United Ststes
Environments! Prc't&ction Agency
Employment
Civil Training
for Supervisors and Managers
Training Manual
(Training materials prepared by EEOC)
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EPA Employment Civil Rights Training
Purpose and Objectives
The purpose of the next two days of training is to provide a basic understanding of
EEO laws and regulations as well as an understanding of management officials'
general EEO responsibilities.
At the completion of this course, participants will be able to:
1. Understand the basics of EEO law and theories of discrimination;
2. Understand the 1614 regulations and federal sector EEO process;
3. Recognize ways to avoid decision-making which will lead to the filing
of a discrimination complaint;
4. Get a better understanding of me benefits of ADR;
5. Become aware of their obligations under the Rehabilitation Act;
6. Understand their obligations with respect to eliminating and preventing
workplace harassment and retaliation;
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EPA Employment Civil Rights Training
Employment Civil Rights Training
for Supervisors and Managers
AGENDA: Day One
9:00 - 9:45 a.m. Welcome, Introduction, Logistics and Quiz
9:45 - 10:30 a.m. History and Overview of EEO Laws
' 10:30 - 10:45 a.m. Break
10:45 r 12:00 p.m. History and Overview of EEO Laws cont.
12:00-1:00 p.m. Lunch
1:00 - 1:30 p.m. Discrimination Based on Sexual Orientation
1:30- 2:30 p.m. Overview of the Federal EEO Complaint Process
2:30 - 2:45 p.m. Break
2:45 - 3:30 p.m. Overview of the Federal EEO Complaint Process cont.
3:30-4:15 p.m. Alternative Dispute Resolution in the Federal EEO
Complaint Process
4:15 _ 4:45 p.m. Mediation Video
4:45 - 5:00 p.m. Wrap-up and Review
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Employment Civil Rights Training
for Supervisors and Managers
t f
AGENDA: Day Two
9:00 -9:15 a.m. Welcome and Recap of Day One
9:15- 10:30 a.m. EPA's General EEO Program Responsibilities
' 10:30 - 10:45 a.m. Break
10:45 - 12:15 p.m. Management's Responsibilities: Under the Rehabilitation Act
of 1973
12:15- 1:15 p.m.
l:15-2:45p.m.
2:45-3:OOp.m.
3:00- 4:00 p.m.
4:00 - 5:00 p.m.
Lunch
Management's Responsibilities: Identifying, Preventing
and Eliminating Workplace Harassment
Break
Management's Responsibilities: Preventing Retaliation
Wrap-up, Evaluations, Quiz
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TABLE OF CONTENTS
Tab Page
A. History of Employment Civil Rights Legislation 9
B. Overview of EEO Laws .. . 19
C. Discrimination Based .on Sexual Orientation 73
D. Overview of Complaint Process 87
E. Alternative Dispute Resolution , 123
F. Management's Responsibilities:
General Program Duties 149
G. Management's Responsibilities:
Affirmative Employment Programs , 163
H. Management's Responsibilities
Under the Rehabilitation Act of 1973 181
I. Management's Responsibilities: Preventing Harassment 221
J. Management's Responsibilities: Preventing Retaliation 265
K. Appendix: Additional Resources 287
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History Of Employment Civil Rights Legislation
OVERVIEW OF THE HISTORY OF
EMPLOYMENT CIVIL RIGHTS
IN THE FEDERAL SECTOR
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History Of Employment Civil Rights Legislation
DESK .REFERENCE GUIDE
History of Employment Civil Rights Legislation
XII. Title VII of the -Civil Rights Act of 1964
By far, the most well known civil rights legislation regulating
employment discrimination is the Civil Rights Act of 1964, as amended.
This legislation also provided the framework for subsequent civil rights
legislation, including the Rehabilitation Act and the Age Discrimination
in Employment Act.
The Civil Rights Act has several sections, one of which is Title VII.
Title VII prohibits employment discrimination because of race, sex,
color, religion and national origin in recruitment, hiring, wages'
assignment, promotions, benefits, discipline, discharge, layoffs and
almost every aspect of employment.
ฎ On June 19,1964, after the longest debate in its nearly 180 year history
(83 days/534 hours), the Senate passed the Civil Rights Act of 1964.
Thirteen days later, the U.S. House of Representatives passed the bill
with all the Senate's amendments and it was signed into law. The law
excluded the federal government from the definition of "employer,"
however, it contained a proviso that all employment actions were to be
free of discrimination and authorized the President to issue appropriate
Executive Orders.
In 1965, Executive Order 11246 gave the U.S. Civil Service
Commission authority to issue regulations dealing with charges of
discrimination. The regulations issued in 1966 gave federal employees
for the first time, formal procedures for filing complaints of
discrimination. The regulations also required agencies to both correct
discriminatory practices and to develop affirmative action programs.
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In 1972, Congress amended Title VII to add Section 717 which, for the
first time, included employees of the federal executive agencies within
the coverage of the statute. Jurisdiction for the implementation of
Section 717 was originally placed with the Civil Service Commission,
which was given certain powers to require agency compliance with its
regulations and directives, including the power to award back pay as
well as all other relief necessary to make claimants whole, A clear right
to judicial remedy was also established by Section 717(c).
In 1979, the Reorganization Plan Number 1 of 1978, transferred
jurisdiction of Section 717 from the Civil Service Commission to the
Equal Employment Opportunity Commission (EEOC).
Simultaneously, the Civil Service Reform Act of 1978 abolished the
Civil Service Commission and separated its functions between two new
agencies, the Office of Personnel Management (OPM) to carry out the
management functions and the Merit Systems Protection Board (MSPB)
was given the adjudicatory functions.
The Civil Service Reform Act gave EEOC sole jurisdiction over "pure"
EEO cases, in other words^ cases in which only discrimination issues
were raised or where no appeal rights to the MSPB existed by law.
MSPB was given concurrent authority over all adverse action and
appeals of "pure" EEO cases as well as the exclusive jurisdiction of
procedural violations or other issues under the civil service regulations,
where it would have had jurisdiction in the absence of the discrimination
claim. EEOC review of MSPB decisions is limited to the EEO claims.
The Act preserved the right to a judicial de novo review over all EEO
claims regardless of the administrative body that issued it.
9 The U.S. Supreme Court continues to interpret and define Title VII. A
few of the more notable decisions include:
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History Of Employment Civil Rights Legislation
^ McDonnell Douglas v. Green - Supreme Court defined and
explained the order arid proof necessary for an employment
discrimination case.
* - ,
^ New York Gaslight Club, Inc. v. Carey - Supreme Court held that
federal employees and applicants couldrecover attorney's fees for
time spent in the administrative process.
4- Meritor Savings Bank v. Vinson - Supreme Court held that
unwelcome sexual conduct that constitutes sexual harassment
constitutes a violations of Title VII.
ฎ Discrimination because of sex has been specifically prohibited since the
passage of the Civil Rights Act. However, early case law found that
pregnancy classifications were not based on sex. In General Electric
Co. v. Gilbert, the Supreme Court found that an employer sponsored
disability insurance plan that excluded pregnancy from coverage was not
discrimination because of sex because the program divided individuals
into two groups - pregnant individuals and non-pregnant individuals,
However, in 1978, Congress amended Title VII with the Pregnancy
Discrimination Act when it specifically stated that the term "because of
sex" included pregnancy, childbirth or related medical conditions.
ฎ In 1991, Congress passed the Civil Rights Act of 1991, which, among
other things, amended Title VII to provide successful plaintiffs the
ability to recover compensatory damages.
II The Equal Pay Act of 1963
ฎ The Equal Pay Act was the first significant national civil rights
legislation that focused on employment discrimination. The legislation
protects men and women who perform substantially similar work in the
same establishment from sex-based wage discrimination.
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As more and more women went to work during World War II, a gap
between pay scales of men versus women became clearly evident.
Women in unions, churches and other women's organizations all joined
forces to pressure Congress to enact pay equity legislation during the
post war period.
Between 1950 and 1960, women with full time jobs earned on average
between 59-64 cents for every dollar their male counterparts earned for
working in the same job. In fact, until the early 1960's newspapers
published separate job listings for men and women. In some cases, ads
ran identical jobs under male and female listings - but with separate pay
scales. Women were often paid less thanmen on the theory that women
.did not have to support a household and that their work was somehow
less valuable than that of men. .
In June 1963, Congress passed the Equal Pay Act, as an amendment to
the Fair Labor Standards Act. With the passage of the Equal Pay Act,
it became illegal to pay women lower rates for the same job strictly on
the basis of their sex. As with Title VII, courts further defined and
strengthened the statute.
After the Equal Pay Act was passed, women's labor force participation
rate increased, while growing numbers of women sought to expand their
education.
Between June 11, 1964 (the effective date of the Equal Pay Act), and
January 1971, a total of back wages amounting to over $26 million were
found by the Department of Labor compliance officers to be due to
nearly 71, 000 workers, mostly women. Four years later, that amount
grew to over $ 125 million due to over 220,000 workers.
In 1972, the protections of the Equal Pay Act were extended to
executive, administrative, professional and outside sales employees. In
1974, it was extended to public sector workers in the states, as well as
their political subdivisions.
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History Of Employment Civil Rights Legislation
Although the wage gap has narrowed since the Equal Pay Act, women's
pay has not changed substantially.
Ill The Rehabilitation Act of 1973
* i t
Section 501 of the Rehabilitation Act of 1973 prohibits the federal
government as an employer from discriminating against qualified
individuals with disabilities. The Act also requires that the federal
government be a "model employer," and that it take affirmative steps to
hire qualified individuals with disabilities.
The federal government's involvement with issues relating to the
disabled largely began after World War I, in response to the number of
individuals returning from the war with disabilities.
@ Individuals with disabilities have been excluded from the mainstream in
society and denied the same opportunities given to individuals without
disabilities. Exclusion from employment results from society judging
individuals based upon their inabilities rather than their capabilities,
Prior to the enactment of the Rehabilitation Act in 1973, Congress
recognized that only 800,000 of the approximately 22 million physically
disabled individuals were employed in the United States. However,
Congress also determined that 14 million of these individuals would'
work if provided with the opportunity. In that regard, Congress found
that discrimination, not a lack of training or incentive, prevented
individuals with disabilities from finding and maintaining employment.
Until Congress amended Section 501 to include a private right of action,
most courts held that Section 501 could not be enforced through the
courts. However, in 1978, Congress amended Section 501 to include the
same remedies as the Civil Right Act of 1964.
IV Age Discrimination in Employment Act
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The Age Discrimination in Employment Actprohibits job discrimination
against private sector workers between the ages of 40-70 years, and all
workers over age 40 in the federal workforce. Specific discrimination
prohibited covers hiring, discharging, training and classifying.
The drafters of the ADEA legislation focused on the enforcement
scheme of Title VII, as well as the remedial sections of the Fair Labor
Standards Act. The final legislation that passed in 1967 and was signed
into law by President Lyndon Johnson prohibited discrimination on the
basis of age against private sector employees within the protected age
group of 40-65 years.
In 1974, the ADEA was amended to extend coverage for federal and
state employees. Subsequent amendments raised the ceiling to 70 years
for private sector employees, and removed the upper age limit for
federal employees.
Conclusion
Equal employment opportunity is the law in this country. History shows
that without it many individuals would be deprived of a fair chance at
earning a salary due to prejudice and discrimination. Management
officials, must ensure that they, as well as those they supervise, comply
with the law. Learning the history behind why these laws were passed
helps to understand these duties. The following training will discuss the
specific responsibilities and duties of management officials.
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History Of Employment Civil Rights Legislation
Notes: History of Employment Civil
Rights Legislation
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Overview of EEO Laws
Overview of EEO Laws
Identifying Discrimination
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Laws Enforced by the EEOC
Title VII of the Civil Rights Act of 1964
Age Discrimination in Employment Act of
1967 (ADEA)
The Rehabilitation Act of 1973
The Equal Pay Act of 1963
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Overview of EEO Laws
TITLE VII OF THE CIVIL
RIGHTS ACT OF 1964
Race & Color
National Origin
Religion
Sex:
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ADEA
Prohibits discrimination on the basis of
age against individuals forty and over.
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Prohibits discrimination on the basis of disability.
Prohibits discrimination on the basis of being
associated with someone with a disability.
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Equal Pay Act
Focuses on sex discrimination in wages.
Violation established if it is shown that
unequal wages are paid to individuals of
different genders doing substantially equal
work under similar conditions for the same
agency.
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Overview of EEO Laws
Elements of a Case
Three basic'elements of a complaint of discrimination are:
ADVERSE ACTION
INJURY
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Scenario #1
John, a 43-year-old office employee receives a
"satisfactory" rating from his supervisor, Paul, who is 25.
John learns from Sam, who is even younger than Paul,
that Sam received an "outstanding" evaluation. John
thinks that Paul doesn't like him because he is much
older than Sam.
What is the basis of John >s complaint?
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Overview of EEO Laws
Scenario #2
(
Sarah is Robert's supervisor. Every morning, Sarah
would walk through the room where Robert worked and
would say "hi" to Robert's co-workers, Jane, Janet, and
Jennifer, but not to Robert. There have been many times
when Robert went to Sarah's office to ask a question and
found her deep in conversation with Jane, Janet and
Jennifer. Robert files a complaint, alleging that Sarah
discriminated against him on the basis of sex because she
does not communicate with him as much as with his
female co-workers.
Has Robert been subjected to an adverse
action?
kX^s^%.
i '_"__.'
Has Robert been injured?
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Disparate Impact
The complainant alleges that an agency's neutral
policy or practice adversely affects a protected class.
The burden shifts to the agency to show business
necessity.
The complainant may rebut business necessity by
showing other means available to achieve the same
objective with less discriminatory impact.
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As the area around, the facility became
increasingly populated with recent immigrants,
the manager decided to implement a grammar test
for applicants to all positions. Nguyen applied for
a custodial position, took and failed the grammar
test, and was denied a position.
How would he go about proving it?
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Religion and Reasonable Accoinmojgtiog^
Under Title VII, an agency has a duty of reasonable
accommodation for sincerely held religious beliefs
arid practices unless to do so would cause an undue
hardship.
In terms of religious accommodation, undue hardship can
mean a significant cost or other non-cost factors, such as
office disruption.
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Scenario #5
Elaine, who is Roman Catholic, requested Good
Friday off so that she could go to church.
Andrew, also a Roman Catholic, denied her
request, telling her that the church did not
require that Catholics refrain from work on
Good Friday.
If Andrew also denied a request from
Rhonda, who wanted to leave early to
attend a social function, would his denial
of Elaine9s request be okay?
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The Rehabilitation Act
An individual with a disability is someone who;
has a physical or mental impairment that
substantially limits one or more of that
individual's major life activities; or
has a history of such impairment; or
is regarded as having such an impairment.
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OverView of EEO Laws
A "qualified individual with a disability" refers to
a disabled individual who meets the job-related skill,
experience and education requirements and who
with or without reasonable accommodation, can
perform the essential functions of the position held
or desired.
The term "essential functions" means the
fundamental job duties of the employment position
that the individual with a disability holds or desires.
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Exception and Limitations of Coverage
< - *
Does not cover individuals engaged in current illegal use
of. drugs.
Excludes pedophilia; exhibitionism; voyeurism; gender
identity disorders not resulting from physical impairments;
transvestism; transexualism; certain other sexual behavior
disorders; compulsive gambling; kleptomania; pyromania;
or psychoactive substance use disorders resulting from
current illegal drug use.
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Scenario #6
When Bob was 16, he developed a rare form'of bone cancer
that led to the amputation of both legs. Bob had been an all-
Ameriean state basketball player. Several weeks after the
amputation, Bob began playing wheelchair basketball.
Several years later, still an accomplished wheelchair
basketball player and now an agency employee, Bob seeks,
and is denied, a promotion to an on-site inspection position
that would have required substantial walking.
Is Bob an individual with a disability
under the Rehabilitation Act?
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Reasonable Accommodation
< , ;
Agency Requirements
An agency is required to make a reasonable
accommodation of a known mental or physical
limitation of an otherwise qualified individual
with a disability unless to do so would cause
undue hardship.
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Reasonable Accommodation encompasses
three aspects of the employment
relationship:
the application process
ซ/ job performance
benefits and privileges
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Common Types of Accommodation
H Making facilities accessible and acquiring assistive
devices.
' Modifying work schedules.
Restructuring of job.
I Permitting use of accrued leave and unpaid leave.
Modifying of exam or training materials.
Providing readers or interpreters.
Reassigning to another vacant position.
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Overview of EEO Laws
Scenario #7
i* *
Tony has been out of work for several weeks. He had
surgery to correct a problem with two spinal discs. Len
calls Tony's house to get a progress report and speaks
with Tony's wife, May. May tells Len that Tony will be
back in a week, that his back is much improved, and that
Tony will need a better chair.
