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Environmental Protection Agency
Office of Civil Rights
Employment
Civil Rights Training
for Employ
Training Manual
(Training materials prepared by EEOC)
Fiscal Year 2009
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U.S. Environmental Protection Agency Employment Civil Rights Training
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
IW/
WASHINGTON, D.C. 20460
OFFICE OF
CIVIL RIGHTS
FACT SHEET
DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION
The federal government has had a longstanding policy of prohibiting discrimination on
the basis of sexual orientation beginning with a 1980 U.S. ,Office of Personnel
Management (OPM) memorandum to Heads of Departments and Independent
Establishments. The Environmental Protection Agency (Agency) recognized this
policy in 1994, when it added sexual orientation to the bases on which the Agency
would not discriminate against individuals. In May 1998, President Clinton issued
Executive Order (E.O.) 13087, reaffirming the policy. While policy prohibiting
discrimination because of sexual orientation has been clear for some time, the
procedures available to victims to redress such discrimination were less clear and
inconsistent within the federal agencies.
In June 1999, OPM issued guidance implementing E.O. 13087. The guidance clarifies
that personnel actions taken on the basis of sexual orientation are prohibited personnel
practices and violate federal civil service law, not federal equal employment
opportunity (EEO) law. The guidance specifically states that employees and applicants
may not seek relief from the U.S. Equal Employment Opportunity Commission
(EEOC) or file a discrimination complaint under Title VII of the Civil Rights Act of
1964, as amended, since Title VII does not prohibit discrimination based on sexual
orientation.
This fact sheet reaffirms the Agency's continued commitment to prohibiting
discrimination on the basis of sexual orientation and to set forth the procedures
available to employees and applicants for addressing allegations of discrimination
based on sexual orientation.
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The Office of Civil Rights (OCR) does not investigate allegations of discrimination
based on sexual orientation since OCR only processes discrimination complaints
regulated by the EEOC. Employees and applicants have various avenues of redress to
remedy those instances where a prohibited personnel practice (under 5 U.S.C. section
2302(b) (10)) may have occurred.
1. An employee who belongs to a collective bargaining unit may grieve the
matter through the grievance procedures set forth in the appropriate
union's collective bargaining agreement (CBA).
a. At headquarters, the National Treasury Employees Union, Chapter
280 CBA requires that a grievance be filed within 28 days from the
date of the action being grieved. This time frame is extended to 45
days to allow participation in EEO counseling.
b. The American Federation of Government Employee=s CBA
requires that a grievance be filed within 30 days from the date of
the action being grieved. This time frame is extended to 45 days to
allow participation in EEO counseling.
2. An employee who is not a member of a collective bargaining unit may
grieve the matter through the Agency's Administrative Grievance System
(EPA Order 3110.8A) by filing a grievance within 15 days of the date of
the alleged prohibited personnel practice.
3. An employee or applicant may request EEO counseling from OCR, the
Regional EEO Officer, or Area Director within 45 days of the date of the
alleged prohibited personnel practice.
a. EEO counseling may last as long as 30 days.
b. EEO counseling does not stop the clock with regard to other filing
time frames, although it may extend them as noted in number 1.
c. EEO counseling participation does not allow filing of a
discrimination complaint or the right of appeal to EEOC and no
right to sue in federal district court under EEO statutes.
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4. An employee or applicant may appeal personnel actions (found at 5 C. F.
R. section 1201.3) alleging discrimination based on sexual orientation to
the U.S. Merit Systems Protection Board (MSPB) within 30 days from
the date of the action. This time period may be extended by an additional
30 days where the parties agree, in writing, to participate in ADR. This is
a formal process, offering administrative appeal and suit rights. For
additional information about the MSPB call 202-653-7200 or 800-209-
8960 or use the MSPB web site at http://www.mspb.gov.
5. Complaints concerning other personnel actions where discrimination
based on sexual orientation is alleged may be filed with the U.S. Office of
Special Counsel (OSC). There is no set time frame for filing. Similar to
the MSPB appeal, this is a formal process, offering administrative appeal
and suit rights. For additional information about the OSC call 202-653-
7984 or use the OSC web site at http://www.osc.gov.
Signature Date
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O '
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FACT SHEET
DISCRIMINATION ON THE BASIS OF PARENTAL STATUS
The Environmental Protection Agency (Agency) affirms that personnel actions taken
on the basis of Parental Status are prohibited personnel practices and violate federal
civil service law, but not federal equal employment opportunity (EEO) statutes.
Employees and applicants may not seek relief from the U.S. Equal Employment
Opportunity Commission (EEOC) or file a discrimination complaint under Title VII of
the Civil Rights Act of 1964, as amended, since Title VII does not prohibit
discrimination based on parental status.
In May 2000, President Clinton issued Executive Order (EO) 13152 which declares the
White House's policy against parental status discrimination in federal employment.
This fact sheet reaffirms the Agency's continued commitment to prohibiting
discrimination on the basis of parental status and to set forth the procedures available
to employees and applicants for addressing allegations of discrimination based on such
prohibited personnel practice.
The Office of Civil Rights (OCR) does not investigate allegations of discrimination
based on parental status since OCR only processes discrimination complaints regulated
by the EEOC. Employees and applicants have various avenues of redress to remedy
those instances where a prohibited personnel practice (under 5 U.S.C. section 2302(b)
(10)) may have occurred.
1. An employee who belongs to a collective bargaining unit may grieve the
matter through the grievance procedures set forth in the appropriate
union's collective bargaining agreement (CBA).
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINC.TON, D.C. 20460
OFFICE OF
CIVIL RIGHTS
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a. At headquarters, the National Treasury Employees Union, Chapter
280 CB A requires that a grievance be filed within 28 days from the
date of the action being grieved. This time frame is extended to 45
days to allow participation in EEO counseling.
b. The American Federation of Government Employee's CBA
requires that a grievance be filed within 30 days from the date of
the action being grieved. This time frame is extended to 45 days to
allow participation in EEO counseling.
2. An employee who is not a member of a collective bargaining unit may
grieve the matter through the Agency's Administrative Grievance System
(EPA Order 3110.8A) by filing a grievance within 15 days of the date of
the alleged prohibited personnel practice.
3. An employee or applicant may request EEO counseling from OCR, the
Regional EEO Officer, or Area Director within 45 days of the date of the
alleged prohibited personnel practice.
a. EEO counseling may last as long as 30 days.
b. EEO counseling does not stop the clock with regard to other filing
time frames, although it may extend them as noted in number 1.
c. EEO counseling participation does not allow filing of a
discrimination complaint or the right of appeal to EEOC and no
right to sue in federal district court under EEO statutes.
4. An employee or applicant may appeal personnel actions (found at 5
C. F. R. section 1201.3) alleging discrimination based on parental status
to the U.S. Merit Systems Protection Board (MSPB) within 30 days from
the date of the action. This time period may be extended by an additional
30 days where the parties agree, in writing, to participate in ADR. This is
a formal process, offering administrative appeal and suit rights.
For additional information about the MSPB call 202-653-7200 or 800-
209-8960 or log on to the MSPB web site at http://www.mspb.gov.
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5. Complaints concerning other personnel actions where discrimination
based on parental status is alleged may be filed with the U.S. Office of
Special Counsel (OSC). There is no set time frame for filing. Similar to
the MSPB appeal, this is a formal process, offering administrative appeal
and suit rights.
For additional information about the OSC call 202-653-7984 or log on to
the OSC web site at http://www.osc.gov.
Signature Date
3
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Region 8 EEO Program Office Contacts
Sandra Fusco -EEO Manager (x6713)
Carletta "Lynn" Sudduth - Ofc Automation Spec (x6632)
Equal Employment Opportunity (EEO) Counselors
Lourdes Deppmeier (EPR x7040)
Kerri Fiedler (OPRA x6493)
Special Emphasis Program Managers
American Indian Program (AISEP)
Asian/Pacific Islander Program (API)
Black Employment Program (BEP)
Federal Women's Program (FWP)
- Administrative Council Excellence (ACE)
- Women in Science & Engineering (WISE)
Hispanic Employment Program (HEP)
Persons with Disabilities (PWD)
Diversity Program Managers
Gay/Lesbian/Sexual Orientation Advisory Council
(GLSOAC)
Older Workers Advisory Council (OWAC)
03/23/09
Wendy Cheung (OPRA x6242)
Cinna Vallejos (EPR x6376)
Christine Vigil (OPRA x6992)
Alysia Tien (OPRA x7809)
Jason Nakatsu (TMS x6862)
David Harris (TMS x6349)
Amy Hambrick (ECEJ x6883)
Shirley Kelley (RA x6308)
Dayle DeArvil (ECEJ x6911)
Rebecca Russo (OPRA x6757)
Richard Archuleta (ECEJ x6054)
Elaine Robles (TMS x6194)
Kyle Olson (ECEJ x6002)
Barbara Conklin (OPRA x6619)
Cindy Beeler (ECEJ x6204)
John Brink (OPRA x6498)
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U.S. Environmental Protection Agency
Employment Civil Rights Training
Purpose and Objectives
The purpose of this training is to provide employees with a basic
understanding of EEO laws and regulations, harassment and disability law as
well as their responsibilities with respect to EEO.
At the completion of this course, participants will be able to:
1. Describe the basics of EEO law and theories of discrimination;
2. Describe EEOC's regulations at 29 C.F.R. 1614 and the federal
sector EEO process.
3. Understand their rights and responsibilities to prevent
harassment.
4. Understand their rights under the Rehabilitation Act.
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U.S. Environmental Protection Agency Employment Civil Rights Training
EEO Training
for EPA Employees
AGENDA
8:30 - 8:45 a.m. Welcome, Introduction, Logistics
8:45 - 9:00 a.m. Office of Civil Rights Program Responsibilities
9:00 - 10:15 a.m. Overview of EEO Laws
10:15 - 10:30 a.m. Break
10:30 - 11:15 a.m. Overview of the Federal EEO Complaint Process
11:15 - 12:00 p.m. Understanding the Rehabilitation Act
12:00 - 1:00 p.m. Lunch
1:00 - 1:30 p.m. Understanding the Rehabilitation Act continued
1:30 - 2:30 p.m. EPA's Reasonable Accommodation Procedures (EPA)
(NRAC or LORAC)
2:30 - 2:45 p.m. Break
2:45- 4:15 p.m. Understanding Workplace Harassment
4:15- 4:30 p.m. Wrap-up & Evaluations
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U.S. Environmental Protection Agency Employment Civil Rights Training
TABLE OF CONTENTS
Tab Page
A. Office of Civil Rights 9
B. Overview of EEO Laws 19
C. Overview of Federal EEO Complaint Process 59
D. Understanding the Rehabilitation Act 121
E. EPA Reasonable Accommodation Policy Statement 155
F. Test Your Workplace Harassment IQ Quiz 161
G. Identifying, Eliminating and Preventing Harassment 163
H. Appendix: Additional Resources 197
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U.S. Environmental Protection Agency Employment Civil Rights Training
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Mass Mailer
06/15/2007 10:59 AM
To All EPA Employees
cc
bcc
Subject Equal Employment Opportunity Policy
Visit the Agency's Intranet for More Information
EPA@Work
All Hands Email-Archive
********************************************************
This message is being sent to all EPA Employees.
Please do not renlv to this mass mailing.
*******************************************************
MEMORANDUM
SUBJECT: Equal Employment Opportunity Policy
FROM: Administrator Stephen L. Johnson
TO: All EPA Employees
As you know, one of the highest priorities of my administration is to leave behind a stronger EPA,
fully prepared to meet the environmental challenges of the 21st Century. In order to improve our
capabilities, we must ensure fairness, diversity and equal opportunity remain integral components
of our operating procedures. Therefore, it is useful to periodically assess and renew our
commitment to providing an open, inclusive workplace for all employees and applicants.
EPA is dedicated to ensuring every employee continues to enjoy the right to employment in a
workplace free from discrimination. To read EPA's Equal Employment Opportunity Policy,
please go to: http://www.epa.qov/civilriqhts/eeopolicv07.htm or on the intranet at:
htto://intranet.epa.aov/ocrpaQe2/eaual emp cp eeopolicv07.htm
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2007 Equal Employment Opportunity Policy | Civil Rights | US EPA
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You are here: EPA Home Civil Rights Employment Complaints Resolution Staff 2007 Equal
Employment Opportunity Policy
2007 Equal Employment Opportunity
Policy
Under the Civil Rights Act of 1964, as amended, other civil rights legislation, and Executive
Orders, it is the policy of the Government of the United States to provide equal opportunity
in Federal employment for all persons. As a federal agency, it is the policy of the EPA to
prohibit discrimination in employment based on race, color, national origin, religion, sex,
age, disability, sexual orientation, marital status, or parental status. Further, it is the policy
of this Agency to provide equal employment opportunity to all persons; and to promote the
full realization of equal employment opportunity through a continuing affirmative
employment program.
To assist in translating this commitment into meaningful action, each Assistant/Associate
Administrator and Regional Administrator will hold managers, supervisors, and other
employees within their management purview, accountable in ensuring that EPA customers
and employees are treated fairly and equitably. Further, I expect every EPA employee to
comport his/herself in a manner that clearly demonstrates their understanding of these
principles and in compliance with all policies that prohibit all forms of discrimination in the
workplace. Accountability shall be evidenced by:
* a general requirement for senior managers to establish sound management and
personnel practices.
* a requirement to, as appropriate, engage in alternative dispute resolution (ADR) to
resolve issues quickly; and
* an EEO, fairness, and diversity performance standard in effect for all managers at
the SES level with an annual review of performance in this area, by appropriate
reviewing Board(s).
Discrimination and harassment undermine the integrity of the employment relationship,
compromise equal employment opportunity, and significantly interfere with the effective
accomplishment of the mission of the Agency. EPA's policy against discrimination and
harassment is applicable to all employment practices, including recruitment, selection,
hiring, promotions, detail assignments, transfers, terminations, career development and
training, performance evaluations, awards, and working conditions. With your continued
support and commitment to equal employment opportunity, we will continue our work
towards a discrimination and harassment free work environment.
Issued: June 14, 2007
Civil Rights | Recent Additions | Contact Us
http://www.epa.gov/civilrights/eeopolicy07.htm
9/12/2007
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U.S. Environmental Protection Agency Employment Civil Rights Training
Environmental
Protection Agency
OFFICE OF CIVIL RIGHTS
(OCR)
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U.S. Environmental Protection Agency
Employment Civil Rights Training
The Office of Civil Rights
EPA's Office of Civil Rights (OCR) in the Office of the Administrator
(AO) provides leadership, direction, and guidance in carrying out the
Agency's equal employment programs. OCR provides policy and technical
assistance to EPA's Headquarters offices, Regional offices, and Laboratories
located throughout the country in carrying out their responsibilities related
to civil rights and in complying with Equal Employment Opportunity (EEO)
laws and regulations. OCR is also responsible for ensuring that employees
and applicants for employment are not subjected to discrimination under any
program or activity funded by the Agency.
The Program is managed by the Director of OCR, who is the principle
advisor to the Administrator. The Director manages a full time staff and a
large cadre of collateral-duty employees who serve as EEO Counselors and
Committee members for Special Emphasis Programs (SEP) and Diversity
Programs.
OCR Program areas of responsibility are Affirmative Employment and
Diversity, External Compliance and Complaints, Employment Complaints
Resolution, and Reasonable Accommodation.
Affirmative Employment and Diversity (AE&D)
Program
The Affirmative Employment and Diversity (AE&D) Staff is responsible
for providing the leadership, direction and advice to managers and
supervisors in the execution of their equal opportunity and civil rights
responsibilities. AE&D Staff manage and oversee the Agency's (Affirmative
Employment) Special Emphasis and Diversity Programs. The National
Special Emphasis and Diversity Program provide oversight and technical
assistance to Headquarters Program Offices, Regional Offices and
Laboratories in the implementation of the Agency's Affirmative Employment
Program plan in accordance with MD-715. This staff also manages all
statistical data as related to EPA workforce diversity and the evaluation of
workforce statistics.
