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EEO Compliance Training for Employees

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EEO Compliance Training
for Employees
U.S. Department of Veterans Affairs
Office of Diversity and Inclusion* and
the Office of Resolution Management
* The Office of Diversity and Inclusion was formerly the Office of Diversity and EEO.
Learning Objectives
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Briefly review and discuss major anti-discrimination laws.
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Increase awareness of workplace harassment, including types not
always obvious.
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Learn techniques for identifying and preventing workplace
discrimination, harassment, and retaliation.
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Review and understand the significant aspects of the agency’s
reasonable accommodation procedures.
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Understand the significant stages in the federal sector EEO
complaint process, including the option of ADR.
2
VA Equal Employment
Opportunity Policy
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All applicable federal EEO laws will be vigorously enforced.
пЃ®
It is the policy of the VA to ensure equal employment opportunity,
prohibit discrimination and harassment in all its forms, and promote
diversity and inclusiveness in the VA workplace.
пЃ®
Each employee bears the responsibility to ensure that
discrimination and harassment in the workplace are not tolerated
and that diversity is valued.
пЃ®
However, supervisors and managers bear a special responsibility to
ensure that work environments are free from discrimination and
harassment of any kind.
3
Anti-Discrimination Laws
пЃ®
Title VII of the Civil Rights Act of 1964 (Title VII):
п‚Ё Is the major federal law prohibiting discrimination in
employment.
п‚Ё Title VII prohibits discrimination based on race, sex, color,
religion, national origin, and retaliation.
пЃ®
The Equal Pay Act of 1963 (EPA):
п‚Ё Protects men and women who perform substantially equal work
from sex-based wage discrimination.
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The Age Discrimination In Employment Act of 1967 (ADEA):
п‚Ё Protects employees and job applicants who are 40 years of
age or older from employment discrimination based on age.
4
Anti-Discrimination Laws
пЃ®
The Rehabilitation Act of 1973:
п‚Ё Applicable sections prohibit discrimination in federal employment
against qualified individuals with disabilities.
п‚Ё
пЃ®
Also, requires employers to provide “reasonable
accommodation” to qualified individuals with disabilities who are
employees or applicants for employment.
The Civil Rights Act of 1991:
п‚Ё Provides the right to a jury trial and monetary damages in cases
of employment discrimination.
5
Anti-Discrimination Laws
пЃ®
The NO FEAR ACT (became effective on October 1, 2003):
п‚Ё
Prohibits discrimination and retaliation against federal workers
for participating in the EEO process or whistle-blower activities.
п‚Ё
Requires agencies to train employees and post statistical data
on EEO complaints on agency’s public website.
п‚Ё
Also, requires agencies to reimburse the Treasury Judgment
Fund for payments made in Federal District Court cases
involving violations of discrimination and whistle-blower laws.
6
Disparate Treatment Discrimination
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Exists when similarly situated individuals are treated differently
because of their membership in a protected class.
пЃ®
Complainant must establish a prima facie case by showing that:
o He/she is a member of a protected class.
o He/she suffered some adverse action.
o A similarly situated individual outside of his/her class was
treated more favorably.
пЃ®
Shifting Burden: Once prima facie case is established burden shifts
to employer to articulate a legitimate, non-discriminatory reason for
taking the action; and shifts back to complainant to argue pretext.
пЃ®
Intent to discriminate is proven by three types of evidence: direct,
circumstantial (comparative), and statistical.
7
Adverse Impact Discrimination
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Exists when a facially neutral employment policy/practice
disproportionately impacts members of a protected class.
пЃ®
The burden shifts to the agency to provide a business justification
for the challenged policy/practice.
пЃ®
After management meets its burden, the complainant may prevail by
providing an alternative practice that would accomplish the same
business objective with a less adverse impact on the protected
class.
пЃ®
Discriminatory motive is not required.
пЃ®
Examples of policies that may adversely impact some groups:
Educational requirements, tests, height and weight requirements,
subjective standards for hiring, promotions, and assignments.
8
Workplace Harassment
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Workplace harassment is a form of discrimination that is explicitly
prohibited by VA policy and the law.
