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OSC 2013 NO FEAR ACT TRAINING YOUR RIGHTS AND REMEDIES UNDER FEDERAL ANTIDISCRIMINATION AND WHISTLEBLOWER PROTECTION LAWS U.S. OFFICE OF SPECIAL COUNSEL.

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Presentation on theme: "OSC 2013 NO FEAR ACT TRAINING YOUR RIGHTS AND REMEDIES UNDER FEDERAL ANTIDISCRIMINATION AND WHISTLEBLOWER PROTECTION LAWS U.S. OFFICE OF SPECIAL COUNSEL."— Presentation transcript:

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2 OSC 2013 NO FEAR ACT TRAINING YOUR RIGHTS AND REMEDIES UNDER FEDERAL ANTIDISCRIMINATION AND WHISTLEBLOWER PROTECTION LAWS U.S. OFFICE OF SPECIAL COUNSEL June 19, 2013

3 2 What is the No Fear Act? 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. “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.” To this end, the No FEAR Act requires that all federal agencies train employees about the rights and remedies available to them under the Antidiscrimination Laws and Whistleblower Protection Laws applicable to them.

4 3 Federal Antidiscrimination and Whistleblower Protection Laws “Federal Antidiscrimination Laws” refers to: 5 U.S.C. 2302(b)(1) 5 U.S.C. 2302(b)(1) 5 U.S.C. 2302(b)(9), as applied to conduct described in 5 U.S.C. 2302(b)(1) 5 U.S.C. 2302(b)(9), as applied to conduct described in 5 U.S.C. 2302(b)(1) 5 U.S.C. 2302(b)(10) 5 U.S.C. 2302(b)(10) 29 U.S.C. 206(d) Equal Pay Act 29 U.S.C. 206(d) Equal Pay Act 29 U.S.C. 621 Age Discrimination in Employment Act 29 U.S.C. 621 Age Discrimination in Employment Act 29 U.S.C. 791 Rehabilitation Act 29 U.S.C. 791 Rehabilitation Act 42 U.S.C. 2000e–16 Civil Rights Act of U.S.C. 2000e–16 Civil Rights Act of U.S.C. 2000ff-11 Genetic Information Nondiscrimination Act 42 U.S.C. 2000ff-11 Genetic Information Nondiscrimination Act “Federal Whistleblower Protection Laws” refers to: 5 U.S.C. 2302(b)(8) or 5 U.S.C. 2302(b)(9), as applied to conduct described in 5 U.S.C. 2302(b)(8). 5 U.S.C. 2302(b)(8) or 5 U.S.C. 2302(b)(9), as applied to conduct described in 5 U.S.C. 2302(b)(8).

5 4 Race Discrimination Under Title VII of the Civil Rights Act of 1964, equal employment opportunity cannot be denied any person because of his/her racial group or perceived racial group, race-linked characteristics (e.g., hair texture, color, facial features), or marriage to or association with someone of a particular race or color. Under Title VII of the Civil Rights Act of 1964, equal employment opportunity cannot be denied any person because of his/her racial group or perceived racial group, race-linked characteristics (e.g., hair texture, color, facial features), or marriage to or association with someone of a particular race or color. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups.

6 5 Race Discrimination (continued) It is unlawful to discriminate against any individual in regard to recruiting, hiring and promotion, transfer, work assignments, performance measurements, the work environment, job training, discipline and discharge, wages and benefits, or any other term, condition, or privilege of employment. It is unlawful to discriminate against any individual in regard to recruiting, hiring and promotion, transfer, work assignments, performance measurements, the work environment, job training, discipline and discharge, wages and benefits, or any other term, condition, or privilege of employment. Title VII prohibits not only intentional discrimination, but also neutral job policies that disproportionately affect persons of a certain race or color and that are not related to the job and the needs of the business. Title VII prohibits not only intentional discrimination, but also neutral job policies that disproportionately affect persons of a certain race or color and that are not related to the job and the needs of the business. Title VII also prohibits harassment based on race. Title VII also prohibits harassment based on race.

