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EEO Compliance Training for Managers and Supervisors

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As agents for the VA, supervisors bear legal responsibilities. ... VA EEO and Diversity Policy. It is the policy of the VA to ensure equal employment ... – PowerPoint PPT presentation

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Title: EEO Compliance Training for Managers and Supervisors


1
EEO Compliance Training for Managers and
Supervisors
  • Office of Diversity and Inclusion
  • Office of Resolution Management
  • U.S. Department of Veterans Affairs
  • The Office of Diversity and Inclusion was
    formerly the Office of Diversity and EEO.

2
Rationale for EEO Compliance Training
  • EEO is the law. As agents for the VA, supervisors
    bear legal responsibilities.
  • EEO training for federal managers and supervisors
    is mandatory (NO FEAR Act and MD-715).
  • EEO case law is constantly changing.
  • Economic and moral imperative ignorance results
    in costly complaints, loss of productivity, and
    poor morale.
  • We are here to help!

3
VA EEO and Diversity Policy
  • 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.
  • All applicable federal EEO laws will be
    vigorously enforced.
  • Reprisal against those who participate in
    processes designed to eliminate workplace
    discrimination and harassment is prohibited.
  • It is the responsibility of every manager and
    supervisor to ensure a workplace free of
    discrimination and harassment.

4
The ORM/ODI Vision EEO and Diversity are
separate but symbiotic functions essential to
the success of the VA as a high-performing
organization
  • EEO
  • Set of laws and policies that mandate all
    individuals rights to equal employment
    opportunity, irrespective of race, color, sex,
    sexual orientation, national origin, religion,
    age, disability, or participation in protected
    EEO activity.
  • Diversity
  • Proactive efforts to promote inclusiveness and
    respect differences in the workforce, which
    reflect the changing profile of our world.

5
Anti-Discrimination Laws
  • Title VII of the Civil Rights Act of 1964
  • Prohibits discrimination based on race, color,
    sex, religion, and national origin.
  • 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.

6
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 right to a jury trial and monetary
    damages in cases of employment discrimination.
  • The NO FEAR ACT (Effective Oct. 1, 2003)
  • Prohibits discrimination and retaliation against
    federal workers for participating in EEO process
    or whistle-blower activities.

7
Theories of Discrimination
  • The courts and the U.S. Equal Employment
    Opportunity Commission (EEOC) have identified a
    number of discrimination theories in adjudicating
    EEO complaints
  • Disparate Treatment
  • Adverse Impact
  • Harassment/Hostile Environment
  • Retaliation

8
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 a prima facie case is
    established the burden shifts to the employer to
    articulate a legitimate, non-discriminatory
    reason for taking the action then shifts back to
    complainant to argue pretext.
  • Intent to discriminate is proven by three types
    of evidence direct, circumstantial
    (comparative), and statistical.

9
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.

10
Griggs v. Duke Power Co.401 U.S. 424 (1971)
  • Griggs was an African American male
  • He was denied a ditch digger job because he
    failed to meet selection criteria (possession of
    high school diploma or passing grade on a written
    test)
  • Supreme Court found that the facially neutral
    employment criteria violated Title VII because
  • It had a disproportionate impact on Griggs
    protected group and
  • It was not job-related or consistent with
    business necessity.

11
Workplace Harassment
  • Harassment is any unwelcome verbal or physical
    conduct based on race, color, sex (regardless of
    whether it is sexual in nature), sexual
    orientation, national origin, age, disability, or
    retaliation that is so offensive as to alter the
    condition 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.

12
Tangible Employment Action
  • Definition A management officials harassment
    that results in a significant change in an
    employees 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.
  • Even an isolated instance of such misconduct is
    unlawful.

13
Hostile Work Environment
  • A hostile work environment is created by
    unwelcome conduct that is 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.
  • The conduct must be viewed as objectionable not
    only from the standpoint of the victim/target but
    also from the perspective of a reasonable
    person in similar circumstances.
  • Anyone in the workplace can commit this type of
    harassment a supervisor or manager, co-worker,
    or even a non-employee.

