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WHEN THE DENIAL OF TELEWORK COULD VIOLATE LAW

Just a few weeks ago, Judge Rosemary Collyer, the judge who declared the proposed DHS collective bargaining rules illegal, issued an interesting decision that gives employees suspended or removed from telework a chance to overturn the decision and earn some compensation for the discomfort that caused. The agency had argued that the court’s precedent was that, “[T]he denial of an employee’s request to work from home on a few occasions, without more, does not constitute an adverse employment action under Title VII, even under the seemingly broader standard applicable to retaliation claims.” Typically, employees need to suffer some significant loss or harm to have a basis for filing an EEO complaint; it is called an “adverse employment action.” Collyer acknowledge that, but then recognized an exception.  She said the cases the agency pointed to, “…involved the denial of an initial telework request, as opposed to the suspension of an existing telework arrangement. The suspension of an existing privilege or condition of employment (i.e., telework arrangement) could dissuade a reasonable worker from filing or supporting a charge of discrimination against the employer because the worker could feel that the charge will result in further adverse actions and retaliation. The fact that the suspension was temporary and that Ms. Saunders could still telework on an ad hoc basis does not change the analysis. SBA fails to dispute this point substantively. At the very least, there is a genuine issue of material fact as to whether the suspension was materially adverse.” See Karla Saunders, Plaintiff, v. Karen G. Mills, Administrator, Small Business Administration, Defendant , D.C.D.C. No. 11-486 (RMC) (March 24, 2016)