Presentation on theme: "Welcome to CNATRA’s online EEO Refresher Training."— Presentation transcript:
1 Welcome to CNATRA’s online EEO Refresher Training. EEO Refresher for Supervisors & ManagersWelcome to CNATRA’s online EEO Refresher Training.Topics:HarassmentReasonable AccommodationAlternative Dispute Resolution (ADR)The last slide in this presentation is a completion certificate. Please forward a copy of this certificate to to ensure training records are updated.POC: Thomas H. SheppardCNATRA N124(361) DSN 861
2 Model EEO Program – MD-715Provides federal agencies with guidance and standards for establishing and maintaining effective affirmative programs of equal employmentEnsures that all employees and applicants for employment enjoy equality of opportunity in the federal workplace regardless of race, color, sex, national origin, religion, disability or engagement in prior protected activityExamines employment policies, procedures and practices to identify and remove barriers to equal opportunityAnnually, all commands/activities are required to complete an Self-Assessment Checklist. Commands with 500 or more employees are required to complete a full assessment to identify barriers in employment practices, procedures, and policies and develop a plan to eliminate barriers.2
3 Six Essential Elements of a Model Agency: Demonstrated Commitment from Agency LeadershipIntegration of EEO Into Agency’s Strategic MissionManagement & Program AccountabilityProactive Prevention of Unlawful DiscriminationEfficiencyResponsiveness and Legal Compliance#1: Demonstrated commitment from agency leadershipCommunicate, support and enforce all EEO policies; Ensure EEO policy statements, posters, and other materials are displayed and available to employees; EEO must be embraced by agency leadership and communicated through the ranks top down; EEO principles must be part of the agency’s culture; CO must issue Policy Statements annually, supervisors must ensure employees are aware of and understand policies#2: Integration of EEO into the Agency’s strategic missionEnsure you and your employees fully cooperate with EEO office officials such as EEO Counselors, Staff, and Investigators;Ensure supervisors, managers, and team leaders have effective skills to supervise a diverse workforce; Consider whether any group of employees might be negatively impacted prior to making workplace decisions; Participate in Special Emphasis Program and Diversity events; Participate in community outreach and recruitment programs#3: Management and Program accountabilityEstablish procedures to prevent all forms of discrimination; Address concerns, perceived or real, raised by employees and follow up with appropriate action to correct or eliminate tension in the workplace; Ensure employees have access to EEO training and informationProvide reasonable accommodations for religious/other sincerely held beliefs and qualified individuals with disabilities when such accommodations do not cause an undue hardship; Promptly comply with and implement terms of Settlement Agreements#4: Proactive prevention of Unlawful DiscriminationConduct annual self-assessment to identify where barriers exclude certain groups.Institutional: Command traditions, polices (written), practices (unwritten)Hiring areas of consideration: are positions reviewed to identify special recruitment of people with disabilities. Attainment of supervisory/managerial positions.Attitudinal: gender roles, people with disabilities being unable to perform work.Physical: Elevators, restroom and workstation configurations.Notify the EEO Office of potential barriers to equal employment opportunity in the work environment#5: EfficiencyResolve problems, disagreement and other conflicts in the work environment as they arise – utilize Alternative Dispute Resolution.Have an efficient, fair, and impartial resolution process.Maintain an effective data collection system on workforce/complaint tracking.Resolve problems, concerns at the lowest possible level.Use and promote the use Alternative Dispute Resolution/mediation.#6: Responsiveness & Legal CompliancePromptly comply with SECNAV and EEOC decisions and compliance ordersRemanded cases will be investigated, be sure to participate.If there is a finding of discrimination, the agency must comply with ordered corrective actions and management officials may be called upon to assist with the process. Corrective actions could include: special training for supervisors, possible disciplinary action, or posting on official bulletin boards of the discrimination.
