NO FEAR ACT Compliance training Office of General Counsel August 2017

Overview Congress passed the Notification and Federal Employee Antidiscrimination and Retaliation Act (No Fear Act) to ensure that the rights of employees and applicants for employment are protected under discrimination, retaliation, and whistleblower laws. It is the responsibility of every supervisor to ensure and promote a workplace free of discrimination and harassment.

What Is Required? The Act requires federal agencies to: Reimburse the Treasury Judgment Fund for judgments against agencies and settlements for violations of discrimination and whistleblower laws. Post information on its public website relating to complaints of discrimination and annually report to Congress. Train and notify employees on their rights and protections under the antidiscrimination and whistleblower laws.

Antidiscrimination Laws All federal employees are protected from illegal discrimination in employment matters on the basis of race, color, religion, gender, national origin, age and disability.

Covered Employment Matters The antidiscrimination laws protect you from discrimination concerning the terms and conditions of your employment. This includes: Hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, and any other term or condition of employment. Requests for reasonable accommodation for religion or disability

Title VII of the Civil Rights Act Equal employment opportunity cannot be denied to any person based on their race or perceived racial group or race-linked characteristics (e.g., hair texture, color, facial features). 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 of the Civil Rights Act (Cont.) National origin discrimination involves treating someone less favorably because of their ethnic background. This includes: the belief or perception that they are from a particular country (or part of the world) because of ethnicity or accent Treating someone less favorably at work because of their marriage or other association with someone of a particular nationality

Title VII of the Civil Rights Act (Cont.) In addition to protection against discrimination based on religion, Title VII also establishes the agency’s duty to provide reasonable accommodation for an employee’s religious beliefs – unless, doing so would impose an undue hardship on the employer For example, time off to observe a religious holiday would result in no office coverage on that day

Age Discrimination in Employment Act The Age Discrimination in Employment Act (ADEA) prohibits discrimination against federal employees who are 40 years of age or older. The Act protects “seasoned” employees from employment-related actions based on stereotypes or stigmas associated with age.

The Rehabilitation Act The Rehabilitation Act prohibits employment discrimination against a qualified person with a disability. Agencies must provide reasonable accommodation for a qualified employee or applicant. A qualified individual with a disability means the person satisfies the requisite skill, experience, education and other job-related criteria of the desired position and who, with or without reasonable accommodation, can perform the essential functions of such position.

What is a Disability? A disability is a physical or mental impairment that substantially limits a major life activity (e.g., breathing, walking, seeing, hearing). Note: The terms disability and qualified individual with a disability do not include individuals engaging in the illegal use of drugs, when the employer acts on the basis of such use.

Reasonable Accommodation A reasonable accommodation is an adjustment to the work situation or environment to enable the employee to perform their job, as long as it is not an undue hardship to the agency. The accommodation does not have to be specifically what is requested by the employee – but, it must be a reasonable, effective accommodation. If more than one accommodation would work, the employer may choose which one to provide. Note: Employers have no obligation to change performance standards or to eliminate essential functions of a position as an accommodation.

What About Job Applicants? Employers may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their inability to perform specific job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. Medical examinations of employees must be job-related and consistent with the employer’s business needs.

Protection from Retaliation Employees are also protected from retaliation for exercising their rights under the antidiscrimination laws. Protected activities include (but not limited to): filing a discrimination complaint requesting reasonable accommodation providing evidence/giving testimony to an investigator or in a hearing

Employee Entitlement Employees are entitled to a reasonable amount of official time to prepare and present their complaint. While there is not set amount of time, official time is generally granted in terms of hours, not days. Employees are also entitled to official time to meet with a counselor, an investigator or to participate in a hearing.

Supervisor Responsibilities Treat all complaints seriously and confidentially. Ensure that discrimination filing notices are prominently posted in the workplace. Ensure employees are treated fairly and equitably. Ensure that there is a legitimate, non-discriminatory reason for employment-related actions.

Supervisor Responsibilities Provide reasonable accommodation to qualified individuals with disabilities. Check with Human Resources and/or EEO officer if you have any questions about whether reasonable accommodation is appropriate.

Supervisor Responsibilities 1) Provide a reasonable amount of official time to an employee who requests time to work on an EEO complaint 2) Cooperate with an EEO counselor or investigator Respond to inquiries promptly Provide requested documents promptly (in consult with USPS Law Department)

Supervisor Responsibilities (Cont.) 3) Promote a discrimination-free environment where employees are not subject to negative treatment based on their race, color, religion, national origin, age, gender or disability. 4) Refrain from engaging in behavior that may be viewed as retaliatory or obstructive to the complaint process.

Whistleblower Protection Laws A federal agency violates the Whistleblower Protection Act if agency authorities take (or threaten to take) retaliatory personnel action against any employee or applicant because of disclosure of information by that employee, former employee, or applicant. Note: Employees may not disclose information if disclosure if specifically prohibited by law or if the information is required under Executive Order to be protected from disclosure in the interest of national security

Types of Disclosures Violations of law, rule or regulation Gross mismanagement Gross waste of funds An abuse of authority A substantial and specific danger to public health or safety.

True of False? The following action should be avoided by a federal employee with personnel authority? Deciding not to hire an applicant because she was born in a particular European country True False

True!! The answer is A Not hiring someone because of where she was born is discrimination based on national origin – which is unlawful and in violation of the No Fear Act.

Yes or No?? Would this be a No Fear Act violation?: Yes No Terminating a person’s employment because he has reported unlawful activity at the agency Yes No

YES!! The answer is A Firing someone for reporting unlawful activity is an example of engaging in retaliation for whistleblowing

True of False?? Reporting an incident of discrimination that involves an agency head violates the No Fear Act? True False

False!! The answer is B Reporting incidents of discrimination is lawful and encouraged by the No Fear Act

Prohibited Personnel Actions Persuading an employee not to apply for an open position because another employee is favored Terminating an employee because of his participation in hunting activities on the weekend Refusing to promote a qualified employee due to the political party he supports

Remedies Victims of discrimination or retaliation are entitled to several remedies: Back pay and lost benefits Compensatory damages compensatory = monetary amount necessary to replace what was lost, and nothing more Attorney Fees

It Adds Up! $$$$ The costs can become quite expensive for an agency to compensate victims of discrimination and retaliation Agencies must make arrangements to pay back the Judgment Fund – the No Fear Act helped increase agency accountability Agencies now carry the financial responsibility of discrimination and retaliation

Best Practices for Supervisors Set a good example (supervisors are leaders) Be accessible Communicate regularly with staff Monitor workplace behaviors (enforce respect in the workplace) Act on all complaints of discrimination Maintain accurate position descriptions (work with HR to use valid selection criteria) Keep written records and document all complaints and agency actions

Conclusion Remember, it is the responsibility of every supervisor to ensure a workplace free of discrimination and retaliation. When in doubt, seek advice from USPS Law Department.