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U.S. Environmental Protection Agency
Employment Civil Rights Training
External Complaints and Compliance Program
(Title VI)
The External Complaints and Compliance Program staff (Title VI team)
initiate appropriate compliance measures to ensure that "recipients" of EPA
financial assistance (Recipient(s) is defined, for the purposes of this
regulation, as: "any state, any public or private agency, institution,
organization, or other entity, or any person to which Federal financial
assistance is extended directly or through another recipient, including any
successor, assignee, or transferee of a recipient, but excluding the ultimate
beneficiary of the assistance") and others comply with the relevant non-
discrimination requirements under federal law. When a complaint of
discrimination is filed with EPA alleging a violation of Title VI of the Civil
Rights Act of 1964. or one several other non-discrimination statutes, the
ECCP team investigates such complaints. This team also conducts
assessments of entities receiving financial assistance within the Agency'
grants award process. The Title VI team is also responsible for
implementation of the Agency's policies with respect to 'limited English
proficiency (LEP).
Employment Complaints Resolution Program
(TITLE VII)
Employees or applicants who believe that they have been
discriminated against by a federal agencyjhave the right to file a complaint.
The first step is to make contact with antfb Gotmseter. The individual may
choose to participate in either counseling, or in the Alternate Dispute
Resolution (ADR) process. At the end of counseling, or if ADR is
unsuccessful, the individual may then file a complaint with the agency.
The agency must conduct an investigation of the complaint. Once the
agency finishes its investigation the complainant may request a hearing
before an EEOC administrative judge or an immediate final decision from the
agency.
In cases where a hearing is requested, the administrative judge issues
a decision within 180 days and send the decision to both parties.
The Employment Complaints Resolution Team is responsible for providing a
process for the timely and effective re-dress of all allegations of
discrimination. This team conducts EEO counseling for all HQ employees and
processes all formal complaints of discrimination for the Agency. They
coordinate EEO counseling through a cadre of collateral duty EEO counselors
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U.S. Environmental Protection Agency
Employment Civil Rights Training
and/ or utilization of the ADR process. They process all EEO investigations;
conduct training to all Agency employees on EEO and Civil Rights; provide
guidance and assistance to all employees on the EEO process; develop,
implement, and manage EEO and EEO related policies and procedures for
the Agency.
Area Directors for the Office of Civil Rights
The Office of Civil Rights (OCR), at the Cincinnati (CINCY) Laboratory
and the Research Triangle Park (RTP) Laboratory are satellite offices of the
Headquarters Office of Civil Rights. They each serve as the principle advisor
to the program offices geographically located at each laboratory site with
respect to the development and implementation of their Equal Employment
Opportunity and Civil Rights Programs.
To ensure compliance with Agency EEO/Civil Rights policy and EEOC
regulation(s) and guidelines, the Area Directors provide technical advice and
guidance in the development and implementation of Civil Rights programs.
The Area Directors and their staff work to ensure that all EPA-Laboratory
employees and applicants for employment are afforded equal employment
and career advancement opportunities without regard to non-merit factors
such as race, religion, color, sex, age, disability, national origin, reprisal,
sexual orientation, or parental status.
Reasonable Accommodation Program
The agency-wide coordination of EPA's Reasonable Accommodation
Program is the responsibility of OCR's National Reasonable Accommodation
Coordinator (NRAC). The NRAC provides guidance, recommendations and
training to the Local Reasonable Accommodation Coordinators (LORAC), as
well as managers, supervisors, and employees on EPA's reasonable
accommodation policy and procedures.
There are Local Reasonable Accommodation Coordinators within the
ten regions and Research Triangle Park (RTP), Las Vegas and Cincinnati labs
to assist with the implementation within these areas.
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U.S. Environmental Protection Agency Employment Civil Rights Training
Reasonable Accommodation Coordinators
¦ National Reasonable Accommodation Coordinator (NRAC)
William "Bill" Haig, Headquarters Office of Civil Rights
(202) 564-7959
¦ Local Reasonable Accommodation Coordinator (LORAC) (contact Bill
Haig or Regional EEO Office to obtain listing of LORACs)
¦ http://intranet.epa.aov/civilriQhts/reasonableaccommodation.htm
EPA's Reasonable Accommodation Procedures
EPA has two procedures for requesting reasonable accommodation.
One covers American Federation of Government Employees (AFGE)
Bargaining Unit members and one covers all other employees.
Under the AFGE Procedures the Reasonable Accommodation
Coordinator (NRAC), requests, receives and reviews medical documentation,
when necessary, for the purpose of determining if the individual is a person
with a disability. This determination is provided to the employee and
decision maker (supervisor) with recommendations and guidance on what
the next step is in the process.
Under the non-AFGE Procedures, the employee must authorize in
writing, either the NRAC or the decision maker to request, receive and
review medical documentation for the purpose of determining if the
individual is a person with a disability. In both situations, all medical
documents must be maintained in a confidential manner and shall be
forwarded to the NRAC for the purpose of maintaining medical records and
files on all reasonable accommodation requests.
The supervisory chain of command is the employee's immediate
supervisor or another in the employee's immediate chain of command, who
may receive the employee's request for reasonable accommodation. The
reasonable accommodation decision maker is the identified EPA official who
determines whether to approve or deny the request. In many cases, the
supervisor is the decision maker.
Regardless of the procedure utilized, an oral or written request for
reasonable accommodation must be processed soon after it is submitted.
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U.S. Environmental Protection Agency Employment Civil Rights Training
The request must be submitted to someone in the employee's
supervisory chain of command, the NRAC or LORAC. A decision on the
request must be made within 25 business days, and it is required when a
decision regarding the individual's request is made, that the applicant or
employee be informed in writing. The denial of reasonable accommodation
must include the specific reason why the request was denied and inform the
person of their rights to appeal as well as other available avenues of redress.
Standard language regarding this notification is included in the Agency's
Reasonable Accommodation Procedures.
For additional information on Reasonable Accommodation procedures
or to obtain the name of the LORAC in your region, contact Bill Haig, at
haia.william@eDa.aov. the local Regional EEO Office, or visit OCR's web site
at:
http://intranet.epa.gov/civilrights/reasonableaccommodation.htm.
AREA DIRECTORS AND EEO OFFICERS
Regional EEO Officers and Area Directors manage the informal EEO
counseling process within the Regions and Area Offices. EEO Officers and
Area Directors manage and provide guidance to EEO counselors, and
provide leadership, direction and advice with respect to affirmative
employment and proactive measures to achieving a respectful and inclusive
work environment for all EPA employees. In addition, the EEO Officers and
Area Directors manage the region's ADR program, and review settlement
agreements for compliance.
Appointment of Collateral-Duty Special Emphasis and
Diversity Program Managers (SE&D PMs)
An employee may volunteer, or be selected by management, to serve
as a collateral-duty SE&D PM. Nominees for collateral-duty SE&D PMs must
be approved by their supervisor or management chain and then forwarded
to the OCR, Regional EEO Officer or Area Director, to officially be appointed.
With approximately 20% of their official duty time allotted for these
activities, an SE&D PM may carry out the responsibility or their EEO duties
normally for a period of two years.
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U.S. Environmental Protection Agency
Employment Civil Rights Training
SE&D PMs are generally appointed for a minimum of two years.
However, in order to allow for program continuity a longer term may be
considered based on a number of factors, such as the employee's
performance and ability to work well with others within the workforce.
Supervisors must approve the employee's appointment, and the supervisor
must adhere to the conditions of the collateral-duty assignment.
Supervisors must ensure that SE&D PMs have the time necessary to carry
out their EEO responsibilities, including receiving annual training. In order
to avoid conflicts, a Memorandum of Understanding (MOU) should be signed
by the employee, their supervisor or designee and the EEO Officer, Area
Director or PMO, to ensure that all parties understand the duties and
responsibilities involved.
Collateral-Duty EEO Counselors
EPA utilizes collateral-duty EEO Counselors. The OCR recruits and
after supervisory concurrence, appoints an employee as a collateral-duty
EEO Counselor.
Employees interested in becoming collateral-duty EEO Counselors
must apply for the position with the OCR. All applicants must advise their
supervisor of their interest, and supervisory concurrence is required given
that this function is as a collateral-duty appointment. Selected and their
supervisors will be notified by letter regarding their appointment. Each new
counselor will be required to take the Basic EEO Counselor Training Course
(32 hours) prior to assuming EEO Counselor responsibilities. In addition to
the Basic 32-hour Training, EEO Counselors are required to receive annual
8-hours update training. The EEO Counselor's Office of record will bear the
cost of the training. The EEO Counselor duties are 20% of their overall
duties and responsibilities.
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U.S. Environmental Protection Agency
Employment Civil Rights Training
Initiating the EEO Counseling Process
Initiation of the EEO discrimination complaint process begins with the
EEO Counseling process. To initiate EEO Counseling Employees must first
contact the OCR, or their local EEO Office for assignment of an EEO
Counselor. The EEO Counseling request must be filed with the EEO Office
within 45 calendar days of the alleged discriminatory incident that gave rise
to the allegation; or within 45 calendar days of the effective date of the
personnel action, or when the employee or applicant knew, or reasonably
should have know of the event or personnel action. Counseling should be
completed within 30 calendar days of initial contact with EEO Office
personnel.
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REGION EEO OFFICERS I AREA DIRECTORS
Region 1
Region II
Region in
Region IV
Region V
Wells, Sharon
Johnson, Mavis
Burrows, Cynthia
Bailay, Rhonda
Spearman, Levester
Acting Director
EEO Officer
EEO Officer
EEO Officer
Director
(919)541-4249
(212) 637-3339
(215)614-5326
(404) 562-9442
(312) 886-3544
States
States
States
States
States
Connecticut
New Jersey
Delaware
Alabama
Illinois
Maine
New York
District of Columbia
Florida
Indiana
Massachusetts
Puerto Rico | Maryland
Georgia
Michigan
New Hampshire
Virgin Islands
Pennsylvania
Kentucky
Minnesota
Rhode Island
Virginia
Mississippi
Ohio
Vermont
West Virginia
North Carolina
Wisconsin
South Carolina
I
Region VI
Region VII
Region VIII
Region IX
Region X
Roblez, Nellie
Vacant
Fusco, Sandra
Coyle, Bridget
Plata, Victoria
EEO Officer
EEO Director
EEO Officer
Diretor
EEO Officer
(214) 665-6505
(303) 312-6713
(415) 947-4286
(206)553-8580
States
States
States
States
States
Arkansas
Kansas
Colorado
Arizona
Alaska
Louisiana
Missouri
Montana
California
Idaho
New Mexico
Nebraska
North Dakota
Hawaii
Oregon
Oklahma
South Dakota
Nevada
Washington
Texas
Utah
American Samoa
Wymoming
Guam
AO/OCR
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ORGANIZATION CHART
OFFICE OF CIVIL RIGHTS
NORWOOD, Dennis
PAIGE. Carolyn
RESEARCH TRIANGLE PARK LAB
Area Director
Equal Employment Specilist
WIGGINS, Milion
GILLIAM, Sheila
CINCINNATI LAB
Area Director
Equal Employment Specisalist.
YORKER, Yasmin
BURWELLI, Erika
HALL, Loren
NAPOLI, Anthony
RANDOLPH, Karen
VALENTINE. CRYSTAL
WALKER. Thomas
WOODEN-AGUILAR, Helen
EXTERNAL COMPLIANCE STAFF
Assistant Director
Case Manager
Senior Case Manager
Case Manager
Case Manager
Case Manager
Case Manager
Senior Case Manager
HIGG1NBOTHAM, KAREN D. DIRECTOR
SCHISLER, GORDON
HAIG, William "Bill"
DOUGLAS, Dominga
MCCOY, Stephanie
DEPUTY DIRECTOR
National Reasonable Accommodations Coordinator
Contract Liaison Specialist
Management Assistant
IMMEDIATE OFFICE
BALLARD, Ron
ABELL, Carmen
DURR, Tracey
GLADDEN, Gloria
MALLORY, Wendy
MCCAIN. Bassie
TWYMAN, Natalie
WH1TLOCK, Renee
EMPLOYMENT COMPLAINTS RESOLUTION STAFF
Assistant Director
Equal Employment Specialist
Equal Employment Specialist
Equal Employment Specialist
ADR Specialist
Equal Employment Specialist
Equal Employment Specialist
Equal Employment Specialist
MORRIS, Susan
BAIG, Mirza
EMANUEL. Christopher
HUBBARD. Secody
KING, Jerome
TURNER. June
WILLAIMS. Cleveland
WRIGHT, Alease
AFFIRMATIVE EMPLOYMENT AND DIVERSITY STAFF
Assistant Director
Program Analyst
Equal Emloyment Manager (DEP)
Equal Emloyment Manager (AIEP)
Diversity Programs Manager (DPM)
Equal Emloyment Manager (APIEP)
Equal Employment Manager (BEP)
Equal Employment Manager (FWP)
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Overview of the EEO Laws
Identifying Discrimination
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Laws Enforced by the
EEOC
Title VII of the Civil Rights Act of
1964 (Title VII)
The Age Discrimination in
Employment Act of 1967 (ADEA)
The Rehabilitation Act of 1973
The Equal Pay Act of 1963
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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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The Rehabilitation Act
Prohibits discrimination on the
basis of disability.
Prohibits discrimination on the
basis of being associated with
someone with a disability.
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The Equal Pay Act
Focuses on sex discrimination in
wages.
Violation established if it is shown
that unequal wages are paid to
individuals doing substantially
equal work under similar
conditions for the same agency.
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Elements of a Case
Three basic elements of a
complaint of discrimination are:
~ BASIS
~ 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.
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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.
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Proving Discrimination
Disparate Treatment
Disparate Impact
Harassment
Reasonable Accommodation
(Religion and Disability only)
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Disparate Treatment
Where a complainant alleges that
the agency treated another
individual better than it treated
him/her or otherwise treated
him/her differently because of that
individual's membership in a
protected group.
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Three-Part Process
The three-part process in a disparate treatment
case involving circumstantial evidence:
1.Complainant presents a basis (prima
facie) case:
A. Basis(es) - such as race, sex
B. Adverse action occurred
C. A connection between the two
2.Agency articulates reason for action.
3.Complainant shows agency's explanation
is not true and is a pretext for
discrimination.
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Scenario #3
A manager interviews Andrew, a 55-year
old, 30 year federal employee for a
computer systems manager position.
During the interview, the manager makes
the comment: "Computers, especially now,
are a young individual's game. There's so
many new things going on, it's hard to
keep up." Andrew does not get the job,
and a 26-year old woman is hired.
"jfcx
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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, except in ADEA
cases, where the agency must show the
policy or practice was based on reasonable
factors other than age (RFOA).
The complainant may rebut business
necessity by showing other means
available to achieve the same objective
with less discriminatory impact.
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Scenario #4
As an area around the facility became
increasingly populated with recent
immigrants, the manager decided to
implement a grammar test for
applicants to all positions. Miguel
applied for a groundskeeper position,
took and failed the grammar test, and
was denied a position.
On what basis might Miguel allege discrimination?
How would he go about proving it?
-T a .
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Religion
and Reasonable
Accommodation
Under Title VII, an agency has a duty of
reasonable accommodation for sincerely held
religious beliefs and practices unless to do so
would cause an undue hardship.
In terms of religious accommodation, undue
hardship can mean 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 Elaine's request
be okay?
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Retaliation
Title VII, ADEA, EPA and the Rehabilitation Act
prohibit retaliation because an individual has
engaged in a protected activity.
Protected activity is defined as:
a. Opposing a practice made unlawful by one of
the statutes; or
b. Participating in any manner in an
investigation, hearing or proceeding under the
applicable statute.