пЃ®
VA will not tolerate verbal or physical conduct that harasses,
disrupts, interferes with performance, or creates an environment that
is intimidating, offensive and/or hostile.
пЃ®
Additionally, the Agency will not tolerate or condone any form of
harassment or retaliation towards employees who report incidents of
harassing behavior or assist in any inquiry about such a report.
9
Workplace Harassment Defined
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Harassment is any unwelcome verbal or physical conduct based on
race, color, religion, sex (regardless of whether it is of a sexual
nature), sexual orientation, national origin, age, disability or
retaliation that is sufficiently offensive to alter the conditions of the
victim’s employment. This standard is met when:
п‚Ё
The conduct culminates in a tangible employment action, or
п‚Ё
The conduct is sufficiently severe or pervasive as to create a
hostile work environment.
10
Tangible Employment Action
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Definition: A management official’s harassment that results in a
significant change in an employee’s (usually a subordinate’s)
employment or job status.
п‚Ё
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Examples of tangible employment actions include but are not
limited to: hiring and firing, promotion or failure to promote,
demotion, undesirable reassignment, work assignments and
other actions.
An agency is automatically liable for harassment by a management
official that results in a tangible employment action regardless of
whether upper management had knowledge of it.
11
Tangible Employment Action: Example
пЃ®
For example: A manager pressures a subordinate employee to join
her for dinner and dancing. When he declines, she tells him that he
can’t expect her to “mentor” him if he is unwilling to spend time
together after hours. After he does not relent, he receives an
undesirable reassignment. In this instance the undesirable
reassignment represents a tangible job action.
пЃ®
Even an isolated instance of such misconduct is unlawful.
12
If Management Conduct Creates
Hostile Environment
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The harassment by a management official that does not result in a
tangible employment action is analyzed to determine whether it was
severe or pervasive enough to create a hostile environment.
пЃ®
If the conduct created a hostile environment, an agency is liable
unless it can establish that:
п‚Ё
It exercised reasonable care to prevent and correct promptly any
harassment (has anti-harassment policy and complaint
avenues); and
п‚Ё
The employee unreasonably failed to take advantage of any
preventative or corrective opportunities provided by the agency
(failed to take advantage of complaint process).
13
Hostile Work Environment
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Anyone in the workplace can commit this type of harassment: a
supervisor or manager, co-worker, or even a non-employee.
пЃ®
To create a hostile environment, the conduct must rise to the level of
being severe or pervasive.
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The key issues are frequency and severity.
п‚Ё The more severe the conduct, the less frequent it must be to rise
to the level of a hostile environment.
п‚Ё
The less severe the conduct, the more frequently it must occur to
constitute a hostile environment.
14
The Reasonable Person Standard
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A “reasonable person” standard is used in evaluating whether
unwelcome conduct is sufficiently severe or pervasive to create a
hostile environment.
п‚Ё
Under the “reasonable person” standard the harassing conduct
must be viewed as objectionable not only from the standpoint of
the victim/target but also from the standpoint of a “reasonable
person.”
п‚Ё
A “reasonableness” standard guards against claims by
hypersensitive individuals.
15
Harassment by Co-workers
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If harassment by a co-worker creates a hostile environment, the
agency is liable if it knew or should have known of the conduct and
failed to take immediate and appropriate corrective action.
п‚Ё
Example of misconduct by co-workers: When a female
complains about the vulgar language and jokes that routinely fill
the break- room, her male co-workers tell her to, “lighten up and
get used to it, because that’s how the boys behave.”
16
Religious Harassment
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Religious harassment is discriminatory treatment based on a
person’s:
п‚Ё
Affiliation with a particular religious group;
п‚Ё
Display of physical or cultural traits commonly associated with a
particular religion;
п‚Ё
Perception or belief that someone else is a member of a
religious group (whether true or not);
п‚Ё
Dress or other apparel commonly associated with a particular
religion; and
п‚Ё
Association with a religious person, individual or organization.
