Title: EEO Compliance Training for Employees U.S. Department of Veterans Affairs
1 EEO Compliance Training for EmployeesU.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. -
2Learning Objectives
- Briefly review and discuss major
anti-discrimination laws. - Increase awareness of workplace harassment,
including types not always obvious. - Learn techniques for identifying and preventing
workplace discrimination, harassment, and
retaliation. - Review and understand the significant aspects of
the agencys reasonable accommodation procedures. - Understand the significant stages in the federal
sector EEO complaint process, including the
option of ADR.
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3VA Equal EmploymentOpportunity Policy
- All applicable federal EEO laws will be
vigorously enforced. - 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. - Each employee bears the responsibility to ensure
that discrimination and harassment in the
workplace are not tolerated and that diversity is
valued. - However, supervisors and managers bear a special
responsibility to ensure that work environments
are free from discrimination and harassment of
any kind.
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4Anti-Discrimination Laws
- Title VII of the Civil Rights Act of 1964 (Title
VII) - Is the major federal law prohibiting
discrimination in employment. - Title VII prohibits discrimination based on race,
sex, color, religion, and national origin. -
- The Equal Pay Act of 1963 (EPA)
- Protects men and women who perform substantially
equal work from sex-based wage discrimination. - The Age Discrimination In Employment Act of 1967
(ADEA) - Protects employees and job applicants who are 40
years of age or older from employment
discrimination based on age.
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5Anti-Discrimination Laws
- The Rehabilitation Act of 1973
- Applicable sections prohibit discrimination in
federal employment against qualified individuals
with disabilities. - 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
- Provides the right to a jury trial and monetary
damages in cases of employment discrimination.
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6Anti-Discrimination Laws
- The NO FEAR ACT (became effective on October 1,
2003) - Prohibits discrimination and retaliation against
federal workers for participating in the EEO
process or whistle-blower activities. - Requires agencies to train employees and post
statistical data on EEO complaints on agencys
public website. - 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.
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7Disparate Treatment Discrimination
- Exists when similarly situated individuals are
treated differently because of their membership
in a protected class. - Complainant must establish a prima facie case by
showing that - He/she is a member of a protected class.
- He/she suffered some adverse action.
- A similarly situated individual outside of
his/her class was treated more favorably. - 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. - Intent to discriminate is proven by three types
of evidence direct, circumstantial
(comparative), and statistical.
8Adverse Impact Discrimination
- Exists when a facially neutral employment
policy/practice disproportionately impacts
members of a protected class. - The burden shifts to the agency to provide a
business justification for the challenged
policy/practice. -
- 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. - Discriminatory motive is not required.
- Examples of policies that may adversely impact
some groups Educational requirements, tests,
height and weight requirements, subjective
standards for hiring, promotions, and assignments.
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9Workplace Harassment
- Workplace harassment is a form of discrimination
that is explicitly prohibited by VA policy and
the law. - 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. - 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.
10Workplace Harassment Defined
- 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 victims
employment. This standard is met when - The conduct culminates in a tangible employment
action, or - The conduct is sufficiently severe or pervasive
as to create a hostile work environment.
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11 Tangible Employment Action
- Definition A management officials harassment
that results in a significant change in an
employees (usually a subordinates) employment
or job status. - 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.
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12 Tangible Employment Action Example
- For example A manager pressures a subordinate
employee to join her for dinner and dancing.
When he declines, she tells him that he cant
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. - Even an isolated instance of such misconduct is
unlawful. -
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13If Management Conduct CreatesHostile
Environment
- 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. - If the conduct created a hostile environment, an
agency is liable unless it can establish that - It exercised reasonable care to prevent and
correct promptly any harassment (has
anti-harassment policy and complaint avenues)
and - The employee unreasonably failed to take
advantage of any preventative or corrective
opportunities provided by the agency (failed to
take advantage of complaint process).
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14Hostile Work Environment
- Anyone in the workplace can commit this type of
harassment a supervisor or manager, co-worker,
or even a non-employee. - To create a hostile environment, the conduct must
rise to the level of being severe or pervasive. - The key issues are frequency and severity.
- The more severe the conduct, the less frequent it
must be to rise to the level of a hostile
environment. - The less severe the conduct, the more frequently
it must occur to constitute a hostile
environment.
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15The Reasonable Person Standard
- A reasonable person standard is used in
evaluating whether unwelcome conduct is
sufficiently severe or pervasive to create a
hostile environment. - 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. - A reasonableness standard guards against claims
by hypersensitive individuals.
16Harassment by Co-workers
- 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. -
- 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 thats how the boys behave.
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17Religious Harassment
- Religious harassment is discriminatory treatment
based on a persons - Affiliation with a particular religious group
- Display of physical or cultural traits commonly
associated with a particular religion - Perception or belief that someone else is a
member of a religious group (whether true or
not) - Dress or other apparel commonly associated with a
particular religion and - Association with a religious person, individual
or organization.
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18Prevention of Harassment
- Avoid initiating or participating in any behavior
that may be misconstrued as possible harassment,
including the following types of behavior - Verbal (unwelcome comments, yelling, offensive
jokes or stories) - Visual (offensive pictures, photos, cartoons,
posters, calendars, magazines or objects) - Physical (unwelcome touching, hugging, kissing,
stroking, ogling or suggestive gestures) and - Written (unwelcome letters, notes or e-mails of a
personal nature).
