Before getting started on the blog entry of the week, a housekeeping matter in order. I will be out of the office August 30-September 12, so this will be my last blog entry until the week of September 15.

This week’s blog entry raises the question of whether unions can hide behind the duty of fair representation in order to avoid the more burdensome requirements of complying with the ADA and Title VII. In Lucas v. American Federation of Government Employees, here, the United States Court of Appeals for the District of Columbia Circuit decided on August 15, 2025, that ADA and Title VII compliance is not trumped by the duty of fair representation. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning reversing the dismissal of the Title VII and ADA claims; court’s reasoning that the union’s reliance on the Civil Service Reform Act is of no help; miscellaneous matters and rebutting the dissent/dissent; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Key Facts (taken from the opinion itself)

Nia Lucas, a woman with a traumatic brain injury, worked for the U.S. Small Business Administration (SBA) from 2017 to 2020. Lucas believed that the SBA had discriminated against her and had not compensated her properly. In late 2017, she brought these allegations to her union’s local chapter. The local did not take any action for several months.

Around this time, Green began professing his love for Lucas and making unwanted sexual advances toward her. 7 Lucas told him to stop and reported his conduct to Michael Kelly, one of the union’s national officers.

Green stepped down as Lucas’s designated representative ahead of the arbitration hearing, but the two of them remained in contact as the hearing date approached. Lucas had recently given birth, and, on one occasion, Green told her that “she did not have a right or need to be at the arbitration hearing based on the additional expenses and logistics associated with her being a nursing mother.” He added that Lucas’s “having a newborn was a burden to the union.”Lucas again reported his comments to Kelly.

At Green’s instruction, the local postponed the arbitration hearing after it had begun. Six months later, Lucas filed a ULP charge with the Federal Labor Relations Authority, complaining of Green’s harassment and the hearing’s delay. After learning about the charge, Green called Lucas, told her she was a “b*tch,” and threatened to “ruin her federal career” if she did not withdraw the allegations. The local later pulled out of the arbitration proceedings. Green explained that the union “did not want to represent disabled mothers of newborns such as [Lucas].”

Lucas filed two more ULP (unfair labor practices), charges with the Authority: one asserting that the local had wrongfully withdrawn from the arbitration hearing, and another contending that Kelly had conspired with Green to restrict her rights as an employee in the union’s bargaining unit.

Separately, Lucas filed a discrimination charge against the union with the EEOC, which declined to pursue the matter and issued her a right-to-sue letter. Lucas then filed in district court the two lawsuits that are now before us. The first named the union and the local as defendants and alleged violations of Title VII and the ADA, including claims of sex discrimination, disability discrimination, sexual harassment, and hostile work environment.