Does it matter that May, rather than Tony,
asked for the chair or that she did not tell
Len that Tony was seeking a reasonable
accommodation?
Does the cost of the chair matter?
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Reasonable Accommodation Process
Reasonable accommodation requested
Consult with the individual to determine what
accommodations s/he believes would enable her/him to
do the job.
If necessary:
determine what the essential functions of the
employee's job are.
request documentation of the disability and the
limitations to be accomodated
Assess the effectiveness of various accommodations.
Select the accommodation that is most appropriate in
view of the individual ' s and agency ' s needs .
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Undue Hardship
<
Would impose "significant difficulty or expense."
Agency has the burden of establishing undue
hardship.
Proof that one specific accommodation would
impose an undue hardship does not absolve an
agency from considering other proposed or
potential reasonable accommodations.
4
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Medical Confidentiality
Agencies must keep medical information about
employees confidential.
Employees do not have a right to know about a co-
worker 's medical condition and disability, even
when reasonable accommodations that affect them
are involved.
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Overview of EEO Laws
DESK REFERENCE GUIDE
Section .Ope: Understanding EEO Laws: An Overview
A. FEDERAL EQUAL EMPLOYMENT LAWS APPLICABLE TO
FEDERAL AGENCIES AND ENFORCED BY THE EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)
I Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
ง2000e.
ฎ Prohibits employment discrimination on the bases of race, color,
national origin, religion, and sex.
ฉ Prohibited discrimination includes harassment on all bases. (See the
Chapter in this training on "Harassment" for more detailed information.)
@ Agencies may be required to reasonably accommodate an individual
based on the needs of that individual's religion.
ฎ There is a limited "bona fide occupational qualification" (BFOQ)
exception applicable to religion, national origin, and sex.
ฎ Prohibits retaliation for participating in the EEO process and for
opposing employment discrimination. (See the Chapter in this training
on "Preventing Retaliation" for more detailed information.)
II Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. ง 633a (ADEA).
@ The ADEA prohibits discrimination on the basis of age against
individuals forty and over.
ฉ It abolished mandatory retirement at any age in the federal sector. (There
are limited statutory exceptions applying generally to law enforcement
positions.)
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. The ADEA also prohibits harassment based on age. (See the Chapter in
this training on "Harassment" for more detailed information.)
The only exception to the prohibition of the consideration of an indi-
vidual's age in employment is .where the agency can show that age is a
bona fide occupational qualification (BFOQ) for the position in ques-
tion. . .
The ADEA also bars retaliation actions. (See the Chapter- in this
training on "Preventing Retaliation" for more detailed information.)
The Rehabilitation Act of 1973, as amended, 29 U.S.C. ง 791.
Prohibits discrimination on the basis of disability.
Agencies are required by the Act to provide reasonable accommodation
to qualified individuals with disabilities.
Harassment based on disability is prohibited. (See the Chapter in this
training on "Harassment" for more detailed information.)
Hie Rehabilitation Act also prohibits retaliation actions. (See the
Chapter in this training on "Preventing Retaliation" for more detailed
information.)
The Rehabilitation Act was amended in 1992 to incorporate the
standards set forth under Title I of the Americans with Disabilities Act,
42U.S.C. ง 12111, etseq. ,
IV The Equal Pay Act, 29 U.S.C. ง206(d).
Although the Equal Pay Act focuses on sex discrimination in wages, it
is part of the Fair Labor Standards Act and not part of Title VII.
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To establish a violation of the Equal Pay Act complainant must show
that unequal wages are paid to individuals of different genders doing
substantially equal work under similar conditions in the same agency.
The determination of whether work is "substantially equal" requires a
comparison of the skill, effort and responsibility needed to perform each
of the jobs in question, as well as the working conditions under which
they are performed.
Pay differentials do not violate the Equal Pay. Act where they are the
result of: (1) a seniority system; (2) a merit system; (3) a system which
measures earnings by quantity or quality of production; or (4) is based
on any factor other than sex.
ฎ Compliance with the Equal Pay Act must be achieved by raising the
wages of the underpaid employees, not lowering or freezing the wages
of the higher paid. The underpaid employees are also entitled to an
award of lost earnings and benefits.
Liquidated damages are also available for willful Equal Pay Act
violations.
ฉ Where the jurisdictional prerequisites of both statutes are satisfied, a
violation of the Equal Pay Act is also a violation of Title VIFs
prohibition against sex discrimination.
B. DEFINING DISCRIMMATION
I Discrimination vs. Illegal Discrimination.
Making choices-deciding between or among options
Only those choices that involve the use of a protected basis are illegal
under federal discrimination laws. Not all negative things that happen
in the work place violate these laws.
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V Retaliation
+ Retaliation is taking an employment action against someone because
s/he has asserted rights under Title VII.
+ Retaliation may occur when an agency takes an employment action
against someone who opposes a practice because s/he reasonably
believes the practice violates Title VII or other non-discrimination laws.
+ Retaliation also may occur where the agency takes an employment
action against someone who has participated or is participating in the
EEO process.
For a more detailed discussion see the Chapter in this training on "Preventing
Retaliation."
B. THE AGE DISCRIMINATION IN EMPLOYMENT ACT
(ADEA)
I General
The ADEA prohibits discrimination on the basis of age against
individuals forty and over.
It abolished mandatory retirement at any age in the federal sector.
(There are limited statutory exceptions applying generally to law
enforcement positions.)
The ADEA prohibits discrimination against anyone in the protected age
group.
The "favored" individual also may belong to the protected group. For
example, the agency may have selected a 50-year-old employee for the
position over a 60-year-old .individual. The older employee may allege
age discrimination even though both candidates are in the protected
class.
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II Attorney's Fees and Compensatory Damages
Attorney's fees aiid compensatory damages are not available under the
ADEA.
C. THE REHABILITATION ACT
I Important Definitions
ฎ Individual with a disability: Under the Rehabilitation Act, an
individual with a disability is someone who:
4> has a physical or mental impairment that substantially limits
one or more of that individual's major life activities; or
^ has a record of such impairment; or
^ is regarded as having such an impairment:
Within this definition are other terms needing definition:
^ Impairment
/" a physiological disorder or condition, cosmetic disfigure-
ment, or anatomical loss affecting a body system; or
/"a mental or psychological disorder, such as emotional or
mental illness, or a specific learning disabilities.
^ Major life activity
/ A major life activity is a basic activity that the average
individual in the general population can perform with
little or no difficulty.
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S Major .life activities include caring for oneself, perfor-
ming manual tasks, walking, seeing, hearing, speaking,
breathing, learning, .and working.
S The list is not exhaustive. Other major life activities have
been noted in the regulation and by the courts. For
example, reproduction, eating, sleeping and interacting
with others have been deemed major life activities.
Substantially limits
S To be substantially limited, an individual should be either
unable to perform the maj or life activity or significantly
restricted as to the condition, manner, or duration under
which the individual can perform a particular major life
activity when compared with individuals in the general
population.
S In determining whether an impairment is substantially
limiting, an agency should consider the nature and
severity of the impairment; the duration or expected
duration of the impairment (more than just temporary,
short-term and chronic in nature); and the long term
impact or expected long term impact of the impairment.
When assessing.whether an individual is substantially
limited, the effects of any mitigating measure (e.g.
, medicine, prosthesis limb, hearing aid, etc.} that the
individual uses can.be considered. The adverse side effect
of any such measure must also be taken into account. For
example some medications cause impotence or severe sleep
problems, and some prosthesis devices may cause severe
pain or skin problems if used for more than a few hours.
Example: An individual who,.because of an impairment,
does not sleep more than 2 to 3 hours a night even with
prescription medication has sleep problems that are
significantly more severe than the average individual.
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Therefore, this individual is substantially limited in the
major life activity of sleeping.
i/" Temporary impairments;- such as a broken bone, are
usually not considered substantially limiting because of the
likelihood that the impairment will not be of long duration
and will not have a permanent impact
' . - ซ/ An individual may be substantially limited in his/her
ability to work. When the individual's impairment does
not substantially limit any other major life activity,
examine whether it substantially limits working by
considering the following:
. ' > whether the impairment affects the individual's
ability to perform only a limited number of specific
jobs or whether it affects the individual's ability to
perform a class of jobs (jobs that use similar
training, knowledge, skills and abilities) or a broad
range of jobs in various classes (jobs that do not
use similar training, knowledge, skills and abilities);
and
ป the geographical area to which the individual has
reasonable access.
Record of a disability
^ The Rehabilitation Act also protects an individual with a record
of a disability from discrimination.
^ This provision protects from discrimination an individual who
may have had a physical or mental impairment that substantially
limited a major life activity in the past but no longer does. An
agency may shy away, for example, from hiring an individual,.
with a record of a mental disability regardless of the individual's
current status.
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^ Please note that it is not necessary that the discrimination be on
the basis of the physical "record." In addition, note that this
provision protects those who have a physical record of a
disability, but never had a disability, e.g. someone wrongly
diagnosed with.a learning disability. ซ
Regarded as disabled
^ This provision provides protection from discrimination to
individuals who are not disabled but may be regarded as
disabled.
^ For example, an individual who walks with a slight limp may be
regarded as physically unable to walk but actually not be
substantially limited in either that major life activity or in the
major life activity of working. An individual may have no
impairment at all but would be deemed protected by the
Rehabilitation Act if an agency wrongly perceives him/her as
having a substantially limiting impairment.
Associated with someone with a disability
+ The Rehabilitation Act prohibits discrimination against an
individual because of that individual's relationship or association
with someone with a disability.
+ For example, an agency could not discriminate against the spouse
of an individual who has a disability such as AIDS because of the
individual's disability.
Qualified individual with a disability
+ A qualified individual with a disability is a disabled individual
who meets the skill, experience, education and other job-related
requirements, and . who with or without reasonable
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accommodation, can perform the essential functions of the
position in question.
'"+ The term "essential functions'5 means the'fundamental job duties
of the employment position that the individual with a disability
holds or desires. .
+ To determine whether the function is an essential function,
ask:
' /" Does the position exist to perform that function?
Example: Reading text directly may be an essential
function for a proofreader position, but not for a
maintenance position.
S Are there a limited number of other employees available to
whom the performance of the job function can be
distributed?
S Does the function require a particular skill or expertise and
is the individual who will fill the slot being sought for
special expertise or ability to perform this function?
$ Assessments are made on case-by-case basis. Positions bearing
the same job title may still have different essential functions
because the positions serve different purposes within the
organizational structure.
II Exemptions and Limitations of Coverage
ซ The Rehabilitation Act exempts from coverage "an individual who is
currently engaged in the illegal use of drugs," when an agency acts on
the basis of the use.
ฎ The term "current" refers to drug use of sufficiently recent occurrence
as to indicate that the individual "is actively engaged in such conduct."
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. The Rehabilitation Act however, may protect individuals with drug
addictions who have completed a drug rehabilitation program or
otherwise stopped using drugs; individuals who are enrolled in a
rehabilitation program and no longer use drugs; or someone erroneously
considered to be an addict who is currently using illegal drugs.
Hie Act excludes from coverage the following: pedophilia,
exhibitionism, voyeurism, gender identity disorders not resulting from
physical impairments; transvestism; transexualism; certain other sexual
behavior disorders; compulsive gambling, kleptomania, or pyromania;
andpsychoactive substance use disorders resulting from current illegal
use of drugs.
Homosexuality and bisexuality are not impairments and, therefore, are
not disabilities.
Ill Reasonable Accommodation
An agency is required to make a reasonable accommodation of a
known physical and mental limitations of an otherwise qualified
individual with a disability unless the agency can show that
accommodation would cause an undue hardship.
An accommodation is any change in the work environment or in the
way things are customarily done that would enable an individual with
a disability to enjoy equal employment opportunities.
Reasonable accommodation must be made to address workplace or
employment barriers that stand in the way of providing the qualified
individual with a disability an equal employment opportunity. However,
agencies are not required to accommodate barriers that exist outside the
workplace.
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^ Employment barriers may include:
S barriers that prevent or inhibit access to work facilities or
"' equipment (e.g., stairs); -
S rigid work schedules, policies or procedures; or
S the way individuals in the workplace typically
communicate with one another.
An agency's reasonable accommodation duty encompasses three
aspects of the employment relationship:
0- The application process: An agency has to make the
employment process accessible to an individual with a disability;
^ Job performance: An agency must provide an accommodation
that enables the individual to perform the essential functions of
the position; and
^ Benefits and privileges: An agency must ensure that all benefits
and privileges of employment available to employees generally
also are available to individuals with disabilities.
Types of reasonable accommodation include:
<$ making existing facilities used by employees accessible to
individual with disabilities;
<ฃ part-time or modified work schedules, or telecommuting;
^ job restructuring (through the elimination of nonessential
functions);
^ permitting use of accrued leave or unpaid leave for treatment,
therapy or training related to disability;
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4- modification of exams or training materials or policies (including
. providing alternative formats);
4 acquiring assistive devices or modifying existing -equipment;
4 providing readers or interpreters; or
4 reassignment to another vacant position. ,
Reassignment
4 Should be considered when an accommodation is not possible in
the employee's present job or when accommodation in the present
job would cause an undue hardship.
4 This type of accommodation is only available for employees, not
applicants.
4 Reassignment may not be used to limit, segregate or otherwise
discriminate against an employee with a disability or as a means
of retaliating against an employee for requesting an
accommodation. ,
4 Reassignment should be made to a position equivalent to the one
presently held in terms of pay and other status, as long as the
individual is qualified (but need not be best qualified) for the
position, could perform the essential functions of the position
with or without reasonable accommodation and the position is
vacant or will be vacant within a reasonable period of time.
-agency-rj^y-r-eassi-gn-an^
if there are no equivalent positions vacant, or soon to be vacant,
for which the employee is qualified.
An agency need not create a new j ob, bump another employee, or
promote an employee in order to provide a reassignment.
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IV The Reasonable Accommodation Process
As a general rule, the individual with the disability is responsible for
informing the agency that an accommodation is needed. Nbtice need
not take a specific form, but the individual must let the agency know
that s/he has a disability requiring some sort of change in the workplace.
It is important that managers as well as all agency employees know the
agency's written internal reasonable accommodation process and
procedures.
The reasonable accommodation process ideally should be "an
interactive process" between the individual and the agency.
The accommodation selected need not be the most expensive or the
"best" one available. Rather, it need only be "effective" in the sense that
it will enable the individual to perform the essential functions of the job,
or gain equal access to the application process or a benefit/privilege of
employment.
For a more detailed discussion see the Chapter in this training on
"Management's Responsibilities under the Rehabilitation Act of 1973."
.V Undue Hardship - An Affirmative Defense
As noted above, the term "reasonable" in reasonable accommodation
refers to whether the accommodation would be effective, and not
whether it would be too costly or disruptive to the agency.
The agency's defense where it contends that the suggested
accommodation would be costly or disruptive is "undue hardship." The
. agency has the burden of proving that a suggested accommodation
would impose an undue hardship, that is, impose on an agency "signif-
icant difficulty or expense."
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Factors to consider in evaluating a claim of undue hardship:
1) . nature of the accommodation;
2) net cost of the accommodation;
< t
3) overall financial and other resources of the agency; and
4) impact of the accommodation on the operation of agency.
Comparison of the cost of an accommodation to the employee's salary
is not a factor in determining undue hardship.
An agency's proof that one specific accommodation would cause it
undue hardship does not absolve it from considering other proposed or
potential reasonable accommodations.
VI Medical Examinations
Applicants
^ Pre-offer
S An agency may describe the essential functions of the job
and ask all applicants how s/he would perform them with
or without a reasonable accommodation or demonstrate
how s/he would perform them.
S The agency cannot ask about the existence of a disability
or about the nature and severity of any disability, and
cannot ask questions likely to elicit information disability.
+ Post-offer
S An agency may conduct a post-offer, pre-employment
medical examination as long as "all entering employees in
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the same job category are subjected to such an examination
(and/or inquiry) regardless of disability."
S A medical examination does not have to be j ob-related; but
an agency cannot withdraw a job offer based on
ซ information obtained during the medical examination
unless "the exclusionary criteria [are] job-related and
consistent with business necessity, and performance of the
essential job functions cannot be accomplished with rea-
sonable accommodation."
Current employees
^ Agencies may conduct medical examinations or make disability-
related inquires of current employees that are job-related and
consistent with business necessity and further may provide other
medical services to employees for their use on a voluntary basis.
VII Medical Confidentially
ฉ Agencies must keep medical information about employees confidential
ฎ Employees (co-workers) do not have a right to know about a co-
worker's medical condition and disability, even when reasonable
accommodations that affect them are involved.
SECTION THREE: PROVING DISCRIMINATION
A. Disparate Treatment
ฎ The complainant alleges that the agency treated him/her differently.