4 What Can Supervisors Do About Harassment? Your first responsibility is to show you have exercised reasonable care to prevent the harassmentLead by example and do not tolerate behavior that could be interpreted as harassment.Address any complaint that impacts your employee’s work environment, regardless of whether alleged harasser is civilian, military, or contractor.Monitor the workplace and be aware of potential problems (inappropriate jokes, employees’ treatment of co-workers, etc.)Explain to employees their rights and make them feel comfortable using the process.The law requires supervisors and managers to take action in harassment situations.You are often the first person to whom an employee complains about improper conduct and you are in a position to do something about harassment. You are expected to ensure that the work environment conducive to work.What can you do?Model appropriate behavior – same behavior that is expected of all employeesEven if the harasser is not under your supervision and you observe inappropriate behavior, you have an obligation to address the problem. If it is a contractor you, you or someone in your management needs to contact the contractors boss to ensure the behavior is corrected. If the behavior is having a negative impact on your employee’s work environment you need to address it regardless of if the harassment came from an enlisted person, a contractor or some other source.Be aware of inappropriate jokes, treatment of employees by co-workers, employees being singled out.Inform employees of their right to go to the EEO Office if they approach you with allegations of harassment or discrimination, but also keep them aware of their rights and Region policies.When allegations of harassment (sex or non-sexual) will be elevated to the CO who will appoint a management official to conduct the investigation.All incidents should be looked into thoroughly, fairly, and effectively regardless of whether the incident rises to the level of discrimination -- inappropriate conduct could result in disciplinary action.44
5 Types of Harassment: (1) Tangible Employment Action A significant change in employment status.Hiring and firingPromotion and failure to promoteDemotionDisciplineUndesirable reassignment or work assignment, etc.(2) Hostile Work EnvironmentActions/behaviors that create an intimidating, hostile, or an offensive work environment.Regular and repeated actions, gestures, or items displayed in the workplace that unreasonably interfere with job performance.One incident may be sufficient to state a claim, such as physical contact.
6 STANDARD OF LIABILITY Tangible Employment Action Automatic liability. An employer is always liable for harassment/action by a supervisor on a prohibited basis that culminates in a tangible employment action. No affirmative defense is available.The Supreme Court recognized this penalty as appropriate because an employer acts through its supervisors, and a supervisor’s undertaking of a tangible employment action constitutes an act by the employer.
7 AGENCY’S DEFENSE Hostile Work Environment Affirmative Defense consists of 2 elements:The employer exercised reasonable care to prevent and correct promptly any harassment. [e.g., anti-harassment policy, complaint process, effective investigative process, confidentiality to the extent possible]The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
8 Management Inquiry Protects all parties by gathering facts Managers/Supervisors are obligated to report allegations of harassment up the chain of command or to the EEO Office.If you are assigned to conduct a management inquiry:Advise employee you are required to look into the allegations, that you will speak to any witnesses & the alleged harasser.Speak to accuser and accused separately and privatelyEmployee should be told the allegations will be looked into immediatelyAdvise alleged harasser of the allegations and get their side of the story.Both should be asked the same questions; AND notify both of them that you will follow up with them at the conclusion of the inquiry.Verify information provided through witnesses and documents, if availableA management inquiry must be conductedPurpose of the management inquiry is to substantiate whether or not the allegation occurredKeep the inquiry confidential – only involve those that have a need to knowThe management inquiry is a separate action from the EEO Complaints Process and adverse/disciplinary action processes
9 Contract/Contingent Workers Do not automatically exclude contract or contingent workers from the EEO informal counseling process without a determination whether the individual meets the definition of an agency employeeRefer the contract or contingent worker to the EEO Office if they allege harassment or discrimination.The EEO Office will conduct an informal inquiry to make a determination into the employee’s status.The question of whether an employer-employee relationship exists with contractors who work for DoN depends on examining all aspects of the worker's relationship with the contracting agency and the Navy.The EEOC has a test that is used to determine whether a contract/contingent worker has a joint employment relationship with the government or not. The employee may be entitled to pursue a complaint through the federal administrative process.A determination of joint employment requires an assessment of the type of control the contractor and the agency maintain over a complainant’s work.When, where and how is the job performed? Who assigns work, sets hours and duration of job(s)? Is there a continuing relationship?Does the work require a high level of skill or expertise? Who furnishes the tools, materials and equipment?How is employee paid? Who withholds taxes? Who provides benefits?Is work part of regular Navy business?Who has authority to discharge the worker?Worker and employer believe that they are creating an employer-employee relationship.9