7 6 National Origin Discrimination Title VII prohibits employers from discriminating against individuals because of their national origin. National origin discrimination means treating someone less favorably because he or she comes from a particular place, because of his or her ethnicity or accent, or because it is believed that he or she has a particular ethnic background. National origin discrimination also means treating someone less favorably at work because of marriage or other association with someone of a particular nationality. Title VII prohibits employers from discriminating against individuals because of their national origin. National origin discrimination means treating someone less favorably because he or she comes from a particular place, because of his or her ethnicity or accent, or because it is believed that he or she has a particular ethnic background. National origin discrimination also means treating someone less favorably at work because of marriage or other association with someone of a particular nationality. Violations include: discrimination in employment decisions (recruitment, hiring, firing, layoffs, etc.) and harassment based on national origin. Violations include: discrimination in employment decisions (recruitment, hiring, firing, layoffs, etc.) and harassment based on national origin. Discrimination against individuals employed in the United States is prohibited, regardless of citizenship. However, relief may be limited if an individual does not have work authorization. Discrimination against individuals employed in the United States is prohibited, regardless of citizenship. However, relief may be limited if an individual does not have work authorization.

8 7 National Origin Discrimination (Language) Accent discrimination An employer may not base a decision on an employee’s foreign accent unless the accent materially interferes with job performance. Accent discrimination An employer may not base a decision on an employee’s foreign accent unless the accent materially interferes with job performance. Accent discrimination Accent discrimination English fluency A fluency requirement is only permissible if required for the effective performance of the position for which it is imposed. English fluency A fluency requirement is only permissible if required for the effective performance of the position for which it is imposed. English fluency English fluency English-only rules English-only rules must be adopted for nondiscriminatory reasons. An English-only rule may be used if it is needed to promote the safe or efficient operation of the employer’s business. English-only rules English-only rules must be adopted for nondiscriminatory reasons. An English-only rule may be used if it is needed to promote the safe or efficient operation of the employer’s business. English-only rules English-only rules

9 8 Religious Discrimination Title VII prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. Title VII prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. Employees cannot be forced to participate – or not participate – in a religious activity as a condition of employment. Employees cannot be forced to participate – or not participate – in a religious activity as a condition of employment. Employers must take steps to prevent religious harassment of their employees. Employers must take steps to prevent religious harassment of their employees.

10 9 Religious Discrimination Reasonable Accommodation Employers must reasonably accommodate employees’ sincerely held religious practices unless doing so would impose an undue hardship on the employer. Employers must reasonably accommodate employees’ sincerely held religious practices unless doing so would impose an undue hardship on the employer. A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his religion. An employer might accommodate an employee’s religious beliefs or practices by allowing: flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers, modification of grooming requirements and other workplace practices, policies and/or procedures. A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his religion. An employer might accommodate an employee’s religious beliefs or practices by allowing: flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers, modification of grooming requirements and other workplace practices, policies and/or procedures.

11 10 Sex Discrimination It is unlawful to discriminate against any employee or applicant because of his/her sex in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. It is unlawful to discriminate against any employee or applicant because of his/her sex in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals on the basis of sex. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals on the basis of sex. Title VII prohibits both intentional discrimination and neutral job policies that disproportionately exclude individuals on the basis of sex and that are not job-related. Title VII prohibits both intentional discrimination and neutral job policies that disproportionately exclude individuals on the basis of sex and that are not job-related.

12 11 Sex Discrimination Pregnancy Discrimination The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar disabilities or limitations. Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar disabilities or limitations.

13 12 Sex Discrimination Pregnancy Discrimination (continued) An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition or because of the prejudices of co-workers, clients, or customers. An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition or because of the prejudices of co-workers, clients, or customers. Pregnant employees must be permitted to work as long as they are able to perform their jobs. Pregnant employees must be permitted to work as long as they are able to perform their jobs. Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave. Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave.

14 13 Sex Discrimination Sexual Harassment Title VII’s prohibitions against sex-based discrimination also covers: Title VII’s prohibitions against sex-based discrimination also covers: Sexual Harassment This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment. Sexual Harassment This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment. Sexual Harassment Sexual Harassment