The complainant further contends that the reason that the agency treated
him/her differently is because of his/her membership in a protected
group. For example:
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S The complainant may allege that the agency did not select
her for a promotion and selected a male co-worker
specifically because the agency wanted a male in that job.
/ The complainant may allege that a supervisor gave him a
bad performance appraisal because .of his national origin.
Discrimination maybe proved through the use of direct or circumstantial
evidence. ,
I Direct Evidence
"Smoking gun" evidence; or evidence which on its face proves bias
against a group or an individual.
Note, however, that general evidence of an individual's bias against a
protected group may not be "direct evidence" of discrimination against
a specific member of that group with respect to a specific incident.
II Circumstantial Evidence
This is evidence that is suggestive of discrimination.
The likelihood of finding direct evidence of discrimination usually is
quite remote. Most cases involve allegations of discrimination based on
circumstantial evidence.
Where there is no direct evidence, a complainant may use evidence
through which one may infer that discrimination motivated the agency
to act as it did.
Ill Proof of Discrimination Through Use of Circumstantial Evidence
Proving discrimination through the use of circumstantial evidence in a
disparate treatment case typically involves a three-part analysis (often
referred to as the McDonnell Douglas analysis):
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^ Complainant must initially establish a prima facie case of
discrimination, by showing:
V that s/he belongs to a statutorily protected group;
ซ S that an adverse employment action occurred; and
i/ some connection between the two (z.e.,in.a selection case,
that although complainant was qualified for the position an
individual of another protected group was selected).
Establishing these elements, if unrebutted, creates an inference
that the agency's actions resulted from discrimination.
^ The agency may then rebut the initial inference of discrimination
by providing a legitimate, nondiscriminatory reason for its
actions.
& After the agency has offered an explanation for its actions, the
complainant must prove that the agency's explanation is not true
and is a pretext for discrimination.
B. DISPARATE IMPACT
I Definition of Disparate Impact
ฎ Disparate impact analysis is used whenever there is an identifiable
neutral policy or practice that is evenly applied but which tends to
screen out individuals of a particular protected group.
ฎ Under this theory, the complainant alleges that an agency's policy, even
though it is neutral on its face and applies to everyone, has a disparate
or adverse impact on the complainant's protected group.
ฎ For example, in the leading case on this theory, an employer adopted a
high school diploma requirement that effectively barred a substantial
percentage of blacks living in the area of the employer from working in
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custodial positions - a percentage of blacks that was much higher than
the percentage of whites.
II Burden of Proof
Once the complainant establishes disparate impact, usually through a
statistical analysis, the agency has the burden of proving that the
challenged policy or practice is job-related for the position in question
and consistent with business necessity.
HI Business Necessity
Proof of business necessity includes a showing that no acceptable
policies or practices are available that would serve the agency's interests
without such a disproportionate effect upon a particular group.
The complainant may prove that there are alternatives with less of a
disparate impact that would achieve the same result as the challenged
policy or practice.
C. OTHER FORMS OF DISCRIMINATION
I Failing to Provide Reasonable Accommodation
In two areas, religion and disability, an agency also may be liable for
failing to provide a reasonable accommodation for the employee due to
their religion or disability. The reasonable accommodation requirement
under religion and disability differs and will be discussed in more detail
below. Therefore, the failure to provide a reasonable accommodation,
- - discussed in-the -Rehabilitation Act^section-of-this Chapter-of the-Desk
Reference, is another form of prohibited discrimination.
II Harassment
Unlawful harassment, also discussed in another chapter of this training,
is another form of prohibited discrimination.
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Notes: Overview of EEO Laws
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Discrimination Based on Sexual Orientation
Overview of the Prohibition of
Discrimination Based on
Sexual Orientation in the
Federal Work Place
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Discrimination Based On Sexual
Orientation Is Prohibited By The
1. Civil Service Reform Act of 1978
(CSRA), as interpreted by OPM
2. Executive Order 11478, as amended
3. EPA's Equal Employment
Opportunity Policy Statement
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Civil Service Reform Act of 1978 (CSRA)
Enacted to strerigthen and protect the federal
government's merit system and employees
and applicants covered by the system.
Describes certain prohibited personnel
practices.
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Prohibited Personnel Practices (PPPs)
One of the PPPs, found at 5 U.S.C. ง 2302(b)(10)
prohibits any employee who has authority to take
certain personnel actions from discriminating against
employees or applicants on the basis of conduct that
does not adversely affect employee performance.
OPM has interpreted this section to prohibit
discrimination based on sexual orientation.
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Executive Order 114789 as amended
"It is the policy of the Government to provide
equal opportunity in Federal employment for all
individuals, to prohibit discrimination in
employment because of race, color, religion,
sex, national origin, handicap, age, sexual
orientation, or status as a parent, and to promote
the full realization of equal employment
opportunity through a continuing affirmative
program in each executive department and
agency."
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EPA's EEO Policy Statement
Provides EEO regardless of sexual orientation
Prohibits discrimination or harassment
Requires all management officials to protect
the civil rights of employees and to achieve
EEO
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Interim EPA Order 100031
Provides information on the avenues of redress
available to applicants and employees:
Formal Redress - administrative grievance
process or the CBA grievance process
Informal Redress - EEO Counselor in OCR
External Redress - Merit Systems Protection
Board or the Office of Special Counsel
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Discrimination Based on Sexual Orientation
DESK REFERENCE GUIDE
Discrimination Based on Sexual Orientation
I Introduction ,
@ OPM defines sexual orientation as homosexuality, bisexuality or
heterosexuality.
ฉ Title VTI does not protect against discrimination based on sexual
orientation.
ฎ The Civil Service Reform Act of 1978 requires that agency heads and
officials with delegated personnel management authority prevent
prohibited personnel practices, which OPM has interpreted to include
discrimination based on sexual orientation.
9 Executive Order 11478, as amended prohibits discrimination based on
sexual orientation within the federal government.
ฎ EPA's Equal Employment Opportunity Policy Statement includes the
basis of sexual orientation in its prohibition against discrimination.
II The Civil Service Reform Act of 1978 (CSRA)
@ .The CSRA was enacted to strengthen and protect the federal
government's merit system and employees and applicants covered by the
system through consistent application of the merit system principles and
free from prohibited personnel practices. The Office of Special Counsel
(OSC) and the Merit Systems Protection Board (MSPB) have
enforcement authority of this statute. The CSRA requires that agency
heads, and officials with personnel management authority, be
responsible for preventing prohibited personnel practices.
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The CSRA also defines 12 prohibited personnel practices,, the
commission of which undermines the federal merit system and the rights
of covered employees and applicants.
. Prohibited Personnel Practices are violations of law, usually occurring
when "covered personnel actions" are taken by someone with "personnel
authority" in relation to current or former federal employees in "covered
positions" (or applicants for such positions) in "covered agencies."
Covered Personnel Actions include: .
+ an appointment, selection or promotion
+ a detail, transfer, reassignment, reinstatement., restoration, or re-
employment' =
+ an adverse action under Chapter 75 of Title 5, or other corrective
or disciplinary action
^ a performance evaluation under chapter 43 of Title 5
+ -a decision concerning pay, benefits, awards, training or education
^ a decision to order psychiatric testing or examination
+ any other significant change in duties or responsibilities or
working conditions which is inconsistent with the employee's
salary or grade-level.
Personnel Authority is defined as the authority to take, direct others to
take, recommend, or approve any personnel action.
Covered Positions include:
+ competitive service positions
+ career SES positions, and
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4> excepted service positions
@ The EPA is a covered agency.
@ One of the 12 Prohibited Personnel Practices, 5 ILS.C. งง 2302(b)(10)
prohibits any employee who has the authority to take certain personnel
actions from:
^ Discriminating based on personal conduct which is not adverse to
the on-the-job performance of an employee, applicant, or others.
/ In 1980, the Office of Personnel Management (OPM)
interpreted this section to prohibit discrimination based on
sexual orientation. See OPM guide at
www.opm.gov/er/address2/guide01.htni
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Section 1. It is the policy of the Government of the United
States to provide equal opportunity in Federal employment
for all individuals to prohibit discrimination in employment
because of race, color, religion, sex, national origin,
handicap, age, or sexual orientation through a continuing
' affirmative program in each executive department and
agency. This policy of equal employment opportunity
applies to and must be an integral part of every aspect of
personnel policy and practice in the employment,
development, advancement, and treatment of civilian
employees of the Federal Government, to the extent
permitted by law."
On May 28, 1998, Executive Order 13087 amended Executive Order
11478 to provide auniformpolicy for the federal government to prohibit
discrimination based on sexual orientation.
Executive Order 13087 did not create any new rights. However it did
set the stage for positive and constructive action by all units of the
federal government to make certain that the workplace is one free from
harassment and discrimination.
IV EPA's Equal Employment Opportunity Policy Statement
0 In 1994, EPA added sexual orientation to its list of factors upon which
equal employment opportunity would be provided and upon which
discrimination and harassment would not be tolerated.
In January 2000, the EPA issued Interim EPA Order 1000.31 which
provides information regarding the avenues of redress available to
applicants and employees who believe they have been discriminated
against because of their sexual orientation.
The Order requires the Assistant Administrator for Administration and
Resource Management to provide applicants and employees information
regarding their rights and remedies available under civil service law and
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to ensure compliance with and enforcement of all civil service laws,
rules and regulations at EPA.
The Order requires the Director of Civil Rights to provide information
about the rights and remedies available under federal EEO law and to
provide informal pre-complaint counseling to applicants
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Notes: Discrimination Based on Sexual
Orientation
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Overview of Complaint Process
Overview of the
Federal EEO
Complaint Process
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EEO Counseling
An individual has 45 days from date of
alleged discriminatory event to contact an
EEO counselor.
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Traditional EEO Counseling
30 days to complete.
Information on rights and responsibilities
is provided.
The complaint process is explained.
The legal claim(s) and the basis(es) of
discrimination are determined.
A limited inquiry is conducted.
Resolution is sought.
V
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Alternative Dispute Resolution
Agencies are required to have in place an
Alternative Dispute Resolution (ADR)
program during pre-
complaint and formal
complaint process.
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ADR Program
Agencies are free to determine when to
offer the ADR program.
Agencies may not preclude from ADR
entire bases (e.g., race, sex...)
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Formal Complaint
<
Must be filed within 15 days of Notice of
Final Interview.
Must be signed by complainant or his/her
attorney.
Must be sufficiently precise to identify the
aggrieved individual and the agency and to
describe generally the action(s) or practice(s)
that form the basis of the complaint.
The agency must acknowledge in writing
receipt of the complaint.
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An impartial, appropriate factual record upon
which to make findings on the claim(s) raised is
developed.
"Appropriate" factual record allows fact finder
to determine whether discrimination occurred.
Must be completed within 180 days from when
complaint was filed.
The agency must provide complainant with
copy of investigative report.
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Investigations and Management Officials
Management officials MUST produce
documentary and testimonial evidence.
Neither complainants nor management officials
may fail to cooperate during an investigation
without good cause.
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If cooperation is not given, the decision maker
or the Commission may:
S draw an adverse inference against the party
failing to cooperate
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Responsibilities of the A J
< *
AJ assumes full responsibility for complaint.
A J presides over any supplementation of
complaint file.
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The'Hearing- Process
An AJ may dismiss complaints on his/her
own initiative, after notice, or upon
agency's motion to dismiss.
The agency authority to dismiss complaint
ends once hearing requested.
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AJ Decisions
t t
AJ will issue decision after hearing or on
summary judgment.
Agency has 40 days to issue final order, which
either:
implements the AJ decision; or
does not implement the AJ decision and appeal to
EEOC.
AJ decision becomes agency final action if |
agency does not issue final order within 40
days.
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Equitable Relief
Monetary
Non-Monetary
Compensatory Damages
Attorney's Fees
Reasonable Accommodation
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Appeals
If either party opts to appeal:
The complainant must appeal within 30 days of
receipt of either agency dismissal or final
action.
The agency must appeal within 40 days of
receipt of decision if not fully implementing AJ
decision.
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Civil-Actions
Within 90 days of receipt of final decision
of agency or on appeal decision from
EEOC.
After 180 days from the filing of formal
complaint if no decision has been issued.
After 180 days from the filing of an appeal
with EEOC if no decision has been issued.
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Official Time
Agency must provide a reasonable amount
of official time to prepare a complaint and
to respond to agency and EEOG requests
for information when:
Complainant is an agency employee,
Complainant's representative is an
agency employee.
Official time shall also be granted for
presence at the investigation of or at a
hearing on the complaint.
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Settlement Agreements-
Disputes may be settled at any time during the
complaint process with a written settlement
agreement signed by both parties.
If complainant alleges a breach of the settlement
agreement, s/he may request specific enforcement of
the agreement or a reopening of the EEO complaint.
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Compliance with EEQC/Agency Orders
* *
Agency is bound by:
Its order in a final decision finding
discrimination
Its order in a final decision on breach of
settlement agreement
An order contained in a decision issued by
EEOC on an appeal.
Complainant or agency may petition
EEOC to enforce or clarify a decision.
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DESK REFERENCE GUIDE:
An Overview of the Federal Sector Process
29 C.F.R. Part 1614 and EEQC Management Directive 110
A. INITIATING THE EEO COMPLAINT PROCESS
I Timeliness of Complaint
A potential federal sector complainant must begin the EEO process
within 45 days of the date of the event or incident giving rise to their
claims.
II EEO Counseling
The complainant begins the process by contacting an EEO counselor.
Agencies are required to have an alternative dispute resolution program
(ADR) that covers both the pre-complaint and post-complaint process.
Agencies may develop ADR programs which best suit their needs and
may decide on a case-by-case basis whether it is appropriate to offer
ADR to individuals in lieu of traditional EEO counseling.
e If the agency offers ADR to an individual during counseling, the EEO
counselor will advise the individual of the right to elect between
participation in the ADR program or traditional counseling activities.
Traditional counseling. If traditional counseling is chosen, the EEO
counselor has 30 days within which to complete counseling activities.
These activities include:
$ Advising the individual of his/her rights and responsibilities in
the process and the procedures for filing a complaint;
^ Determining the legal claim (bases and issues) being raised in the
potential complaint;
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^ Conducting a limited inquiry for settlement and jurisdiction
purposes;
+ Seeking resolution of the matter at the lowest possible level;
< <
+ Documenting the resolution or advising the complainant of
his/her right to file a formal EEO complaint; and
^ Preparing a report that indicates that the EEO counselor properly
, engaged in and completed the counseling process.
At the conclusion of the 30-day EEO counseling process (which maybe
extended to no more than 90 days with the complainant's agreement),
the EEO counselor issues a notice of final interview.
^ The notice advises the complainant that s/he has 15 days from
receipt of the notice to file a formal EEO complaint.
^ The notice also advises the complainant as to where to file the
complaint.
EPA provides complainants with an agency-designed formal EEO
complaint form, which the complainant should use, but may not be
compelled to do so.
Alternative Dispute Resolution During the Counseling Process. If
the individual accepts the agency's offer to proceed through the ADR
program, resolution through traditional counseling will not be attempted.
^ Agencies have 90 days to conduct ADR during the pre-complaint
process.
$ If the ADR attempt succeeds in resolving the claim, the agency
must notify the EEO counselor that the claim was resolved.
^ If the ADR process does not result in resolution of the dispute,
the EEO counselor will issue a notice of final interview advising
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the individual of the right to file a formal complaint. The EEO
counselor will also write the counseling report, describing the
initial counseling session, framing the claim being raised, and
reporting only that ADR was unsuccessful.
B. THE FORMAL COMPLAINT
I Filing the Formal Complaint
Within fifteen days following receipt of the notice of final interview, the
complainant riiay file a formal EEO complaint.
The complaint must be signed by the complainant or his/her attorney.
The complaint further must be sufficiently precise to identify the
individual, the agency, the basis (or bases) of discrimination, and the
actions or practices deemed discriminatory.
e The agency must acknowledge its receipt of the EEO complaint in
writing and further advise the complainant as to what it deems the
complaint's official filing date.
The agency further should inform the complainant that s/he has the right
to appeal any agency dismissal or final decision on the merits of the
complaint.
II Dismissal
The agency has the right to dismiss a complaint in its entirety for the
following reasons:
^ the complaint fails to state a claim;
^ the complaint states the same claim that is pending at or has been
decided by the agency> or is the basis for a matter pending in
court.
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^ issuing a decision fully or partially in favor of the opposing party;
or
^ taking such other action as it deems necessary.
i . .... < . ,
ฎ Unless the complaint has been amended., the agency has 180 days from
the date that the complaint has been filed (not accepted) to complete the
investigation. The complainant may agree to an extension of time for
not more than 90 days.