17
Prevention of Harassment
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Avoid initiating or participating in any behavior that may be
misconstrued as possible harassment, including the
following types of behavior:
пѓј
Verbal (unwelcome comments, yelling, offensive jokes or
stories);
пѓј
Visual (offensive pictures, photos, cartoons, posters,
calendars, magazines or objects);
пѓј
Physical (unwelcome touching, hugging, kissing,
stroking, ogling or suggestive gestures); and
пѓј
Written (unwelcome letters, notes or e-mails of a
personal nature).
18
Prevention of Harassment Con’td
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Avoid sexual, racial, ethnic, cultural, age/disability related jokes,
epithets, comments, and e-mails.
пЃ®
Respect a person’s wishes when he/she indicates that conduct or
attention is not welcome.
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Clearly inform those engaging in offensive behavior that you find it
objectionable.
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Report behavior that you believe qualifies as harassment.
19
Reasonable Accommodation
пЃ®
пЃ®
пЃ®
It is the policy of the VA to provide equal opportunity to
all qualified individuals with disabilities in accordance
with the Rehabilitation Act of 1973 and to fully comply
with all other legal and regulatory requirements.
No qualified individual with a disability may be denied
the benefits of a program, training, or activity
conducted, sponsored, funded, or promoted by the VA,
or otherwise be subjected to discrimination.
To this end, reasonable accommodations will be
provided to qualified individuals with disabilities, unless
doing so poses an undue hardship on the Agency.
20
Reasonable Accommodation
пЃ®
Reasonable accommodations are effective adjustments made to a
job, work environment or application process that enable qualified
employees with disabilities to perform the essential functions of
the job, and applicants to participate in the application process.
пЃ®
Such accommodations may include modifying work schedules and
policies, providing devices or modifying equipment and making
workplaces accessible.
пЃ®
They may also include accessibility to Electronic and Information
Technology (EIT) and may require the purchase of assistive
devices to meet the needs of the individual.
21
Reasonable Accommodation
Americans with Disabilities Act Amendments Act
of 2008 (ADAAAA)
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пЃ®
пЃ®
пЃ®
ADAAA restores the original intent of Congress regarding the
definition of disability, as reflected in the Rehabilitation Act
(Rehab Act) of 1973.
Broadens the coverage that existed under the Americans with
Disabilities Act (ADA) and the Rehab Act.
Broadens the meaning of “regarded as” disabled
Broadens the meaning of an actual disability
Broadens the definition of “substantial limitation”
Expands the definition of “major life activity”
Eliminates mitigating measures
п‚Ё Clarifies that an impairment that is episodic or in remission may
qualify as a disability if it substantially limits a major life activity
п‚Ё An impairment that limits only one major life activity is now enough
to qualify as a disability
п‚Ё
п‚Ё
п‚Ё
Definition of Disability
An Individual with a Disability is:
1. Someone with an actual disability which is a
“qualified individual with a disability” is
someone with a physical or mental impairment
that “substantially limits” a “major life activity”;
or
2. An individual with a record of such impairment;
or
3. An individual who is “regarded as” having such
an impairment.
Qualified Individual with a
Disability
пЃ®
It is the policy of the VA to provide equal opportunity to
all “qualified individuals with disabilities” in accordance
with the Rehabilitation Act of 1973 and the Americans
with Disability Act Amendments Act (ADAAA) of 2008,
which will become effective on January 1, 2009.
пЃ®
A “qualified individual with a disability” is an individual
with a physical or mental impairment, which
“substantially limits” one or more “major life activities.”
Physical or Mental Impairment
пЃ®
пЃ®
Based on the ADAAA the EEOC may expand
this definition of physical or mental impairment
Currently, 29 C.F.R. 1630.2(h) a physical or
mental impairment means:
Any physiological disorder, or condition, cosmetic
disfigurement or anatomical loss affecting one or
more of the…body systems…or any mental or
psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness,
and specific learning disabilities.
Substantially Limits
пЃ®
пЃ®
This is consistent with the findings and purposes
of the ADAAA to expand the coverage of the
Rehab Act to more individuals with impairments
Consider:
п‚Ё The
nature and severity of the impairment
п‚Ё Duration or expected duration of the impairment
п‚Ё Permanent or long term impact of the impairment
Major Life Activities
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Under the ADAAA major life activities include but is not
limited to:
п‚Ё
п‚Ё
п‚Ё
Caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking,
communicating, and working.