15 Sex Discrimination Gender Identity and Sex-Stereotyping The EEOC has held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is covered under Title VII of the Civil Rights Act of See Macy v. Department of Justice, EEOC Appeal No (April 20, 2012) The EEOC has held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is covered under Title VII of the Civil Rights Act of See Macy v. Department of Justice, EEOC Appeal No (April 20, 2012) The Commission has also found that claims by lesbian, gay, bisexual, and straight individuals alleging sex-stereotyping state a sex discrimination claim under Title VII. See Veretto v. U.S. Postal Service, EEOC Appeal No (July 1, 2011); Castello v. U.S. Postal Service, EEOC Request No (Dec. 20, 2011) The Commission has also found that claims by lesbian, gay, bisexual, and straight individuals alleging sex-stereotyping state a sex discrimination claim under Title VII. See Veretto v. U.S. Postal Service, EEOC Appeal No (July 1, 2011); Castello v. U.S. Postal Service, EEOC Request No (Dec. 20, 2011) 14

16 15 Equal Pay The Equal Pay Act of 1963 requires that men and women be given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal. The Equal Pay Act of 1963 requires that men and women be given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal. Title VII also prohibits compensation discrimination on the basis of sex. Unlike the Equal Pay Act, however, Title VII does not require that the claimant’s job be substantially equal to that of a higher paid person of the opposite sex or require the claimant to work in the same establishment. Title VII also prohibits compensation discrimination on the basis of sex. Unlike the Equal Pay Act, however, Title VII does not require that the claimant’s job be substantially equal to that of a higher paid person of the opposite sex or require the claimant to work in the same establishment.

17 16 Disability Discrimination Title I of the Americans with Disabilities Act of 1990 (ADA) prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. Title I of the Americans with Disabilities Act of 1990 (ADA) prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA’s nondiscrimination standards apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules and regulations. The ADA’s nondiscrimination standards apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules and regulations.

18 17 What is a Disability? An individual with a disability is a person who: 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 physical or mental impairment that substantially limits one or more major life activities (such as walking, talking, seeing, hearing, or learning). Has a record of such an impairment; or Has a record of such an impairment; or Is regarded as having such an impairment. Is regarded as having such an impairment.

19 18 Reasonable Accommodation A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, but is not limited to: A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, but is not limited to: Making existing facilities used by employees readily accessible to and usable by persons with disabilities; Making existing facilities used by employees readily accessible to and usable by persons with disabilities; Job restructuring, modifying work schedules, reassignment to a vacant position; Job restructuring, modifying work schedules, reassignment to a vacant position; Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters. Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters. An employer is required to make a reasonable accommodation to the known disability of a qualified employee or applicant if it would not impose an “undue hardship” on the operation of the employer’s business. An employer is required to make a reasonable accommodation to the known disability of a qualified employee or applicant if it would not impose an “undue hardship” on the operation of the employer’s business.

20 19 Age Discrimination The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

21 Genetic Information Discrimination It is unlawful to discriminate against employees or applicants because of genetic information. Title II of the Genetic Information Nondiscrimination Act (GINA) prohibits the use of genetic information in making employment decisions and restricts employers and other entities covered by Title II from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information It is unlawful to discriminate against employees or applicants because of genetic information. Title II of the Genetic Information Nondiscrimination Act (GINA) prohibits the use of genetic information in making employment decisions and restricts employers and other entities covered by Title II from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information. The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. It is also unlawful to harass a person because of his or her genetic information. It is also unlawful to harass a person because of his or her genetic information. 20

22 21 Retaliation Prohibited It is unlawful to retaliate against an individual for opposing employment practices that discriminate based on race, color, religion, sex, age, national origin, pregnancy, disability, or genetic information. It is unlawful to retaliate against an individual for opposing employment practices that discriminate based on race, color, religion, sex, age, national origin, pregnancy, disability, or genetic information. It is also unlawful to retaliate against an individual for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation. It is also unlawful to retaliate against an individual for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation.

23 Political Affiliation, Marital Status, Sexual Orientation, and Status as a Parent The Civil Service Reform Act of 1978 makes it illegal to discriminate in personnel actions against Federal employees because of their marital status, political affiliation, or based on conduct which does not adversely affect the performance of the applicant or employee -- which can include sexual orientation discrimination, or to retaliate against employees for exercising their rights. 5 U.S.C. 2302(b)(1), (b)(9) & (b)(10). The Civil Service Reform Act of 1978 makes it illegal to discriminate in personnel actions against Federal employees because of their marital status, political affiliation, or based on conduct which does not adversely affect the performance of the applicant or employee -- which can include sexual orientation discrimination, or to retaliate against employees for exercising their rights. 5 U.S.C. 2302(b)(1), (b)(9) & (b)(10). Executive Order 11478, section 1 (as amended by Executive Orders and 13152) prohibits discrimination on the basis of sexual orientation and status as a parent. Executive Order 11478, section 1 (as amended by Executive Orders and 13152) prohibits discrimination on the basis of sexual orientation and status as a parent. 22