ฎ Hie agency unilaterally may extend the time to complete the
investigation by 30 days in order to sanitize a file that contains classified
information.
IV Post-investigation
Once the investigation is completed, the agency must provide
complainant with a copy of the investigative file and notify the
complainant that s/he has the right to elect whether to have the agency
issue a final decision on the merits of the complaint or to request a
hearing before an EEOC Administrative Judge (AJ).
ฎ The agency must give the complainant 30 days to make the election.
ฉ The complainant may request a hearing by submitting a written request
directly to the EEOC District office indicated in the agency's notice,
with a copy served on the agency.
ซ If the complainant does not respond to the agency' s notice regarding the
ele<^on^fee^gen&y-j&ust4ssue^^
complaint within 60 days of the end of the 3 0-day period.
Even if the investigation has not been completed, the complainant may
request a hearing after the expiration of the 180-day period.
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C. HEARINGS AND AGENCY FINAL ACTIONS
I Hearings
@ The complainant may request a hearing by submitting a written request
directly to the EEOC District office indicated in the agency?s notice,
. with a copy served on the agency.
. An EEOC Administrative Judge (AJ) will preside at the hearing.
ฉ As a part of the hearing process, the A J may permit the parties to engage
in discovery.
ฎ At the hearing, the parties may be entitled to present testimonial
evidence in support of their respective positions. The AJ has the
authority to determine who may be permitted to testify and the subj ects
to be covered by their testimony. If a hearing is held, it must be
recorded and the agency will be required to pay for a transcript of the
proceedings.
ฎ Where either the A J on his/her own motion or a party believes that some
or all material facts are not in dispute and there is no issue as to
credibility, the AJ can decide to issue a decision without holding, a
hearing.
ฎ The AJ has the authority to dismiss a complaint for any of the reasons
contained in the regulation's dismissal provisions.
At the conclusion of the hearing process, the AJ will issue a decision to
l5othparties~' '-
II Agency Final Actions
@ Upon receipt of an AJ's decision on a complaint, the agency has 40 days
to take final action by issuing a final order,on the complaint. The final
order will notify the complainant whether or not the agency will fully
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implement the decision of the AJ and will contain notice of the
complainant's appeal and civil action rights.
If an agency does not take -final action within 40 days of receipt of an
AJ's decision, the decision automatically becomes the final action of the
agency. .
When the agency dismisses a complaint in its entirety, receives a request
for a final decision without a hearing, or where complainant fails to elect
a hearing, the agency takes final action by issuing a final decision.
+ The final decision shall consist of findings by the agency on the
merits of each issue in the complaint, or, as appropriate, the
rationale for dismissing any claims in the complaint. Where
discrimination is found, the final decision shall include
appropriate remedies.
+ When issuing a final decision, the agency has: (1) 60 days from
the receipt of complainant's request for an immediate final
decision, or (2) where the complainant has not requested either a
hearing or a decision, 60 days from the end of the 30-day period
for the complainant to make the election.
^ All final actions of the agency must inform the complainant that
s/he has the right to appeal the decision to the EEOC or file a civil
action in federal district court. The agency must include a copy
of EEOC Form 573, Notice of Appeal/Petition.
D. REMEDIES
I General Principle: Provide "make-whole relief'
ฎ One of the central purposes of the federal discrimination laws is to make
individuals whole for injuries suffered because of unlawful
discrimination. This requires that the complainant be restored to the
position s/he would have been in had it not been for the unlawful
discrimination.
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II Types of Remedies
@ Equitable Relief
Place the victim of discrimination in the position s/he would have
occupied had there been no discrimination (e.g., placement in the
position with back pay; rescission of adverse personnel action;
restore leave taken due to discrimination; removal of adverse
references in official personnel file).
Offer of placement in the disputed position (e.g., in a non-
selection case or a termination) with back pay.
/ If the position is no longer available, the agency may offer
a substantially equivalent position (e.g., equivalent duties,
responsibilities, location, promotion potential).
S Back pay is awarded from the date the individual would
have entered on duty, assumed the duties of the position at
issue or not been removed. Back pay continues until the
date the complainant accepts the offer of placement. Even
if the offer is declined, back pay is due from the date of the
discriminatory non-selection to the date the offer is
rejected. Back pay is awarded with interest.
/ Back pay liability under Title VII and the Rehabilitation
Act is limited to two years prior to the date the
discrimination complaint was filed.
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subtracted from the back pay award. Failure to mitigate
may result in no award of back pay. Agency has burden of
proving complainant failed to mitigate by showing: (1)
complainant didn't seek work; and (2) work was available.
^ Complainant is entitled to the cancellation of an unwarranted
personnel action and the removal from the agency's records of
any adverse materials related to the discriminatory employment
practice.
^ Complainant is entitled to a full opportunity to participate in the
employment benefits denied as a result of the discrimination, such
as training, overtime scheduling, preferential work assignments,
retroactive seniority, restoration of leave, etc.
Notification to All Employees
^ Upon a finding of discrimination, the agency is obligated to
provide notification to all employees in the affected facility of
their right to be free of unlawful discrimination/retaliation and an
assurance that the discrimination found will not recur.
Compensatory Damages
^ Compensation for loss or harm resulting from intentional
unlawful discrimination (e.g., dollar award for emotional distress
resulting from discrimination; medical expenses resulting from
discrimination; other out-of-pocket losses due to discrimination).
^ Compensatory damages are not available in ADEA cases.
^ For agencies of 500 or more employees (most federal agencies),
there is a $300,000 cap on compensatory damages.
+ The .cap applies only to non-pecuniary damages, such as
emotional distress, and future pecuniary losses (like future
medical expenses). Other damages, such as past pecuniary
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expenses (e.g., past medical expenses, moving expenses) are not
capped. Back pay is not counted towards the cap amount
^ m reasonable accommodation -claims under the Rehabilitation
Act, the agency may establish a '"good faith" defense that it
attempted to provide a reasonable accommodation. Such a
showing precludes a compensatory damages award if a failure to
accommodate claim is established.
^ Punitive damages are not available against the federal
government.
Providing a Reasonable Accommodation to a Qualified
Individual with a Disability.
<ฃ Types of reasonable accommodation are listed in a previous
section of tin's chapter.
Attorney's Fees and Costs
^ Attorney's fees are available for prevailing complainant who is
represented by an attorney. They are not available to a
complainant represented by a non-attorney, such as a union
steward.
^ Formula: (reasonable hours expended on the case by the attorney)
x (reasonable hourly rate) = attorney's fees.
^ Costs are available to the prevailing complainant, .whether
represented by an attorney or not. Costs could include printing
fees, witness fees, parking, transportation, postage, phone calls,
etc.
& Attorney's fees are not available in ADEA or Equal Pay Act
cases.
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E. APPEALS AND CIVIL ACTIONS
I Appeals
Complainants may file appeals to EEOC from agency final actions
within 30 days of receipt. The complainant must provide a copy of its
notice of appeal to the agency.
A complainant has 30 days from the date that s/he filed the appeal to
submit a brief or statement in support of the appeal. A copy must be
provided to the agency.
If an agency's final order does not fully implement the decision of an
EEOC AJ, the agency must simultaneously file an appeal with EEOC.
An agency has 20 days from the date of filing its appeal to submit a brief
or statement in support of its appeal. A copy must be provided to the
complainant.
A statement or brief in opposition to an appeal must be served on the
opposing party within 30 days of receipt of the brief in support of the
appeal, or, if no brief supporting the appeal is filed, within 60 days of
receipt of the appeal.
The agency must provide the EEOC with a copy of the complaint file
within 30 days of being notified that the complainant has filed an
appeal, or within 30 days of submission of an appeal by the agency.
Agencies must provide the complainant with interim relief during the
pendency of an agency appeal in limited circumstances. The agency
. _, ... _ ., _. must temporarily-or-conditionally restore -the-complainant to-his/her
former position pending the outcome of the appeal when:
+ The agency issues a final order notifying the complainant that it
will not fully implement the AJ's decision finding in favor of the
complainant;
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^ The case involves separation, removal or suspension continuing
beyond the date of the final order;
^ The AJ's decision provided for retroactive restoration of the
employee to his/her former position; and
< * *
^ The agency has not determined that the return or presence of the
complainant will be unduly disruptive to the work environment.
EEOC may impose sanctions on a party who fails, without good cause
shown, to comply with appellate procedures or to respond fully and
timely to a Commission request for rnformation. Possible sanctions
include:
0- Drawing an adverse inference that the requested information
would have reflected unfavorably on the party refusing to provide
it;
^ Considering the matters to which the requested information or
testimony pertains to be established in favor of the opposing
party;
^ Issuing a decision fully or partially in favor of the opposing party;
or
^ Taking other appropriate action.
EEOC will issue decisions on appeals. Either party may request
reconsideration of an initial appellate decision. The EEOC will grant
reconsideration only where it determines one of the following:
& the initial appellate decision involved a clearly erroneous
interpretation of material fact or law; or
^ the initial appellate decision will have a substantial impact on the
policies, practices or operations of the agency.
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Page 122
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Alternative Dispute Resolution
Overview of
Alternative Dispute
Resolution (ADR)
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ADR: An Essential Management Tool
Improves Communication
Provides Control
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Alternative Dispute'Resolution (ADR)
EEOC's regulations require agencies to
establish or make available an ADR
program for both:
the pre-complaint process; and
the formal complaint process.
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Alternative Dispute Resolution (ADR)
ADR uses a variety of voluntary
techniques to resolve disputes
rather than traditional adversarial
methods, like litigation.
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Benefits of ADR
Early and mutually satisfactory resolution of
workplace disputes.
Parties to the dispute have control over resolution.
Settlement agreements are more durable than
decisions issued by a court.
Settlement agreements do not require admissions
of liability.
ADR saves time and resources.
ADR improves morale.
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Core Principles of ADR
Voluntary
Neutral
Confidential
Enforceable
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Core
es of ADR
Voluntary
Both parties must agree to participate in ADR.
A settlement agreement must be acceptable to
both parties.
The parties may end ADR at any time.
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Core Principles of ADR
___ _____ ____ .A.. ' , '-. ,
Neutral
An objective, impartial third party who has
been trained in ADR techniques and EEO law.
The neutral has no power to decide the
dispute.
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Core Principles of ADR
Confidential
/ Confidentiality in ;any ADR proceeding must
be maintained by the parties and the neutral.
The terms of the settlement agreement will not
be confidential unless the agreement contains
a confidentiality provision.
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Core Principles of ADR
Enforceable
S The settlement agreement must be in writing
and signed by both parties.
Settlement agreements are enforceable by the
EEOC.
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When. ADR is Offered and Elected
Once the agency has determined that a dispute is
appropriate for ADR, management officials have a
duty to cooperate in the ADR process.
Management officials may bring a representative to
the ADR session.
Nothing said or done during the ADR process can be
made the subj ect of an EEO complaint.
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EPA's ADR Program
EPA utilizes Mediation as the ADR technique.
What is mediation?
Contact the Conflict Prevention and
Resolution Center for more information.
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Preparing for ADR
Think about what caused the dispute without
assessing blame.
Write down any questions for the other party.
Prioritize the agency's concerns that must be
addressed for a satisfactory resolution.
List the concerns of the other party.
Develop settlement options, focusing on the present
and future contact with the other party.
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contact CPRC, the phone number is (202) 564-2922, and the email
address is adr@epa.gov.
The mediations are conducted by two qualified mediators. The
mediators are obtained from the Shared Neutrals Program; however, an
internal cadre of mediators will eventually be trained.
The goal is to complete each mediation within 45 days of accepting the
case.
m. Benefits of ADR
A. Environmental Protection Agency EEO Statistics for FY 2000
17,778 employees
112 employees sought EEO counseling
Only 5 cases were mediated
3 settled and 2 did not settle
75 employees filed formal EEO complaints
Only 4 cases were mediated
2 settled and 2 did not settle
B. Benefits of ADR
ADR offers the parties the opportunity for an early, informal
resolution of disputes in a mutually satisfactory fashion.
Parties maintain control over the resolution of their dispute.
Settlement agreements are more durable than decisions issued by
a court or other third party.
Settlement agreements do not contain admissions of liability.
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- ADR will save the agency time and resources. The success rate
for mediations averages between 60 - 70 percent. The typical
mediation takes one day; whereas, the EEO process includes 180 ,
days for theinvestigation and at least 60 days for either a hearing
or a final agency decision. In terms of cost, an ADR session will
typically be under $1,000; however, the EEO process is
significantly more expensive. Several agencies (Department of
Justice, Veterans Administration, and the U.S. Air Force) have
estimated that the average cost of the EEO administrative process
ranges from $10,000 (DOJ) to $15,000 (VA) to over $40,000
(USAF). Cost factors to consider during the administrative
process include (1) time spent by the EEO staff, management
officials, aggrieved individuals, witnesses, and Office of General
Counsel; (2) attorneys' fees; and (3) decreased productivity in the
affected office.
ฉ By improving communication between the aggrieved individual
and the management officials, ADR may improve office morale
and avoid a disruption within the office due to an investigation or
hearing.
IV ADR Core Principles
There are certain core principles that are necessary for the successful
development of an ADEL program. First and foremost, is the principle that all
ADR programs must be fair to the participants, both in perception and reality.
Management Directive (MD)-llO (Nov. 9, 1999), Ch. 3(Vtl)(A). Federal
Sector ADR programs must also ensure voluntariness, neutrality,
confidentiality, and enforceability.
ฎ Voluntariness
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_ _
All parties must agree to participate in the ADR proceedings. It is
important that parties understand that this is their attempt at resolution.
The parties should be assured that a resolution cannot be forced upon
them and that they can end ADR at any time. MD-110, Ch.
Neutrality
To be effective, an ADR proceeding must be impartial. MD-110, Ch.
3(VTI)(A)(2). The proceeding cannot be controlled by either party.
That is why the EEOC requires that agencies use neutrals to conduct
their ADR proceedings. A "neutral" is defined by the Administrative
Dispute Resolution Act (ADRA) as "an individual who, with respect to
an issue in controversy, functions specifically to aid the parties in
resolving the controversy." 5U.S.C..ง571. Any individual who serves
as a neutral in an agency's ADR program must have professional
training in whatever dispute resolution technique(s) the agency utilizes
in its program and a thorough knowledge of EEO law. MD-1 10, Ch.
3(EV)(B).
Confidentiality
Confidentiality is important to a successful ADR proceeding. Parties
should be comfortable making statements without fear that these
statements will later be used against them. Pursuant to ADRA,
statements made during ADR are confidential and exempt from
disclosure under the Freedom of Information Act. Certain exemptions
exist, however, which may require the disclosure of confidential
information: (1) all parties and the neutral consent in writing; (2) the
communication has already been made public; (3) the communication
is required by statute to be made public but a neutral should make such
communication public only if no other individual is reasonably available
to disclose the communication; or (4) a court determines that the
testimony is necessary to prevent a manifest injustice, help establish a
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violation of law, or prevent harm to the public health or safety. 5 U.S.C.
ง574. . .--
The EEOC encourages agencies to issue clear, written policies
protecting the confidentiality of an ADR proceeding. It is also
important to note that a settlement agreement is not confidential, unless
the parties expressly agree to make it confidential. MD-110, Ch.
ฉ Enforceability
Enforceability of an agreement is key for a successful ADR program.
The regulations provide that any settlement agreement knowingly and
voluntarily agreed to by the parties, reached at any stage of the
complaint process., shall be binding. In order for the individual and the
agency to have the same understanding, the terms of the resolution must
be reduced to writing and signed by both parties. In addition, the EEOC
has the authority to ensure that the parties comply with the terms of their
settlement agreement. 29 C.F.R. ง 1614.504.
V When ADR is Offered and Elected
'.'--' As in most legal proceedings, the "party" is the individual or entity
which is the plaintiff or the defendant in the respective matter. In the
federal sector EEO process, the parties are the aggrieved individual and
the agency. Management officials are witnesses in the [rocess, not a
named party to the proceeding. As such, the core principle of
voluntariness is satisfied when the agency voluntarily offers ADR to the
aggrieved individual and that individual elects to participate in the ADR
process. Once the agency has determined that a case is appropriate for
ADR, management officials have a duty to cooperate in the ADR
process. MD-110, Ch. 3(II)(A).
, Both parties have a right to representation at any time. MD-llO,
Ch. 3(II)(A)(3). If management officials seek to have an attorney from
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their Office of General Counsel present, they should be aware that the
OGC attorney cannot represent them on a personal basis; rather, the
attorney is acting on behalf of the agency.
<
Nothing said or done during ADR can be made the subject of an EEQ
complaint. MD-110, Ch. 3(A)(4). One exception is that the ADR
program must provide reasonable accommodations to the participants
during the ADR process, and its failure to do so could result in a viable
EEO complaint. Kelly v. U.S. Postal Service, EEOC Appeal No.