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DESK REFERENCE GUIDE
I. History of 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.
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
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regulations also required agencies to both correct discriminatory practices
and to develop affirmative action programs.
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
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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.
The U.S. Supreme Court continues to interpret and define Title VII. A
few of the more notable decisions include:
~ McDonnell Douglas v. Green - Supreme Court defined and explained
the order and proof necessary for an employment discrimination case.
~ New York Gaslight Club, Inc. v. Carey - Supreme Court held that
federal employees and applicants could recover attorney's fees for time
spent in the administrative process.
~ Meritor Savings Bank v. Vinson - Supreme Court held that unwelcome
sexual conduct that constitutes sexual harassment constitutes a violation of
Title VII.
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,
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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.
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.
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.
11. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e.
A. Prohibits employment discrimination on the bases of race, color,
national origin, religion, and sex.
B. Prohibited discrimination includes harassment on all bases.
C. Agencies may be required to reasonably accommodate an individual
based on the needs of that individual's religion.
D. There is a limited "bona fide occupational qualification" (BFOQ)
exception applicable to religion, national origin, and sex.
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E. Prohibits retaliation for participating in the EEO process and for
opposing employment discrimination.
III. Defining Discrimination: Discrimination vs. Illegal
Discrimination.
A. Making choices deciding between or among options
B. 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.
C. In addition to an overt action, such as making choices between or
among options, a complainant may be the victim of an agency policy that
has an effect on a specific group of employees that is more severe than on
another group of employees.
D. Nexus
1. There must be a connection between the agency's use of the protected
basis and the adverse action.
2. In essence, a complainant must allege that because s/he is, for
example, black or female or Hispanic (etc.), the agency did something that
adversely affected him/her.
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E. Aggrieved
1. In addition, the complainant must allege injury. That is, the
complainant must allege that because of the agency's action, s/he suffered a
loss to a term, condition, or privilege of employment.
2. Bear in mind, federal non-discrimination law is not intended to address
all of the petty annoyances and slights that one may suffer in the work
place. These laws are not "general civility statutes."
IV. The Bases of Discrimination under Title VII
A. Race and Color
1. Race refers to an individual's racial origins in Africa, Asia, Europe and
elsewhere in the world. Color generally refers to the color of an individual's
skin.
2. Whether someone belongs to this protected basis is rarely an issue,
but a part of all discrimination cases is whether the individual alleged to
have engaged in discriminatory conduct was aware of the complainant's
race/color.
3. Be aware of "race-linked" characteristics - e.g., a "no-beard" policy
may be discriminatory where it adversely affects black males because of the
significant number of black males that are affected by the facial condition
(pseudo folliculi barbae) caused by shaving.
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4. Also, be aware of "race-plus" discrimination: Where an agency may
discriminate, for example, against black males while not discriminating
against black females or white males.
5. The BFOQ defense does not apply to race or color discrimination.
(BFOQ is discussed under sex discrimination, below.)
B. Sex
1. The term "sex" refers to gender. Title VII protects both women and
men from discrimination.
2. Federal EEO law does not prohibit discrimination on the basis of sexual
orientation. However, the federal Civil Service Reform Act of 1978, 5 U.S.C.
§ 2302(b)(10), prohibits any employee who has authority to take personnel
actions from discriminating for or against an employee or applicant for
employment on the basis of conduct that does not adversely affect either the
employee's own job performance or the performance of others. Additionally,
a separate Federal Executive Order, E.O. 13087 (May 28, 1998), amending
E.O. 11478, prohibits discrimination on the basis of sexual orientation.
Federal agencies thus may not discriminate on this basis, but each agency
may establish its own enforcement mechanism. The EEO process set forth
at 29 C.F.R. Part 1614 does not apply.
2. Title VII prohibits "sex-plus" discrimination. For example, refusing to
hire women but not men with school-age children; discriminating against
older women but not older men or younger women.
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4. Women are protected from discrimination based on pregnancy
(through the Pregnancy Discrimination Act, which amended Title VII).
5. An agency cannot refuse to hire a woman or take any other adverse
action against its female employees because they are pregnant or could
become pregnant.
6. Blanket policies dictating when a woman becomes unable to work
while pregnant generally are unlawful.
7. Generally, women are entitled to take leave for pregnancy/child
bearing and for pregnancy-related conditions.
8. "Fetal" protection policies that exclude women from certain jobs based
on fertility violate Title VII's ban on sex discrimination.
9. In a very limited number of instances, an agency may hire employees
based on gender if it is in the privacy interests of the agency's
clients/customers, for example, positions in hospitals and prisons (a bona
fide occupational qualification (BFOQ) exception to the usual rule of no
discrimination).
10. Title VII has been interpreted as barring harassment, both "sexual"
and otherwise.
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C. National Origin
1. National origin refers to the country of one's birth; the country of one's
ancestors, or the physical, linguistic, or cultural characteristics of a particular
nationality.
2. Issues attendant to language-a national origin-linked characteristic-
may give rise to allegations of national origin discrimination.
3. English-only rules are suspect, but have been upheld where they are
carefully tailored to the agency's legitimate business needs. The EEOC
would find a total ban in an employee's right to speak a foreign language,
even on breaks or at lunch, a violation of Title VII.
4. Accents connected to national origin and fluency in English also may
give rise to discrimination concerns.
5. Other linked characteristics have included height and weight
requirements, where a class of individuals definable by national origin may
be smaller or lighter than the requirements. However, where an agency
imposes the requirement for national security reasons, the EEOC will not
question the agency's use of the requirement, but the Commission may
examine whether an agency has applied it in a nondiscriminatory manner.
6. The bona fide occupational qualification (BFOQ) defense applies to
national origin. For example, an agency may seek to employ a Community
Outreach Police Officer of Hispanic origin in a predominately-Hispanic
community.
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D. Religion
1. Title VII prohibits discrimination based on an individual's religious
beliefs and practices.
2. It is the individual's sincere view of these beliefs and practices as
"religious" that is important, and not whether they comport to standard
notions of religion or to the norms associated with the established religions.
3. Religion is often a hidden basis-only after an individual draws
attention to his/her religion may the agency become aware of it. Generally,
this happens because the individual seeks an accommodation of some sort
from the agency.
4. Unlike the other protected groups under Title VII, religion includes an
affirmative requirement on the part of the agency: the duty of reasonable
accommodation.
5. An agency has a duty to reasonably accommodate the sincerely held
religious beliefs and practices of an employee where the employee informs
the agency of his/her belief and the needs of the belief/practices.
6. As a general rule, the reasonable accommodation requirement arises
most often in cases where an individual is seeking time off for religious
observances.
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7. Agencies have an affirmative duty to consider whether to
accommodate employees and either make an effort to do so or be prepared
to defend a decision not to do anything.
8. The agency does not have to provide an accommodation, if it can show
that the accommodation would constitute an undue hardship. The agency
must show that the accommodation requires significant cost or produces
other non-cost factors, such as office disruption. Courts apply a "de
minimus" (minimal impact on agency's business) standard when determining
whether a religious accommodation creates an undue hardship.
9. Please note that the standards for religious reasonable accommodation
and undue hardship differ from the standards for disability reasonable
accommodation and undue hardship.
Retaliation
10. Retaliation is taking an employment action against someone because
s/he has asserted rights under Title VII.
11. 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.
12. Retaliation also may occur where the agency takes an employment
action against someone who has participated or is participating in the EEO
process.
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V. PROVING DISCRIMINATION
A. Disparate Treatment
1. The complainant alleges that the agency treated him/her differently.
2. The complainant further contends that the reason that the agency
treated him/her differently is because of his/her membership in a protected
group.
3. 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.
4. The complainant may allege that a supervisor gave him a bad
performance appraisal because of his national origin.
5. Discrimination may be proved through the use of direct or
circumstantial evidence.
B. Direct Evidence
1. "Smoking gun" evidence; or evidence which on its face proves bias
against a group or an individual.
2. 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.
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C. Circumstantial Evidence
1. This is evidence that is suggestive of discrimination.
2. The likelihood of finding direct evidence of discrimination usually is
quite remote. Most cases involve allegations of discrimination based on
circumstantial evidence.
3. 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.
D. Proof of Discrimination through Use of Circumstantial Evidence
1. 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):
2. Complainant must initially establish a prima facie case of
discrimination by showing:
~ That s/he belongs to a statutorily protected group;
~ That an adverse employment action occurred; and
~ Some connection between the two (i.e., in a selection case, that
although complainant was qualified for the position an individual of
another protected group was selected).
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3. Establishing these elements, if unrebutted, creates an inference that
the agency's actions resulted from discrimination.
4. The agency may then rebut the initial inference of discrimination by
providing a legitimate, nondiscriminatory reason for its actions.
5. 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
1. Definition of Disparate Impact
a. 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.
b. 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.
c. 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 custodial positions - a percentage of blacks that was much higher
than the percentage of whites.
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2. Burden of Proof
a. 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.
3. Business Necessity
a. 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.
b. 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.
VI. OTHER FORMS OF DI SCR IMI NAT I ON
Failing to Provide Reasonable Accommodation
A. An agency may be liable for failing to provide a reasonable
accommodation for the employee due to their religion or disability.
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Retaliation
A. Federal management officials serve as role models for subordinate
employees 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 set the foundation for a
healthy and open work environment.
B. 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.
C. 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.
D. Treatment that is reasonably likely to deter protected EEO activity is
unlawful.
E. 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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F. 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.
G. Examples of post-employment retaliation include actions that are
designed to interfere with the individual's prospect for employment, such as
unjustified negative job reference, refusing to provide a job reference, and
informing a prospective employer about the individual's protected activity.
H. 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., RIF, terminations, suspensions) 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.
I. 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.
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Protected Activity: Participation
A. 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.
B. This protection applies to individuals who testify or otherwise
participate in such proceedings.
C. In the federal sector, once someone initiates contact with an EEO
Counselor, s/he is engaging in participation.
D. Participation in a failed EEO complaint is nevertheless considered
protected activity.
E. 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.
F. 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.
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G An individual is protected against retaliation for participating in
employment discrimination proceedings even if those proceedings involved
an entirely different agency.
H. 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.
I. The practices challenged in prior or pending statutory proceedings
need not have been engaged in by the named responsible management
official.
Protected Activity: Opposition
A. 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.
B. Examples of Opposition include:
1. Complaining to any management official about alleged discrimination
against oneself or others;
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b. Signing a petition to be presented to the administration about a
1 perceived discriminatory practice at the agency; or
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c. Requesting reasonable accommodation for a disability or
religious accommodation.
2. 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.
3. 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.
4. It is well settled that a violation of the retaliation provision can be
found whether or not the challenged practice ultimately is found to be
unlawful.
C. 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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4. 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.
5. 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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Notes: Understanding the Federal EEO Laws
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Overview of the Federal
EEO Complaint Process
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EEO Counseling
An individual has 45 calendar
days from date of alleged
discriminatory event to contact an
EEO counselor.
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Traditional EEO Counseling
30 calendar 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.
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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.
I
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ADR Programs
Agencies free to determine when to
offer ADR.
Agencies may not preclude from ADR
entire bases (e.g., race, sex...).
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Formal Complaint
Must be filed within 15 calendar days of Notice
of Final Interview.
Must be signed by complainant or his/her
attorney.
Must be sufficiently precise to identify the
complainant 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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INVESTIGATIONS
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 the investigative report with notice of right to
request either a hearing before an EEOC
Administrative Judge or a final decision by the
agency,
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Investigations
Neither complainants nor management
officials may fail to cooperate during an
investigation without good cause.
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If Cooperation is Withheld
If Cooperation is not given, the
decision maker or the Commission
may:
> Draw an adverse inference against the
party failing to cooperate
> Exclude other evidence offered by party
failing to cooperate
>lssue a decision fully or partially in favor
of other party
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During the Hearing Process
Administrative Judge (AJ) assumes
full responsibility for complaint.
AJ presides over any
supplementation of complaint file.
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During the Hearing Process
An AJ may dismiss complaints on
his/her own initiative, after notice, or
upon agency's motion to dismiss.
The agency's authority to dismiss
complaint ends once hearing
requested.
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AJ Decisions
AJ will issue decision after hearing or on
summary judgment.
Agency has 40 calendar days to issue final
order, which either:
~implements the AJ decision; or
~does not implement the AJ decision and
the agency appeals to EEOC.
AJ decision becomes agency final action if
agency does not issue final order within 40
calendar days.
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Types of Relief
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 calendar days of receipt of either
agency dismissal or final action.
Agency must appeal within 40
calendar days of receipt of decision if
not fully implementing AJ decision.
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Civil Actions
Within 90 calendar days of receipt of
final decision of agency or on appeal
decision from EEOC.
After 180 calendar days of the filing of
formal complaint if no decision has
been issued.
After 180 calendar days of 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
EEOC requests for information when:
/Complainant is an agency employee or
/Complainant's representative is an
agency employee.
Official time shall also be granted for
presence at the investigation of and 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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Mixed Cases
Identifying a Mixed Case:
- Complainant must have standing.
- The claim(s) must be the kind of claim(s) the
MSPB will recognize.
-The claim must contain an allegation of
discrimination under one of the governing
EEO statutes.
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Mixed Cases
Complainant must ELECT to either:
- File mixed case appeal before MSPB; or
File mixed case (EEO) complaint.
How a claim proceeds depends on which
election is made.
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Mixed Cases
Whichever action filed first is considered
an ELECTION to file in that forum (MSPB
or EEOC).
- Seeking counseling is NOT an election (only
filing a formal complaint).
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1
Mixed Cases
Mixed Case Complaint: (£6*0
- Shorter investigation time.
- No right to hearing before EEOC Administrative
Judge.
- Appeal to MSPB (not EEOC).
Mixed Case Appeal fepfl)
- Processed by MSPB, with hearing by MSPB
Administrative Judge.
- Must include claim(s) of discrimination.
- MSPB decision reviewable by EEOC.
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Grievances
Where:
An Agency has Collective Bargaining
Agreement (CBA) which covers complainant;
and
CBA permits discrimination claims to be
raised.
Complainant must ELECT between:
Filing a grievance under the CBA; or
Filing an EEO complaint.
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Grievances
Whichever action filed first is considered
an ELECTION to file in that forum
(Grievance or EEO process).
- Seeking counseling is not an election (only
filing formal complaint or grievance).
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Grievances
If individual filed grievance first, then EEO
counselor should tell the individual:
- His/her complaint may be dismissed, and
- S/he should raise his/her claim(s) of
discrimination during the grievance process.
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Grievances
Exception: For agencies not covered by
5 U.SC. Section 7121, individuals may file
both a grievance and a formal complaint
(no election is required).
Examples: USPS and TVA.
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ADEA Complaints
An individual may file an age
discrimination complaint either:
In court, or
In the administrative EEO process.
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ADEA Complaints
If an individual files a complaint in the
administrative EEO process:
- S/he must exhaust administrative EEO
process before filing in court.
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ADEA Complaints
If an individual chooses to bypass the
administrative process and file a civil
action in court:
S/he must provide the EEOC with a minimum
of 30 days written notice of intent to sue.
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(EPA/Complaints
An individual may file an Equal Pay Act
complaint either:
- In court, or
- In the administrative EEO process.
No notice to EEOC required to file a civil
action in Federal Court.
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Class Actions
A complaint alleging that an agency policy
or practice discriminates against a class of
protected individuals.
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DESK REFERENCE GUIDE
An Overview of the Federal Sector Process
29 C.F.R. Part 1614 and EEOC Management Directive 110
INITIATING THE EEO COMPLAINT PROCESS
I Timeliness of Complaint
A potential federal sector complainant must begin the EEO process within 45
calendar days of the date of the event or incident giving rise to their claims.
