EEO Compliance Training for Managers and Supervisors

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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.

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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!

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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.

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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.

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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.

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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 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.

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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

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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 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.

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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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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.

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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.

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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.

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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.

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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.

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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).

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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?

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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)

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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.

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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.

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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 (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.

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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.

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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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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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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.

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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.

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Contact Information
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EEO Compliance Training For Managers and
Supervisors

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