Before getting started with the blog entry of the day, I want to congratulate the Tampa Bay Rays and the Los Angeles Dodgers for getting to the World Series. Tampa Bay won in seven games. The Dodgers came back and beat the Braves after trailing 3-1. Good luck to both. Sports are an escape in the very strange world that we are in now. We can all use a pick me up. With that in mind, a colleague of mine, Professor Len Sandler from the University of Iowa Law School, sent me this link18018312069200. It really was a great pick me up when I listened to it. I hope it does the same for y’all.


Sometimes the people who enforce discrimination laws get themselves into trouble as well. The case of the day, Menoken v. Dhillon18118412170201, decided by the District of Columbia Circuit on September 15, 2020, is one such example. In this case, the EEOC gets sued for violating title VII and the Rehabilitation Act by the creation of a hostile work environment. As usual the blog entry is divided into categories, but not the usual ones, and they are: hostile work environment, interference, unlawful medical inquiry, breach of confidentiality, and thoughts/takeaways. This blog entry is pretty short, and so the reader is probably going to want to read the whole thing.



Hostile Work Environment


  1. Plaintiff, an attorney, proceeded pro se at the trial level, but the appellate court appointed counsel as amicus curiae to present arguments in support of her at the appellate level.
  2. Incidents taking place while the plaintiff was on leave can support a retaliatory hostile work environment claim.
  3. Court can consider any negative actions an employer takes during an employee’s absence when assessing whether a plaintiff has plausibly alleged a hostile work environment.
  4. An employer’s deliberate attempt to affect an employee’s finances and access to healthcare is precisely the type of conduct that might dissuade a reasonable worker from making or supporting a charge of discrimination.
  5. The interactive process is viewed as a whole and not just based upon one particular point in the process.
  6. The agency did not engage in good faith efforts to determine what accommodation might be appropriate. Instead, plaintiff alleged that the EEOC deliberately delayed processing the request and then sought leverage to extract legal concessions designed to benefit the EEOC. That is, they offered to grant her reasonable accommodations on the condition she execute a general release absolving EEOC of liability with respect any claims arising from her employment.





  1. A retaliation claim and an interference claim are two different causes of action.
  2. The court mentioned two possibilities for analyzing interference claims: 1) Frakes, which we discussed here18218512271202; and 2) a test proposed by the EEOC.
  3. The proposed EEOC test would require the plaintiff to allege that the employer: 1) coerced, intimidated, threatened, or interfered with any individual; 2) in the exercise or enjoyment of, or on account of his or her having exercise or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of; 3) any right granted or protected by the ADA/RA.
  4. Regardless of the standard, plaintiff survives the motion to dismiss. In this case, the amended complaint describes a 10 year pattern of hostile treatment rooted in the EEOC’s antagonism toward the plaintiff’s protected activities under title VII. Her complaint alleges that as a result of that hostile behavior she suffered significant physical and mental injuries, including depression, acute stress, severe hypertension, and complex posttraumatic stress disorder.
  5. Plaintiff has stated a plausible claim of interference with her allegations of the EEOC’s efforts to delay processing her reasonable accommodation requests and their efforts to persuade her to accept the settlement offer as a condition of granting her requested accommodations.
  6. Plaintiff’s interference claim survived because she described in her complaint: 1) the nature of her disability; 2) the EEOC’s persistent and intentional effort to undermine her exercise of statutorily protected rights; and 3) the EEOC’s apparent failure to engage with plaintiff in good faith to identify a reasonable accommodation (this is a nice roadmap for an ADA interference complaint).



Unlawful Medical Inquiry


  1. To state a claim for an unlawful medical inquiry, plaintiff must allege that the employer in fact conducted an impermissible inquiry into the plaintiff’s medical condition. That claim fails because the plaintiff did not allege that the EEOC attempted to access her files in any way that constituted an unlawful inquiry. That is, no allegations were made of an impermissible disability related inquiry.



Breach of Confidentiality


  1. The confidentiality requirements attach to an employee’s medical information that is obtained in the course of a permissible medical inquiry.
  2. No allegations exist that the EEOC obtained her medical records in the course of an inquiry into her medical condition.
  3. Since the files were obtained by the Office of Worker’s Compensation Programs in connection with her occupational injury claim, the statutory obligation to treat those files as a confidential medical record rested with that agency and not the EEOC.





  1. Hostile work environment claims apply to the Rehabilitation Act.
  2. Interference and retaliation claims are two different animals.
  3. Frakes18318612372203 remains a plausible way to analyze interference claims. The EEOC test might be another possibility. It will be interesting to follow what test for interference claims the courts wind up adopting.
  4. Incidents taking place while on leave can support a hostile work environment claim.
  5. The interactive process is looked at a whole and not as separate discrete parts.
  6. Bad idea to insist on a waiver of liability in exchange for reasonable accommodations.
  7. An unlawful medical inquiry claim must be based upon an impermissible inquiry into the plaintiff’s medical condition.
  8. A breach of confidentiality claim only attach it to records obtained in the course of a permissible medical inquiry, and the confidentiality obligation goes to the agency making that permissible medical inquiry and not to another agency not involved with that inquiry.
  9. A person going pro se at the trial level can get a big boost when the appellate court either allows for an amicus curiae or an in forma pauperis attorney to get involved with the filing of the brief.
  10. Be sure to get the interactive process right as we discussed here18418712473204.


Have a real fine day y’all.