Also includes the operation of a major bodily function, including
but not limited to, functions of the immune system, normal cell
growth, digestive, bowel, bladder, neurological, brain,
respiratory, circulatory, endocrine, and reproductive functions.
The EEOC’s definition includes: caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. EEOC will expand this definition now that
the ADAAA is in effect.
Reasonable Accommodation
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No qualified employee with a disability may be denied the benefits of
a program, training, or activity conducted, sponsored, funded, or
promoted by the VA, or otherwise be subjected to discrimination.
пЃ®
To that end, reasonable accommodation will be provided to qualified
individuals with disabilities, unless doing so poses an undue
hardship to the agency.
пЃ®
There may be a wide range of possible accommodations that might
assist the employee.
пЃ®
However, management is only required to provide an effective
accommodation, not necessarily the one requested.
Requests for Accommodation
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An employee can request reasonable accommodation from his/her
supervisor; another supervisor or manager in the immediate chain of
command.
пЃ®
An employee’s representative, medical provider, or family member may
request a reasonable accommodation on behalf of the employee.
пЃ®
Once the request has been made to a manager or supervisor, that
individual should immediately acknowledge the request.
пЃ®
The supervisor or manager should then review, evaluate and make a
decision within the timeframes and in accordance with the procedures listed
in VA Directive and Handbook 5975.1, “Processing Requests for
Reasonable Accommodation by Employees and Applicants with Disabilities”
Modifying Work Sites
Providing Readers
and Interpreters
Accessible Facilities
REASONABLE
ACCOMMODATION
Modifying
Work
Schedules
(Reassignment is the accommodation of last resort.)
Assistive
Devices
Flexible Leave Schedules
Reasonable Accommodation
Supervisor’s Responsibilities
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пЃ®
пЃ®
пЃ®
пЃ®
пЃ®
Engage in interactive process, do not delay.
When possible, accommodate – consistent with
Congressional intent specified in ADAAAA.
More employees/applicants will now qualify for reasonable
accommodations under the new ADAAAA.
Do not request medical documentation unless necessary.
Maintain medical documentation separately.
Consult with ORM, Employee Relations, Labor Relations,
ODI, or OGC for guidance.
Religious Accommodation
пЃ®
Under Title VII, an agency has the duty of reasonable
accommodation for sincerely held religious beliefs and practices
unless to do so would cause an undue hardship.
п‚Ё
Examples of religious accommodations:
пЃ®
Work schedules - The most likely accommodation
to be requested is flexibility in the regular work
schedule to participate in some religious practice
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Allowing employee to make up hours
пЃ®
Granting leave for religious observances
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Granting time or place to pray
пЃ®
Allowing religious dress
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Not scheduling or holding meetings on religious
days of observance
пЃ®
Honoring dietary requirements at meetings or
trainings
32
Retaliation
пЃ®
There are three essential elements of any retaliation claim.
п‚Ё Protected activity: (i.e., participation in the statutory complaint
process or opposition to discrimination);
п‚Ё Adverse employment Action: Demonstrating that the
employer’s action in question “well might have dissuaded a
reasonable employee from making or supporting a charge of
discrimination”; and
п‚Ё A causal connection between the protected activity and the
employer’s action(s).
пЃ®
Typically, the link between a protected activity and the challenged
employer action is established if the action follows shortly after the
protected activity. And if the individual that undertook the
challenged action had prior knowledge of the protected activity.
33
Burlington Northern v. White
548 U.S. 53 (2006)
пЃ®
On June 22, 2006, the U.S. Supreme Court issued a significant
decision establishing a new standard on what actions constitute
retaliation under Title VII.
пЃ®
Facts: White, the only woman working in her department, operated
a forklift at the Tennessee yard of Burlington.
After she complained of sexual harassment, her immediate
supervisor was disciplined.