10 Reasonable Accommodation for Religion and Disability An employer must accommodate employees’ religious practices or “sincerely held beliefs” and disabled employees’ requests for accommodation unless the accommodation would cause an undue hardship upon the employer.Undue hardship is significant difficulty or expense when considered in light of employer's size, financial resources, and impact on the operations.Test of “undue hardship” is more rigorous in disability cases.As with allegations of harassment, in requests for reasonable accommodation, the agency is obligated to act, and the supervisor is in the position to take such action.10
11 Reasonable Accommodation for Individuals with Disabilities The Rehabilitation Act of 1973Americans with Disabilities Act (ADA) of 1990DoN Civilian Human Resources Manual subchapter 1606ADA Amendments Act (Sep 2008): Effective Jan. 1, 2009, widened ADA coverage, and will have a significant impact on how "individual with a disability" is defined.1 - The Rehabilitation Act of 1973 prohibits discrimination against qualified individuals with a disability and requires affirmative action for the hiring, placement and advancement of individuals with disabilities. Also, required that reasonable accommodation be provided to IWD. (This bill was proposed in 1968, but it took 5 years and two presidential vetoes before it was signed by Pres. Richard Nixon.2 - The Rehab Act was amended by the ADA which required all employers with 15 or more employees to accommodate IWD. – (the only provision that applied to the Fed Gov was that current users of illegal drugs were excluded from the definition of “qualified individual with a disability)3 – The ADA Amendments Act of 2008 became effective on Jan 1, It expanded the definition of who is a qualified individual with a disability as Congress rejected a number of U.S. Supreme Court decisions that it viewed as improperly narrowing ADA coverage in a manner that excluded individuals who were meant to fall within the protections of the act. The amendment will have a significant impact on how “individual with a disability” is defined.4 - DoN Civilian Human Resources Manual subchapter 1606 establishes a standard process to ensure employers consider reasonable opportunities for accommodation11
12 Individual with a Disability and QID An individual with a disability is a person who:Has a physical or mental impairment that substantially limits one or more major life activities;Has a record of such an impairment; orIs regarded as having such an impairment.Qualified individual with a disability (QID)is an employee/applicant who, with or without reasonable accommodation, can perform the essential functions of the job in question.Based on 29 CFR (j) - Substantially limits means the inability to perform a major life activity that the average person in the general population can perform, orA significant restriction in the condition, manner or duration the person can perform a major life activity compared to the average person in the general populationFactors to consider:Nature and severity of the impairmentDuration or expected duration of the impairmentPermanent or long term impact of the impairmentThere is no one definition of Major Life Activity. Guidance says it is anything that humans routinely need to interact and survive. Some commonly accepted examples are breathing, seeing, hearing, talking, sitting, climbing, walking, running, lifting, social skills, learning, caring for one’s self, and working in a particular trade or profession.The ADA Amendments Act of 2008 expanded the definition to include major bodily functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. The initial list by EEOC now includes but is not limited to reading, bending, and communicating.Employees whose condition is in remission or episodic will be considered as they are when the condition is in an active state.Someone who is regarded as having an impairment is protected if that individual has a record of impairment or is “regarded” as having an impairment. (Someone who had a problem with depression who was not given an assignment due to his previous medical condition could be an example of “regarded as.”)We must ensure equal opportunity in hiring, placement and advancement of individuals with disabilities.12
13 Requesting Reasonable Accommodation There are no magic words.Employee lets the employer know s/he needs an adjustment at work because of a medical condition.A family member, friend, health professional or other representative may request on an individual’s behalf, but the accommodation can be refused if it isn't needed.An initial request for accommodation does not have to be in writing. An employer can ask the individual to submit a form or written request, but cannot ignore the verbal request.An agency may not require that a request for reasonable accommodation be made to a specific agency official.
14 Interactive ProcessParties should engage in an informal and flexible interactive process to identify precise limitations of the employee and what accommodations could overcome those limitations.Management’s failure to engage in the interactive process alone is generally insufficient to support a finding of disability discrimination, but can lead to liability for the agency.Equally, the individual is also responsible for the process by meeting, suggesting accommodation, providing documentation as requested, etc.