II EEO Counseling
A. An individual begins the process by contacting an EEO counselor.
B. 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 that 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.
C. 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.
D. Traditional counseling. If traditional counseling is chosen, the EEO
counselor has 30 calendar days within which to complete counseling
activities. These activities include:
1. Advising the individual of his/her rights and responsibilities in the
process and the procedures for filing a complaint;
2. Determining the legal claim (bases and issues) being raised in the
potential complaint;
3. Conducting a limited inquiry for settlement and jurisdiction
purposes;
4. Seeking resolution of the matter at the lowest possible level;
5. Documenting the resolution or advising the aggrieved individual of
his/her right to file a formal EEO complaint; and
6. Preparing a report that indicates that the EEO counselor properly
engaged in and completed the counseling process.
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E. At the conclusion of the 30-day EEO counseling process (which may be
extended to no more than 90 calendar days with the aggrieved individual's
agreement), the EEO counselor issues a notice of final interview.
1. The notice advises the complainant that s/he has 15 calendar days
from receipt of the notice to file a formal EEO complaint.
2. The notice also advises the complainant as to where to file the
complaint.
F. Some agencies provide complainants with an agency-designed formal
EEO complaint form, which the complainant should use, but may not be
compelled to do so.
G. 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.
1. Agencies have 90 calendar days to conduct ADR during the pre-
complaint process.
2. If the ADR attempt succeeds in resolving the claim, the agency
must notify the EEO counselor that the claim was resolved.
3. If the ADR process does not result in resolution of the dispute, the
EEO counselor will issue a notice of final interview advising 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.
THE FORMAL COMPLAINT
I Filing the Formal Complaint
A. Within 15 calendar days following receipt of the notice of final interview,
the complainant may file a formal EEO complaint.
B. 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.
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C. 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.
D. 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
A. The agency has the right to dismiss a complaint in its entirety for the
following reasons:
1. the complaint fails to state a claim;
2. 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.
3. The complaint has been raised in an appeal to the Merit Systems
Protection Board (MSPB) or has been raised in a grievance pro-
ceeding that permits allegations of discrimination to be raised;
4. the complaint was not timely filed or the complainant did not begin
the EEO process in a timely manner;
5. the complaint is moot;
6. the complaint concerns a preliminary step to the taking of a
personnel action;
7. the complainant cannot be located or has not responded to a
request for relevant information, and the record does not contain
sufficient information from which the agency could render a
decision;
8. the complaint is part of a clear pattern of misuse of the EEO
process; or
9. the complaint alleges dissatisfaction with the processing of a
previously filed complaint ("spin-off complaint"). Note: EEO offices
should advise individuals who seek to file a spin-off complaint to
bring their concerns to the attention of the individual responsible for
the original complaint: the investigator, the agency EEO manager,
the EEOC Administrative Judge, or the EEOC on appeal,
depending on the stage of the process. The allegation of unfair
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processing and any appropriate evidence will then be considered
during the processing of the underlying complaint by these
individuals in the context of their actions pertaining to that
complaint.
B. The agency's dismissal must inform the complainant that s/he has the
right to appeal the dismissal to the EEOC. The dismissal should provide
the complainant with a copy of EEOC Form 573, Notice of Appeal/Petition.
C. Partial Dismissals: Where an agency believes that part, but not all, of a
complaint should be dismissed in accordance with one of the dismissal
bases, the agency must notify the complainant of its determination in
writing, the rationale for that determination, and that those claims will not
be investigated. A copy of this notice must be placed in the investigative
file created for the accepted portions of the complaint.
1. A determination not to investigate a portion of a complaint under
the dismissal bases is reviewable by an administrative judge if a
hearing is requested on the remainder of the complaint.
2. However, complainant cannot appeal the determination until final
action is taken on the remainder of the complaint.
Ill Investigation
A. Where the agency accepts the complaint, it must begin an investigation of
the complaint's allegations. The purpose of the investigation is to develop
an impartial and appropriate factual record upon which to make findings
on the claims raised by the complaint. An "appropriate" factual record is
one that allows a reasonable fact finder to draw conclusions as to whether
or not discrimination occurred.
B. Management officials must produce documentary and testimonial
evidence or have a good cause for not doing so. Management officials
who fail to cooperate during an investigation subject the agency to a
decision maker or the Commission:
1. drawing an adverse inference that the requested information, or
testimony of the requested witness would have reflected
unfavorably on the agency;
2. considering the matters to which the requested information or
testimony pertains to be established in favor of the opposing party;
3. excluding other evidence offered by the agency;
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4. issuing a decision fully or partially in favor of the opposing party; or
5. taking such other action as it deems necessary.
C. Unless the complaint has been amended, the agency has 180 calendar
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 calendar days.
D. The agency unilaterally may extend the time to complete the investigation
by 30 calendar days in order to sanitize a file that contains classified
information.
IV Post-investigation
A. 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).
B. The agency must give the complainant 30 calendar days to make the
election.
C. 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.
D. If the complainant does not respond to the agency's notice regarding the
election, the agency must issue a final decision on the merits of the
complaint within 60 calendar days of the end of the 30-day period.
E. Even if the investigation has not been completed, the complainant may
request a hearing after the expiration of the 180-day period.
HEARINGS AND AGENCY FINAL ACTIONS
I Hearings
A. 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.
B. An EEOC Administrative Judge (AJ) will preside at the hearing.
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C. As a part of the hearing process, the AJ may permit the parties to engage
in discovery.
D. 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 subjects 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.
E. Where either the AJ 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.
F. The AJ has the authority to dismiss a complaint for any of the reasons
contained in the regulation's dismissal provisions.
G. At the conclusion of the hearing process, the AJ will issue a decision to
both parties.
II Agency Final Actions
A. Upon receipt of an AJ's decision on a complaint, the agency has 40
calendar 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 implement the decision of the AJ and will contain notice of the
complainant's appeal and civil action rights.
B. If an agency does not take final action within 40 calendar days of receipt
of an AJ's decision, the decision automatically becomes the final action of
the agency.
C. 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.
1. 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.
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2. When issuing a final decision, the agency has: (1) 60 calendar 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 calendar days from the end of the 30-day
period for the complainant to make the election.
3. 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.
REMEDIES
I General Principle: Provide "make-whole relief'
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.
II Types of Remedies
A. Equitable Relief
1. 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).
2. Offer of placement in the disputed position (e.g., in a non-selection
case or a termination) with back pay.
a. If the position is no longer available, the agency may offer a
substantially equivalent position (e.g., equivalent duties,
responsibilities, location, promotion potential).
b. 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.
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c. Back pay liability under Title VII and the Rehabilitation Act is
limited to two years prior to the date the discrimination complaint
was filed.
d. Retroactive non-competitive promotions may be appropriate
and would need to be calculated in the back pay award.
e. Complainant has duty to "mitigate" his/her losses during
pendency of complaint by seeking alternative employment. Salary
received from this alternative employment should be 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.
3.
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.
4.
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.
B.
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.
C.
Compensatory Damages
1.
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).
2.
Compensatory damages are not available in ADEA cases.
3.
For agencies of 500 or more employees (most federal agencies),
there is a $300,000 cap on compensatory damages.
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4.
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 expenses
(e.g., past medical expenses, moving expenses) are not capped.
Back pay is not counted towards the cap amount.
5.
In 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.
6.
Punitive damages are not available against the federal
government.
D.
Providing a Reasonable Accommodation to a Qualified Individual with a
Disability.
E.
Attorney's Fees and Costs
1.
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.
2.
Formula: (reasonable hours expended on the case by the attorney)
x (reasonable hourly rate) = attorney's fees.
3.
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.
4.
Attorney's fees are not available in ADEA or Equal Pay Act
cases.
APPEALS AND CIVIL ACTIONS
1 Appeals
A.
Complainants may file appeals to EEOC from agency final actions within
30 calendar days of receipt. The complainant must provide a copy of its
notice of appeal to the agency.
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B. A complainant has 30 calendar 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.
C. 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.
D. An agency has 20 calendar 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.
E. A statement or brief in opposition to an appeal must be served on the
opposing party within 30 calendar days of receipt of the brief in support of
the appeal, or, if no brief supporting the appeal is filed, within 60 calendar
days of receipt of the appeal.
F. The agency must provide the EEOC with a copy of the complaint file
within 30 calendar days of being notified that the complainant has filed an
appeal, or within 30 calendar days of submission of an appeal by the
agency.
G. 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:
1. 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;
2. The case involves separation, removal or suspension continuing
beyond the date of the final order;
3. The AJ's decision provided for retroactive restoration of the
employee to his/her former position; and
4. The agency has not determined that the return or presence of the
complainant will be unduly disruptive to the work environment.
H. 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 information. Possible sanctions include:
1. Drawing an adverse inference that the requested information would
have reflected unfavorably on the party refusing to provide it;
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2. Considering the matters to which the requested information or
testimony pertains to be established in favor of the opposing party;
3. Issuing a decision fully or partially in favor of the opposing party; or
4. Taking other appropriate action.
I. 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:
1. the initial appellate decision involved a clearly erroneous
interpretation of material fact or law; or
2. the initial appellate decision will have a substantial impact on the
policies, practices or operations of the agency.
II Civil actions
A. A civil action may be filed:
1. within 90 calendar days of receipt of the final action on a complaint
from an agency or EEOC's final decision on an appeal;
2. after 180 calendar days from the filing of a formal EEO complaint, if
the agency has not taken final action on the complaint;
3. after 180 calendar days from the filing of an appeal to the EEOC if
there has been no final decision by the EEOC.
B. Civil actions and mixed cases
29 C.F.R. § 1614.310 contains different deadlines to file civil actions. See
www.eeoc.gov/federal/1614-final.html.
C. Civil actions and the Equal Pay Act
Pursuant to 29 C.F.R. § 1614.408, a complainant is permitted to file a civil
action within two years or, if the violation is willful, three years of the date
of the alleged violation of the Equal Pay Act regardless of whether s/he
pursued any administrative complaint processing.
D. Civil actions and the Age Discrimination in Employment Act (ADEA)
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1. A complainant alleging age discrimination may elect, as an
alternative to filing a formal EEO complaint under 29 C.F.R. Part
1614, to inform the EEOC that s/he intends to file a civil action.
The complainant must inform the EEOC of his/her intentions at
least 30 calendar days prior to commencing a federal civil action.
2. The complainant must inform the EEOC of his/her intention to file a
civil action within 180 calendar days of the date of the alleged
discriminatory action.
MISCELLANEOUS PROVISIONS UNDER PART 1614
I Official time
A.
The regulations state that an agency must provide a complainant who is
an employee of the agency with a reasonable amount of official time to
prepare a complaint and to respond to agency and EEOC requests for
information.
B.
The regulations further state that where the complainant's representative
is an employee, the agency shall allow the representative to take official
time to prepare a complaint and to respond to requests for information.
C.
The complainant and an employee representative will be on official time
when their presence is required during the investigation of or hearing on
the complaint.
II Settlement Agreements and Breach
A.
Nothing bars the parties from settling their dispute at any stage of the
complaint process.
B.
Where the complainant believes that the agency has breached the
settlement agreement, s/he must notify the EEO director within 30
calendar days of when s/he knew or reasonably should have known of the
noncompliance.
C.
The complainant may request specific enforcement of the agreement or a
reopening of the EEO complaint from the point at which processing ended
with the execution of the settlement agreement.
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D.
If the agency fails to respond to the complainant's notice of breach within
35 calendar days of its receipt of the notice, the complainant may file an
appeal to the EEOC. If the agency issues a decision on the breach claim
with which the complainant disagrees, the complainant must file an appeal
within 30 calendar days of his/her receipt of the decision.
Ill Enforcement of Final Decisions and EEOC Orders
A.
Orders contained in an agency final decision finding discrimination or
breach of a settlement agreement or a decision from the EEOC on an
appeal are binding on an agency.
B.
To fully implement an order contained either in an agency decision or a
decision from the EEOC, the agency may be directed by the EEOC to
implement the terms of the decision. EEOC regulations provide that
complainants and an agency may petition the Commission to enforce or
clarify a decision.
IV. Subpart BProvisions Applicable to Particular Complaints
§1614.201
Age Discrimination in Employment Act.
A.
As an alternative to filing a complaint under this part, an aggrieved
individual may file a civil action in a United States district court under the
ADEA against the head of an alleged discriminating agency after giving
the Commission not less than 30 days' notice of the intent to file such an
action. Such notice must be filed in writing with EEOC, at P.O. Box 19848,
Washington, D.C. 20036, or by personal delivery or facsimile within 180
days of the occurrence of the alleged unlawful practice.
B.
The Commission may exempt a position from the provisions of the ADEA
if the Commission establishes a maximum age requirement for the
position on the basis of a determination that age is a bona fide
occupational qualification necessary to the performance of the duties of
the position.
C.
When an individual has filed an administrative complaint alleging age
discrimination that is not a mixed case, administrative remedies will be
considered to be exhausted for purposes of filing a civil action:
1 180 days after the filing of an individual complaint if the agency has
not taken final action and the individual has not filed an appeal or
180 days after the filing of a class complaint if the agency has not
issued a final decision;
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2. After final action on an individual or class complaint if the individual
has not filed an appeal; or
3. After the issuance of a final decision by the Commission on an
appeal or 180 days after the filing of an appeal if the Commission
has not issued a final decision.
§ 1614.202
Equal Pay Act.
A.
In its enforcement of the Equal Pay Act, the Commission has the authority
to investigate an agency's employment practices on its own initiative at
any time in order to determine compliance with the provisions of the Act.
The Commission will provide notice to the agency that it will be initiating
an investigation.
B.
Complaints alleging violations of the Equal Pay Act shall be processed
under this part.
§ 1614.203
Rehabilitation Act.
A.
Model Employer. The Federal Government shall be a model employer of
individuals with disabilities. Agencies shall give full consideration to the
hiring, placement, and advancement of qualified individuals with
disabilities.
B.
ADA Standards. The standards used to determine whether Section 501 of
the Rehabilitation Act of 1973, as amended (29 U.S.C. 791), has been
violated in a complaint alleging non-affirmative action employment
discrimination under this part shall be the standards applied under Titles I
and V (sections 501 through 504 and 510) of the Americans with
Disabilities Act of 1990, as amended (42 U.S.C. 12101, 12111, 12201), as
such sections relate to employment. These standards are set forth in the
Commission's ADA regulations at 29 29 C.F.R. § 1614. Part 1630.
§1614.204
Class Complaints.
A.
Definitions.
1. A class is a group of employees, former employees or applicants
for employment who, it is alleged, have been or are being adversely
affected by an agency personnel management policy or practice
that discriminates against the group on the basis of their race,
color, religion, sex, national origin, age or handicap.
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2. A class complaint is a written complaint of discrimination filed on
behalf of a class by the agent of the class alleging that:
a. The class is so numerous that a consolidated complaint of
the members of the class is impractical;
b. There are questions of fact common to the class;
c. The claims of the agent of the class are typical of the claims
of the class;
d. The agent of the class, or, if represented, the representative,
will fairly and adequately protect the interests of the class.
3. An agent of the class is a class member who acts for the class
during the processing of the class complaint.
B. Pre-complaint processing. An employee or applicant who wishes to file a
class complaint must seek counseling and be counseled in accordance
with § 1614.105. A complainant may move for class certification at any
reasonable point in the process when it becomes apparent that there are
class implications to the claim raised in an individual complaint. If a
complainant moves for class certification after completing the counseling
process contained in § 1614.105, no additional counseling is required.
The administrative judge shall deny class certification when the
complainant has unduly delayed in moving for certification.
C. Filing and presentation of a class complaint.
1. A class complaint must be signed by the agent or representative
and must identify the policy or practice adversely affecting the class
as well as the specific action or matter affecting the class agent.
2. The complaint must be filed with the agency that allegedly
discriminated not later than 15 days after the agent's receipt of the
notice of right to file a class complaint.
3. The complaint shall be processed promptly; the parties shall
cooperate and shall proceed at all times without undue delay.
