EEO Compliance Training for Employees U.S. Department of Veterans Affairs

1. EEO Compliance Training for EmployeesU.S. Department of Veterans Affairs Office of Diversity and Inclusion* and the Office of Resolution Management * The Office of Diversity and Inclusion was formerly the Office of Diversity and EEO.

2. Learning Objectives • Briefly review and discuss major anti-discrimination laws. • Increase awareness of workplace harassment, including types not always obvious. • Learn techniques for identifying and preventing workplace discrimination, harassment, and retaliation. • Review and understand the significant aspects of the agency’s reasonable accommodation procedures. • Understand the significant stages in the federal sector EEO complaint process, including the option of ADR. 2

3. VA Equal EmploymentOpportunity Policy All applicable federal EEO laws will be vigorously enforced. It is the policy of the VA to ensure equal employmentopportunity, prohibit discrimination and harassment in all its forms, and promote diversity and inclusiveness in the VA workplace. Each employee bears the responsibility to ensure that discrimination and harassment in the workplace are not tolerated and that diversity is valued. However, supervisors and managers bear a special responsibility to ensure that work environments are free from discrimination and harassment of any kind. 3 3

4. Anti-Discrimination Laws • Title VII of the Civil Rights Act of 1964 (Title VII): • Is the major federal law prohibiting discrimination in employment. • Title VII prohibits discrimination based on race, sex, color, religion, national origin, and retaliation. • The 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. 4

5. 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 the right to a jury trial and monetary damages in cases of employment discrimination. 5

6. Anti-Discrimination Laws • The NO FEAR ACT (became effective on October 1, 2003): • Prohibits discrimination and retaliation against federal workers for participating in the EEO process or whistle-blower activities. • Requires agencies to train employees and post statistical data on EEO complaints on agency’s public website. • Also, requires agencies to reimburse the Treasury Judgment Fund for payments made in Federal District Court cases involving violations of discrimination and whistle-blower laws. 6

7. 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 prima facie case is established burden shifts to employer to articulate a legitimate, non-discriminatory reason for taking the action; and shifts back to complainant to argue pretext. • Intent to discriminate is proven by three types of evidence: direct, circumstantial (comparative), and statistical.

8. 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. 8

9. Workplace Harassment • Workplace harassment is a form of discrimination that is explicitly prohibited by VA policy and the law. • VA will not tolerate verbal or physical conduct that harasses, disrupts, interferes with performance, or creates an environment that is intimidating, offensive and/or hostile. • Additionally, the Agency will not tolerate or condone any form of harassment or retaliation towards employees who report incidents of harassing behavior or assist in any inquiry about such a report.

10. Workplace Harassment Defined Harassment is any unwelcomeverbal or physical conduct based on race, color, religion, sex (regardless of whether it is of a sexual nature), sexual orientation, national origin, age, disability or retaliation that is sufficiently offensive to alter the conditions 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. 10

11. Tangible Employment Action Definition: A management official’s harassment that results in a significant change in an employee’s (usually a subordinate’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. 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. 11

12. Tangible Employment Action: Example For example: A manager pressures a subordinate employee to join her for dinner and dancing. When he declines, she tells him that he can’t expect her to “mentor” him if he is unwilling to spend time together after hours. After he does not relent, he receives an undesirable reassignment. In this instance the undesirable reassignment represents a tangible job action. Even an isolated instance of such misconduct is unlawful. 12

13. If Management Conduct CreatesHostile Environment The harassment by a management official that does not result in a tangible employment action is analyzed to determine whether it was severe or pervasive enough to create a hostile environment. If the conduct created a hostile environment, an agency is liable unless it can establish that: It exercised reasonable care to prevent and correct promptly any harassment (has anti-harassment policy and complaint avenues); and The employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the agency (failed to take advantage of complaint process). 13

14. Hostile Work Environment Anyone in the workplace can commit this type of harassment: a supervisor or manager, co-worker, or even a non-employee. To create a hostile environment, the conduct must rise to the level of being 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. 14

15. The Reasonable Person Standard • A “reasonable person” standard is used in evaluating whether unwelcome conduct is sufficiently severe or pervasive to create a hostile environment. • Under the “reasonable person” standard the harassing conduct must be viewed as objectionable not only from the standpoint of the victim/target but also from the standpoint of a “reasonable person.” • A “reasonableness” standard guards against claims by hypersensitive individuals.

16. 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 misconduct by co-workers: 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 used to it, because that’s how the boys behave.” 16

17. Religious Harassment Religious harassment is discriminatory treatment based on a person’s: Affiliation with a particular religious group; Display of physical or cultural traits commonly associated with a particular religion; Perception or belief that someone else is a member of a religious group (whether true or not); Dress or other apparel commonly associated with a particular religion; and Association with a religious person, individual or organization. 17

18. Prevention of 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); and • Written (unwelcome letters, notes or e-mails of a personal nature). 18

19. Prevention of Harassment Con’td • Avoid sexual, racial, ethnic, cultural, age/disability related jokes, epithets, comments, and e-mails. • Respect a person’s wishes when he/she indicates that conduct or attention is not welcome. • Clearly inform those engaging in offensive behavior that you find it objectionable. • Report behavior that you believe qualifies as harassment. 19

20. 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. 20 20

21. 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. 21 21

22. Reasonable AccommodationAmericans 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

23. 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.

24. 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.”

25. 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.

26. 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

27. 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.

28. 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.

29. 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”

30. 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

31. Reasonable AccommodationSupervisor’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.

32. Religious Accommodation • Under Title VII, an agency has the duty of reasonable accommodation for sincerely held religious beliefs and practices unless to do so would cause an undue hardship. • Examples of religious accommodations: • Work schedules - The most likely accommodation to be requested is flexibility in the regular work schedule to participate in some religious practice • Allowing employee to make up hours • Granting leave for religious observances • Granting time or place to pray • Allowing religious dress • Not scheduling or holding meetings on religious days of observance • Honoring dietary requirements at meetings or trainings 32

33. 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.

34. Burlington Northern v. White548 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. 34

35. Burlington Northern Con’td 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. 35

36. Conflict Prevention & Resolution Program • The Workplace ADR Program in the Office of Resolution Management (ORM) was created as an alternative resource to existing formal grievance and EEO complaint processes to address work related issues. • One of the primary goals of Workplace ADR is to provide employees with an impartial, confidential avenue to resolve disputes in order to minimize the escalation of disputes to the formal grievance process. • Workplace ADR offer VA employees and managers the following resources: mediation, consultation, coaching, facilitation, Early Neutral Evaluation, andpresentations.

37. Alternative Dispute Resolution (ADR) • Mediation is the form of ADR that VA has selected to resolve and settle discrimination complaints. • In mediation a neutral third party, the mediator, assists the disputing parties to achieve a mutually acceptable agreement. • The objective of the mediator is to bridge the gap in communication between the disputing parties and assist them in reaching a voluntary agreement of their own. • Resolutions reached during mediations are documented in settlement agreements. • If mediation is not successful, the complaint process would resume from the point it stopped.

38. Major Stages in Complaint Process • Traditional EEO counseling or option of ADR (mediation) • Filing of formal complaint if matter has not been satisfactorily resolved at pre-complaint stage • Investigation of complaints that meet procedural requirements • EEOC Hearing or immediate Final Agency Decision (FAD) from OEDCA • Appeal of final VA decisions to the EEOC • File civil suit in appropriate Federal district court

39. 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.

40. 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

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42. EEO Compliance Training for Employees Promoting equity, diversity and inclusion in the workplace to build a stronger VA.