15 Interactive ProcessManagement, HRO and the disabled employee must meet to determine if the employee’s medical documentation is sufficient to make a disability analysis.The interactive discussion should include:Review of the employee’s completed request formClarification of the physical or mental impairment.Request for medical information, if needed.Options for accommodation.The person has the requisite skill, experience, education, and other job-related requirements of the position with or without reasonable accommodation.What is an essential function?It is the reason the position exists, it’s primary purpose.There are a limited number of employees available to perform the job and the function cannot be distributed.The function may be highly specialized so the incumbent of the position is hired for his or her expertise or ability to perform that particular function. What is amount of time spent performing the job function.The applicant or employee must be qualified for the position and the individual must be able to successfully perform the essential functions required of the position. It is imperative that managers understand the essential functions of a position. Position descriptions may not be conclusive evidence of essential functions. In any case, there will no longer be detailed position descriptions under the new National Civilian Personnel System. Supervisors in discussion with their employees must identify the essential functions of a position. Other factors such as percentage of time a function is performed, how many other individuals perform the function or how often the function is performed can also be a determinant.Individuals that cannot perform essential functions of a position with or without accommodations are not considered qualified disabled individuals. Individuals who cannot perform incidental or marginal functions would be considered qualified for the position, since incidental or marginal functions can be reassigned and are not essential to the success of the position.
16 When the Employee is not a QID If an employee is found not to have a qualifying disability, the command is not obligated to fulfill the accommodation request. The command should notify the employee in writing that s/he does not qualify and why. The letter must also explain the arrangement provided, if any.In other words, the command or activity advises the employee it does not consider the employee to be disabled but will try to help the employee anyway even though they are not obligated to do so. Commands are advised to seek further advice from their servicing HRO Labor Advisor and the EEO Office.16
17 Medical Documentation Medical information or a medical exam cannot be requested before an offer of employment is extended unless applicant requests accommodation.Reasonable documentation is documentation needed to establish the person has a disability, and that the disability necessitates a reasonable accommodation.The agency may request only information relevant to making a decision about reasonable accommodation.Generally management cannot ask for an entire medical record because it likely contains unrelated information.An agency may require documentation about the disability or limitations come from an appropriate professional: doctor, social worker, or rehab counselor.
18 Medical Information – Privacy Rights Never request medical documentation without HRO involvement or at least a medical releaseMedical information and documentation are protected under Health Insurance Portability & Accountability (HIPAA) privacy lawsMedical information is to be retained separately from the individual’s personnel files.RA files are maintained in the EEO Office.Never discuss an employee’s medical condition with anyone who does not have an official need to know.To assist you in this process please contact your Employee Labor Advisor or the EEO Office, Ms. Colleen Martineau, regarding medical documentationMedical records must be separately maintained from other employees record, safeguarded and access limited on need to know basisMedical records must be labeled as such.Reasonable accommodation files are to be maintained in the EEO OfficeShould employees ask why certain individuals were provided “special treatment” you may not disclose that persons’ medical/psychological condition. The appropriate response is that “it is in the best interest for us to do things that way.”
19 Undue HardshipAn employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business.An employer is not required to lower quality or production standards to make an accommodation; nor is an employer obligated to provide personal use items such as glasses or hearing aids.An employer must also consider whether the employee can perform the work safely without being a threat to self and/or othersUndue Hardship is considered on a case by case basis.Undue hardship that would excuse an agency from providing reasonable accommodation refers to situation in which a proposed reasonable accommodation would result in an extreme expense, substantial or disruptive change, or a fundamental alteration to the nature of the work.-Any arguments about the costliness of an accommodation must specifically address the costs in relation to the overall resources of the agency which makes cost a non issue as Navy is considered to have enough money and most accommodations cost less that $500.- An employee or applicant is not a qualified individual with a disability if performance of a job’s essential functions poses a direct threat of harm to the individual or others. In order to exclude an employee from a position, the agency has to show “significant risk of substantial harm” that cannot be eliminated or reduces with reasonable accommodation. The agency’s assessment must be based on medical evidence and must specifically identify the nature and probability of the risk involved19