D. Acceptance or dismissal.
1. Within 30 days of an agency's receipt of a complaint, the agency
shall: Designate an agency representative who shall not be any of
the individuals referenced in § 1614.102(b)(3), and forward the
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complaint, along with a copy of the Counselor's report and any
other information pertaining to timeliness or other relevant
circumstances related to the complaint, to the Commission. The
Commission shall assign the complaint to an administrative judge
or complaints examiner with a proper security clearance when
necessary. The administrative judge may require the complainant
or agency to submit additional information relevant to the complaint.
2. The administrative judge may dismiss the complaint, or any portion,
for any of the reasons listed in § 1614.107 or because it does not
meet the prerequisites of a class complaint under § 1614.204(a)(2).
3. If an allegation is not included in the Counselor's report, the
administrative judge shall afford the agent 15 days to state whether
the matter was discussed with the Counselor and, if not, explain
why it was not discussed. If the explanation is not satisfactory, the
administrative judge shall dismiss the allegation. If the explanation
is satisfactory, the administrative judge shall refer the allegation to
the agency for further counseling of the agent. After counseling, the
allegation shall be consolidated with the class complaint.
4. If an allegation lacks specificity and detail, the administrative judge
shall afford the agent 15 days to provide specific and detailed
information. The administrative judge shall dismiss the complaint if
the agent fails to provide such information within the specified time
period. If the information provided contains new allegations outside
the scope of the complaint, the administrative judge shall advise the
agent how to proceed on an individual or class basis concerning
these allegations.
5. The administrative judge shall extend the time limits for filing a
complaint and for consulting with a Counselor in accordance with
the time limit extension provisions contained in §§ 1614.105(a)(2)
and 1614.604.
6. When appropriate, the administrative judge may decide that a class
be divided into subclasses and that each subclass be treated as a
class, and the provisions of this section then shall be construed and
applied accordingly.
7. The administrative judge shall transmit his or her decision to accept
or dismiss a complaint to the agency and the agent. The agency
shall take final action by issuing a final order within 40 days of
receipt of the hearing record and administrative judge's decision.
The final order shall notify the agent whether or not the agency will
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implement the decision of the administrative judge. If the final order
does not implement the decision of the administrative judge, the
agency shall simultaneously appeal the administrative judge's
decision in accordance with § 1614.403 and append a copy of the
appeal to the final order. A dismissal of a class complaint shall
inform the agent either that the complaint is being filed on that date
as an individual complaint of discrimination and will be processed
under subpart A or that the complaint is also dismissed as an
individual complaint in accordance with § 1614.107. In addition, it
shall inform the agent of the right to appeal the dismissal of the
class complaint to the Equal Employment Opportunity Commission
or to file a civil action and shall include EEOC Form 573, Notice of
Appeal/Petition.
E. Notification.
1. Within 15 days of receiving notice that the administrative judge has
accepted a class complaint or a reasonable time frame specified by
the administrative judge, the agency shall use reasonable means,
such as delivery, mailing to last known address or distribution, to
notify all class members of the acceptance of the class complaint.
2. Such notice shall contain:
a. The name of the agency or organizational segment, its
location, and the date of acceptance of the complaint;
b. A description of the issues accepted as part of the class
complaint;
c. An explanation of the binding nature of the final decision or
resolution of the complaint on class members; and
d. The name, address and telephone number of the class
representative.
F. Obtaining evidence concerning the complaint.
1. The administrative judge shall notify the agent and the agency
representative of the time period that will be allowed both parties to
prepare their cases. This time period will include at least 60 days
and may be extended by the administrative judge upon the request
of either party. Both parties are entitled to reasonable development
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of evidence on matters relevant to the issues raised in the
complaint. Evidence may be developed through interrogatories,
depositions, and requests for admissions, stipulations or production
of documents. It shall be grounds for objection to producing
evidence that the information sought by either party is irrelevant,
overburdensome, repetitious, or privileged.
2. If mutual cooperation fails, either party may request the
administrative judge to rule on a request to develop evidence. If a
party fails without good cause shown to respond fully and in timely
fashion to a request made or approved by the administrative judge
for documents, records, comparative data, statistics or affidavits,
and the information is solely in the control of one party, such failure
may, in appropriate circumstances, cause the administrative judge:
a. To draw an adverse inference that the requested information
would have reflected unfavorably on the party refusing to
provide the requested information;
b. To consider the matters to which the requested information
pertains to be established in favor of the opposing party;
c. To exclude other evidence offered by the party failing to
produce the requested information;
d. To recommend that a decision be entered in favor of the
opposing party; or
e. To take such other actions as the administrative judge
deems appropriate.
3. During the period for development of evidence, the administrative
judge may, in his or her discretion, direct that an investigation of
facts relevant to the complaint or any portion be conducted by an
agency certified by the Commission.
4. Both parties shall furnish to the administrative judge copies of all
materials that they wish to be examined and such other material as
may be requested.
G. Opportunity for resolution of the complaint.
1. The administrative judge shall furnish the agent and the
representative of the agency a copy of all materials obtained
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concerning the complaint and provide opportunity for the agent to
discuss materials with the agency representative and attempt
resolution of the complaint.
2. The complaint may be resolved by agreement of the agency and
the agent at any time pursuant to the notice and approval
procedure contained in paragraph (g)(4) of this section.
3. If the complaint is resolved, the terms of the resolution shall be
reduced to writing and signed by the agent and the agency.
4. Notice of the resolution shall be given to all class members in the
same manner as notification of the acceptance of the class
complaint and to the administrative judge. It shall state the relief, if
any, to be granted by the agency and the name and address of the
EEOC administrative judge assigned to the case. It shall state that
within 30 days of the date of the notice of resolution, any member
of the class may petition the administrative judge to vacate the
resolution because it benefits only the class agent, or is otherwise
not fair, adequate and reasonable to the class as a whole. The
administrative judge shall review the notice of resolution and
consider any petitions to vacate filed. If the administrative judge
finds that the proposed resolution is not fair, adequate and
reasonable to the class as a whole, the administrative judge shall
issue a decision vacating the agreement and may replace the
original class agent with a petitioner or some other class member
who is eligible to be the class agent during further processing of the
class complaint. The decision shall inform the former class agent
or the petitioner of the right to appeal the decision to the Equal
Employment Opportunity Commission and include EEOC Form
573, Notice of Appeal/Petition. If the administrative judge finds that
the resolution is fair, adequate and reasonable to the class as a
whole, the resolution shall bind all members of the class.
H. Hearing. On expiration of the period allowed for preparation of the case,
the administrative judge shall set a date for hearing. The hearing shall be
conducted in accordance with 29 CFR § 1614.109(a) through (f).
I. Report of findings and recommendations.
1. The administrative judge shall transmit to the agency a report of
findings and recommendations on the complaint, including a
recommended decision, systemic relief for the class and any
individual relief, where appropriate, with regard to the personnel
action or matter that gave rise to the complaint.
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2. If the administrative judge finds no class relief appropriate, he or
she shall determine if a finding of individual discrimination is
warranted and, if so, shall recommend appropriate relief.
3. The administrative judge shall notify the agent of the date on which
the report of findings and recommendations was forwarded to the
agency.
J. Agency decision.
1. Within 60 days of receipt of the report of findings and
recommendations issued under § 1614.204(i), the agency shall
issue a final decision, which shall accept, reject, or modify the
findings and recommendations of the administrative judge.
2. The final decision of the agency shall be in writing and shall be
transmitted to the agent by certified mail, return receipt requested,
along with a copy of the report of findings and recommendations of
the administrative judge.
3. When the agency's final decision is to reject or modify the findings
and recommendations of the administrative judge, the decision
shall contain specific reasons for the agency's action.
4. If the agency has not issued a final decision within 60 days of its
receipt of the administrative judge's report of findings and
recommendations, those findings and recommendations shall
become the final decision. The agency shall transmit the final
decision to the agent within five days of the expiration of the 60-day
period.
5. The final decision of the agency shall require any relief authorized
by law and determined to be necessary or desirable to resolve the
issue of discrimination.
6. A final decision on a class complaint shall, subject to subpart D of
this part, be binding on all members of the class and the agency.
7. The final decision shall inform the agent of the right to appeal or to
file a civil action in accordance with subpart D of this part and of the
applicable time limits.
K. Notification of decision. The agency shall notify class members of the final
decision and relief awarded, if any, through the same media employed to
give notice of the existence of the class complaint. The notice, where
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appropriate, shall include information concerning the rights of class
members to seek individual relief, and of the procedures to be followed.
Notice shall be given by the agency within 10 days of the transmittal of its
final decision to the agent.
L. Relief for individual class members.
1. When discrimination is found, an agency must eliminate or modify
the employment policy or practice out of which the complaint arose
and provide individual relief, including an award of attorney's fees
and costs, to the agent in accordance with § 1614.501.
2. When class-wide discrimination is not found, but it is found that the
class agent is a victim of discrimination, § 1614.501 shall apply.
The agency shall also, within 60 days of the issuance of the final
decision finding no class-wide discrimination, issue the
acknowledgment of receipt of an individual complaint as required
by § 1614.106(d) and process in accordance with the provisions of
subpart A of this part, each individual complaint that was subsumed
into the class complaint.
3. When discrimination is found in the final decision and a class
member believes that he or she is entitled to individual relief, the
class member may file a written claim with the head of the agency
or its EEO Director within 30 days of receipt of notification by the
agency of its final decision. Administrative judges shall retain
jurisdiction over the complaint in order to resolve any disputed
claims by class members. The claim must include a specific,
detailed showing that the claimant is a class member who was
affected by the discriminatory policy or practice, and that this
discriminatory action took place within the period of time for which
the agency found class-wide discrimination in its final decision.
Where a finding of discrimination against a class has been made,
there shall be a presumption of discrimination as to each member
of the class. The agency must show by clear and convincing
evidence that any class member is not entitled to relief. The
administrative judge may hold a hearing or otherwise supplement
the record on a claim filed by a class member. The agency or the
Commission may find class-wide discrimination and order remedial
action for any policy or practice in existence within 45 days of the
agent's initial contact with the Counselor. Relief otherwise
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consistent with this Part may be ordered for the time the policy or
practice was in effect. The agency shall issue a final decision on
each such claim within 90 days of filing. Such decision must
include a notice of the right to file an appeal or a civil action in
accordance with subpart D of this part and the applicable time
limits.
V. Subpart CRelated Processes
§ 1614.301 Relationship to negotiated grievance procedure.
A. When a person is employed by an agency subject to 5 U.S.C. 7121(d) and
is covered by a collective bargaining agreement that permits allegations of
discrimination to be raised in a negotiated grievance procedure, a person
wishing to file a complaint or a grievance on a matter of alleged
employment discrimination must elect to raise the matter under either part
1614 or the negotiated grievance procedure, but not both. An election to
proceed under this part is indicated only by the filing of a written
complaint; use of the pre-complaint process as described in § 1614.105
does not constitute an election for purposes of this section. An aggrieved
employee who files a complaint under this part may not thereafter file a
grievance on the same matter. An election to proceed under a negotiated
grievance procedure is indicated by the filing of a timely written grievance.
An aggrieved employee who files a grievance with an agency whose
negotiated agreement permits the acceptance of grievances which allege
discrimination may not thereafter file a complaint on the same matter
under part 1614 irrespective of whether the agency has informed the
individual of the need to elect or of whether the grievance has raised an
issue of discrimination. Any such complaint filed after a grievance has
been filed on the same matter shall be dismissed without prejudice to the
complainant's right to proceed through the negotiated grievance
procedure including the right to appeal to the Commission from a final
decision as provided in subpart D of this part. The dismissal of such a
complaint shall advise the complainant of the obligation to raise
discrimination in the grievance process and of the right to appeal the final
grievance decision to the Commission.
B. When a person is not covered by a collective bargaining agreement that
permits allegations of discrimination to be raised in a negotiated grievance
procedure, allegations of discrimination shall be processed as complaints
under this part.
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C. When a person is employed by an agency not subject to 5 U.S.C. 7121(d)
and is covered by a negotiated grievance procedure, allegations of
discrimination shall be processed as complaints under this part, except
that the time limits for processing the complaint contained in § 1614.106
and for appeal to the Commission contained in § 1614.402 may be held in
abeyance during processing of a grievance covering the same matter as
the complaint if the agency notifies the complainant in writing that the
complaint will be held in abeyance pursuant to this section.
§ 1614.302 Mixed case complaints.
A. Definitions
1. Mixed case complaint. A mixed case complaint is a complaint of
employment discrimination filed with a Federal agency based on
race, color, religion, sex, national origin, age or handicap related to
or stemming from an action that can be appealed to the Merit
Systems Protection Board (MSPB). The complaint may contain
only an allegation of employment discrimination or it may contain
additional allegations that the MSPB has jurisdiction to address.
2. Mixed case appeals. A mixed case appeal is an appeal filed with
the MSPB that alleges that an appealable agency action was
effected, in whole or in part, because of discrimination on the basis
of race, color, religion, sex, national origin, handicap or age.
B. Election. An aggrieved person may initially file a mixed case complaint
with an agency pursuant to this part or an appeal on the same matter with
the MSPB pursuant to 5 CFR 1201.151, but not both. An agency shall
inform every employee who is the subject of an action that is appealable
to the MSPB and who has either orally or in writing raised the issue of
discrimination during the processing of the action of the right to file either a
mixed case complaint with the agency or to file a mixed case appeal with
the MSPB. The person shall be advised that he or she may not initially file
both a mixed case complaint and an appeal on the same matter and that
whichever is filed first shall be considered an election to proceed in that
forum. If a person files a mixed case appeal with the MSPB instead of a
mixed case complaint and the MSPB dismisses the appeal for
jurisdictional reasons, the agency shall promptly notify the individual in
writing of the right to contact an EEO counselor within 45 days of receipt
of this notice and to file an EEO complaint, subject to § 1614.107. The
date on which the person filed his or her appeal with MSPB shall be
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deemed to be the date of initial contact with the counselor. If a person
files a timely appeal with MSPB from the agency's processing of a mixed
case complaint and the MSPB dismisses it for jurisdictional reasons, the
agency shall reissue a notice under § 1614.108(f) giving the individual the
right to elect between a hearing before an administrative judge and an
immediate final decision.
C. Dismissal.
1. An agency may dismiss a mixed case complaint for the reasons
contained in, and under the conditions prescribed in, § 1614.107.
2. An agency decision to dismiss a mixed case complaint on the basis
of the complainant's prior election of the MSPB procedures shall be
made as follows:
1. Where neither the agency nor the MSPB administrative
judge questions the MSPB's jurisdiction over the appeal on
the same matter, it shall dismiss the mixed case complaint
pursuant to § 1614.107(d) and shall advise the complainant
that he or she must bring the allegations of discrimination
contained in the rejected complaint to the attention of the
MSPB, pursuant to 5 CFR 1201.155. The dismissal of such
a complaint shall advise the complainant of the right to
petition the EEOC to review the MSPB's final decision on the
discrimination issue. A dismissal of a mixed case complaint
is not appealable to the Commission except where it is
alleged that § 1614.107(d) has been applied to a non-mixed
case matter.
2. Where the agency or the MSPB administrative judge
questions the MSPB's jurisdiction over the appeal on the
same matter, the agency shall hold the mixed case
complaint in abeyance until the MSPB's administrative judge
rules on the jurisdictional issue, notify the complainant that it
is doing so, and instruct him or her to bring the allegation of
discrimination to the attention of the MSPB. During this
period of time, all time limitations for processing or filing
under this part will be tolled. An agency decision to hold a
mixed case complaint in abeyance is not appealable to
EEOC. If the MSPB's administrative judge finds that MSPB
has jurisdiction over the matter, the agency shall dismiss the
mixed case complaint pursuant to § 1614.107(d), and advise
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the complainant of the right to petition the EEOC to review
the MSPB's final decision on the discrimination issue. If the
MSPB's administrative judge finds that MSPB does not have
jurisdiction over the matter, the agency shall recommence
processing of the mixed case complaint as a non-mixed
case EEO complaint.
