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Notification and Federal Employee Anti-discrimination & Retaliation

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1 Notification and Federal Employee Anti-discrimination & Retaliation
No FEAR Act P.L May 2002 Notification and Federal Employee Anti-discrimination & Retaliation This course will advise you of your rights, remedies, and where you can get help if you believe you are the victim of illegal discrimination, harassment and/or retaliation in the Air Force.

2 No FEAR On May 15, 2002, Congress enacted the "Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002," which is now known as the No FEAR Act. One purpose of the Act is to "require that Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws." Pub. L In support of this purpose, Congress found that "agencies cannot be run effectively if those agencies practice or tolerate discrimination." Pub. L , Title I, General Provisions, Section 101(1).

3 Equal Opportunity and Treatment
It is the policy of the Government of the United States to provide equal opportunity in federal employment regardless of race, color, religion, sex (to include sexual harassment), age, national origin, and physical or mental disability, and to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency. The policy of equal employment opportunity applies to, and must be an integral part of every aspect of personnel policy and practice in the employment, development, advancement, and treatment of civilian employees of the Federal Government.

4 Increased Combat Capability Continuous Improvement
The U.S. Air Force of the 21st Century Increased Combat Capability Continuous Improvement Respect for People AFSO21 and Equal Opportunity is a natural partnership

5 The U.S. Air Force of the 21st Century
No matter what our background, where we live, or when we started our careers in the AF, we have one huge thing in common The MISSION. We cannot afford to let Equal Opportunity or Retaliation issues impede our operations or mission imperatives. Our Equal Opportunity posture directly contributes to the AFSO21 pillar of Respect for our People. The Air Force of the 21st Century will be leaner and more diverse and respect will be what sees our people through the difficult times. Respect for ourselves will ensure our SERVICE to others.

6 Zero Tolerance The Air Force is committed to providing a work environment where military members and civilian employees are treated with respect and dignity. Harassment of any person based on race, color, sex, religion, national origin, age, disability, reprisal or any other category protected by law or policy will not be tolerated. Harassment by anyone, including harassment by any manager, supervisor, work leader, co-worker, or contractor is strictly prohibited. Violators face the possibility of removal from employment or other appropriate disciplinary action.

7 Why No FEAR? The Bottom Line: Congressional action through the No FEAR Act places emphasis on improved government performance through enforcement, compliance, and accountability with existing employment discrimination, whistleblower, and retaliation prohibitions.

8 No FEAR Overview Effective date of Act was 1 October 2003 Title I
Background and Purpose Title II Agency Requirements Rulemaking by OPM Title III Posting Requirements Rulemaking by EEOC Title I provides the general provisions of the Act. Congress believes that federal agencies cannot be effective while tolerating discrimination. Congress heard testimony, looked at cases where large damage amounts had been awarded, and were alarmed by the numbers. Congress decided that it had to take steps to address these issue Enforcing Federal Agency Compliance and Accountability

9 Title I Congressional Findings:
Agencies cannot run effectively if discrimination is practiced or tolerated Evidence points to chronic problems of discrimination and relation against federal employees Notification of discrimination and Whistleblower laws should increase agency compliance Annual Reports to Congress should improve oversight Payments for discrimination and Whistleblower judgments and settlements should improve agency accountability These Congressional Findings are the result of a year long investigation by Congress based on allegations of discrimination at the Environmental Protection Agency.

10 Title II-Requirements
Reimbursement Requirements: Federal agency must reimburse the Judgment Fund of the Treasury for any Federal district court judgments, awards, and compromise settlements made to Federal employees, former Federal employees or applicants as a result of violations or alleged violations of Federal discrimination laws, Whistleblower protection laws and/or retaliation claims arising from the assertion of rights under these laws. Reimbursements of Judgment fund- the agency that loses or settles a complaint of discrimination must pay the cost out of its own budget. The agency must not incur any furloughs or loss of other employee benefits to accomplish this requirements. Agencies may spread the payment over a specific period of time. Conduct an analysis of the data and identify trends, corrective actions, and future planned actions. GAO will conduct a study on the effects of whether or not employees exhaust remedies, the personnel cost involved and impact on agency operations and submit a report to congress 90 days after completion.

11 Written Notification and Training Requirement
Federal employees, former Federal employees and applicants for Federal employment must be provided with their rights and protections in connection with the respective provisions of law covered under the No Fear Act. Written notifications of rights and protections of Federal employees must be posted on the agency’s Website. Agencies must conduct training to its Federal employees about these rights and protections.

12 Title III Posting Requirements
Federal agencies must post on its public website, summary statistical data relating to equal employment opportunity complaints filed with the agency. The Equal Employment Opportunity Commission will post on its public website, summary statistical data relating to hearings and appeals requested on complaints with the agency. In addition to reimbursement, annual reporting, and written notification requirements to congress, the Act established criteria for the posting of agency EEO data on agency websites.

