there are other reasons to cheer as well.
In Babb v. Wilkie, the Supreme Court reviewed the provision of the 1967 Age Discrimination in Employment Act applicable to federal employees—29 U.S.C. § 633a(a)—and ruled in favor of the employee. The Supreme Court clarified that agencies can be liable for age discrimination if it was a cause for the adverse action at issue, as opposed to the previous understanding that age must be the sole or primary cause of the adverse treatment (in other words, federal employees previously had to show that “but-for” age, the bad action would not have occurred). The higher “but-for” causation standard remains applicable to the private sector, but the Supreme Court finally clarified that the private sector law is not applicable to federal employees. The court also held that a federal employee who can establish that their age was the “but-for” cause of their agency’s adverse decision can obtain relief including compensatory damages, which the Equal Employment Opportunity Commission has long held was precluded by the provision. This will go a long way toward making victims of age discrimination whole, and forcing agencies to take age discrimination as seriously as discrimination based on other protected classes such as race, sex, and disability discrimination.
In Bostock v. Clayton County, Georgia, the Supreme Court held that Title VII’s prohibition on sex discrimination protects LGBTQ employees from discrimination based on sexual orientation or gender identity. While the EEOC has recognized Title VII as protecting LGBTQ federal employees since 2012, the Bostock decision settles the issue once and for all.
In addition to expanded legal protections, federal employees also received a significant new benefit—paid parental leave. As part of the National Defense Authorization Act, President Trump signed into law the Federal Employee Paid Leave Act, which will give Title 5 employees up to 12 weeks of paid parental leave for the birth, adoption, or foster of a new child beginning on October 1. A bill, the Federal Employee Parental Leave Technical Correction Act, has been introduced to broaden the scope of FEPLA to include federal employees appointed under Title 5 authorities. While OPM has not yet issued regulations, the statute provides that employees would not need to exhaust paid sick or annual leave before qualifying for leave under FEPLA, which like the Family and Medical Leave Act, could be used intermittently to provide new parents with flexibility as they adjust to their new family.
All the Stuff that Didn’t Happen
It’s not just what did happen that’s good news—it’s what didn’t happen as well. Telework did not cause widespread catastrophe. Whether as a reasonable accommodation for a disability or just because it makes life easier, federal employees have long pushed for increased telework flexibility, while at least in the past few years, management has resisted. Then COVID-19 struck, most federal employees were forced to telework, and while everyone’s mental health took a hit, federal employees remained productive and got the job done. While we will have to see what happens as offices start to open, especially if schools don’t, it seems unlikely that most federal employees will be ordered back until appropriate precautions have been taken or a vaccine is available.
OPM still exists, large scale reductions in force haven’t happened, and no new legislation negatively impacted the due process rights of federal employees. That’s not to say that such efforts may not be renewed down the road, and that the civil service is not due for reform, but for now, the status quo can provide for some normalcy during these otherwise very unusual times.
Debra D’Agostino is a founding Partner of the Federal Practice Group. She has nearly 20 years of experience representing federal employees in matters before the EEOC, MSPB, OSC, and the U.S. Court of Appeals for the Federal, Fourth, and D.C. Circuits.