Title: EEO Compliance Training for Managers and Supervisors
1EEO 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.
2Rationale 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!
3VA 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.
5Anti-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.
6Anti-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.
7Theories 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
8Disparate 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.
10Griggs 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.
11Workplace 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.
12Tangible 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.
13Hostile 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.
14Agency 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.
15Agency 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). -
16Agency 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?
17Preventing 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)
18Preventing 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.
19Supervisors 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.
20Retaliation
- 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.
21Burlington 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.
22Burlington 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.
23Policy 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.
24Reasonable 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. -
25Reasonable 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
26Definition 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.
27Qualified 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.
28Physical 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.
29Substantially 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
30Major 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.
31Reasonable 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.
32Requests 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
33Modifying 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
34Reasonable 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.
35Federal 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.
36Federal 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
37Complaint 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.
38Best 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.
39Contact Information
40EEO Compliance Training For Managers and
Supervisors
- Promoting equity, diversity and inclusion in the
workplace to build a stronger VA.