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EEOC reinstates DHS employee due to sex discrimination

In some employment cases involving discrimination, it is often difficult to discriminate between genuine reasons for an action and pretext. In the context of federal employment, managers or supervisors with the agency may unfairly discriminate against an employee, firing them, denying them opportunities for promotion or subjecting them to adverse job actions. However, they may claim they have a legitimate reason for their actions, creating the pretext.

Pretext can be a difficult employment case to prove, because it requires the employee to get behind the purported rationale. The agency may put forward various reasons for their actions, and many of them could be true, but are not in the particular case.

This means that an employee who has received this type of adverse treatment must show why those reasons were not genuine, and merely "pretext" for the real reason, which was discriminatory.

While complex, it can be done, as a recent case where the Equal Employment Opportunity Commission (EEOC) Office of Federal Operations (OFO) found that the Department of Homeland Security (DHS) had subjected her to disparate impact discrimination.

She was fired for alleged conduct that the agency apparently had no policy for and she was treated different from others, which resulted in the disparate impact.

In this case, the suggestion of pretext was supported by the fact the woman had received a "meets or exceeds" performance rating. She also had received a within-grade increase before her termination. Such performance by the employee makes the agency's claims less credible.

This woman also documented substantial negative effects caused by the discrimination, including her divorce and health issues. Documentation is an important element for all employment cases, as it is often in the details of emails, memos and even phone conversations that provide evidence of the discrimination. Keeping extensive records when discrimination happens can be the key to success.

Fedweek.com, "Federal Legal Corner: Charges Found to be Pretext for Discrimination," November 19, 2014

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