01A10579 (Apr. 24,2001).
VI Preparing for ADR
ADR is a very flexible and informal process, geared to dispute resolution rather
than compliance with a complicated set of legal or procedural requirements as
in adversarial (litigation) based resolutions. Here is a checklist to consider
before starting an ADR session: ,
Management officials may wish to prepare a few notes or outline their
thoughts to make the mediation process as productive as possible.
Think about what caused the dispute without assessing blame for the
dispute. Try to objectively analyze the events which lead to the dispute.
Write down any unanswered questions, which are directed to either the
other party or the mediator, for discussion during the mediation session.
Consider the agency's interests that must be met for a satisfactory
resolution. For example, is the agency interested in keeping the
aggrieved individual in the same office? Does the agency want to
improve the aggrieved individual's skills in a certain area? Has the
aggrieved individual been disruptive in the office? Also try to prioritize
the degree of importance for each of the interests.
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- Next, try to list the interests and concerns of the aggrieved individual.
Speculate-freely and list reasons that the aggrieved individual might
have to settle the case.
i *
ฉ Develop as many different settlement options as possible, even if a
settlement option only resolves part of the dispute. These potential
settlements will be added to those of the aggrieved individual to create
the framework for settlement discussions. Think about the agency's
interests, rather than the merits of the case.
ฉ Finally, consider the expectation of future contacts with the aggrieved
individual after the negotiations. If there will be continued contact with
the aggrieved individual, the nature of the agency' s negotiation strategy
may be different than if there is no significant future contact.
VII Role of Agency Representative
ฉ If the agency offers ADR to the complainant, it must provide a
representative who has settlement authority. In addition, the parties
should negotiate in good faith.
ฉ If a management official refuses to participate in ADR, the agency
should select another official to act as its representative during the ADR
session.
VIII Conclusion of ADR
ฉ An agreed upon resolution would resolve all issues of the dispute, and
.result in a written settlement agreement with the signatures of both
parties.
ฉ If no resolution is reached in the ADR session during the informal stage,
the aggrieved individual will receive a final interview and the right to
file a formal complaint. The EEO Counselor's Report may not provide
any information concerning the ADR attempt, other than to indicate that
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the aggrieved individual elected the ADR program and the dispute was
not resolved -through that procedure. In no case will the individual be
referred back to EEO counseling where ADR fails to resolve the dispute.
If a resolution is not reached in the ADR session during the formal
stage, the case processing must be completed within the extended time
period (270 days).
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Notes: Video - The Mediation Process ""
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Management's Responsibilities: General Program Duties
I * :
Management's Responsibilities
Overview of
General Program Responsibilities
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. DESK-REFERENCE GUIDE
Management's General EEO Program Responsibilities
t , - i
Introduction
' In addition to management's obligations to accomplish the agency's
mandated mission, federal sector management officials are also
responsible for ensuring that the spirit and intent of Equal Employment
Opportunity (EEO) permeates every facet of the agency's internal and
external policies, practices, and procedures. In the most broad terms, the
EEO Program is a management program that is established by
management and administered by a headquarters EEO office.
ฉ The basic federal requirements for an agency EEO program are
established in federal legislation and Executive Orders. These
requirements are further explained by regulations and in interpretive
policies, many of which are accumulated in compliance manuals,
management directives, and policy and enforcement guidance notices
issued by the EEOC and the EPA.
The key to the success of an agency EEO Program depends largely on
management's full participation in the planning, development and
implementation of the EEO Program and commitment to practicing
good people management.
Employee disputes in all arenas (i.e., discrimination and harassment
complaints, and grievances), can be avoided by management officials
who practice good people management.
Be Uniform. Uniformity in decision making and treatment of
employees is a key to avoiding workplace disputes and eliminating
violations of EEO laws.
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Follow Policy. Be consistent in following agency policy as this helps
to convince employees that management is treating them fairly, even if
they disagree with the policy.
* ' i
Communicate What Has To Be Done. Make a habit of explaining
what is done and why it is done as a sound part of good management.
ซ Use Job-Related Criteria. Good explanations are based on
job/mission-related criteria. To help avoid any inferences that unlawful
discriminatory motives were involved in any management decision or
action, management officials should use job/mission-related criteria as
the rationale for all personnel actions or decisions.
Be Fair. Unfairness, in and of itself, is not illegal. However, an unfair
decision or action by a management official can be found to be
discriminatory if it can be linked or associated with a discriminatory
basis. .
Resolve Problems. Handle problems and disagreements when they
arise. If management waits, a problem usually becomes worse. This
does not mean that the disputing employee gets what s/he wants, but
creates an opportunity to open communication.
n Responsibilities of Management Officials
Agency Head
The agency head for the EPA has ultimate responsibility for maintaining
a continuing affirmative program to promote thefull realization of equal
employment opportunity and to identify and eliminate discriminatory
policies and practices. Every management official of the EPA acts on
behalf of the agency head to ensure that the EEO/AE Programs and
policies permeate every aspect of the agency's employment practices.
The agency is responsible for maintaining continuing EEO/AE Programs
to promote equal opportunity and to identify and eliminate
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discriminatory practices and policies. The agency head is responsible
for providing sufficient resources to-'administer the EEO/AE Programs
to ensure efficient and successful operation. The agency head must
designate an EEO Director who will come under his/her immediate
supervision. It is essential that the agency head designate EEO/AE
Program officials to see to the day-to-day operation of the EEO/AE
Programs and to serve as key resources for management officials to seek
and receive advice on EEO/AE Program requirements and the possible
impact of certain management decisions/actions to the overall success
of the EPA's EEO/AE Programs.
Associate/Regional Administrators
Associate/Regional Administrators have primary responsibility for
implementing the EEO/AE Programs throughout their respective
regions. Regional Administrators are responsible for ensuring that
adequate resources are available to carry out the objectives of the
EEO/AE Programs and that all regional policies, practices and decisions
are free of intentional and/or systemic discrimination.
Management Officials (Managers, Supervisors and/or Team
Leaders)
Management officials are responsible for exercising personal leadership
in establishing, maintaining, and promoting EEO for all employees and
applicants for employment. As members of the agency's management
team, they should identify and eradicate barriers to EEO within their
workforce. This includes their full cooperation with EEO/AE Program
officials in the implementation of the EEO/AE Programs and active,
good-faith participation in the early resolution of EEO discrimination
complaints.
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' The Director of Personnel/Human Resources
The Director of .Personnel/Human Resources is responsible., for
cooperating with the EEO Director in.the development, evaluation, and
implementation of the agency-wide EEO/AE Programs, and assists in
the resolution of EEO complaints. The.Director of Personnel/Human
Resources is also responsible for developing programs, methods, and
techniques for carrying out the spirit and intent of the EEO Program in
all phases of personnel management.
Within the EPA organizational structure, the Director of
Personnel/Human Resources is located in the Office of Administration
and Resources Management, Human Resources and Organizational
Services.
in Agency Program to Promote Equal Employment Opportunity
Overall Federal Program
In the federal government, the overall EEO Program is mandated by
government-wide regulations that are promulgated by the U.S. Equal
Employment Opportunity Commission (EEOC). EPA's EEO/AE
Programs are developed in accordance with federal statutes,
government-wide policies, Executive Orders, EEOC regulations, and
EPA's policies.
+ Government-wide EEO policy is established in EEOC regulations
at 29 C.F.R. ง 1614.102 as follows: "It is the policy of the
Government of the United States to provide equal opportunity in
employment for all individuals, to prohibit discrimination in
employment because of race, color, religion, sex," national origin,
age or disability and to promote the full realization of equal
employment opportunity through a continuing affirmative
program in each agency."
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In addition to the procedural regulations, the EEOC provides
guidance and instruction to federal agencies on how to develop,
implement, monitor and report progress for the various EEO/AE
Program components through the issuance of Management
Directives, Management Bulletins and Notices, Policy and
Enforcement Guidances. Please note that all EEOC Policy and
Enforcement guidance apply equally to federal and private
employers. The regulations, directives, bulletins, notices,
guidances and other pertinent material can be found at the
Commission's website: www.eeoc.gov.
EEOC issuances to federal agencies and EEO Directors include:
1. Management Directive -712: Comprehensive Affirmative
Action Programs for Hiring Placement, and Advancement
of Individuals with Handicaps.
2. Management Directive - 713: Affirmative Action for
Hiring, Placement and Advancement of Individuals with
Handicaps.
3. Management Directive - 714: Instructions for the
Development and Submission of Federal Affirmative
Employment Multi-Year Program Plans, Annual
Accomplishment Reports, and Annual Plan Updates.
4. Management Directive - 110: Federal Sector Complaints
Processing Manual.
5. Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors: June 18, 1999;
6. Policy Guidance on Executive Order 13164: Establishing
Procedures to Facilitate the Provision of Reasonable
Accommodation: October 20, 2000;
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7. For a more complete list of EEOC issuances, please visit
the Commission website (www.eeoc.gov).
IV Major Components of an Agency EEO Program
> A federal agency EEO Program consists of some major program
components that include affirmative employment planning, planning for
provision of reasonable accommodation, discrimination complaint
processing, and plans for the prevention of harassment.
4P Some highlights of an agency's responsibilities to support its overall
EEO Program include:
+ Providing sufficient resources to ensure efficient and successful
operation. Hence, the requirement that the agency head designate
an EEO Director and sufficient staff to effectively operate an
agency-wide program.
+ Reviewing, evaluating and controlling managerial and
supervisory performance to insure a continuing affirmative
application and vigorous enforcement of EEO, and providing
orientation, training and advice to management officials to assist
in their understanding and implementation of the EEO policy and
program.
+ Take appropriate disciplinary action against employees who
engage in discriminatory practices. Engaging in discriminatory
practices or conduct is also considered misconduct. This becomes
particularly important in discrimination complaint procedures
involving all forms of discriminatory or sexual harassment. In
one of the upcoming chapters, harassment issues will be
explained, as well as how and why management officials are held
to a higher standard than employees.
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Affirmative Employment and Special Emphasis Programs
Affirmative employment arid special emphasis programs are discussed
in detail in a subsequent chapter of this training manual.
Discrimination Complaint Processing
Federal agencies must also provide a Discrimination Complaint Program
through which employees and applicants for employment will have
access to a prompt, fair, and an impartial avenue of redress for
complaints of employment discrimination.
^ Within the discrimination complaint program, agencies must
make available an Alternative Dispute Resolution (ADR)
Program at both the informal and formal complaint processing
stages. - .
& EEOC guidance for the complaint processing program is
contained in EEOC Management Directive 110. The directive
provides specific guidance concerning,specific sections of the
regulations.
^ Management officials have a responsibility to cooperate with
EEO Program officials, (i. e., EEO Counselors, EEO Investigators,
EEO Managers, EEOC Administrative Judges) in all stages of the
EEO complaint process; for obtaining a clear understanding of
EEO claims that are raised by complainants; for providing an
"articulation of management's legitimate non-discriminatory
reason for actions and/or decisions"; and, for participating in
good faith for the early resolution of EEO complaints.
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Plan for the Prevention of Harassment
Agencies are also responsible for establishing plans for the prevention
of harassment in accordance .with EEOC Enforcement Guidance,
Vicarious Employer Liability for Unlawful Harassment by Supervisors,
June 18,1999. The Guidance advises agencies that they are responsible
for the conduct of its agents and supervisory employees and that
prevention is the best tool for the elimination of harassment.
It is important to note here that an effective harassment prevention plan
helps to insulate the agency from liability. An effective plan should
include:
/ A clear policy statement issued by the agency head which is
distributed to all employees;
/ Notice to all employees of the appropriate reporting mechanisms;
and
/ Annual training and/or retraining of all management officials.
Please refer to the chapter on "Harassment" for more detailed
description of the agency's obligations.
Plan for the Provision of Reasonable Accommodations
In accordance with Executive Order 13164, issued on July 26, 2000,
federal agencies are also required to establish written procedures on how
they will process requests for reasonable accommodation for individuals
with disabilities. The appendix of this manual provides EPA's internal
reasonable accommodation policy and procedures. Managers should
consult the internal policy and/or the appropriate EPA official for
assistance in responding to a reasonable accommodation request.
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V EEO Program Officials - EEO Technical Experts and Resources
' EPA, like all other federal executive agencies, is responsible for
developing and implementing EEO/AE Programs that are consistent
with the policy and procedures promulgated by the EEOC.
To accomplish this EEO mandate, management officials are encouraged
to seek guidance and assistance from the EEO Program officials, as well
as Human Resources officials, who possess the technical information
and expertise to ensure that management is folly aware of the impact of
a particular decision.or action.
ฎ The Equal Employment Opportunity (EEO) Director. At the EPA
the EEO Director, is responsible for the management and oversight of
the day-to-day operation of the EEO Program. The Director advises the
agency head with respect to the preparation of national and regional
EEO/AE Program plans, procedures, reports and other matters
pertaining to the agency EEO/AE Programs and is responsible for
evaluating, on a regular basis, the sufficiency of the total agency
EEO/AE Programs. When authorized by the agency head, the Director
is responsible for recommending changes in programs and procedures
to eliminate discriminatory practices, and to improve the agency EEO
Program. The Director also serves as a liaison to the EEOC and other
federal agencies on EEO matters.
ฎ Regional EEO Officers are responsible for the day-to-day operation
and maintenance of the regional/local EEO/AE Programs. These
responsibilities include the coordination and development of
local/regional AE Program Plans and Accomplishment Report, and
submission of the AE Program Plan to the Headquarters EEO Office for
review and approval. Regional EEO Officers conduct periodic
evaluations of the EEO Program throughout their respective regions and
provide feedback to management officials on progress made toward
meeting EEO/AE Program objectives and goals. Further, Regional EEO
Officers monitor regional training to ensure that minorities, women and
individuals with disabilities receive an equitable amount of the training
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available. Regional EEO Officers are responsible for administering the
discriminati'on complaint program in the region by providing'an avenue
for early resolution of discrimination complaints. Regional EEO
Officers have responsibility for training and assisting EEO Counselors
and Special Emphasis Program Managers in carrying out their EEO-
related duties.
Equal Employment Opportunity Counselors are responsible for
establishing and maintaining open channels through, which employees
may receive information about the informal and formal EEO complaint
program, raise questions (confidentially, if so desired), discuss concerns,
get answers, and obtain informal resolutions of issues related to EEO.
If issues .are not resolved during informal complaint processing, EEO
Counselors are responsible for issuing the Notice of Right to File a
Discrimination Complaint and writing the EEO Counselor's Report.
Special Emphasis Program Managers and Selective Placement
Managers advise the EEO Director and/or the Regional EEO Officer on
matters affecting the recruitment, employment, and placement of
minorities, women, and individuals with disabilities. They also provide
direction and guidance to Regional Management officials and serve as
contact persons for communication with the EEOC, the Office of
Personnel Management and other agencies.
References and Resources
Contacts: U.S. Environmental Protection Agency
Office of Civil Rights (1201)
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Phone:' (202)564-7272
Fax: (202)501-1836
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Notes: Management's Responsibilities:
General Program Duties
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Management's Responsibilities: Affirmative Employment Programs
Management's Responsibilities:
Affirmative Employment
and
Special Emphasis Programs
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DESK REFERENCE- GUIDE
Affirmative Employment and, Special Emphasis Programs
I Introduction
ฉ Section 717(b) of Title VH of the Civil Rights Act of 1964, as amended,
requires federal agencies to develop affirmative employment plans,
including programs to open employment opportunities to all qualified
people and provide training to enable employees to advance according
to their potential. Similar affirmative employment obligations are
imposed by Section 501 of the Rehabilitation Act of 1973, as amended,
with respect to employees and applicants with disabilities.
' In enacting Section 717 of Title VII, and similar provisions in the
Rehabilitation Act, Congress recognized the federal government's
leadership role as a model employer.
@ EEOC has oversight responsibility for the operation of equal
employment opportunity and affirmative employment programs of the
federal agencies, including the duty to review, evaluate and approve
agencies' affirmative employment plans and the annual progress reports
on those plans. Detailed instructions to federal agencies for planning
and reporting affirmative employment efforts are contained in EEOC's
Management Directives (MD) 712, 713 and 714.
EEOC is also responsible for submitting to the President and Congress
an annual report describing the employment status of minorities, women
and individuals with disabilities in the federal government. EPA's
progress on eliminating under-representation is included in this report.
II Purpose of Federal Affirmative Employment Programs
ฉ In requiring federal agencies to have affirmative employment programs,
Congress expected agencies to do more than simply respond when
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evidence of discrimination is brought to their attention. Rather, federal
agencies are expected to take lawfulproactive steps to'promote equal
employment opportunity, and to diagnose and respond to potential
problems of exclusion before those problems develop into
discrimination as a legal matter.