D.
Procedures for agency processing of mixed case complaints. When a
complainant elects to proceed initially under this part rather than with the
MSPB, the procedures set forth in subpart A shall govern the processing
of the mixed case complaint with the following exceptions:
1.
At the time the agency advises a complainant of the acceptance of
a mixed case complaint, it shall also advise the complainant that:
a. If a final decision is not issued within 120 days of the date of
filing of the mixed case complaint, the complainant may
appeal the matter to the MSPB at any time thereafter as
specified at 5 CFR 1201.154(b)(2) or may file a civil action
as specified at § 1614.310(g), but not both; and
b. If the complainant is dissatisfied with the agency's final
decision on the mixed case complaint, the complainant may
appeal the matter to the MSPB (not EEOC) within 30 days of
receipt of the agency's final decision;
2.
Upon completion of the investigation, the notice provided the
complainant in accordance with § 1614.108(f) will advise the
complainant that a final decision will be issued within 45 days
without a hearing; and
3.
At the time that the agency issues its final decision on a mixed case
complaint, the agency shall advise the complainant of the right to
appeal the matter to the MSPB (not EEOC) within 30 days of
receipt and of the right to file a civil action as provided at
§ 1614.310(a).
§ 1614.303
Petitions to the EEOC from MSPB decisions on mixed case appeals
and complaints.
A.
Who may file. Individuals who have received a final decision from the
MSPB on a mixed case appeal or on the appeal of a final decision on a
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mixed case complaint under 5 CFR 1201, subpart E and 5 U.S.C. 7702
may petition EEOC to consider that decision. The EEOC will not accept
appeals from MSPB dismissals without prejudice.
B. Method of filing. Filing shall be made by certified mail, return receipt
requested, to the Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036.
C. Time to file. A petition must be filed with the Commission either within 30
days of receipt of the final decision of the MSPB or within 30 days of when
the decision of a MSPB field office becomes final.
D. Service. The petition for review must be served upon all individuals and
parties on the MSPB's service list by certified mail on or before the filing
with the Commission, and the Clerk of the MSPB, 1615 M Street, NW.,
Washington, DC 20419, and the petitioner must certify as to the date and
method of service.
§ 1614.304 Contents of petition.
A. Form. Petitions must be written or typed, but may use any format
including a simple letter format. Petitioners are encouraged to use EEOC
Form 573, Notice Of Appeal/Petition.
B. Contents. Petitions must contain the following:
1. The name and address of the petitioner;
2. The name and address of the petitioner's representative, if any;
3. A statement of the reasons why the decision of the MSPB is
alleged to be incorrect, in whole or in part, only with regard to
issues of discrimination based on race, color, religion, sex, national
origin, age or handicap;
4. A copy of the decision issued by the MSPB; and
5. The signature of the petitioner or representative, if any.
§ 1614.305 Consideration procedures.
A. Once a petition is filed, the Commission will examine it and determine
whether the Commission will consider the decision of the MSPB. An
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agency may oppose the petition, either on the basis that the Commission
should not consider the MSPB's decision or that the Commission should
concur in the MSPB's decision, by filing any such argument with the Office
of Federal Operations and serving a copy on the petitioner within 15 days
of receipt by the Commission.
A. The Commission shall determine whether to consider the decision of the
MSPB within 30 days of receipt of the petition by the Commission's Office
of Federal Operations. A determination of the Commission not to consider
the decision shall not be used as evidence with respect to any issue of
discrimination in any judicial proceeding concerning that issue.
C. If the Commission makes a determination to consider the decision, the
Commission shall within 60 days of the date of its determination, consider
the entire record of the proceedings of the MSPB and on the basis of the
evidentiary record before the Board as supplemented in accordance with
paragraph (d) of this section, either:
1. Concur in the decision of the MSPB; or
2. Issue in writing a decision that differs from the decision of the
MSPB to the extent that the Commission finds that, as a matter of
law:
a. The decision of the MSPB constitutes an incorrect
interpretation of any provision of any law, rule, regulation, or
policy directive referred to in 5 U.S.C. 7702(a)(1)(B); or
b. The decision involving such provision is not supported by the
evidence in the record as a whole.
D. In considering any decision of the MSPB, the Commission, pursuant to 5
U.S.C. 7702(b)(4), may refer the case to the MSPB for the taking of
additional evidence within such period as permits the Commission to
make a decision within the 60-day period prescribed or provide on its own
for the taking of additional evidence to the extent the Commission
considers it necessary to supplement the record.
E. Where the EEOC has differed with the decision of the MSPB under
§ 1614.305(c)(2), the Commission shall refer the matter to the MSPB.
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§ 1614.306 Referral of case to Special Panel.
A. If the MSPB reaffirms its decision under 5 CFR 1201.162(a)(2) with or
without modification, the matter shall be immediately certified to the
Special Panel established pursuant to 5 U.S.C. 7702(d). Upon
certification, the Board shall, within five days (excluding Saturdays,
Sundays, and Federal holidays), transmit to the Chairman of the Special
Panel and to the Chairman of the EEOC the administrative record in the
proceeding including
1. The factual record compiled under this section, which shall include a
transcript of any hearing(s);
2. The decisions issued by the Board and the Commission under 5 U.S.C.
7702; and
3. A transcript of oral arguments made, or legal brief(s) filed, before the
Board and the Commission.
§ 1614.307 Organization of Special Panel.
A. The Special Panel is composed of:
1. A Chairman appointed by the President with the advice and
consent of the Senate, and whose term is 6 years;
2. One member of the MSPB designated by the Chairman of the
Board each time a panel is convened; and
3. One member of the EEOC designated by the Chairman of the
Commission each time a panel is convened.
B. Designation of Special Panel member
1. Time of designation. Within five days of certification of the case to
the Special Panel, the Chairman of the MSPB and the Chairman of
the EEOC shall each designate one member from their respective
agencies to serve on the Special Panel.
2. Manner of designation. Letters of designation shall be served on
the Chairman of the Special Panel and the parties to the appeal.
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§ 1614.308 Practices and procedures of the Special Panel.
A. Scope. The rules in this subpart apply to proceedings before the Special
Panel.
B. Suspension of rules in this subpart. In the interest of expediting a
decision, or for good cause shown, the Chairman of the Special Panel
may, except where the rule in this subpart is required by statute, suspend
the rules in this subpart on application of a party, or on his or her own
motion, and may order proceedings in accordance with his or her
direction.
C. Time limit for proceedings. Pursuant to 5 U.S.C. 7702(d)(2)(A), the
Special Panel shall issue a decision within 45 days of the matter being
certified to it.
D. Administrative assistance to Special Panel.
1. The MSPB and the EEOC shall provide the Panel with such
reasonable and necessary administrative resources as determined
by the Chairman of the Special Panel.
2. Assistance shall include, but is not limited to, processing vouchers
for pay and travel expenses.
3. The Board and the EEOC shall be responsible for all administrative
costs incurred by the Special Panel and, to the extent practicable,
shall equally divide the costs of providing such administrative
assistance. The Chairman of the Special Panel shall resolve the
manner in which costs are divided in the event of a disagreement
between the Board and the EEOC.
E. Maintenance of the official record. The Board shall maintain the official
record. The Board shall transmit two copies of each submission filed to
each member of the Special Panel in an expeditious manner.
F. Filing and service of pleadings.
1. The parties shall file the original and six copies of all submissions
with the Clerk, Merit Systems Protection Board, 1615 M Street,
NW., Washington, DC 20419. One copy of each submission shall
be served on the other parties.
2. A certificate of service specifying how and when service was made
must accompany all submissions of the parties.
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3. Service may be by mail or by personal delivery during normal
business hours (8:15 a.m.-4:45 p.m.). Due to the short statutory
time limit, parties are required to file their submissions by overnight
delivery service should they file by mail.
4. The date of filing shall be determined by the date of mailing as
indicated by the order date for the overnight delivery service. If the
filing is by personal delivery, it shall be considered filed on that date
it is received in the office of the Clerk, MSPB.
G. Briefs and responsive pleadings. If the parties wish to submit written
argument, briefs shall be filed with the Special Panel within 15 days of the
date of the Board's certification order. Due to the short statutory time limit
responsive pleadings will not ordinarily be permitted.
H. Oral argument. The parties have the right to oral argument if desired.
Parties wishing to exercise this right shall so indicate at the time of filing
their brief, or if no brief is filed, within 15 days of the date of the Board's
certification order. Upon receipt of a request for argument, the Chairman
of the Special Panel shall determine the time and place for argument and
the time to be allowed each side, and shall so notify the parties.
1. Post-argument submissions. Due to the short statutory time limit,
no post-argument submissions will be permitted except by order of
the Chairman of the Special Panel.
2. Procedural matters. Any procedural matters not addressed in this
subpart shall be resolved by written order of the Chairman of the
Special Panel.
§ 1614.309 Enforcement of Special Panel decision.
The Board shall, upon receipt of the decision of the Special Panel, order the agency
concerned to take any action appropriate to carry out the decision of the Panel. The
Board's regulations regarding enforcement of a final order of the Board shall apply.
These regulations are set out at 5 CFR part 1201, subpart E.
§ 1614.310 Right to file a civil action.
An individual who has a complaint processed pursuant to 5 CFR part 1201, subpart E or
this subpart is authorized by 5 U.S.C. 7702 to file a civil action in an appropriate United
States District Court:
A. Within 30 days of receipt of a final decision issued by an agency on a
complaint unless an appeal is filed with the MSPB; or
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B. Within 30 days of receipt of notice of the final decision or action taken by
the MSPB if the individual does not file a petition for consideration with the
EEOC; or
C. Within 30 days of receipt of notice that the Commission has determined
not to consider the decision of the MSPB; or
D. Within 30 days of receipt of notice that the Commission concurs with the
decision of the MSPB; or
E. If the Commission issues a decision different from the decision of the
MSPB, within 30 days of receipt of notice that the MSPB concurs in and
adopts in whole the decision of the Commission; or
F. If the MSPB does not concur with the decision of the Commission and
reaffirms its initial decision or reaffirms its initial decision with a revision,
within 30 days of the receipt of notice of the decision of the Special Panel;
or
G. After 120 days from the date of filing a formal complaint if there is no final
action or appeal to the MSPB; or
H. After 120 days from the date of filing an appeal with the MSPB if the
MSPB has not yet made a decision; or
I. After 180 days from the date of filing a petition for consideration with
Commission if there is no decision by the Commission, reconsideration
decision by the MSPB or decision by the Special Panel.
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Notes: Understanding the Federal EEO
Process
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Understanding The
Rehabilitation Act
of 1973
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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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Impairment
A physiological disorder or condition,
cosmetic disfigurement or anatomical
loss affecting a body system; or
A mental or psychological disorder,
emotional or mental illness, or specific
learning disability.
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Major Life Activity
Basic activity that the average
individual in general population can
perform with little or no difficulty.
Includes caring for oneself, performing
manual tasks, walking, seeing, hearing,
speaking, breathing, learning,
reproduction, eating, "interacting with
others" and working.
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Substantially Limits
Unable to perform or significantly
restricted as to the condition, manner or
duration under which the individual can
perform the activity. Must consider:
- The nature and severity of the impairment;
- The duration or expected duration of the
impairment (more than just temporary, short-
term and non-chronic in nature); and
- The long term impact of the impairment.
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Proving Disability Discrimination
To establish a basic, or "prima facie"
case of disability discrimination based
on disparate treatment, the
complainant must show that:
- S/he is an individual with a disability as
defined by the statute;
-S/he is a "qualified" individual with a
disability as defined by the statute; and
- The agency took adverse action against
him/her.
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Qualified Individual with a
Disability
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 drug use.
Excludes pedophilia; exhibitionism;
voyeurism; gender identity disorders not
resulting from physical impairments; certain
sexual behavior disorders; compulsive
gambling; kleptomania; pyromania; or
psychoactive substance use disorders
resulting from current illegal drug use.
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Scenario #1
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-American state basketball player.
Several weeks after the amputation, Bob began
playing wheelchair basketball. Several years later,
still an accomplished 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
Reasonable Accommodation
encompasses three aspects of the
employment relationship:
~ the application process
/ job performance
~ benefits and privileges
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Common Types of
Accommodation
Making facilities accessible and acquiring
assistive devices.
Modifying work schedules.
Restructuring of job.
Permitting use of accrued leave and unpaid
leave.
Modifying of exam or training materials.
Providing readers or interpreters.
hty-tsy
Reassigning to another vacant position^
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Scenario #2
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 accommodated.
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.
I
1
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Agency Responsibilities:
Individuals with Disabilities
All federal agency programs,
training, events, and any other
activities must be fully accessible
to all employees and any guests.
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Checklist for Events
Handouts available in large print format
and on disk, especially if there is visual
media shown.
Sign language interpreters and/or real-
time captioning.
Only captioned videos and movies.
Fully accessible building with the route
to the event clearly marked.
Announcements stating what
accommodations will be available and
providing a contact for requesting
other accommodations.
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Medical Confidentiality
Agencies must keep medical
information about employees
confidential.
Employees do not have a right to know
about co-worker's medical condition
and disability, even when reasonable
accommodation that affect them are
involved.
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DESK REFERENCE GUIDE
Rights and Responsibilities Under the
Rehabilitation Act of 1973
I Dmportant Definitions
A. Individual with a disability: Under 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 record of such impairment; or
is regarded as having such an impairment.
1. Impairment
a physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting a body system; or
a mental or psychological disorder, such as emotional
or mental illness, or a specific learning disabilities.
2. 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.
Major life activities include caring for oneself, perfor-
ming manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
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.
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3. Substantially limits
To be substantially limited, an individual should be either
unable to perform the major 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.
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 must 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.
Therefore, this individual is substantially limited in the
major life activity of sleeping.
Temporary impairments, such as a broken bone,
duration and will not have a permanent impact.
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:
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/ 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
/ the geographical area to which the individual
has reasonable access.
4. 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.
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.
5. 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.
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6. 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.
7. 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 accommodation, can perform the
essential functions of the position in question.
The term "essential functions" 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.
Are there a limited number of other employees available to
whom the performance of the job function can be
distributed?
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.
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II Exemptions and Limitations of Coverage
A. 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.
B. The term "current" refers to drug use of sufficiently recent occurrence
as to indicate that the individual "is actively engaged in such conduct."
C. 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 using drugs; or someone
erroneously considered to be an addict who is currently using illegal
drugs.
D. The Act excludes from coverage the following: pedophilia,
exhibitionism, voyeurism, gender identity disorders not resulting from
physical impairments; transvestism; transsexualism; certain other
sexual behavior disorders; compulsive gambling, kleptomania, or
pyromania; and psychoactive substance use disorders resulting from
current illegal use of drugs.
III Reasonable Accommodation
A. An agency is required to make a reasonable accommodation of a
known physical and mental limitation of an otherwise qualified
individual with a disability, unless the agency can show that
accommodation would cause an undue hardship.
B. 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.
C. 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.
Employment barriers may include:
/ barriers that prevent or inhibit access to work facilities or
equipment {e.g., stairs);
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/ rigid work schedules, policies or procedures; or
/ the way individuals in the workplace typically communicate
with one another.
D. An agency's reasonable accommodation duty encompasses three
aspects of the employment relationship:
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.
E. Types of reasonable accommodation include:
making existing facilities used by employees accessible to
individual with disabilities;
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;
modification of exams or training materials or policies (including
providing alternative formats);
acquiring assistive devices or modifying existing equipment;
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providing readers or interpreters; or
reassignment to another vacant position.
F. Reassignment
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.
This type of accommodation is only available for employees, not
applicants.
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.
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, can 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.
An agency may reassign an individual to a lower graded position
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 job, bump another employee,
or promote an employee in order to provide a reassignment.
IV The Reasonable Accommodation Process
A. As a general rule, the individual with the disability is responsible
for informing the agency that an accommodation is needed.