24 23 Whistleblower Protection 5 U.S.C. § 2302 (b)(8) A federal employee authorized to take, direct others to take, recommend or approve any personnel action may not engage in reprisal for whistleblowing – i.e., take, fail to take, or threaten to take or fail to take a personnel action with respect to any employee or applicant because of: Any disclosure of information by the employee or applicant that he or she reasonably believes evidences: * A violation of a law, rule or regulation, * Gross mismanagement, * Gross waste of funds, * Abuse of authority, or * A substantial and specific danger to public health or safety.

25 24 Disclosure not protected (unless made to the Special Counsel or Inspectors General), when disclosure is – Disclosure not protected (unless made to the Special Counsel or Inspectors General), when disclosure is – Prohibited by law, Prohibited by law,or Required by Executive Order to be secret for national security or foreign affairs reasons. Required by Executive Order to be secret for national security or foreign affairs reasons. Protected Whistleblower Disclosures (continued) 5 U.S.C. § 2302 (b)(8)

26 25 Corrective Action: Whistleblower Reprisal Matters 5 U.S.C. §§ 1214(b)(4)(B), 1221(e)(1) Can be obtained if - Disclosure of information was a Contributing Factor in a personnel action, Disclosure of information was a Contributing Factor in a personnel action,Unless Agency shows by Clear and Convincing Evidence that it would have taken the same personnel action in the absence of the disclosure. Agency shows by Clear and Convincing Evidence that it would have taken the same personnel action in the absence of the disclosure.

27 26 Other Protected Activities: 5 U.S.C. § 2302 (b)(9) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority : Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority : Take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of – Take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of – (A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation; (B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in (A); (C) cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; or (D) for refusing to obey an order that would require the individual to violate a law.

28 27 Filing a Complaint If you think you have been subjected to retaliation, contact the Complaints Examining Unit at the U.S. Office of Special Counsel at or visit to file a written complaint If you think you have been subjected to retaliation, contact the Complaints Examining Unit at the U.S. Office of Special Counsel at or visit to file a written complaintwww.osc.gov If you feel you have been discriminated against in violation of antidiscrimination laws, contact your OSC EEO counselors, listed on OSC’s Intranet and slide 29. You may also contact the Equal Employment Opportunity Commission if you have questions about filing a complaint ( ) or visit to learn more. If you feel you have been discriminated against in violation of antidiscrimination laws, contact your OSC EEO counselors, listed on OSC’s Intranet and slide 29. You may also contact the Equal Employment Opportunity Commission if you have questions about filing a complaint ( ) or visit to learn more.

29 28 OSC EEO Directives The following EEO directives are accessible on OSC’s intranet: The following EEO directives are accessible on OSC’s intranet: “EEO, Non-Discrimination, OSC Directive and Anti-Harassment Policy” and Anti-Harassment Policy” “Procedures for AccommodationOSC Directive of Persons with Disabilities” of Persons with Disabilities” * OSC is currently in the process of updating the EEO Directive and creating a separate Anti-Harassment Policy

30 29 OSC EEO Counselors HEADQUARTERS James Booker (202) Mariama Liverpool (202) M. St., N.W. (Suite 300) Washington, D.C DETROIT FIELD OFFICE Lovie Jones 211 West Fort Street, Room 521 Detroit, MI Telephone: (313) , ext DALLAS FIELD OFFICE Anne Edgette 525 Griffin Street (Room 824, Box #103) Dallas, TX Telephone: (214) , ext SAN FRANCISCO BAY AREA FIELD OFFICE Kristi van Greunen Oakland Federal Building 1301 Clay Street (Suite 1220N) Oakland, CA Telephone (510) , ext. 5227

31 30 Acting OSC EEO Director Shirine Moazed 1730 M. St, N.W., Suite 300 Washington, DC Telephone (202)

32 31 Congratulations! You have now completed the No FEAR Act training of Please complete your certification statement and it to Osborne Mack.


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