' Many of the actions taken to open opportunities also improve the quality
of the federal workforce and the functioning of the federal government.
HI Major Components of An Affirmative Employment Program
To develop a strong and meaningful affirmative employment program
in a federal agency, management must be firmly committed to the
principles of equal employment opportunity.
+ Top management must clearly and consistently, communicate its
support of the agency's equal employment
opportunity/affirmative employment programs to both its
supervisory and line staff.
+ Agencies must commit sufficient resources to maintaining these
programs and ensuring that their personnel are adequately trained.
+ Efforts in the area of equal employment opportunity should be an
important element of the measure of managerial performance.
On an ongoing basis,. agencies must systematically review the
participation of minorities, women and individuals with disabilities in
their workforce. ,
Guided by the results of these analyses, agencies must review relevant
policies and practices to assess whether they arbitrarily limit
employment opportunities for any workforce group.
Agencies must then take appropriate and effective action to eliminate or
modify any artificial barriers they find. In doing so, agencies may
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utilize a wide array of corrective steps, as determined by the barriers
identified^including, but not limited to:
^ engaging in outreach and recruitment to reach the broadest
possible pool of qualified applicants;
$ consistent with the needs of the agency define job and selection
criteria to allow individuals with diverse skills and abilities to be
considered;
^ utilize the broadest possible area of consideration for vacancy
announcements to cast a wide net for potential qualified
applicants;
^ ensure diverse representation on selection panels;
4> maximize employee development and training opportunities for
all employees, including employees at the lower grade levels; and
^ implement alternative dispute resolution mechanisms to promote
a climate of trust and openness.
IV The Affirmative Employment Program Plan (AEP)
The AEP Plan for the EPA has been developed in accordance with guidance
that is set forth in 29 C.F.R. ง 1614.102 and instructions contained in EEOC
MD-714. Under the statutes and EEOC guidance, the EPA must prepare and
implement an AEP Plan for Minorities and Women which includes the
issuance, publication and adherence to an EEO Policy to ensure that
affirmative employment efforts permeate the organization.
The first step in developing the AEP Plan is to conduct a comprehensive EEO
program analysis. All key managers (personnel, budget, program managers,
and office heads) should participate in the program analysis and the
identification of problems and barriers. The program analysis is the
foundation on which the entire AEP plan will be based.
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Element 6 - Promotions
The logical step to follow in determining whether employees are being
< developed would be to monitor internal promotions and analyze
promotion data with attention to whether promotions, both competitive
and non-competitive/career ladder, are equitable. Where disparities are
noted, have the internal merit promotion processes been validated and/or
reviewed for any barriers? Is information about promotional
opportunities made available to employees regardless of minority status
or gender?
S Did the complaint trend analysis reveal promotions as a
frequently raised complaint issue? If so, did an examination of
the complaint data assist in identifying any barriers in the merit
promotion processes?
Element 7 - Separations
Analysis should be conducted concerning reviews of separation policy
and procedures. The analysis should be focused on any surveys and
studies regarding the impact of separations occurring during a reduction-
in-force, downsizing, rightsizing, or reorganization on protected groups.
Element 8 - Program Evaluation
This last element describes the agency's system for providing periodic
status reports on affirmative employment efforts to top management
officials. This portion of the AEP Plan should explain the mechanism
in place for monitoring AEP accomplishments and have in place the
flexibility to make adjustments to the AEP Plan when the need arises.
V Comprehensive Affirmative Action Programs for Hiring,
Placement, and Advancement of Individuals with Disabilities
Instructions, procedures, and guidance for continuing comprehensive programs to
facilitate equal employment opportunities for individuals with disabilities is found in
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Management's Responsibilities; Affirmative Employment Programs
EEOC Management Directive (MD) 712, issued March 29,1983. This guidance was
supplemented by MD 713, issued October 6, 1987, prescribing instructions-
procedures, guidance, and formats for annual affirmative employment program plans
and accomplishment reports. Agencies are to examine policies, programs, facilities,
and other aspects of the work environment to identify barriers to equal participation
by people with disabilities. The agencies must then establish a plan and time table
for removal of the identified barriers.
The basic program elements for a comprehensive affirmative employment program
for individuals with disabilities are:
ฉ Element 1 - Targeted Disabilities
Agencies are to emphasize the employment of individuals with severe
disabilities: deafness, blindness, missing extremities, partial paralysis,
complete paralysis, convulsive disorders, mental retardation, mental
illness, and distortion of limbs or spine.
@ Element 2 - Quantitative Goals
Agencies with 501 or more employees are to establish numerical
objectives for employment of persons with targeted disabilities. Goals
may address hiring, placement, and/or advancement of these individuals
and must conform with current EEOC guidance.
ฎ Element 3 - Special Recruitment Programs
Agencies are to establish programs specifically to recruit and to track
applications from people with targeted disabilities. Recruitment
programs should focus on internal and external sources of candidates.
-.._' Element 4 - Goals and Timetables for Facility Accessibility
Agencies are to identify and remove architectural, communication, and
transportation barriers. All facilities are to be surveyed annually. As
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barriers are identified, agencies must set priorities and timetables for
removal. '""
Element 5 - Reasonable Accommodation
Agencies are to establish and publicize specific procedures for prompt
' and efficient processing of requests for reasonable accommodation from
applicants and employees with disabilities. Agencies are to design
. procedures that eliminate any delay or obstruction by general limitations
or fiscal constraints.
Element 6 - Alternative Selection Procedures
Agencies are to analyze selection procedures to identify those that
impede hiring, placement, and advancement of individuals with
disabilities.- As selection barriers are identified, alternatives are to be
instituted.
Element 7 - Excepted Appointing Authorities
Agencies are to inform managers about the availability and flexibility of
excepted appointing authorities for employment of individuals with
disabilities. Agencies are to establish mechanisms for recruiting and
forwarding to selection officials applications from persons eligible for
these excepted appointing authorities.
Element 8 - Merit Promotion
Agencies are to assure that employees with disabilities, especially those
with targeted disabilities, have equitable opportunities to advance via
merit promotion programs. These programs should be used enhance
promotion opportunities for individuals with disabilities employed under
the excepted appointing authorities and those in the competitive service.
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Element 9-Other Promotional Opportunities
Agencies should make efforts to advance employees with disabilities,
especially those with targeted disabilities, as rapidly as is justified by job
performance and individual potential. Options include reclassification
of positions to reflect accretion of duties.
Element 10 - Upward Mobility
Agencies are to include employees with disabilities, especially those
with targeted disabilities, in the target populations for upward mobility
programs and to- assure that these individuals have equitable
opportunities to participate in these programs.
Element 11-Trades and Crafts
Agencies are to assure that employees with disabilities, especially those
with targeted disabilities, equitable opportunities to participate in blue-
collar career development and advancement programs. In determining
whether applicants with disabilities meed physical and mental
qualification requirements for these programs, agencies should apply
standards in accordance with current guidance concerning job-
relatedhess and reasonable accommodation.
Element 12 - Training and Career Development
Agencies are to assure that employees with disabilities, especially those
with targeted disabilities, have equitable opportunities to be trained.
Agencies should systematically evaluate the career development needs
of individual employees with disabilities and should provide details,
lateral reassignments, and other developmental opportunities that will
qualify selected individuals for promotion.
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Element 13 - Special Employment Programs
Agencies are to assure that individuals with disabilities, especially those
with targeted disabilities, are included in executive development,
management intern, cooperative education, stay-in-school, summer
employment, summer aide, summer intern, and other special
employment programs.
Element 14 - RIFs and Other Adverse Employment Situations
. Reorganizations, contracting out, reduced personnel ceilings, and budget
cuts may lead to reductions-in-force (RIFs), furloughs, and involuntary
reassignments. In these and similar situations, agencies are to analyze
the anticipated and actual effects on employees with disabilities,
particularly those with targeted disabilities. Within the .limits imposed
by law and regulation, agencies should make every effort to minimize
effects on employees whose disabilities make it impossible or
unreasonably difficult for them to be reassigned within the agency or
transferred to another agency.
Element 15 - Alternatives to Disability Retirement
Each agency has a special obligation to provide reasonable
accommodation for employees who become disabled and to identify
positions within the agency or in other agencies in which these
individuals can perform well in spite of their disabilities. Special efforts
should be taken whether the disability resulted from injury on the job or
from a medical condition or other situation that is not job-related.
Element 16 - Affirmative Attitudes
Agencies are to plan and conduct training programs and special events
that foster affirmative attitudes toward individuals with disabilities, their
potential to be employed in a broad range of grade levels and
occupational series, and their ability to function effectively in Federal
workplaces.
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ฉ Element 17 - Awards
Agencies are to assure that employees with disabilities who are
performing outstanding work have equitable opportunitiesซto win
incentive and other performance awards, especially quality step
increases and bonuses. Supervisors should be encouraged to identify
and nominate deserving individuals, especially those with targeted
disabilities.
Program Administration and Management:
@ Element 1 - Staffing Commitments
Each agency with 3,000 or more employees should have a full-time
disability program, manager at headquarters and in each organizational
unit and field installation with 3,000 or more employees. Appropriate
staff assignments should be made in all organizational units and at all
installations with 101 or more employees. Agencies are to consider
employees with disabilities, especially those with targeted disabilities,
for these positions.
ฎ Element 2-Internal Guidance
Each agency is to issue periodic (at least annual) internal guidance to
disability program managers, selective placement coordinators, and
other personnel who have responsibilities regarding the comprehensive
affirmative employment program for individuals with disabilities. The
guidance should cover current issues as well as general policies and
procedures.
ฉ Element 3 - Delegation of Authority
Agencies are to delegate appropriate authority and assign specific duties
and responsibilities to personnel throughout the agency in order to
assure efficient and thorough implementation of the comprehensive
affirmative employment program for individuals with disabilities.
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Element 4 - Management Mechanisms
Affirmative employment for individuals with disabilities should be
addressed by line items or other separately identifiable elements in
agency management plans, financial plans, budget requests, and
associated reports, briefing papers, and testimony.
Element 5 - Program Evaluation
Agencies are to establish systems for evaluating program status and
achievement. These systems should enable ongoing adjustment and
improvement of the comprehensive affirmative employment program as
well as production of reports for internal use and reports for the EEOC,
Element 6 - Data Collection
Agencies are to establish data collection systems that convey accurate
information to the Central Personnel Data File maintained by the Office
of Personnel Management. Particularly important are the SF 256
disability information and data on hiring, placement, and advancement
patterns for applicants and employees with disabilities, especially those
with targeted disabilities.
Element 7 - Management Accountability
Achievements and deficiencies regarding affirmative employment for
individuals with disabilities are to be reflected as a separate element in
the individual performance appraisals of agency personnel responsible
for management and implementation of the program. This includes
executives who have general responsibility as well as individuals with
specific assignments.
. Element 8 - Training and Technical Assistance
Agencies are to provide or obtain training and technical assistance
adequate to develop and maintain a high level of management,
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supervisory, and employee awareness of issues, policies, regulations,
and procedures concerning affirmative employment for individuals with
disabilities. .
f 4
0 Element9 - Employees with Disabilities Advisory Committee
Agencies are to provide leadership, guidance, and resources for
establishment of Employees with Disabilities Advisory Committees to
provide input concerning disability issues and the impact of agency
employment practices. Membership on these committees is to include
and may be limited to agency employees who have disabilities.
@ Element 10 - Cooperation with Unions
Collective bargaining agreements often require agencies to consult
employee unions when affirmative employment program plans, plan
updates, and reports are prepared, or when reasonable accommodations
are provided. Agencies are to review current and proposed collective
bargaining agreements to identify provisions that may cause problems
for employees and applicants with disabilities, and seek union
cooperation in providing affirmative employment for individuals with
disabilities.
ฉ Element 11 - Outside Liaison
Agencies should maintain liaison with national and local agencies and
organizations concerned with education, information, rehabilitation
and/or employment of'individuals with disabilities. These contacts can
be sources of future employees, identification of appropriate reasonable
accommodation, and retention of employees who become disabled.
VI Special Emphasis Programs
Special Emphasis Programs (SEPs) focus on specific groups and the
agency's efforts to expand the pool of applicants through outreach and
recruitment. These programs are designed to increase opportunities for
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minorities, women, individuals with disabilities and veterans by
" identifying barriers and implementing creative-strategies for elimination
ofbarriers. .
+ Special Emphasis Program Managers (SEPMs) serve as valuable
resources to management officials for providing advice on how
to ensure that existing personnel office outreach and recruitment
efforts reach minorities, women, and individuals with disabilities
at all levels. A SEPM is an EEO official who is responsible for
identifying the unique and/or special concerns of a group of
applicants or employees and then briefing agency management
with suggestions and strategies for the elimination ofbarriers.
+ Government-wide Special Emphasis Programs include:
S Federal Women's Program - established 1963
S Hispanic Employment Program (HEP) - established 1970
S Disability Emphasis Program-established in Section 501
of the Rehabilitation Act of 1973, and Section 403 of the
Vietnam Era Veterans Readjustment Act
S Veterans Employment Program - See Title 5 U.S.C.
Subpart B, Chapter 31; 5 CFR 720, Subpart C;.and
Executive Order 11521, 1990.
S The White House Initiative for Historically Black Colleges
and Universities (HBCU)
SEPs focus on certain and specific groups that have been identified in
an agency's efforts to expand the poolof available applicants for hiring
or candidates for promotion through recruitment and outreach. The
programs are designed to increase opportunities for the various groups
by identifying barriers and implementing creative strategies for barrier
elimination.
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At the EPA, the Work Force Diversity and Analysis Team in the Office
Of Civil Rights is responsible for ensuring the implementation of the
agency's six special emphasis programs and for monitoring the overall
AEP. National and collateral-duty SEPMs are a valuable resource for
management officials as they serve as first line contacts with colleges
and universities and coordinate program and public relations activities.
The SEPMs can provide management officials with technical assistance,
enlist their participatione in recruitment trips, training conferences,
speaking engagements, and in establishing ties with community based
organizations and learning institutions.
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Notes: Management's Responsibilities:
Affirmative Employment Programs
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Management's Responsibilities Under the Rehabilitation Act of 1973
Management's Responsibilities
Under the
Rehabilitation Act of 1973
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Facility Accessibility
? '
All federal management officials have a
responsibility to report any barriers. Watch
for:
Doors that are too narrow or too heavy.
Entrances that have steps and no ramps.
Rest room facilities that are too small.
Thresholds that are too high.
Furniture that intrudes on passageways.
Lights that are burned out or too dim.
Loose railings or pavers.
HC parking spaces in distant locations or
constantly occupied by cars without HC tags.
What other barriers may exist?
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Scenario #2
Sally is a Supervisory Computer Specialist who
uses a scooter because of her disability. Her
agency holds monthly IT meetings in its
historic headquarters building. Sally has
reported that the restrooms in this building are
inaccessible and requests that they be
renovated. How should the agency respond?
Would it make a difference if Sally was a
guest from another agency?
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Management's Responsibilities:
.Employment of Individuals With Disabilities
Strive to meet EPA goals for hiring, placing, and
advancing individuals with disabilities.
Ensure an active recruitment program which includes
individuals with disabilities.
When hiring consider the employee's qualifications.
Keep the disability and need for accommodation out of
the selection process.
Work with personnel to ensure that qualification
requirements are job-related.
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Scenario #3
Susan supervises a staff of twenty research
scientists. She advertised an entry level position
and included in the criteria the ability to give oral
presentations to large audiences. One applicant,
Henry, is deaf and a recent college graduate.
During the interview, he explained that he uses the
assistance of a sign language interpreter when he
gives presentations. Is Henry qualified?
What questions could be asked of this candidate
during the interview?
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Making Individuals With Disabilities Part of the Team
^B ' '
Major barriers to employment reported by individuals
with disabilities are:
Negative attitude of hiring officials, supervisors,
and/or co-workers.
Management's lack of knowledge about
appropriate hiring and conversion authorities.
Agency unwillingness to provide reasonable
accommodation or physical accessibility.
Treat individuals with disabilities, just like other
employees, with respect.
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Management's Responsibilities Under the Rehabilitation Act of 1973
Scenario #4
Dave is Branch Chief for a lively staff
They work hard, but like to tease and play
practical jokes. One employee, Tom, has
multiple sclerosis, and two of his co-
workers make fun of the way he walks.
Should Dave say anything, and if so what?
What information would you need to
decide if Dave should say anything?
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Interviewing Individuals With Disabilities
Ask each applicant the same questions about their
qualifications, skills, and experience.
Follow the lead of the individual with a disability. If s/he
does not mention the disability, do not mention it.
Focus on the functions of the position and the knowledge,
skills and abilities the individual would bring to the job.
Applicants may request reasonable accommodation for the
interview. Agencies should genetically invite applicants
to ask for reasonable accommodations on the job
application or when setting up the interview.
