EEO Compliance Training for Employees U'S' Department of Veterans Affairs

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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.

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Learning 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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VA 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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Anti-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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Anti-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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Anti-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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Disparate 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.

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Adverse 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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Workplace 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.

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Workplace 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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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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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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If 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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Hostile 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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The 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.

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Harassment 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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Religious 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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Prevention 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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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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Reasonable 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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Reasonable 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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Reasonable 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

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Definition 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.

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Qualified 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.

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Physical 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.

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Substantially 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

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Major 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.

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Reasonable 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.

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Requests 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

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Modifying 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
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Reasonable 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.

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Religious 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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Retaliation

• 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.

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Burlington 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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Burlington 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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Conflict 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.

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Alternative 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.
  

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Major 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

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Federal 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.
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Federal 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
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Contact Information
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EEO Compliance Training for Employees

• Promoting equity, diversity and inclusion in the
  workplace to build a stronger VA.