13 Overview of EEO and Whistleblower Laws:
Title VII of the Civil Rights Act Race, Color, Sex, National Origin, Religion, Retaliation Age Discrimination in Employment Act (ADEA) 40 years of age or older, Retaliation Rehabilitation Act (and Americans w/ Disabilities Act) Disability, Accommodation, Retaliation Fair Labor Standards Act (FLSA) Equal Pay Act (EPA) Equal Pay for Equal Work, Retaliation Title VII of the Civil Rights Act of 1964, as amended in 1972: This law prohibits discrimination based on race, color, sex, national origin, religion and retaliation. The Age Discrimination in Employment Act of 1967, as amended in 1972: This law prohibits discrimination based age if you are 40 years of age or older and retaliation The Rehabilitation Act of 1973, as amended in part by the Americans with Disabilities Act of 1990: Prohibits discrimination based on physical or mental disability and requires Reasonable Accommodation for qualified individuals with disabilities in connection with a particular job, or for participation in particular benefits of employment The Fair Labor Standards Act (FLSA) of 1938, and the Equal Pay Act of 1963 – where the FLSA was amended : Prohibits discrimination in compensation based on sex. Civil Rights Laws prohibit discrimination and retaliation

14 Overview of EEO and Whistleblower Laws: Cont.
Prohibited Personnel Practices Statute EEO Discrimination Marital and Parental Status Sexual Orientation Political Affiliation Whistleblower Protection Act Protected disclosure regarding fraud, waste, abuse or gross mismanagement The Prohibited Personnel Practices Provision of the Civil Service Reform Act of 1978: Prohibited Personnel Practices are violations of federal merit system principles where those violations are based on prohibited discrimination for race, color, religion, sex, national origin, age, disability, or EEO reprisal; and There are 12 Prohibited Personnel Practices defined by law at section 2302(b) of Title 5 of the United States Code (U.S.C.). The No FEAR Act seeks to strengthen those that deal with Discrimination and Retaliation. A personnel action (such as an appointment, promotion, reassignment, or suspension) may need to be involved for a prohibited personnel practice to occur. Generally stated, § 2302(b) provides that a federal employee authorized to take, direct others to take, recommend or approve any personnel action may not among other things, discriminate based on race, color, sex, religion, national origin, age, or disability or retaliation. or engage in retaliation for whistleblowing. AND Sexual Orientation: The Civil Service Reform Act of 1978 describes prohibited personnel practices. One of them, contained in 5 U.S.C. § 2302(b)(10), prohibits any employee who has authority to take certain personnel actions from discriminating for or against employees or applicants for employment on the basis of conduct that does not adversely affect employee performance. OPM has interpreted this statute to prohibit discrimination based upon sexual orientation. Sexual orientation means homosexuality, bisexuality, or heterosexuality. When applicants or employees believe that a prohibited personnel practice has been committed against them that constitutes discrimination based upon sexual orientation, they may seek assistance from their personnel office. The Whistleblower Protection Act of 1989: Protects employees from retaliation for making complaints disclosing fraud, waste, abuse, or gross mismanagement. Whistleblowing means disclosing information that you reasonably believe is evidence of a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. Retaliation against an employee or applicant for making a protected disclosure is prohibited by 5 U.S.C. 2302(b)(8). Other Laws and Policies that prohibit discrimination and reprisal

15 Employee Protections Federal agencies cannot discriminate against an employee or applicant with respect to the terms, conditions or privileges of employment on the-basis of race, color, religion, sex, national origin, age, disability, marital and parental status, sexual orientation or political affiliation.

16 Avenues of Redress If you believe that you have been the victim of unlawful discrimination on the basis of race, color, religion, sex, age, national origin, disability or reprisal for participating or supporting Equal Employment Opportunity (EEO) laws, you must contact an EEO counselor within 45 calendar days of the alleged discriminatory action, or, in the case of a personnel action, within 45 calendar days of the effective date of the action, before you can file a formal complaint of discrimination with the Air Force. The agency or the Commission shall extend the 45-day time limit when individuals can demonstrate the following: 1) that he or she was not notified of the time limits and was not otherwise aware of them; 2) that he or she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred; 3) that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits; or 4) for other reasons considered sufficient by the agency or the Commission.

17 Avenues of Redress If you are alleging discrimination based on marital status or political affiliation, you may file a written complaint with the U.S. Office of Special Counsel (OSC) (see contact information later). Alternatively (or in some cases, in addition), you may pursue a discrimination complaint by filing a grievance through installation's administrative or negotiated grievance procedures, if such procedures apply and are available. Additional information regarding Federal antidiscrimination can be found at the EEOC Web site--www.eeoc.gov

18 Anti Harassment Policy
Harassment includes unwelcome conduct, whether verbal, physical or visual, which creates an intimidating, offensive or hostile work environment or that unreasonably interferes with job performance.

19 Sexual Harassment Sexual harassment deserves special mention. Sexual harassment includes one or more unwelcome sexual advances, request for sexual favors, or other unwelcome physical, verbal or visual conduct of a sexual nature where: (1) submission to or rejection of such conduct is made either explicitly or implicitly a term or condition of employment; Sexual harassment may include any one or more of the following types of unwelcome conduct: direct sexual propositions; sexual innuendos; suggestive comments; sexually oriented kidding, teasing, or practical jokes: jokes about gender-specific traits; foul or sexually oriented language or gestures; display of foul or sexually oriented printed or visual material; or physical contact; such as patting, pinching, or brushing against anther's body.