20 Examples of Reasonable Accommodations Making existing facilities more accessibleRestructuring jobUtilizing part time or modified work schedulesTeleworkProviding qualified readers or interpretersAcquiring or modifying equipment-making entrances/work areas more accessible (elevators), widen aisles-Restructuring jobs – modifying tasks, changing job content, eliminating nonessential elements, etc.-adjusting work schedules - allowing for a nonstandard 9-5 eight-hour day, change in eating schedule, allowing rest periods, etc.-allowing the employee to work from home a few days a week if the job duties can be done away from the work areaProviding qualified sign language and oral interpreters for training, disciplinary actions or other work events that are important for the individual to carry out assigned duties.Acquiring or modifying equipment – utilize the CAP for carpal tunnel, dragonspeak software, lowering worktables, electric carts for moving supplies, etc20
21 Accommodation Resources If the employee who is an individual with a disability cannot be accommodated in his/her current position a job search will be conducted in the following steps:Management/HRO/HRSC/Echelon II Command conducts job searchCommand-wide vacant positionsArea-wideMajor Claimant-wideNavy-wideReminder about the Computer/Electronic Accommodations Program and provides accommodations solution, needs assessment, assistive technology at no cost. Website:Computer/Electronics Accommodations Program (CAP):CNRH Reasonable Accommodation POC: Ms. Lacy Lynn,21
22 Accommodation for Religious Beliefs/Practices Complainant must show:He or she a bona fide religious belief that conflicts with an employment requirement;He or she informed the agency of that belief; andThe employment requirement would force the complainant to abandon a fundamental aspect of his or her belief.The agency must show it made a reasonable effort to accommodate the complainant’s belief; andThe agency must show that accommodating the belief would cause more than ademinimis (little or no impact) hardship on its operations.Factors that -- either alone or in combination -- might undermine an employee's assertion that he sincerely holds the religious belief at issue include: whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons."Because the definition of religion is broad and protects beliefs and practices with which the employer may be unfamiliar, the employer should ordinarily assume that an employee's request for religious accommodation is based on a sincerely held religious belief."If, however, an employee requests religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information.22
23 Accommodation for Religious Beliefs/Practices To accommodate employees’ beliefs, the government allows limited expression so long as that activity does not imply that the government endorses a particular religious belief.If an employer accommodates one religion, it must offer comparable accommodation to other religions.Employers may authorize use of facilities for religious discussion or prayer but only if the employer offers similar space to other groups for non-work related gatherings.Title VII defines “religion” to include “all aspects of religious observance and practice as well as belief” Religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only belonging to a small number of people, or that seem illogical or unreasonable to others.”1-The federal government is prohibited from openly endorsing religion.2-Comparable accommodation must be given to all religions3-Facilities for religious discussion or prayer can be granted if the employer offers similar space to other groups for non-work related gatherings.Civilians may wear clothing or jewelry reflective of their beliefs that does not create a safety issue, reduce the effectiveness of a uniform or create the appearance of government endorsement.Employees may keep Korans, bibles and other religious books on bookshelves in the office.23
24 Navy ADR Policy SECNAVINST 5800.13A: “ADR techniques shall be used as an alternative to litigation or formal administrative procedures to the maximum extent practicable…Every issue in controversy, regardless of the subject matter, is a potential candidate for ADR.”Mediation is the preferred method of ADR for DoN, and can be elected at any point in the process.Contact Ms. Carla Kishimori, EEO ADR Convener, by phone: (808) orIn the past, if an employee chose ADR in the EEO complaints process, management’s participation was voluntary
25 Alternative Dispute Resolution (ADR) and the EEO Complaints Process Effective 31 December 2008, the Secretary of the Navy changed the ADR provision to require that rejection of ADR by management must be justified in writing in accord with the Civilian Human Resources Manual, SubchapterManagement’s rejection of ADR must be made by a level of management, normally the 2nd level supervisor or higher, who was not involved in the action that gave rise to the complaintThe signed rejection will be included in the official EEO record and may not be the subject of any new or additional claim
26 What is Mediation? Mediation is the ADR Process used by the Navy People are encouraged to resolve problems in ways that work for themDisputing parties may have representationSettlements are voluntaryNeutral FacilitatorImprove the working relationship by communication and clarificationAccelerated ResolutionIf problem is not resolved, may continue to pursue complaint through the EEO Process
27 Who are your EEO Officials? PositionNamePhoneEEO OfficialTim Berryhill(228)Head EEO DeptRhonda Evans(228)EEO SpecialistAntonio Isaac(228)EEO CounselorBarbara Richardson(504)
28 Civilian Training Officer Certificate of Completion is hereby granted to ____________________________________ to certify satisfactory completion ofEEO Refresher for Supervisors Date: ______________________Thomas H. SheppardThomas H. Sheppard, PhDCivilian Training Officer