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19 Prevention of Harassment Contd
- Avoid sexual, racial, ethnic, cultural,
age/disability related jokes, epithets, comments,
and e-mails. - Respect a persons wishes when he/she indicates
that conduct or attention is not welcome. - Clearly inform those engaging in offensive
behavior that you find it objectionable. - Report behavior that you believe qualifies as
harassment.
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20Reasonable Accommodation
- 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.
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21Reasonable Accommodation
- 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. - Such accommodations may include modifying work
schedules and policies, providing devices or
modifying equipment and making workplaces
accessible. - 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. -
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22Reasonable AccommodationAmericans with
Disabilities Act Amendments Act of 2008 (ADAAAA)
- 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
- Clarifies that an impairment that is episodic or
in remission may qualify as a disability if it
substantially limits a major life activity - An impairment that limits only one major life
activity is now enough to qualify as a disability
23Definition of Disability
- An Individual with a Disability is
- 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 - An individual with a record of such impairment
or - An individual who is regarded as having such an
impairment.
24Qualified Individual with a Disability
- 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. - A qualified individual with a disability is an
individual with a physical or mental impairment,
which substantially limits one or more major
life activities.
25Physical or Mental Impairment
- 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 thebody systemsor any
mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or
mental illness, and specific learning
disabilities.
26Substantially Limits
- 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
- The nature and severity of the impairment
- Duration or expected duration of the impairment
- Permanent or long term impact of the impairment
27Major Life Activities
- Under the ADAAA major life activities include but
is not limited to - 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 EEOCs 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.
28Reasonable Accommodation
- 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. - To that end, reasonable accommodation will be
provided to qualified individuals with
disabilities, unless doing so poses an undue
hardship to the agency. - There may be a wide range of possible
accommodations that might assist the employee. - However, management is only required to provide
an effective accommodation, not necessarily the
one requested.
29Requests for Accommodation
- An employee can request reasonable accommodation
from his/her supervisor another supervisor or
manager in the immediate chain of command. - An employees representative, medical provider,
or family member may request a reasonable
accommodation on behalf of the employee. - Once the request has been made to a manager or
supervisor, that individual should immediately
acknowledge the request. - 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
30Modifying Work Sites
Providing Readers and Interpreters
Accessible Facilities
REASONABLE ACCOMMODATION (Reassignment is the
accommodation of last resort.)
Modifying Work Schedules
Assistive Devices
Flexible Leave Schedules
31Reasonable AccommodationSupervisors
Responsibilities
- 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.
32Religious Accommodation
- 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. - Examples of religious accommodations
- Work schedules - The most likely accommodation to
be requested is flexibility in the regular work
schedule to participate in some religious
practice - Allowing employee to make up hours
- Granting leave for religious observances
- Granting time or place to pray
- Allowing religious dress
- Not scheduling or holding meetings on religious
days of observance - Honoring dietary requirements at meetings or
trainings
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33Retaliation
- There are three essential elements of any
retaliation claim. - Protected activity (i.e., participation in the
statutory complaint process or opposition to
discrimination) - Adverse employment Action Demonstrating that the
employers action in question well might have
dissuaded a reasonable employee from making or
supporting a charge of discrimination and - A causal connection between the protected
activity and the employers action(s). - 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.
34Burlington Northern v. White548 U.S. 53 (2006)
- 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. - 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.
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35Burlington Northern Contd
- 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.
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36Conflict Prevention Resolution Program
- 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. - 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. - Workplace ADR offer VA employees and managers the
following resources mediation, consultation,
coaching, facilitation, Early Neutral Evaluation,
and presentations. -
37Alternative Dispute Resolution (ADR)
- Mediation is the form of ADR that VA has selected
to resolve and settle discrimination complaints. - In mediation a neutral third party, the mediator,
assists the disputing parties to achieve a
mutually acceptable agreement. - 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. - Resolutions reached during mediations are
documented in settlement agreements. - If mediation is not successful, the complaint
process would resume from the point it stopped.
38Major Stages in Complaint Process
- Traditional EEO counseling or option of ADR
(mediation) - Filing of formal complaint if matter has not been
satisfactorily resolved at pre-complaint stage -
- Investigation of complaints that meet procedural
requirements - EEOC Hearing or immediate Final Agency Decision
(FAD) from OEDCA - Appeal of final VA decisions to the EEOC
- File civil suit in appropriate Federal district
court
39Federal Sector Complaint Process Informal(Under
29 CFR 1614)
Occurrence
45 days
Counselor Contact
Alternative Dispute Resolution (ADR)
Traditional Counseling
30-90 days
Notice of Right to File Formal
Resolved
Resolved
15 days
Maximum time for counseling/ADR.
40Federal Sector Complaint Process Formal
Notice of Right to File Formal
15 days
Claims Accepted and/or Dismissed
Formal Complaint Filed
180-360 days
Accepted Claims Investigated Report Issued
30 days
Final Agency Decision Requested
EEOC Hearing AJ Decision Requested
180 days
Final Agency Action/Decision
60 days
40 days
Findings and Conclusions Issued
Maximum investigation time 90 days to file
civil action after decision 180 days if no
decision received.
30 days
90 days
Appeal to EEOC/MSPB
180 days
90 or 180 days
Federal District Court
41Contact Information
42EEO Compliance Training for Employees
- Promoting equity, diversity and inclusion in the
workplace to build a stronger VA.