Race-Based Refusal to Consider Questions at Employer Town Hall / Removal of Posts on Internal Forum May Be Illegal Discrimination

From Tyree B. v. Raimondo, decided by the EEOC on Oct. 18 but just posted to Westlaw last week:

The Agency framed Complainant's claims [of, among other things, race discrimination  based on his being white] as follows:

1. Agency officials have ignored, dismissed, disregarded, suppressed, mischaracterized, and mislabeled Complainant's communications and concerns raised about Diversity, Equity and Inclusion since February 2021 and that he has been ostracized as a result. Examples include the following:
   1. Various Agency officials refuse to engage him on the topic of Diversity, Equity and Inclusion;
   2. The questions he has posed in Townhall meetings have been disregarded and/or not asked via the Moderator; and,
   3. On September 22, 2022, he read a NIST Forum open letter posted by another NIST Staff Member on or about March 3, 2021, which referred to a post of his made on the NIST Forums as "racist." Further, his post was labeled as "harassing." NIST has also removed his September 14, 2022 NIST Forum post, as well as other posts, and has unfairly characterized them as "harassing."

2. The Department of Commerce initiated "heat" against him for comments he made about Diversity, Equity and Inclusion, which resulted in the initiation, and then continuation of this process.
3. NIST and the Department of Commerce celebrate or otherwise favor people in their programs and events due to certain characteristics but no other groups, such as "whites and men." …

[F]or allegations of reprisal, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation…. The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity.

Here, the Town Hall Q&A sessions and the online employee forum are privileges of employment. Both were hosted and moderated by the Agency, on Agency property, and made available to all Agency employees.

To the extent that the allegations were timely raised, alleging denial of these privileges based on race, color, religion, sex (gender identity, presentation and sexual orientation) state a viable claim under Title VII. Under the broad application afforded to claims of reprisal, denial of these privileges may also be sufficient to deter a complainant from engaging in protected EEO activity. As such, Complainant's allegation that on February 2, 2023, his question submitted for a Town Hall meeting was not addressed based on his protected classes states a timely claim of discrimination. Likewise, Complainant's allegation that on February 6, 2023, his post[s] on the employee online forum were removed based on his protected classes state a timely claim of discrimination.

However, in determining that these two incidents state a viable claim of discrimination, the Commission emphasizes that to the extent that the Agency's actions were motivated by the content of Complainant's statements, Complainant fails to state a claim. As the Agency aptly notes in its decision, alleged violations of the First Amendment are outside the Commission's purview and cannot be addressed in the 29 C.F.R. Part 1614 EEO complaint process.

Complainant's other February 2023 allegations that coworkers and Agency officials either did not respond, or responded in an unsatisfactory manner to his forum posts and emails, fails to state a claim because they do not allege a denied term, condition, or privilege of employment, nor would they deter a reasonable person from engaging in protected EEO activity. We also agree with those parts of the Agency's dismissal analysis regarding the discussion of case law examples regarding the Commission's stance concerning failure to state a claim regarding objections to special emphasis programs for individuals in underrepresented classes. Likewise, the Agency aptly noted the Commission's well-established position that allegations that a complainant was subjected to false accusations of racism fails to state a viable claim under Title VII….

[W]e hereby REMAND the following disparate treatment claims to the Agency for further processing in accordance with this Decision and the Order below.

Whether Complainant was discriminated against on the bases of race, color, religion, sex (gender identity, presentation and sexual orientation) and/or reprisal when: (a) on February 2, 2023, his question submitted for a Town Hall meeting was not addressed and (b) on February 6, 2023, his posts on the employee online forum were removed.

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