14
Agency LiabilityFor Harassment by Management
Official
  • 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.
  • When harassment by a management official does not
    result in a tangible employment action, the
    conduct is analyzed as to whether it was severe
    or pervasive enough to create a hostile
    environment.

15
Agency LiabilityFor Harassment by Management
Official
  • If the conduct created a hostile environment an
    agency is liable unless it can establish both
    elements of a two-part affirmative defense.
  • It exercised reasonable care to prevent and
    promptly correct any harassment (agency has
    anti-harassment policy and complaint avenues)
    and
  • The employee unreasonably failed to take
    advantage of any preventive or corrective
    opportunities provided by the agency or otherwise
    avoid harm. (employee failed to take advantage of
    complaint process).

16
Agency LiabilityFor 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 co-worker harassment 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 use
    to it, because thats how the boys behave.
  • Do you think that management should have known of
    the objectionable conduct that occurred in the
    break room?
  • Discuss the potential agency liability.
  • How would you as the manager handle this
    situation?

17
Preventing Workplace 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
  • Written unwelcome letters, notes or e-mails of a
    personal nature.
  • (please note that participation in or
    acquiescence to objectionable behavior does not
    necessarily mean that the behavior is welcome)

18
Preventing Workplace Harassment
  • Avoid sexual, racial, ethnic, cultural,
    age/disability related jokes, epithets, comments,
    and e-mails.
  • Respect a persons indication that conduct or
    attention is not welcome.
  • Do not invade another individuals personal
    space.
  • Clearly inform those engaging in offensive
    behavior that you find it objectionable.
  • Report observed instances of behavior that you
    believe qualify as harassment.

19
Supervisors Responsibilities For Harassment
Prevention
  • Treat allegations seriously and confidentially.
    Do not ignore any allegation.
  • Be proactive, monitor workplace behaviors.
  • Post/disseminate EEO Policy.
  • Respond to allegations immediately.
  • Investigate, as appropriate, and document.
  • Be sensitive but impartial.
  • Interview parties and relevant witnesses.
  • Ask open-ended questions.
  • Collect relevant documentation/evidence.
  • Take appropriate corrective action, follow-up.
  • Report allegations to ORM.
  • Ensure no retaliation.
  • Document your actions.

20
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.

21
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.

22
Burlington Northern (cont.)
  • 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.

23
Policy on 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.

24
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.

25
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

26
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.

27
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.

28
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.

29
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

30
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.

31
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.

32
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

33
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
34
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.

35
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.
36
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
37
Complaint Process Supervisors Responsibilities
  • Treat all complaints seriously and
    confidentially.
  • Make sure that notices for the timely filing of a
    discrimination complaint are prominently posted
    in the workplace.
  • Attempt to resolve complaints at the earliest
    stage, i.e., the informal stage.
  • Participate in mediation at any stage of the
    complaint process.
  • Cooperate with EEO officials and investigators
    throughout the complaint process.
  • Respond to requests for information and documents
    in a timely and accurate manner.
  • Do not engage in behavior that may be viewed as
    retaliatory or obstructive to the complaint
    process.

38
Best Practices For Supervisors and Managers
  • Set example (managers are role models).
  • Be accessible (have an open door policy).
  • Communicate regularly with staff (reiterate EEO
    policies in meetings).
  • Monitor workplace behaviors (enforce respect in
    the workplace).
  • Investigate complaints promptly (consult with
    ORM).
  • Expand recruitment efforts through outreach (not
    preferences).
  • Maintain accurate Position Descriptions (use
    valid selection criteria).
  • Use diverse interview panels in the hiring
    process.
  • Use standardized questions (no medical/personal).
  • Take notes/quantify responses/use matrix.
  • Review process for equity and consistency.
  • Keep records/document.

39
Contact Information
40
EEO Compliance Training For Managers and
Supervisors
  • Promoting equity, diversity and inclusion in the
    workplace to build a stronger VA.
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