Notice 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.
B. It is important that managers as well as all agency employees know
the agency's written internal reasonable accommodation process and
procedures.
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C. The reasonable accommodation process ideally should be "an
interactive process" between the individual and the agency.
D. The accommodation selected need not be the most expensive or the
"best" one available. An accommodation is reasonable if it is
"feasible," or "plausible" and it must 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.
V Undue Hardship - An Affirmative Defense
A. As noted above, the term "reasonable" in reasonable accommodation
refers to whether the accommodation is "feasible," or "plausible" and
would be effective, and not whether it would be too costly or disruptive
to the agency.
B. 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
"significant difficulty or expense."
C. Factors to consider in evaluating a claim of undue hardship:
1) nature of the accommodation;
2) net cost of the accommodation;
3) overall financial and other resources of the agency; and
4) impact of the accommodation on the operation of agency.
D. Comparison of the cost of an accommodation to the employee's salary
is not a factor in determining undue hardship.
E. 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
A. Applicants
1. Pre-offer
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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.
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 about a
disability.
2. Post-offer
An agency may conduct a post-offer, pre-employment
medical examination as long as "all entering employees in
the same job category are subjected to such an
examination (and/or inquiry) regardless of disability."
A medical examination does not have to be job-related,
but an agency cannot withdraw a job offer based on
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
reasonable accommodation."
3. 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
A. Agencies must keep medical information about employees confidential
B. 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.
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VIII Management's Responsibilities: Individuals With Disabilities
A. Purpose: to provide assistance in hiring, placing, and advancing
individuals with disabilities.
Agencies and EEOC have two common goals:
/ to provide equal employment opportunities to all
individuals regardless of race, national origin, color, sex,
age, religion, or disability; and
/ to make the federal government a model employer.
IX Agency Role in Affirmative Employment for Individuals with
Disabilities
A. Executive branch agencies are required by Section 501 of the
Rehabilitation Act, as amended, to develop affirmative employment
programs for hiring, placement, and advancement of individuals with
disabilities.
B. Certain severe disabilities are emphasized because they make it
difficult for individuals to obtain employment. These disabilities, called
"targeted disabilities" are:
deafness,
blindness,
missing limbs,
partial paralysis,
complete paralysis,
distortion of limbs or spine,
mental illness,
mental retardation, and
convulsive disorders.
C. 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.
D. EEOC reports annually to Congress on the progress of each agency,
including a breakdown for each of the targeted disabilities.
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E. 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.
F. Agencies are also responsible for ensuring that all of their programs,
training, and other activities are fully accessible to all employees with
disabilities.
G. 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.
X Management Role in Affirmative Employment for Individuals
with Disabilities
A. Management officials are responsible for meeting their agency's EEO
objectives for hiring, placing, and advancing individuals with
disabilities.
B. 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.
C. Qualified individuals with disabilities should be considered for
vacancies on the basis of their skills and abilities.
D. 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.
E. 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.
F. 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."
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G. 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.
XI Making Individuals with Disabilities a Part of the Team
A. The individual who is best qualified for the position should be hired.
Focus on the individual and not the disability.
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.
C. As the average age of the federal work force gets higher, a larger
proportion of current employees will experience disabilities and may
need accommodations to be able to continue their productivity and
quality levels.
D. Just like any other employee, those with disabilities should be treated
with respect.
XII Interviewing Individuals with Disabilities
A. Hiring officials should ask each applicant the same questions about
their qualifications, experience, and skills for doing the job well.
B. Hiring officials may NOT ask questions about a individual's disability
unless the individual is applying under one of the special excepted
appointing authorities. All questions should be job related.
C. At the end of the interview, the hiring official may ask "Is there
anything more that you would like to tell me?"
D. Management officials need to ensure that qualified individuals with
disabilities are not automatically presumed to be unable to perform the
functions of the job, or to always need reasonable accommodation.
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E. Each agency has a responsibility for arranging the funding of
reasonable accommodations so that it does not adversely impact the
hiring decision. The EEOC recommends centralized funding for
reasonable accommodations.
F. Agencies should generically invite all applicants to request reasonable
accommodations during the application and interview process on the
job application and/or when the interview is setup.
XIII Employment Programs
A. Individuals with disabilities can be hired noncompetitively via excepted
appointing authorities, in addition to the regular merit promotion
process, upward mobility programs, and special employment
programs.
B. Excepted Appointing Authorities were designed to provide an
opportunity for individuals with disabilities to demonstrate their ability
to do the job. They allow agencies to hire non-competitively.
Schedule A appointments can be used to hire individuals with
disabilities who have certification from Vocational Rehabilitation,
Veterans Administration, or Gallaudet University. After two
years of satisfactory performance, they may be converted to
competitive status.
Veterans with a service-connected disability of 30% or more that
has been documented by the Department of Defense or the
Veterans Administration.
C. Merit Promotion programs should be open to qualified individuals
with disabilities. They should be considered for job vacancies or
advancement through merit promotion programs using competitive
and noncompetitive procedures. Each agency should have established
mechanisms for recruiting qualified individuals with disabilities for
vacancies announced through the merit promotion program.
D. Upward Mobility programs should also be open to qualified
individuals with disabilities, and they should be recruited to participate.
E. Special Employment Programs should be open to individuals with
disabilities on an equal basis with individuals who do not have
disabilities.
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XIV Job Performance and Recognition
A. 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.
B. 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 with 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.
C. When evaluating an individual with a disability, ensure that aspects of
their physical or mental disability are not held against them.
D. Management officials should consider that what appears to be a
performance or conduct problem may result from a lack of appropriate
accommodations.
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Notes: Rights and Responsibilities under the
Rehabilitation Act of 1973
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«ERA
ORDER
Classification No.: 3110.21 A2
Approval Date: 03/05/2008
Review Date: 03/05/2011
Providing Reasonable Accommodations for EPA Employees and Applicants with
Disabilities
PURPOSE: This directive provides Agency policy and assigns responsibility
for requesting and providing reasonable accommodations for
EPA employees and applicants with disabilities. The goal of the
policy is to promote a model Federal workplace that provides
reasonable accommodations to qualified Federal employees and
applicants with disabilities.
BACKGROUND: Section 501 of the Rehabilitation Act of 1973, as amended (29
U.S.C. Section 791; see also 29 CFR 1614.101 (a) and
1614.203), prohibits discrimination on the basis of disability in
Federal employment. 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. Federal employers should
ensure that their policies do not unnecessarily restrict persons
with disabilities from having full access to equal employment
opportunities.
Executive Order 13164 requires each federal agency to
establish effective written procedures to facilitate the provision of
reasonable accommodation.
POLICY: EPA is committed to providing reasonable accommodation upon
request, by qualified individuals with disabilities in order to
assure that these individuals enjoy full access to equal
employment opportunities at EPA.
EPA will provide reasonable accommodations for the following
situations, unless to do so would cause undue hardship:
when an applicant is a qualified individual with a disability
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and requires an accommodation in order to apply or be
considered for a job;
when an employee is a qualified individual with a
disability and requires an accommodation to enable him
or her to perform the essential functions of the job; and/or
when an employee is a qualified individual with a
disability and requires an accommodation to enjoy equal
benefits and privileges of employment.
EPA will process requests for reasonable accommodations in a
prompt, fair and efficient manner and without unreasonable
delay.
In order to implement this policy, EPA has partnered with the
Computer/Electronic Accommodations Program (CAP),
sponsored by the Department of Defense. CAP provides
assistive technology, devices and support services to EPA free
of charge for use by EPA employees with disabilities. In addition,
EPA has designated a Reasonable Accommodation Coordinator
(RAC) to direct the Agency-wide program, and where
appropriate, some of the RAC's responsibilities may be
delegated to Local Reasonable Accommodation Coordinators
(LORACs) to assist in coordinating the processing and provision
of reasonable accommodations in the Regions, Laboratories,
Geographical Areas (such as RTP, Cincinnati, or Las Vegas),
and in Headquarters.
EPA also recognizes that it is the Agency's responsibility,
through its AAships and Regions, to fund reasonable
accommodations, and that, according to current case law,
regulations, and EEOC guidance, it is unlikely that a reasonable
accommodation will become an undue hardship solely as a
result of its financial cost to the Agency. To assist AAships and
Regions that may experience a disproportionate amount of
expenses in providing reasonable accommodations, EPA has
created a "Clearinghouse" to field questions on funding these
expenses. The Clearinghouse will consist of senior-level
management representatives from the Office of the Chief
Financial Officer, Office of the Administrator, Office of Civil
Rights, Office of Administration and Resources Management,
Office of General Counsel, Office of the Inspector General, a
lead Regional Office, and on a rotational basis, a representative
of a Headquarters Program Office. The RAC, will function as an
advisor to the Clearinghouse. The RAC shall convene the
Clearinghouse on an as needed basis.
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ANTICIPATED
OUTCOMES/
RESULTS:
THIS DIRECTIVE
APPLIES TO:
Reasonable accommodations will be provided to qualified
employees and applicants with disabilities in a prompt, fair and
efficient manner and without unreasonable delay in order to
provide these individuals with full access to equal employment
opportunities at EPA.
All EPA employees and applicants for Federal employment at
EPA.
ROLES AND
RESPONSIBILITIES:
The Agency Reasonable Accommodation Coordinator (RAC) is
responsible for:
Serving as the subject matter expert for Agency
employees and supervisors to use in requesting and
providing reasonable accommodations. The RAC
functions as a resource for the reasonable
accommodation process and for ensuring consistency
throughout the Agency.
Documenting and monitoring all requests for reasonable
accommodation to ensure timely resolution and keeping
employees that make reasonable accommodation
requests up-to-date until a determination is made.
Providing resource information or facilitating the
processing of a request with the supervisor and the
employee.
Coordinating the provision of reasonable accommodation
for applicants.
Coordinating the collection and evaluation of medical
records or the evaluation of the employee by an
appropriate health professional.
Maintaining medical records and files on all requests.
Providing options to supervisors on appropriate
reasonable accommodations.
Providing supplier information and technical resources for
the procurement of equipment for reasonable
accommodation.
Providing training on the process for requesting and
providing reasonable accommodation to management
and staff.
Providing information on how the applicant or employee is
determined to be a qualified person with a disability.
Local Reasonable Accommodation Coordinators (LORACs) are
responsible for:
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Ensuring that the location which they serve is processing
requests for reasonable accommodation consistent with
Agency policy and procedures.
Meeting regularly with the RAC and providing the RAC a
monthly report on the status of all requests for reasonable
accommodation in their respective location.
Note: Some of the duties and responsibilities of the RAC may
be delegated to LORACs, in writing, upon a showing that the
LORACs possess the appropriate knowledge, skills, and abilities
to perform the delegated responsibilities.
Chief of Staff, Assistant Administrators, Inspector General.
General Counsel. Chief Financial Officer, and Regional
Administrators are responsible for:
Providing adequate funding for reasonable
accommodation.
EPA Supervisors/Agency Decision Makers are responsible for:
Responding to, approving, or denying requests for
reasonable accommodation within 10 working days from
receipt of the initial request, when requests do not require
supporting medical information and no extenuating
circumstances apply. When medical documentation or an
evaluation is required, time frames will be extended.
Ensuring that written documentation of the confirmation of
request for reasonable accommodation and decisions
granting or denying a request are completed and
submitted to the appropriate contact accurately and in a
timely manner.
Consulting with the RAC (or LORAC where delegated),
prior to making a decision on a request for reasonable
accommodation.
Notifying the RAC (or LORAC where delegated), and the
appropriate Agency Facilities Official(s) when requests for
reasonable accommodations involve EPA facility access.
Note: For a request involving the essential functions of an
employee's job, the immediate supervisor or another supervisor
in the employee's immediate chain of command is the Agency
decision-maker.
EPA Employees are responsible for:
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Requesting reasonable accommodations either orally or
in writing, from a supervisor, the RAC (or LORAC).
Providing appropriate medical documentation of a
disability as defined by the Rehabilitation Act and the
need for the accommodation. If requested by the
Agency, EPA employees will provide a medical privacy
release so that an Agency physician, RAC, or LORAC
can talk directly with the employee's physician or other
health care professional.
Applicants for Federal Employment at EPA must request
reasonable accommodations either orally or in writing, from any
EPA employee authorized to interact with the applicant in the
application process.
AUTHORITY: Section 501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. § 791; and 29 C.F.R. §§ 1614.101 (a) and 1614.203.
Executive Order 13164, dated July 26, 2000.
SUNSET/ This directive will be reviewed three years from the last review
REVIEW DATE: date.
SUPERSEDES/
CANCELS
This directive replaces EPA Order 3110.21 A1; Providing
Reasonable Accommodation for EPA Employees and Applicants
with Disabilities dated October 6, 2003.
REFERENCES:
Additional guidance materials, information on local contacts, and
the procedures for providing reasonable accommodations for
EPA employees and applicants with disabilities are available on
the Agency's intranet site (at
http://intranet.epa.qov/civilriqhts/reasonableaccommodation.htm)
or by contacting the RAC in the Office of Civil Rights at (202)
564-7272.
Managers, employees, and applicants may refer to the EEOC's
"Enforcement Guidance: Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act" at
http://www.eeoc.qov/policv/docs/accommodation.html for more
information on their rights and responsibilities in requesting and
providing reasonable accommodations.
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Test Your Workplace Harassment IQ!
True or False
£_ 1. If your intentions are good, your behavior isn't harassment.
F 2. People who are harassed usually do something to invite it.
3. If everyone else thinks a co-worker's behavior is okay, you
should just accept it, even if it bothers you.
Jl 4. Using slang "nicknames" that denote co-worker's race, ethnicity,
cultural heritage, religion, sex or age is okay, as long as it is
done in a joking manner.
5. Asking a co-worker for a date is not sexual harassment.
F 6. An agency is not responsible if an individual who provides a
service {e.g., filling the vending machines, repairing the copier
or delivering supplies) harasses its employees because the
provider of services is not employed by the agency.
_E_ 7. If no one complains about your behavior, that means you are
not offending anyone.
R 8. If a harassment victim tells a management official that s/he has
been harassed, but asks the management official not to report
the harassment, the management official should respect the
wishes of the victim.
T 9. One incident of unwelcome conduct cannot support a
discrimination finding.
^ 10. If a management official hears one employee making remarks
about another employee's religious observances, the manager
should just wait and see if the victim complains. If s/he does
not complain, the management official should assume that s/he
does not find the comments offensive.
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r 11. If an employee complains about workplace harassment, and an
investigation does not prove the allegations to be true, an
accused management official may discipline the employee for
filing the complaint.
f 12. An employee must suffer a tangible employment action to show
s/he was harassed.
F 13. An employee who submits to offensive conduct does not feel the
conduct was unwelcome.
14. Males can harass other males without fearing a harassment
complaint.
T~ 15. Agencies should have an anti-harassment policy which every
employee is aware of.
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Employment Civil Rights Training
Identifying, Eliminating
and Preventing
Harassment
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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
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Who Can Commit Harassment
A Management Official
A Co-Worker
A Non-employee
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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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Unwelcome Conduct
"Unwelcome" conduct is where the employee did not
solicit or 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 the conduct was
welcome
< Active participation may defeat the claim
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Scenario #1
James (African-American) and Miguel (Hispanic) are co-
workers and good friends. While at work, they frequently
engage in verbal joking about a variety of topics. At times,
they make fun of the other's race and/or national origin.
Jennifer works in a work station close to James and Miguel
and sometimes hears their conversations. After months of
exposure to the ethnic comments, she told them that she
did not think their behavior was appropriate. James
responded that they were only having fun and not serious
about the ethnic remarks. As the comments continued,
Jennifer complained to her supervisor, who stated that
James and Miguel did not mean anything by the comments
and were just keeping the workplace lively with humor.