20 Sexual Harassment cont.
(2) submission to or rejection of such conduct by an individual is used as a basis for career or employment decisions affecting that individual; or (3) such conduct has the purpose or effect of unreasonably interfering with a reasonable individual's work performance or creates an intimidating, hostile or offensive work environment.

21 Whistleblower Protection Laws
A Federal employee with authority to take, direct others to take, recommend or approve any personnel action must not use that authority to take or fail to take, or threaten to take or fail to take, a personnel action against an employee or applicant because of disclosure of information by that individual that is reasonably believed to evidence violations of law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety, unless disclosure of such information is specifically prohibited by law and such information is specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.

22 Avenue of Redress If you believe that you have been the victim of whistleblower retaliation, you may file a written complaint (Form OSC-11) with the U.S. Office of Special Counsel at 1730 M Street NW., Suite 218, Washington, DC or online through the OSC Web site -- Additional information regarding Federal whistleblower protection and retaliation laws can be found at the OSC Web site--

23 Disciplinary Actions Under the existing laws, each agency retains the right, where appropriate, to discipline a Federal employee who has engaged in discriminatory or retaliatory conduct, up to and including removal. Nothing in the No FEAR Act alters existing laws or permits an agency to take unfounded disciplinary action against a Federal employee or to violate the procedural rights of a Federal employee who has been accused of discrimination.

24 “What does it mean to me?”
It means Accountability to the law has been strengthened; It means the Air Force is enhancing its role in being responsible for eradicating discrimination and retaliation in the workplace; It means you can expect swift and appropriate action where violations are substantiated It means you can expect a work environment where you can perform to your highest potential and contribute to effective government operations. It means that each of us have to be responsible and accountable for our actions. Responsibility and Accountability

25 “What does No FEAR mean to me?” cont.
All personnel have the responsibility to make these anti-discrimination/harassment laws and policies effective. Personnel should IMMEDIATELY report all violations to: (1) their supervisor; (2) another supervisor within their chain of command; and/or (3) (for discrimination) EEO counselor or the HQ AFPC Complaint Hotline ( option 8, or (for whistleblowers) U.S. Office of Special Counsel (OSC). Do not wait for the conduct to become severe or pervasive; instead, report it as early as possible. No one is exempt from these laws and/or policies.

26 10 QUESTIONS and ANSWERS!

27 Question #1. Name a primary purpose of the No Fear Act:
a. To “put fear in to Federal agencies by requiring payments for discrimination and Whistleblower judgments and settlements.” To “harass Federal agencies into complying with antidiscrimination and whistleblower protected laws.” To “require that Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws.” d. None of the above

28 Question #2: Name three of the bases prohibited by Title VII of the Civil Rights Act of 1964, as amended by 1972: Race, color and sexual orientation Race, religion and sex Color, national origin and retaliation B and c e. All of the above

29 Question #3: The legislative act which provides that all personnel actions must be free from any discrimination because of disability: a. The Civil Rights Act of 1991. The Rehabilitation Act of 1973. The Equal Accommodations Act of 1976 d. The Civil Service Reform Act of 1978

30 Question #4: The Whistleblower Protection Act of 1989 protects employees from retaliation for making complaints disclosing waste, abuse, or gross mismanagement: TRUE or FALSE

31 Question #5: In most instances, if you believe that you have been the victim of unlawful discrimination on the basis of race, religion, sex, age, national origin, disability or reprisal for participating or supporting Equal Employment Opportunity (EEO) laws, you must contact an EEO Counselor within _____ days. 30 duty 15 duty 45 calendar 60 calendar

32 Question #6: When applicants or employees believe that a prohibited personnel practice has been committed against the constitutes discrimination based upon sexual orientation, they may seek assistance from their: EEO Office IG Office JAG Office Personnel Office

33 Question #7: To make these anti-discrimination /harassment laws and policies effective, personnel:
Must IMMEDIATELY report all violations to their supervisor and/or chain of command. Should IMMEDIATELY report all violations to their supervisor and or another supervisor within their chain of command. Must IMMEDIATELY report all violations to their local personnel office. None of the above.

34 Question #8: If you believe that you have been the victim of whistleblower retaliation, you may:
File a written complaint with the U.S. Office of Special Counsel. Contact your local Inspector General Office. Contact your local EEO Office. A and b All of the above

35 Question #9: An Agency must pay out of its own budget to reimburse the judgment fund all costs associated with losing settling a complaint of discrimination: TRUE or FALSE

36 Question # 10: Name at least one of Congress’ major findings in support of requiring Federal agencies to be accountable for violations of antidiscrimination and whistleblower protection laws: Agencies cannot be run effectively if those agencies practice or tolerate discrimination. Evidence points to chronic problems of discrimination and relations against federal employees. Payments for discrimination and Whistleblower judgments and settlements may not improve agency accountability. A and b All of the above


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