Employment Law Chronicle for Virginia & the District of Columbia

While this District of Columbia federal court opinion deals with several important employment law issues, of particular note is the Court's explanation of: (1) the distinction between race discrimination and national origin discrimination claims; and (2) the test for "adverse employment actions" under Title VII and the D.C. Human Rights Act (DCHRA).

In this case, Mr. Ndondji sued his former employer under Section 1981, Title VII and the DCHRA alleging race discrimination, national origin discrimination, and retaliation. By way of background, the DCHRA and Title VII protect employees against race discrimination, national origin discrimination, and other forms of employment discrimination. Section 1981 applies to racial discrimination only.

In dismissing the employee's race discrimination claims, the Court held that Mr. Ndondji had failed to allege facts to establish that alleged discrimination because he was from Angola (national origin) also meant that he had been discriminated against because of his race.

The Court dismissed most of Mr. Ndondji's remaining claims on grounds that the claims were procedurally barred or that Mr. Ndondji had failed to identify any "adverse employment action" taken by his employer that could satisfy the test under Title VII or the District of Columbia Human Rights Act. This was true even though Mr. Ndonji had identified at least five different adverse actions that he believed violated the employment laws.

Continue reading "D.C. Employment Law Case: N'Samba Ndondji v. Interpark, Inc. (Race Discrimination; National Origin Discrimination; Adverse Employment Actions)" »

In a key ruling for employers who need to protect the confidentiality of information submitted to the Equal Employment Opportunity Commission (EEOC) in connection with charges filed by employees, the U.S. Court of Appeals for the District of Columbia Circuit reversed and remanded this case, instructing the district court to issue an injunction prohibiting the EEOC from disclosing an employer's confidential information to plaintiffs or other third parties without notifying the employer in advance of the disclosure.

At issue were two "irreconcilable" EEOC policies. The EEOC's Compliance Manual allowed the EEOC to disclose confidential information to plaintiffs or other third parties without notifying the submitter in advance of the disclosure. By contrast, the EEOC's regulations implementing the Freedom of Information Act (FOIA) prohibited the EEOC from disclosing confidential information to third parties without notifying the submitter before the disclosure.

The Court held as follows:

[W]e remand this case to the district court to enjoin the Commission from disclosing Venetian’s confidential information without adhering to the notice and other requirements of the agency’s regulations implementing the FOIA. The EEOC's policy of permitting disclosure of confidential information without notifying the submitter is "arbitrary and capricious" in violation of the Administrative Procedures Act (APA) because the discloser without notification policy is inconsistent with the EEOC's own policies under the Freedom of Information Act (FOIA), which require notification to a submitter before any confidential or other information is disclosed. If and when the EEOC provides an adequate justification for the conflict between its policies, the injunction may be dissolved.

The practical upshot is that unless the EEOC provides a coherent rationale reconciling its inconsistent pre-disclosure notification policies, the EEOC must notify the employer in this case before disclosing the employer's confidential information. Going forward, in cases where the EEOC cannot provide a coherent rationale to deviate from the pre-disclosure notification requirements in its FOIA regulations, this decision provides support for the argument that an employer (or other submitter of confidential information to the EEOC) must be notified before the EEOC releases such information to a plaintiff or other third party.

From the perspective of this writer, who represents employers before the EEOC and has handled FOIA matters involving various federal agencies, this outcome seems fair and balanced.