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Harassment based on sex, including
same-sex, (sexual and non-sexual)
violates Title VII
Harassment based on race, color, national
origin, religion, age (40 and over), disability
or in retaliation for protected activity also
violates federal anti-discrimination laws.
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Scenario #2
Joseph is a rude and offensive individual. He constantly
makes disrespectful statements to his coworkers about their
appearance, knowledge, and job performance. Alex is
particularly offended by Joseph's inappropriate behavior.
Joseph daily reminds-Alex that he is not on the "best team,"
and that he did not attend the "right university." Additionally,
Joseph frequently reminds Alex that he will never be as
good as the employees with "military background." Fed up
with Joseph's behavior, Alex initiates the EEO process.
Analyze Alex's harassment claim.
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Harassment: Tangible Employment Action
A supervisor's harassment results in a significant
change in employment status or benefits (e.g.
demotion, termination, failure to promote)
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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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
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Hostile Environment
Harassment
Standards
Key Issues
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Reasonable Person
Is the conduct severe or pervasive enough
to create an environment that a
reasonable person would find hostile,
intimidating or abusive? and
Does the employee perceive the conduct
as such?
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Scenario # 3
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.
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Agency Liability: Hostile Work
Environment
Harassment By a Management Official
Agency is liable even if management did not know, unless
both elements of an affirmative defense are met:
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Agency Liability: Hostile Work Environment
Harassment By Co-Worker or Non-Employee
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:
The victim complains about the harassment, or
The conduct occurred in the presence of a
supervisor, or
The conduct is widespread
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Scenario # 4
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.
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How Harassment Affects the Workplace
For agencies:
High legal costs and damage awards
Poor public image
Lower productivity and morale
Higher costs for hiring and training new
employees
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How Harassment Affects the Workplace
For employees:
Emotional and physical pain
Less effective job performance
Poor employee morale
Personal and financial problems
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Appropriate Preventative Actions
All Employees should:
Know the agency's anti-harassment policy
Set a positive example by treating others with respect
Don't make assumptions about practical jokes
Think before speaking and consider others' feelings
and perceptions
Never go along with the crowd if behavior is offensive
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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
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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.
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Other Preventive Measures
Provide anti-harassment training to all
management officials and employees
Provide for periodic updates on agency's anti-
harassment policy and complaint procedures
Monitor enforcement of anti-harassment policy
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DESK REFERENCE GUIDE
Harassment
I. What Is Workplace Harassment?
A. Definition: Harassment is any unwelcome verbal or physical conduct
based on race, color, religion, sex (whether or not of a sexual nature),
national origin, age, disability, or retaliation 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.
B. However, the anti-discrimination statutes are not a general civility
code. Thus, federal law does not prohibit simple teasing, offhand
comments, or isolated incidents that are not extremely serious.
Rather, the conduct must be so objectively offensive as to alter the
conditions of the individual's employment. The conditions of
employment are altered only if the harassment culminated in a
tangible employment action or was sufficiently severe or pervasive to
create a hostile work environment.
II. Who Can Commit Harassment?
A. Anyone can commit harassment in the workplace.
B. For example:
A management official
A co-worker
A non-employee
III. Elements of a Harassment Claim
Typically, there are three elements of a harassment claim:
A. The challenged conduct must be unwelcome.
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B. The complainant must have been subjected to the conduct because of
his or her sex, race, religion, national origin, age, disability, or
because s/he opposed discrimination or participated in
complaint proceedings.
C. The challenged conduct must have resulted in a tangible
employment action or a hostile work environment.
IV. Unwelcomeness
A. Harassment is unlawful only if it is unwelcome to the complainant.
"Unwelcome" conduct means that the employee did not solicit or invite
the conduct and regarded it as undesirable.
B. The critical inquiry is whether the complainant explicitly or implicitly
communicated to the alleged harasser that the conduct was
unwelcome.
Submission to sexual demands does not mean that
the demands were welcome, but active participation in the
challenged conduct would likely defeat the claim.
V. Basis
A. Harassment based on sex, including same-sex harassment, violates
Title VII whether or not sexual conduct is involved.
B. Sexual harassment is a form of harassment in the work place that can
be a particularly notorious form of discrimination. This type of
harassment involves conduct that is sexual in nature.
C. Furthermore, it is important to remember that gender-based
harassment, i.e., conduct that is not of a sexual nature, but is based
on the gender of the complainant, is also unlawful. For example, a
complainant who alleges that her manager calls her "stupid broad" and
makes other disparaging comments about women that are not sexual
in nature, may also file a harassment claim based on sex.
Remember that harassment based on race, color, religion, national
origin, age (40 and over), disability, or in retaliation for a protected
activity (opposition to discrimination or participation in discrimination
complaint proceedings) also violates federal anti-discrimination laws
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and that while much publicity and attention is directed toward sexual
harassment allegations, the general principles of hostile work
environment harassment apply to all protected bases.
D. Finally, while workplace harassment based on sexual orientation is not
prohibited by any federal EEO statutes, some state and/or local laws
prohibit employment discrimination based on sexual orientation.
Additionally, the Civil Service Reform Act of 1978 and Executive Order
11478 prohibit workplace discrimination based on an individual's
sexual orientation.
VI. Harassment that Results in A Tangible Employment Action
Definition: A management official's harassment results in
termination of an employee, denial of promotion, or some other
significant change in employment status {e.g., hiring, firing,
promotion, failure to promote, demotion, undesirable reassignment,
or a significant change in benefits, a compensation decision, or a work
assignment).
A. Only management officials or other individuals designated to perform
supervisory functions {e.g., scheduling, approving vacation, evaluating
performance) can commit this type of harassment. Perpetrators of
this type of harassment have some authority over the alleged victim
which may permit coercion.
B. An agency is automatically liable for this type of harassment,
regardless of whether upper management had knowledge of it.
VII. Hostile Work Environment Harassment
Definition: Unwelcome comments or conduct based on sex, race, or
other protected bases which unreasonably interfere with an
employee's work performance or creates an intimidating, hostile or
offensive work environment.
A. The individual claiming hostile environment harassment does not have
to be the individual at whom the offensive conduct is directed but can
be anyone affected by the conduct.
B. Examples of actions that may create sexual hostile environment
harassment include:
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Pressure for dates
Making offensive remarks about looks, clothing,
body parts
Touches in a way that may make an employee feel
uncomfortable
Telling sexual jokes, hanging sexual posters, etc.
C. Other actions that may result in hostile environment harassment, but
are nonsexual in nature, include:
Use of racially derogatory words, phrases, epithets
Demonstrations of a racial or ethnic nature such as
use of gestures, pictures or drawings that would
offend a particular racial or ethnic group
Comments about an individual's skin color or other
racial/ethnic characteristics
Negative comments about an employee's religious
beliefs
Negative stereotypes regarding an employee's
birthplace or ancestry
Negative comments regarding an employee's age
when referring to employees 40 and over
Derogatory or intimidating references to an
employee's mental or physical impairment
D. Anyone in the workplace might commit this type of harassment -
management official, co-worker or non-employee.
E. Standards governing whether unwelcome conduct creates an unlawful
hostile environment.
The key issues are frequency and severity: the more severe the
conduct, the less frequent it must occur to create a hostile work
environment; the less severe, the more frequent it must occur.
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Both objective and subjective standards apply: How would a
reasonable person have reacted in the complainant's position?
How did the complainant react? The individual's job need not be
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.
VIII. Agency Liability
A. 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 establish both
elements of a two-part affirmative defense.
1. It exercised reasonable care to prevent and correct promptly any
harassment; and
2. The employee unreasonably failed to take advantage of any
preventative or corrective opportunities provided by the agency
or to avoid harm otherwise.
B. 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.
C. 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.
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D. 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.
1. It is assumed that the agency has knowledge of the harassment
under the following circumstances:
a. The victim complains about the harassment;
b. The conduct occurred in the presence of a management
official:
c. The conduct is so widespread that the agency reasonably
knew or should have known.
IX. Appropriate preventative Actions for all Employees
A. Know the agency's policy on workplace harassment.
B. Set a positive example by treating others with respect, and letting
them know the same is expected of them.
C. Avoid making assumptions that jokes, friendly gestures or comments
are harmless or welcome. They may not be viewed that way by
others.
D. Think before making personal comments or asking questions that may
be misinterpreted. Consider whether or not they will make the other
individual uncomfortable.
E. Never go along with a crowd or accept behavior that is offensive.
Make feelings known.
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X. Actions for Victim of Harassment
A. Follow the agency's policy.
B. The agency's policy should give several alternatives for reporting
harassment, including the employee's supervisor, manager, human
resource officer or other appropriate personnel.
C. May place the perpetrator on notice that his/her actions are
unwelcome, offensive or make the employee uncomfortable.
D. Keep a record of dates, times, witnesses to the event.
E. Talk to the management official or other agency personnel specified in
the policy.
F. Indicate the desired resolution of the matter.
G. Remedies may include a transfer of the harasser or ensuring that the
harassment ceases.
XI. Preventative and Corrective Measures
A. Anti-Harassment Policy
1. Establish an effective workplace anti-harassment policy that meets,
at a minimum, the following criteria:
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a.
The policy should be written and well disseminated.
A policy against harassment is worthless unless employees are
aware of it. Policies may be disseminated through training
sessions, posting on bulletin boards, and inclusion in employee
handbooks. The policy should be redistributed periodically to all
employees.
b.
Protect against retaliation.
Make it clear that employees will be protected against retaliation
for making complaints or assisting in investigations.
c.
Define workplace harassment and explain the kinds of conduct
that are prohibited.
d.
Make sure that the policy prohibits all forms of harassment.
e.
Establish a procedure outside of the EEO process to address
harassment incidents.
The policy should encourage employees to report harassing
conduct before it becomes severe or pervasive. However, the
policy and complaint procedure should contain information about
the time frames for filing and EEO complaint.
f.
Create multiple points of access to report harassment within the
policy.
Employees must be able to bypass their supervisory
management official and complain to other management
officials. This is critical because a process that requires an initial
complaint to the supervisory management official is useless if
the supervisory management official is the harasser.
9-
Set a time frame for responding to claims of workplace
harassment.
Make it clear that management will act quickly in responding to
complaints.
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h. Assure that immediate and appropriate corrective action,
including discipline will be taken.
Penalties should range from a warning to suspension or
discharge, depending on the seriousness of the conduct.
i. Ensure confidentiality.
Ensure confidentiality to the extent possible. This protection
should extend to the victim and the alleged harasser.
XII.
Investigating Allegations of Harassment where Management is
Responsible for the Investigation.
A.
The investigation should be prompt, thorough and impartial.
B.
Respond immediately to workplace harassment complaints.
C.
Follow the workplace harassment policy.
D.
Investigate all harassment complaints.
E.
Be objective, don't make assumption.
F.
Be sensitive to all witnesses.
G.
Check personnel records.
H.
Write a report concerning interviews and findings.
I.
Give the complaining party and the alleged harasser(s) a letter or
statement concerning the findings and what is being done.
J.
Take immediate and appropriate action.
K.
Conduct investigation swiftly while minds are fresh and memories are
better, and harm can be minimized.
L.
Get relevant information from the complainant.
M.
Get relevant information from the alleged harasser.
N.
Get relevant information from third parties/witnesses.
0.
Confidentiality of the complainant, the accused harasser, their
witnesses and any third parties should be protected to the extent
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possible. Information should be shared only with those who have a
need to know.
P. Ensure that retaliation does not occur.
Inform the complainant and his/her witnesses that management will
ensure that they won't suffer retaliation, and notify the alleged
harasser that retaliation is unlawful, whether or not the alleged
harassment allegation is proven true or not. Note that retaliation can
be overt or subtle; including increased productivity requirement,
reduced evaluations, inequitable assignment, and closer scrutiny of
time and attendance.
Q. If it is necessary to separate the complainant and the alleged harasser
during the investigation, don't make the complainant move (unless the
complainant requests reassignment), because the move could be
considered retaliation.
R. Check personnel records (if necessary).
S. Make credibility determinations.
Are the statements believable? Did the individual seem to be telling
the truth; how was his/her demeanor? Did the individual have a
reason to lie? Is there witness testimony or physical documentation
that corroborates the individual's testimony? Did the alleged harasser
have a history of similar behavior in the past?
T. 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.
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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.
XIII. Other Preventative Measures
A. Routinely educate employees about what constitutes unlawful
harassment and about the agency's anti-harassment policy and
complaint procedures.
B. Train management officials and employees concerning actions that
may constitute harassment and what they should do if they are
harassed.
C. Monitor enforcement of the anti-harassment policy.
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Notes: Identifying, Preventing and Correcting
Workplace Harassment
i
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Additional Resources
Laws Enforced by EEOC - http://www.eeoc.aov/laws.html
29 Code of Federal Regulations Part 1614
http://www.eeoc.gov/federal/1614-final.html
Management Directive 110 - http://www.eeoc.gov/federal/mdllO.html
29 Code of Federal Regulations Part 1614
http://www.eeoc.gov/federal/1614-final.html
Enforcement Guidance: Vicarious Liability for Unlawful Harassment by
Supervisors
http://www.eeoc.gov/policv/auidance.html
Compliance Manual - § 8: Retaliation
http://www.eeoc.gov/policv/docs/retal.pdf
Compliance Manual - Section 15: Race and Color Discrimination -
http://www.eeoc.gov/policv/docs/race-color.pdf
EEOC Fact Sheet on Work At Home/Telework as a Reasonable
Accommodation (2/3/03)
http.y/www.eeoc.Qov/facts/telework.html
EEOC Enforcement Guidance: Reasonable Accommodation and Undue
Hardship Under the Americans With Disabilities Act (as revised, 10/17/02)
http://www.eeoc.gov/docs/accommodation.html
The Americans With Disabilities Act: A Primer for Small Business (8/15/02)
http://www.eeoc.gov/ada/adahandbook.html
EEOC Fact Sheet on Obtaining and Using Employee Medical Information as
Part of Emergency Evacuation Procedures (10/31/01)
http://www.eeoc.gov/facts/evacuation.html
EEOC Enforcement Guidance on the Application of the ADA to the Contingent
Workers Placed By Temporary Agencies and Other Staffing Firms (12/22/00)
http://www.eeoc.gov/doc/auidance-continaent.html
EEOC Policy Guidance on Executive Order 13164: Establishing Procedures to
Facilitate the provision of Reasonable Accommodation (10/20/00)
http://www.eeoc.gov/docs/accommodationprocedures.html
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EEOC Enforcement Guidance: Disability-Related Inquiries and Medical
Examinations of Employees Under the Americans With Disabilities Act
(7/27/00)
http ://www.eeoc.QQv/docs/quidance-inQui ries.html
EEOC Policy Guidance on Executive Order 13145: To Prohibit Discrimination
in Federal Employment Based on Genetic Information (7/26/00)
http://www.eeoc.qov/quidance-qenetic.html
Instructions for EEOC Field Offices: Analyzing ADA Charges After Supreme
Court Decisions Addressing "Disability" and "Qualified" (7/26/99)
http://www.eeoc.gov/docs/field-ada.html
EEOC Enforcement Guidance on the Americans With Disabilities Act and
Psychiatric Disabilities (2/35/97)
http://www.eeoc.gov/docs/psvch.html
EEOC Enforcement Guidance: Workers' Compensation and the ADA (9/3/96)
http://www.eeoc.gov/docs/workcomp.html
Fact Sheet on the Family and Medical Leave Act, the Americans with
Disabilities Act, and Title VII of the Civil Rights Act of 1964 (11/95)
http://www.eeoc.oov/docs/fmlaaada.html
Interim Enforcement Guidance on the Application of the Americans with
Disabilities Act of 1990 to Disability-Based Distinctions in Employer Provided
Health Insurance (6/8/93)
http://www.eeoc.gov/docs/health.html
Compliance Manual Section 902: Definition of the Term Disability (3/14/95)
http://www.eeoc.gov/docs/902cm.html
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