EEO 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.

Rationale 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!

VA 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.

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.

Anti-Discrimination Laws Title VII of the Civil Rights Act of 1964: Prohibits discrimination based on race, color, sex, religion, national origin, and retaliation. 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.

Anti-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.

Theories 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

Disparate 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.

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.

Griggs 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.

Workplace 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 victim’s 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.

Tangible Employment Action Definition: A management official’s harassment that results in a significant change in an employee’s 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.

Hostile 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.

Agency Liability For 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.

Agency Liability For 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).

Agency Liability For 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 that’s 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?

Preventing 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)

Preventing Workplace Harassment Avoid sexual, racial, ethnic, cultural, age/disability related jokes, epithets, comments, and e-mails. Respect a person’s indication that conduct or attention is not welcome. Do not invade another individual’s 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.

Supervisor’s 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.

Retaliation 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 employer’s 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 employer’s 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.

Burlington Northern v. White 548 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.

Burlington 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.

Policy 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.

Reasonable 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.

Reasonable Accommodation Americans 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

Definition 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.

Qualified 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.”

Physical 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 the…body systems…or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Substantially 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

Major 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 EEOC’s 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.

Reasonable 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.

Requests for Accommodation An employee can request reasonable accommodation from his/her supervisor; another supervisor or manager in the immediate chain of command. An employee’s 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”

REASONABLE ACCOMMODATION Modifying Work Sites Accessible Facilities Providing Readers and Interpreters REASONABLE ACCOMMODATION (Reassignment is the accommodation of last resort.) Modifying Work Schedules Assistive Devices Flexible Leave Schedules

Reasonable Accommodation Supervisor’s 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.

Federal 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.

Federal 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 EEOC Hearing & AJ Decision Requested 30 days Final Agency 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

Complaint Process Supervisor’s 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.

Best 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.

Contact Information Georgia Coffey Deputy Assistant Secretary, ODI Georgia.Coffey@va.gov Rafael Torres Deputy Assistant Secretary, ORM Rafael.Torres@va.gov Deborah McCallum Assistant General Counsel, Professional Staff Group IV Deborah.mccallum@va.gov Larry Abels Director, Employee Relations, Office of Human Resources Management Larry.Abels@va.gov

EEO Compliance Training For Managers and Supervisors Promoting equity, diversity and inclusion in the workplace to build a stronger VA.