Can management officials focus on the functional
requirements of the job when interviewing an
applicant who has an obvious disability?
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Scenario #5
Ron is interviewing a candidate who had an
outstanding application and credentials. The
woman is limping slightly but has not
mentioned a disability. Ron is concerned.
Because considerable walking to various
buildings is required for the job, he considers
asking her questions about his concerns. How
should Ron approach the subject?
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Appointing Authorities and Special Employment Programs
Individuals.with disabilities can be hired competitively or non-
competitively.
Excepted appointing authorities provide an opportunity for
individuals with disabilities to'be hired non-competitively
so they can demonstrate their ability to do the job. The
two major options are:
Schedule A appointments
Veterans with a 30% or more disability
Individuals with disabilities should be equally recruited
for vacancies announced through the merit promotion
program.
Individuals with disabilities should also be equally
recruited for upward mobility and other special
employment programs.
EPA Employment Civil Rights Training Manual Page 196
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Management's Responsibilities Under the Rehabilitation Act of 1973
Types of Reasonable Accommodations
Assistive devices or technology
Working from home
Readers, interpreters, and personal assistants
Modification of work duties
Flexible work schedule
Adjustments to work station/office
A change in work style of management officials &
co-workers
Leave, including LWOP
Reassignment to a vacant position
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^ distortion of limbs or spine,
^ mental illness,
^ mental retardation, and
+ convulsive disorders.
Agency management sets the goals for new hiring of individuals with
targeted disabilities, but they rely on hiring officials to make decisions
in support of the goals.
EEOC reports annually to Congress on the progress of each agency,
including a breakdown for each of the targeted disabilities.
Agencies are responsible for ensuring that management officials are
aware of issues, policies, regulations, and procedures concerning the
recruitment and employment of individuals with disabilities.
Agencies are also responsible for ensuring that all of their programs,
training, and other activities are fully accessible to all employees with
disabilities.
Agencies should conduct an annual review of policies, procedures,
programs, activities, and facilities to identify and target for removal any
barriers to participation by individuals with disabilities.
HI Management Role in Affirmative Employment for Individuals
with Disabilities
* Management officials are responsible for meeting their agency's EEO
objectives for hiring, placing, and advancing individuals with
disabilities.
Hiring officials should work with their personnel offices to assure that
qualification requirements are job-related and to ensure that an active
recruitment program which includes individuals with disabilities is in
place. '
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Management's Responsibilities Under the Rehabilitation Act of 1973
Scenario #6
The job announcement closed a month ago, and
Alice is reviewing the applications of the
candidates forwarded by the personnel office.
In addition, they give Alice an application from
a qualified individual who applied last week for
a Schedule A position. May Alice consider
hiring this candidate?
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Reasonable Accommodations
<
Applicants and employees with disabilities have a
right to request a change or adjustment to an
element in the application process and work
situation that presents a barrier.
Management officials should know their agency's
procedures and should process requests for
reasonable accommodations quickly.
Failure to respond promptly can be a violation of
the employee's rights under the Rehabilitation Act
of 1973.
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Management's Responsibilities Under the Rehabilitation Act of 1973
ฉ Qualified individuals with disabilities should be considered for
vacancies on the basis of their skilis.-and abilities.
ฎ To be hired, individuals with disabilities must be qualified for the
position and able to perform the essential functions, with reasonable
accommodation if requested or without reasonable accommodation if
not requested.
' Management officials should assure that individuals with disabilities
have equal opportunities to demonstrate that they can perform the job
successfully, to obtain promotions and awards, and to participate in
training and career development programs.
ฉ Management officials are responsible for making reasonable
accommodation to the known disabilities of applicants and employees.
The only exception is when the agency can demonstrate that the
accommodation would cause an undue hardship, which means a
"significant difficulty or expense."
ซ Management officials should be held accountable in their performance
appraisals for meeting EEO responsibilities and should be recognized
for their achievements in helping the agency fulfill its AEP obligations.
IV Making Individuals with Disabilities a Part of the Team
ฎ The individual who is best qualified for the-position should be hired.
Focus on the individual and not the disability.
ฉ Major barriers to employment reported by individuals with disabilities
are:
0 Negative attitude of hiring officials, supervisors, and/or co-
workers;
^ Management's lack of knowledge about appropriate hiring and
conversion authorities;
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VII Supervising Individuals with Disabilities
Treat individuals with disabilities with respect, the same as those who
do not have a disability. Praise in public and criticize in private.
ซ Employees with disabilities should feel that they are a part of the overall
staff. Management officials should not allow mistreatment or exclusion
of an employee with a disability.
Management officials and co-workers should report any communication,
architectural, attitudinal, or other barriers that may exist during the
formal and informal periods of the work day.
Language can reflect the attitudes of the speaker. The way a supervisor
speaks of an employee will be picked up by co-workers. Management
officials should set a positive example.
VIII Reasonable Accommodation
Agencies are required to make reasonable accommodation to the known
physical and mental limitations of an otherwise qualified applicant or
employee with a disability unless the agency can show that providing
the accommodation would result in undue hardship. Reasonable
accommodation can be any change:
"^ in the work environment (including events and training) or
+ in the way duties are customarily performed.
Management officials must respond promptly to requests for reasonable
accommodation. A delay in providing reasonable accommodation can
be a violation of the applicant or employee's rights under the
Rehabilitation Act of 1973, as amended.
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Management's Responsibilities Under the Rehabilitation Act of 1973
In most agencies, only the Disability Manager or the EEO Officer is
qualified to deny a request. The denial must be..in writing and must
specify a reason for the denial.
Accommodations can only be determined on a case-by-case basis,
usually through an interactive process. Accommodations are
individualized. While the individual with the disability is generally the
best judge of what accommodation is most appropriate, it is the agency
who chooses among effective accommodations.
If an applicant or employee does not reveal his/her disability or request
accommodation, management is not required to provide reasonable
accommodation. However, once management officials know an
employee needs a specific accommodation, the employee should not be
required to make a separate request each time the need arises.
Once the job offer is made, the applicant might request reasonable
accommodations related to the work duties or environment. The agency
should have the requested accommodations ready and available when
the employee begins work. If this is not possible, interim
accommodations should be provided. <
The employee should be consulted before purchasing or contracting for
assistive technology or devices. Agencies that fail to secure employee
agreement risk the possibility of procuring unsuitable accommodations.
Types of Accommodations (generic overview):
^ Restructuring the job so that the employee can perform the
essential functions.
^ Adjusting the employee's work schedule.
^ Granting flexible leave - excused absence, sick leave, annual
leave, or leave without pay.
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4- Flexiplace - eliminating the physical strain of the daily commute
...-can greatly improve an employee's productivity,
4 Modifying the employee's work site to allow better access and
mobility. Furniture, carpet, equipment, files, and lighting may
.need to be adjusted or moved.
4 Specialized equipment and assistive devices.
+ Readers, interpreters, and personal assistants. These can be hired
non-competitively through the Schedule A authority.
+ For employees only, reassignment to a vacant position
Management officials should be familiar with their agency's policies
and procedures related to the purchase or acquisition of reasonable
accommodations.
It is the responsibility of each management official to ensure that all
his/her employees have equal access to agency functions - staff
meetings, training, etc.
When in doubt about appropriate accommodations, ask the employee.
To explore the options available, contact the agency Disability Program
Manager.
The applicant or employee with a disability who requests
accommodation should be treated with respect at all times. Remember
that requests can stem from a desire to improve work performance or
participation.
Management officials should comply with their agency's policies
concerning requests for medical documentation. However, if an
employee's disability is obvious or is already documented and on file,
the agency may not request medical documentation.
EPA Employment Civil Rights Training Manual Page 216
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Management's Responsibilities Under the Rehabilitation Act of 1973
ฎ All aspects of the employee's disability and the request for
accommodation must be kept confidential. Attention should not be
directed to the accommodation provided. This includes readers,
interpreters, and personal assistants. They should not be introduced or
drawn into the meeting or event as participants unless requested by the
employee.
Management officials are cautioned not to retaliate against an employee
for requesting reasonable accommodations, whether or not the request
was approved.
IX Job Performance and Recognition
All employees, including those with disabilities, should be held accountable for their
work performance. Management officials are responsible for communicating
performance expectations to their employees and for monitoring and appraising their
work. ,
Individuals with disabilities should be made to feel that they are on an
equal, basis with employees who do not have disabilities.
^ Employees with disabilities should have equal opportunities to
win incentive and other performance awards.
^ Employees with disabilities should be provided with performance
standards and elements that are fair and appropriate for the
position.
^ Employees v/ith disabilities should be given equal opportunities
to obtain training and participate in other growth opportunities
that will allow them to advance in their careers.
$ Employees with disabilities should be encouraged to participate
in supervisory, executive, and/or management training.
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When evaluating an individual with a disability, ensure that aspects of
their physical or mental disability are not held against them.-.-,
Management officials should consider that what appears to be a
performance or conduct problem may result from a lack of appropriate
accommodations.
Any performance problems and/or misconduct should be addressed at
the earliest possible stage. The management official should provide
feedback to the employee and ensure that it is fully understood.
Management officials must be careful to distinguish between
performance problems and difficulties caused by a physical or mental
disability. Before taking disciplinary actions, management officials
should ensure that, if previously requested, all necessary reasonable
accommodation has been explored.
EPA Employment Civil Rights Training Manual Page 218
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Management's Responsibilities Under the Rehabilitation Act of 1973
Nates: Management's Responsibilities Under the
Rehabilitation Act of 1973
EPA Employment Civil Rights Training Manual Page 219
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EPA Employment Civil Rights Training
EPA Employment Civil Rights Training Manual Page 220
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Management's Responsibilities: Preventing Harassment
Management's
Responsibilities:
Identifying, Eliminating
and Preventing
Harassment
EPA Employment Civil Rights Training Manual
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EPA Employment Civil Rights Training Manual Page 222
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Management's Responsibilities: Preventing Harassment
Protected Bases
Race
Color
Religion
Sex
National Origin
Age (40 and over)
Disability
Retaliation
EPA Employment Civil Rights Training Manual
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EPA Employment Civil Rights Training
What is Workplace Harassment?
Harassment is any unwelcome verbal or physical
conduct based on one of the protected bases that is
so objectively offensive as to alter the conditions of
the victim's employment. This standard is met
when:
The conduct culminates in a tangible
employment action, or
The conduct was sufficiently severe or
pervasive to create a hostile work environment
EPA Employment Civil Rights Training Manual
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Management's Responsibilities; Preventing Harassment
Who Can Commit Workplace Harassment?
A Management Official
A Co-Worker
A Non-employee
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EPA Employment Civil Rights Training
Elements of a Harassment Claim
Conduct must be unwelcome
Conduct based on a protected basis
Conduct results in a tangible employment action or
creates a hostile work environment
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Management's Responsibilities; Preventing Harassment
Unwelcome Conduct
"
Unwelcome" conduct is where the employee did
not solicit of invite the conduct and regarded it as
undesirable.
Critical Inquiry: Did the complainant explicitly or
implicitly communicate that the conduct was
unwelcome?
Submission does not mean welcomeness
Active participation would likely defeat the
claim
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EPA Employment Civil Rights Training
Scenario # 1
Deborah's male co-workers frequently engage
in bawdy sexual banter and horseplay in the
office. They trade stories about their sexual
exploits and kid each other about each other's
sexual prowess. Deborah sometimes has
conversations of a sexual nature with one of her
male co-workers, but she has let the others
know that she is offended by their banter and
horseplay. Deborah has complained to her
supervisor, but he has taken no action.
Evaluate Deborah's harassment claim.
EPA Employment Civil Rights Training Manual Page 228
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Management's Responsibilities: Preventing Harassment
Basis
Harassment based on sex, including same-sex,
(sexual and non-sexual) violates Title VII
Harassment based on race, color, religion, age
(40 and over), disability or in retaliation for
protected activity also violates federal anti-
discrimination laws.
EPA Employment Civil Rights Training Manual Page 229
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EPA Employment Civil Rights Training
Scenario # 2
Joseph is a rude and offensive individual. He constantly
makes disrespectful statements to his co-workers about
their appearance, knowledge, and job performance. Alex
is particularly offended by Joseph's inappropriate
behavior. Joseph daily calls Alex a "big headed, lazy
bum." Fed up with Joseph's behavior, Alex initiates the
EEO process.
Analyze Alex's harassment claim?
EPA Employment Civil Rights Training Manual
Page 230
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Management's Responsibilities: Preventing Harassment
Harassment: Tangible Employment Action
A supervisor's harassment results in a significant
change in employment status or benefits, etc. (e.g.
demotion, termination, failure to promote, etc.)
Only individuals with supervisory or managerial
responsibility can commit this type of harassment
If a tangible employment action results from
harassment by a supervisor, the agency is
automatically liable
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EPA Employment Civil Rights Training
Scenario # 3
Kim believes that her supervisor, Ted, subjected her to unwelcome
sexual conduct. For .example, on one occasion, he gazed at her from
head to toe and stated that she looked fantastic. Kim informed Ted
that while she appreciated his comment, she did not consider his
behavior appropriate for the workplace. Ted replied that Kim needed
to loosen up and accept favorable comments. On other occasions,
Kim would notice Ted suggestively looking at her body as she walked
by his office area. When Ted interviewed Kim for a promotion, he
expressed reservations because Kim was not flexible or loose enough
for the position. Kim was denied the promotion. Believing that Ted
was punishing her for rejecting his advances, she resigned one month
later.
Evaluate Kim's potential sexual harassment
claim.
Would it make a difference if Ted granted,
rather than denied, the promotion to
Kim?
EPA Employment Civil Rights Training Manual
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Management's Responsibilities; Preventing Harassment
Hostile Environment Harassment
Unwelcome comments or conduct based on a
protected basis which unreasonably interferes with
an employee's work performance or creates an
intimidating, hostile or offensive work environment
Anyone can commit this type of harassment, a
management official, a co-worker or a non-
employee
EPA Employment CMI Rights Training Manual Page 233
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EPA Employment Civil Rights Training
Hostile Environment Harassment
Standards
Key Issues
Frequency and severity
Reasonable person standard
Tangible affect on the individual's job not
necessary
Psychological harm not necessary
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Management's Responsibilities: Preventing Harassment
Reasonable Person
Is the conduct severe or pervasive enough to
create an environment that a reasonable person
would find hostile, intimidating or abusive?
and
The employee perceived the conduct as such.
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EPA Employment Civil Rights Training
Scenario # 4
Charles believes that his co-worker, Bob, engages in behavior that is
offensive to Charles based on his race (African-American). For
example, Bob (who is Caucasian) sent an e-mail to the employees in
their unit attaching a series of jokes beginning with the phrase, "You
know you're in the ghetto when. ...." Charles told Bob that the jokes
were racially offensive. Bob expressed surprise that Charles took
offense and stated that he did not believe that the word "ghetto" only
pertained to African-Americans. On another occasion, Bob sent another
e-mail to his co-workers attaching jokes about Ebonics. Charles
complained to their supervisor, but the supervisor took no action.
Discuss Charles' racial harassment claim.
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Management's Responsibilities: Preventing Harassment
Agency Liability: Hostile Work Environment
Harassment By a Management Official
M Agency is liable even if management did not know, unless both
elements of an affirmative defense are met:
^ If exercised reasonable care to prevent or promptly correct
any harassment, and
^ The employee unreasonably failed to take advantage of any
preventative or corrective opportunities offered by the
agency or to avoid harm otherwise.
Harassment by high ranking officials, agency is directly liable - no
affirmative defense available.
EPA Employment Civil Rights Training Manual Page 237
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EPA Employment Civil Rights Training
Agency Liability; Hostile Work Environment
Harassment By Co-Worker or Non-Employee
Hi Agency is. liable if it knew or should have known of the
harassment and failed to take immediate and appropriate
corrective action.
^ Agency knowledge is assumed if:
S The victim complains ahout the harassment, or
i/ The. conduct occurred in the presence of a supervisor,
or
S The conduct is widespread
EPA Employment Civil Rights Training Manual
Page 238
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Management's Responsibilities: Preventing Harassment
Scenario # 5
Anna's supervisor frequently made remarks that were offensive to Her
and other Hispanic employees. He also made crudely demeaning
references to women.
Anna did not complain to higher management about the supervisor's
conduct. One month before Anna resigned, a former employee wrote
a letter to the head of Anna's department complaining about the
supervisor's harassment. The agency conducted an investigation, and
the supervisor was reprimanded and disciplined.
Can Anna establish a claim of harassment?
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EPA Employment Civil Rights Training
Scenario # 6
Jack joins his new secretary, Nancy, at a farewell gathering for an
agency employee. During the gathering, he rubs his hands on her
shoulder and back and states that he would like to take her out to dinner.