II

Court’s Reasoning Reversing the Dismissal of the Title VII and ADA Claims

1. It is unlikely that Congress would have done away with fundamental protections it conspicuously and specifically made applicable to discrimination by unions.
2. Title VII and the ADA represent two of the most significant legislative enactments of our time, and both statutes explicitly apply the prohibitions against discrimination to labor organizations.
3. The plain text of both statutes reflects that Congress considered specifically that labor organizations are subject to both of those statutes.
4. Congress legislates against and preserves existing law and background understandings is the presumption whenever Congress makes law.
5. Congress has long afforded claimants multiple overlapping avenues to obtain relief from the discrimination they prohibit.
6. It is well-settled that employees in every other relevant context can concurrently pursue administrative remedies for discrimination as well as Title VII or ADA claims (or the materially identical Rehabilitation Act claim), in federal district court.
7. For federal employees suing their employers, the Civil Service Reform Act makes it a prohibited personnel practice for a supervisor to discriminate against employees or applicants in violation of Title VII or the Rehabilitation Act. It also allows employees to bring claims under both Title VII and the Rehabilitation Act in district court.
8. Private sector employees may bring Title VII and ADA claims in district court against the unions even if they can also pursue overlapping administrative remedies before the National Labor Relations Board.
9. In a footnote, the court notes that Title II of the ADA and §504 of the Rehabilitation Act are interpreted as if the two statutes are one law. In the same footnote, the court notes that §501 of the Rehabilitation Act, which prohibits disability discrimination in federal employment, is governed by the same standards as Title I of the ADA.
10. The Supreme Court has recognized that legislative enactments in this area have long intended to accord parallel or overlapping remedies against discrimination.
11. Since the Civil Service Reform Act’s 1978 Enactment, Congress has either created enhanced remedies for discrimination claims without ever saying that federal employees suing their unions are excluded in any respect from the statutes’ protections. In fact, the ADA itself was enacted 12 years after the Civil Service Reform Act and the more specific law governing unions. Further, the ADA defined its coverage to include all labor organizations and not just private sector unions.
12. The Civil Rights Act of 1991 make compensatory and punitive damages available to a plaintiff establishing unlawful intentional discrimination in violation of Title VII or the ADA, and there is no indication that Congress understood that enhancement not to apply to federal employees suing their unions.
13. The law governing unions when it mentions discrimination is perfectly consistent with the view that Congress stuck to its long-standing practice of affording employees multiple avenues for relief in a case such as this one. In fact, it is a more natural reading of the law governing unions that Congress meant to complement existing remedies by providing employees lacking the resources to file a Title VII or ADA claim with a faster and less expensive means to obtain relief even if the payoff is far more modest.
14. The remedies explicitly guaranteed by the law governing unions are paltry by comparison to the ADA and to Title VII. It is particularly implausible that Congress would so drastically curtail federal employees’ protection from discrimination by the unions without ever saying it was doing so, and without any apparent justification.
15. For employees demonstrating misconduct by federal unions, the law governing unions appears to offer only cease-and-desist orders and, if applicable, back pay awards.
16. The limited remedies for the law governing unions are subject to an administrative scheme that, in practice, almost never results in judicial review. Under this administrative scheme, charges of discrimination are subject to the discretion of the Regional Director and the unreviewable discretion of the General Counsel, of which there currently is none, over whether to initiate a complaint. By one account, based on seven years of data, fewer than 1% of charges filed by all individuals against unions ever result in a complaint with nearly all the other charges being withdrawn or dismissed.
17. The statute respective limitations periods also differ. The law governing unions gives employees only six months to file a charge, while a discrimination charge under Title VII or the ADA may be filed up to 300 days after the challenged conduct if an employee first seeks relief from a state or local agency.
18. Plaintiff makes a substantial case that the law governing unions is not just weaker than Title VII and the ADA in terms of procedure and remedies, but also more limited in terms of its substantive coverage. In fact, several Courts of Appeals have held that proving a breach of the duty of fair representation requires a showing beyond what is necessary to make out a Title VII or ADA claim. Therefore, stripping federal employees of Title VII’s and the ADA’s protection from discrimination by their unions would put some misconduct beyond the law’s reach.
19. Unlike the law governing unions, with respect to Title VII or the ADA, a non-union member like the plaintiff can seek relief for discriminatory representation.
20. As a result of virtually all charges with respect to the law governing unions being withdrawn or dismissed, there is very little case law existing with respect to a union’s discrimination based on protected traits breach of the duty of fair representation. When a complaint is withdrawn or dismissed, it is the responsibility of the General Counsel to provide a written statement of the reasons for not issuing a complaint, thereby leaving no public trace of the application of the law governing unions to particular facts.
21. Even if the scope of coverage with respect to the law governing unions overlap with that of Title VII and the ADA, the stark disparities in remedies, opportunity for judicial review, and limitation periods remain.

III

Court’s Reasoning That The Union’s Reliance on the Civil Service Reform Act Is of No Help