Thereafter, White was removed from forklift duty to less desirable
(more arduous and dirtier) duties as a track laborer, although her job
classification remained the same.
Further, she was suspended for 37 days without pay for alleged
insubordination but was eventually reinstated and given back pay in
full.
пЃ®
пЃ®
пЃ®
34
Burlington Northern
пЃ®
пЃ®
пЃ®
пЃ®
Con’td
Burlington asserted that White did not suffer an “adverse
employment action” because she was not fired, demoted, denied
promotion or denied wages.
The Court held that White suffered retaliatory discrimination when
she was reassigned to less desirable duties and suspended without
pay.
Although, the duties were within the same job classification and pay
was eventually reinstated, the actions were sufficiently harsh to
constitute discrimination and deter a reasonable employee from
complaining about discrimination.
New standard for retaliatory discrimination: Actions by an
employer that are harmful to the point that they could dissuade a
reasonable worker from making or supporting a charge of
discrimination.
35
Conflict Prevention &
Resolution Program
пЃ®
The Workplace ADR Program in the Office of Resolution
Management (ORM) was created as an alternative resource to
existing formal grievance and EEO complaint processes to address
work related issues.
пЃ®
One of the primary goals of Workplace ADR is to provide employees
with an impartial, confidential avenue to resolve disputes in order to
minimize the escalation of disputes to the formal grievance process.
пЃ®
Workplace ADR offer VA employees and managers the following
resources: mediation, consultation, coaching, facilitation, Early
Neutral Evaluation, and presentations.
36
Alternative Dispute Resolution (ADR)
пЃ®
Mediation is the form of ADR that VA has selected to resolve and
settle discrimination complaints.
пЃ®
In mediation a neutral third party, the mediator, assists the disputing
parties to achieve a mutually acceptable agreement.
пЃ®
The objective of the mediator is to bridge the gap in communication
between the disputing parties and assist them in reaching a
voluntary agreement of their own.
пЃ®
Resolutions reached during mediations are documented in
settlement agreements.
пЃ®
If mediation is not successful, the complaint process would resume
from the point it stopped.
37
Major Stages in Complaint Process
пЃ®
Traditional EEO counseling or option of ADR (mediation)
пЃ®
Filing of formal complaint if matter has not been satisfactorily
resolved at pre-complaint stage
пЃ®
Investigation of complaints that meet procedural requirements
пЃ®
EEOC Hearing or immediate Final Agency Decision (FAD) from
OEDCA
пЃ®
Appeal of final VA decisions to the EEOC
пЃ®
File civil suit in appropriate Federal district court
38
Federal Sector Complaint Process: Informal
(Under 29 CFR 1614)
Occurrence
45 days
Counselor
Contact
Traditional
Counseling
30-90* days
Alternative
Dispute Resolution
(ADR)
Notice of Right
to File Formal
Resolved
Resolved
15 days
* Maximum time for
counseling/ADR.
39
Federal Sector Complaint Process: Formal
Notice of Right
to File Formal
15 days
Formal Complaint Filed
Claims Accepted
and/or Dismissed
180-360** days
Accepted Claims Investigated
Report Issued
EEOC Hearing & AJ
Decision Requested
180 days
Findings and
Conclusions
Issued
180 days
30 days
40 days
Final Agency
Action/Decision
30 days
Final Agency
Decision Requested
60 days
** Maximum
90 days investigation time
Appeal to EEOC/MSPB
*** 90 days to file civil
action after decision;
90 or 180 days***
180 days if no
decision received.
Federal District Court
40
Contact Information
Georgia Coffey
Deputy Assistant Secretary, Office of
Diversity and Inclusion (ODI)
Rafael Torres
Deputy Assistant Secretary, Office of
Resolution Management (ORM)
Deborah McCallum
Georgia.Coffey@va.gov
Rafael.Torres@va.gov
Deborah.mccallum@va.gov
Assistant General Counsel, Professional
Staff Group IV
Larry Abels
Director, Employee Relations, Office of
Human Resources Management
Larry.Abels@va.gov
EEO Compliance Training for
Employees
Promoting equity, diversity and inclusion in
the workplace to build a stronger VA.
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