Nancy declines the invitation and demands that Jack remove his hands.
Jack immediately apologizes and states that he had misread the signals
between the two of them.
This was the first time that Jack made an advance toward Nancy, and he
never again makes other sexual advances toward her. Nancy considers
filing a complaint, but she assumes that no one will believe her since
there were no eye witnesses.
Evaluate Nancy's potential claim.
EPA Employment Civil Rights Training Manual Page 240
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Management's Responsibilities: Preventing Harassment
Scenario #7
Joan dreads each time her photocopier breaks down because the repair
person assigned to her office always leers at her and makes sexually
suggestive remarks. Joan has complained to her supervisor, but the
supervisor says he does not have any control over the repair person
because that individual is an employee of the photocopier service
company and not an employee of the agency. The supervisor does relay
Joan's complaints to the service company, but no action is taken.
Analyze the supervisor's response to the issue?
EPA Employment Civil Rights Training Manual Page 241
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EPA Employment Civil Rights Training
How Harassment Affects the Workplace
For agencies:'
High legal costs and damage awards
Poor public image
II Lower productivity and morale
Higher costs for hiring and training new
employees
EPA Employment Civil Rights Training Manual Page 242
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Management's Responsibilities; Preventing Harassment
How Harassment Affects the Workplace
For employees:
Emotional and physical pain
Less effective job performance
Poor employee morale
Personal and financial problems
EPA Employment Civil Rights Training Manual Page 243
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EPA Employment Civil Rights Training
Appropriate Preventative Actions
All'Management Officials and Employees should:
H Know the agency's harassment policy
H Set a positive example by treating others with respect
Don't make assumptions about jokes
H Think before speaking and consider others' feelings
and perceptions
Never go along with the crowd if behavior is
offensive
EPA Employment Civil Rights Training Manual Page 244
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Management's Responsibilities: Preventing Harassment
Preventative and Corrective Actions For Agencies
Establishing Effective Anti-Harassment Policy
Policy should be written and well disseminated
Protect against retaliation
Explain the conduct that is prohibited
Create multiple paths to complain about harassment
Provide for prompt investigations of complaints
Set time frames in which the agency will act
Assure that immediate and appropriate corrective
action, including discipline, will be taken
Ensure confidentiality to the extent possible
EPA Employment Civil Rights Training Manual Page 245
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EPA Employment Civil Rights Training
Preventative and Corrective Actions For Agencies
Investigate Allegations of Harassment
Ensure prompt, thorough and impartial
investigations
Be objective, don't make assumptions
H Ensure confidentiality to the extent possible
H Make credibility determinations
H Check personnel records
H Take immediate and appropriate corrective actions
EPA Employment Civil Rights Training Manual
Page 246
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Management's Responsibilities: Preventing Harassment
Conducting an Investigation
Relevant Information from the '
Aggrieved/Alleged Victim
What happened?
When did it happen?
Where did it happen?
How did the alleged victim respond?
Were there any witnesses?
How frequent was the conduct?
Is there documentation of the incident?
How would you like to see the matter resolved?
EPA Employment Civil Rights Training Manual
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Conducting an Investigation
Relevant Information from the Alleged Harasser
0 What is the response to the allegation?
If false - why would complainant lie?
Other individuals with relevant information?
Any documentation/other relevant information?
EPA Employment Civil Rights Training Manual Page 248
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Management's Responsibilities: Preventing Harassment
Corrective Action
If it is determined that harassment occurred,
corrective action should be undertaken immediately.
Corrective measures should be designed to end the
harassment and ensure that it does not recur.
The severity of disciplinary action should depend on
factors such as the severity and frequency of the
misconduct, the impact on the complainant, and
whether the harasser engaged ih similar misconduct
before.
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/ Both obj ective and subj ective standards apply: How would
a reasonable person have reacted in the complainants
position? How did the complainant react?
+ The individual's job need not ^e affected.
+ Severe psychological harm is not necessary to establish a
violation.
$ Hostile, offensive or intimidating actions which are directed
toward an employee' s protected status under federal employment
discrimination statutes, including race, color, sex, religion,
national origin, age or disability constitute hostile environment
harassment. Conversely, actions which are based on personality
differences, or conflicts unrelated to the protected bases described
above, while unfair, do not constitute unlawful harassment.
Agency liability:
+ Hostile environment harassment by a management official:
The agency is liable even if higher management did not know of
the management official's harassment, unless it can establishboth
elements of a two-part affirmative defense..
ซ/ it exercised reasonable care to prevent and correct
promptly any harassment; and
S the employee unreasonably failed to take advantage of any
preventative or corrective opportunities provided by the
agency or to avoid harm otherwise.
+ Additionally, whenever a high-ranking official engages in hostile
environment harassment, the agency is directly liable and does
not have recourse to the affirmative defense.
EPA Employment Civil Rights Training Manual Page 256
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- . . . Management's Responsibilities: Preventing Harassment
^ Hostile environment harassment by co-workers: The agency
is liable if it knew or should have known of the harassment and
failed to take immediate and appropriate corrective action.
^ Hostile environment, harassment by non-employees: The
< . agency is liable if it knew or/should have known of the
harassment and failed to take immediate and appropriate
corrective action within its control.
:V -... It is assumed that the agency has knowledge of the
harassment under the following circumstances:
* The victim complains about the harassment
* The conduct occurred in the presence of a
management official
* The conduct is so widespread that the agency
reasonably knew or should have known .
IX Appropriate Preventative Actions for All Employees
0- Know the agency's policy on workplace harassment
^ Set a positive example by treating others with respect,,and letting them
know the same is expected of them.
^ Avoid making assumptions that jokes, friendly gestures or comments are
harmless or welcome. They may not be viewed that way by others.
& Think before making personal comments or asking questions that may
be misinterpreted. Consider whether or not they will make the other
individual uncomfortable.
^ Never go along with a crowd or accept behavior that is offensive. Make
feelings known.
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^ Make credibility determinations.
S Are the statements believable?
%^ Did the individual seem to be telling the truth, how was
his/her demeanor?
S Did the individual have a reason to lie?
V Is there witness testimony or physical documentation that
corroborates the individual's testimony?
S Did the alleged harasser have a history of similar behavior
in the past?
+ Take immediate and appropriate corrective action.
+ If it is determined that harassment occurred, corrective action
should be undertaken immediately. Corrective measures should
be designed to end the harassment and ensure that it does not
recur.
+ The severity of disciplinary action should depend on factors
such as the severity and frequency of the misconduct, the impact
on the complainant, and whether the harasser engaged in similar
misconduct before.
Other Preventative Measures
+ Routinely educate employees about what constitutes unlawful
harassment and about the agency's anti-harassment policy and
complaint procedures.
^ Train management officials and employees concerning actions
which may constitute harassment and what they should do if they
are harassed.
+ Monitor enforcement of the anti-harassment policy.
EPA Employment Civil Rights Training Manual Page 262
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Management's Responsibilities: Preventing Harassment
EPA Employment Civil Rights Training Manual Page 263
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EPA Employment Civil Rights Training
Notes: Management's Responsibilities:
Preventing Harassment
EPA Employment Civil Rights Training Manual Page 264
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Management's Responsibilities: Preventing Retaliation
Management's Responsibilities:
Preventing Retaliation
EPA Employment Civil Rights Training Manual Page 265
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EPA Employment Civil Rights Training
Examples of Participation
Filing an EEO complaint
Serving as a witness in an EEO matter
Representing an individual in an EEO
matter
Requesting a reasonable accommodation
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Management's Responsibilities: Preventing Retaliation
Protected Activity: Participation
Participation in a failed EEO complaint is nevertheless
considered protected activity.
The practices challenged in prior or pending statutory
proceedings need not have been engaged in by the
named responsible management official.
An individual is protected against retaliation for
participating in employment discrimination proceedings
even if those proceedings involved an entirely different
agency.
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EPA Employment Civil Rights Training
Scenario #3
Eric had worked for the CIA. While with the CIA, he filed
several complaints alleging sex and race discrimination.
Frustrated with what he considered to be continuing
discriminatory harassment, Eric applies for a job with the EPA.
As part of the selection process, the EPA management official
calls Eric's CIA supervisor with the CIA and receives a
negative reference. The CIA supervisor also tells the EPA
management official that Eric filed several complaints over the
years. In light of the negative reference, the EPA does not hire
Eric. Later, he leams that his CIA supervisor gave him a
negative reference.
Is this retaliation?
EPA Employment Civil Rights Training Manual Page 278
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, Management's Responsibilities; Preventing Retaliation
DESK REFERENCE GUIDE
Management's Responsibilities: Preventing Retaliation
I INTRODUCTION
* . t
Federal management officials serve as role models for subordinate
employees and for management officials in the private sector in
complying with all of the governing EEO employment laws and
regulations. Vigorous compliance with and effective enforcement of the
anti-discrimination statutes by management officials sets the foundation
for a healthy and open work environment. All of the statutes which the
Commission enforces (i. e., Title VII of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act of 1967, the Rehabilitation Act
of 1973, and the Equal Pay Act of 1963), prohibit retaliation by an
agency because an employee, a former employee or an applicant for
employment engaged in protected activity. If retaliation for such
activities was permitted to go unremedied, it would create a chilling
effect upon the willingness of individuals to speak out against
employment discrimination or to participate in the Commission's
administrative process or other employment discrimination proceedings.
II. RETALIATION
ฎ Treatment that is reasonably likely to deter protected EEO activity is
unlawful.
III. RETALIATORY ACTIONS
A, General Types of Retaliatory Actions
0 The most obvious types of retaliation are denial of promotion, refusal to
hire, denial of job benefits, demotion, suspension, and discharge. Other
types of retaliatory actions include threats, reprimands, negative
evaluations, and harassment.
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EPA Employment Civil Rights Training
B. Retaliatory Actions can Occur after the Employment
Relationship has Ended
In 1992, the U.S. Supreme Court unanimously held that the law
prohibits employers from retaliating against former employees as well
as current employees for engaging in protected activity. Examples of
post-employment retaliation include actions that are designed to
interfere with the individual's prospect for employment, such- as
unjustified negative j ob reference, refusing to provide a j ob reference,
and informing a prospective employer about the individual's protected
activity.
C. Retaliatory Actions Need not Qualify as "Ultimate Employment
Actions" or Materially Effect the Terms or Conditions of
Employment to Constitute Retaliation
Although some courts have held that the retaliation provisions apply
only to retaliation that takes the form of a final employment action (i.e.,
RTF, terminations, suspensions, etc. . . ) or that materially affects the
terms, conditions, or privileges of employment, the Commission has
taken the position that the statutory retaliation provisions prohibit any
action that is based on a retaliatory motive and is likely to deter the
employee or others from engaging in protected activity. Although petty
slights and trivial annoyances are not actionable, the Commission
maintains that significant retaliatory treatment can be challenged
regardless of the level of harm. In general, retaliation comes in one of
two forms: participation or opposition.
IV PROTECTED ACTIVITY: PARTICIPATION
The anti-retaliation provisions make it unlawful to discriminate against
an individual because s/he has filed a complaint, testified, assisted, or
participated in any manner in an investigation, proceeding, hearing, or
litigation under the governing EEOC statutes or requested a reasonable
accommodation. This protection applies to individuals who testify or
otherwise participate in such proceedings. In the federal sector, once
someone initiates contact with an EEO Counselor, s/he is engaging in
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_^ Management's Responsibilities; Preventing Retaliation
participation. Participation in a failed EEO complaint is nevertheless
considered protected activity.
ฎ The anti-retaliation provisions of- the governing EEOC laws and
regulations prohibit retaliation against someone so closely related to or
associated with the individual exercising his or her statutory rights that
it would discourage or prevent the individual from pursuing those rights.
For example, it would be unlawful for an agency to retaliate against an
employee because his/her spouse, who is also an employee filed an EEO
- :. , complaint. Both spouses in such circumstances, could bring retaliation
claims. .
An individual is protected against retaliation for participating in
employment discrimination proceedings even if those proceedings
involved an entirely different agency. For example, a finding of
retaliation would be found if a management official refused to hire the
complainant because s/he was aware that the complainant filed a
complaint against a former agency. .
ฎ The practices challenged in prior or pending statutory proceedings need
not have been engaged in by the named responsible management
official.
V. PROTECTED ACTIVITY: OPPOSITION
@ The anti-retaliation provisions make it unlawful to discriminate against
an individual because s/he opposed any practice made unlawful under
the employment discrimination statutes.
@ Examples of Opposition include:
^ Complaining to any management official about alleged
discrimination against oneself or others;
^ Picketing;
^ Signing a petition to be presented to the administration about a
perceived discriminatory practice at the agency; or
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+ Requesting reasonable accommodation for a disability or
religious accommodation.
VI. STANDARDS GOVERNING APPLICATION OF THE
OPPOSITION CLAUSE
A. Manner of Opposition Must be Reasonable
The manner in which an individual protests perceived employment
discrimination must be reasonable in order for the anti-retaliation
provisions to apply. In applying a reasonableness standard, the
Commission balances the right of individuals to oppose employment
discrimination and the public's interest in enforcement of the EEO laws
against an agency's need for a stable and productive work environment.
B. Opposition Need Only be Based on Reasonable and Good Faith
Belief
An individual is protected against retaliation for opposing perceived
discrimination if s/he had a reasonable and good faith belief that the
opposed practices were unlawful. It is well settled that a violation of the
retaliation provision can be found whether ornotthe challenged practice
ultimately is found to be unlawful.
VH. ELEMENTS OF RETALIATION CLAIM
t) There are three elements to any retaliation claim:
1. Protected activity {i.e., participation in the statutory complaint
process or opposition to discrimination); and
2. Employment action; and
3. Causal connection between the protected activity and the
employment action.
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. . Management's Responsibilities; Preventing Retaliation
VIII. CAUSAL CONNECTION
^ In order to establish unlawful retaliation^ -there must be proof that the
agency took an employment action because the employee engaged in
protected activity. , Proof of retaliatory motive can be by direct or
circumstantial evidence. .
A. Direct Evidence
ฎ Direct evidence of a retaliatory motive is any written or verbal statement
by a management official that s/he undertook the challenged action
because the employee engaged in protected activity. Direct evidence of
retaliation is rare.
B. Circumstantial Evidence
ฎ The most common method of proving retaliation is through
circumstantial evidence. Retaliation is found whenever the complainant
raises an inference of retaliation and the agency fails to produce a
legitimate non-discriminatory reason for the challenged action, or if the
reason given by the agency for the challenged action is shown to be
pretext to hide retaliatory motive.
@ A circumstantial inference of retaliation arises whenever there is proof,
other than direct evidence, that a protected activity and an employment
action are related. Typically, the link between protected activity and an
employment action is established if the action followed shortly after the
protected activity, and the individual that undertook the action was
aware of the complainant's protected activity before taking the action.
An inference of retaliation may arise even if the time period between the
protected activity and the employment action was long ago, if there is
other evidence of bias (e.g., the management official routinely spoke of
complainant's EEO activity that took place two years before).
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Appendix; Additional Resources
Additional Resources
taws Enforced by EEOC - http://www.eeoc.gov/laws.html
Guidelines on Religious Exercise and Religious Expression in the Federal Workplace
http://onr .navy.mil/dnr/Guidelines.htm
or
http://clinton4.nara.gOv/WH/News.html/l 9970819-3275 .html
Addressing Sexual Orientation Discrimination in Federal Civilian Employment -
http://www.opm.gov/er/address2/guideO 1 .htm
Sexual Orientation, Status as a Parent, Marital Status and Political Affiliation
Discrimination - htip://www.eeoc.gov/facts/fs-ori^^
Prohibited Personnel Practices - http://www.osc.gov/ppp.htm
Executive Order 11478 - http://www.eeoc.gov/federal/eol 1478/eol 1478.html
Executive Order 13087 - http://www.eeoc.gov/federal/eoll478/eol3087.htrrri
29 Code of Federal Regulations Part 1614 - http://www.eeoc.goV/federal/l 614-
final.html
Management Directive 110 - http://www.eeoc.gov/federal/mdl lO.html
Policy Guidance on Executive Order 13164: Establishing Procedures to Facilitate
the Provision of Reasonable Accommodation-
http://www.eeoc.gov/policy/guidance.html
Enforcement Guidance on Disability-Related Inquiries and Medical Examinations
ofEmpldyeesUnderthe American wim Disabilities Act -
http ://www.eeoc. gov/policy/guidance.html
Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act - http://www.eeoc.gov/policy/guidance.html
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Enforcement Guidance: Vicarious LiabilityTor Unlawful Harassment by Supervisors
htip:/A^ww.eeoc.gov/policy/guidaiice.html .
Compliance Manual - Section 8: Retaliation - http://www.eeoc.gov/docs/retal.html
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