1. Unlike in the law governing unions, Congress chose to explicitly define prohibited personnel practices based on Title VII and other specific statute by name when it came to the Civil Service Reform Act. Accordingly, that creates the obvious implication that Congress intended to funnel those statutory claims exclusively through the Civil Service Reform Act scheme. So, confronted with that implication, Congress carefully specified that employees could still concurrently pursue those kinds of claims in district court.
2. None of the provisions in discussing discriminatory conduct in the law governing unions explicitly reference any antidiscrimination statute.
3. Congress chose to be clear that employees have concurrent rights to pursue claims under the law governing unions as well as under Title VII and the ADA.
4. It makes no sense for Congress to have intended to distinguish federal employees Title VII/ADA apart from the general norm of overlapping remedies only when they seek to sue their unions and not when they sue their employers.
5. There is no support for the idea that Congress wanted to give federal unions more freedom to engage in discrimination against the very employees they are obligated to represent.
6. There is no reason to think that the Civil Service Reform Act goes so far as to displace all other statutory discrimination claims.
7. To the extent the legislative history sheds any light, it shows Congress’s concern with duplicate paths and lengthy litigation was plainly more front of mind with respect to federal employee challenging their employer’s actions, rather than in the context of employees suing their unions. It also shows that Congress was perfectly happy to tolerate dual-track discrimination claims against federal agencies.
8. Neither Title VII nor the ADA is a catchall statute. Instead, both statutes address specific evils of discrimination by labor organizations, rather than labor-management relations in general.
9. There is no concern that every charge filed under the law governing unions could give rise to a parallel Title VII or ADA claim, as unions can commit nearly all of the violations of the law governing unions without acting with any discriminatory intent whatsoever.
10. Plaintiff seeks to sue her union for specific acts she claimed were discriminatory under statute specifically targeting that conduct, and plaintiff cannot litigate her Title VII and ADA claims through the statutory scheme in the context of concrete bargaining disputes.

IV

Miscellaneous Matters and Rebutting the Dissent/Dissent

1. Case law talking about how the law governing unions can be preclusive with respect to certain actions doesn’t hold up with respect to Title VII and ADA lawsuits because if that was the case, a plaintiff would have no meaningful opportunity for judicial review of the discrimination allegations because access to the court will be subject to the General Counsel’s unreviewable discretion to dismiss her charges, which is the fate met by nearly every charge filed by a federal employee against unions under the law governing unions. Also, the Federal Labor Relations Authority has known particular expertise in the general applicable antidiscrimination laws involved in this case, and has itself directed federal employees with such claims to seek assistance from other quarters.
2. The promissory estoppel approach doesn’t work because an employee’s decision about where the first seek relief cannot be inaccurate or appropriate barometer of federal courts subject matter jurisdiction.
3. The cases cited by the dissent do not stand for the categorical rule ascribed to them by the dissent because otherwise the decisions in this area of the law would be considerably more concise.
4. Despite what the dissent says, even the union concedes that intentional torts are not preempted by the laws governing unions, and the dissent offers no reason to think that Congress intended them to be.
5. Taking the dissent at face value, would open up a whole new realm of litigation with respect to the law governing unions of which there is virtually no guidance on at present.
6. Congress’s initial focus on discrimination claims can be found in the Civil Service Reform Act, the ADA, and Title VII. The Civil Service Reform Act explicitly preserves federal employees’ ability to pursue overlapping remedies when they sue their employers for discrimination.
7. The court is unpersuaded that Congress intended to extinguish discrimination claims when those same employees seek to sue their unions for similar misconduct when it does not exclude such claims otherwise.
8. Civil Service Reform Act and the law governing unions precedent to date has not addressed a statute like Title VII or the ADA. Those particular statutes create their own elaborate schemes to root out misconduct and specifically include labor unions within their coverage. Congress explicitly ensure that federal employees can bring concurrent District Court claims per Title VII and the ADA and actions under the law governing unions for discrimination by their employers, and private employees can also bring overlapping claims against their unions.
9. With respect to the dissent itself, Judge Pan would have found the law governing unions preempts Title VII and the ADA.

IV

Thoughts/Takeaways

1. This case is a published decision.
2. It is extremely difficult according to this case to bring a successful breach of the duty of fair representation against a union. So, this case gives real teeth to plaintiff’s that are discriminated against by a union based upon their protected characteristic.
3. Given the current configuration of the Supreme Court, I like the chances chances chances of the plaintiff in this case prevailing at the Supreme Court level even if this case does nominally involve an employment situation (the Supreme Court is generally very positive toward persons with disabilities outside of employment).
4. While it is absolutely true that Title II of the ADA and §504 of the Rehabilitation Act are interpreted as if the two statutes are one law, important distinctions between the two do exist and can become important from time to time depending upon the particular facts.
5. The panel did unanimously agree to dismiss plaintiff’s Fair Labor Standards Act claim.