putting our best foot forward: a refresher for eeo counselors … · putting our best foot forward:...
TRANSCRIPT
Oliver C. Allen, JrRoslyn D. Brown
Monday, August 128:30 AM – 5:00 PM
Putting Our Best Foot Forward: A Refresher for EEO Counselors and Investigators
Refresher Overview 2019 Supreme Court Trio of Cases on LGBT Bias Hot Topics in EEO Case Processing
Accommodation and Undue Hardship: Religious vs Disability cases Service Animal vs. Emotional Support Animal Disability Etiquette in the Workplace Social Media Posts – Harassment or Not? Uptick in Age Discrimination Claims MD-110 Refresher: Roles, Responsibilities, Counsel Involvement
Taking Your Skills to the Next Level Conducting Effective Interviews Resolution of Claims and E.O. on Clean Record Agreements
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MODULE 1
2019Supreme Court Trio of Cases on LGBT Bias
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Supreme Court Ruling (June 2019) on Transgender Rights
Two cases deal with sexual orientation and one case deals with gender identity. The two involving termination based on sexual orientation — Bostock v. Clayton County Georgia and Altitude v. Zarda — will be consolidated.
At stake is whether sex discrimination, covered by Title VII of the 1964 Civil Rights Act, also prohibits discrimination on the basis of sexual orientation and gender identity.
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Evolution of EEO Cases on Gender Identity, Gender Stereotyping, and
Transgender Issues
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Changes to MD-110 require EEO Practitioners to … Understand the Evolution of Gender
Identity Discrimination Claims and Decisions
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Applicability of Title VII to LGBTQ Employees, 1989 - Present
Historically, the language of Title VII of the 1964 Civil Rights Act prohibiting discrimination on the basis of sex was not interpreted to include sexual orientation or gender identity/expression as a basis.Then along came two U.S. Supreme Court decisions in 1989 that changed everything ...
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Price Waterhouse and Oncale• Price Waterhouse v. Hopkins, 89 FEOR 9001, 490 U.S. 228
(1989).
• Oncale v. Sundown Offshore Oil Services, 98 FEOR 9001, 523 U.S. 75 (1998).
Together, these Supreme Court Decisions Recognized that:• Title VII is not just about biological sex, but also about gender stereotypes;
and• Title VII covers same-sex harassment, even if Congress didn’t explicitly
contemplate that.8
Price Waterhouse v. Hopkins (1989)
Ann Hopkins was denied partnership in an accounting firm. The employer told her she should ... “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, wear jewelry ...and go to Charm School”
The Supreme Court said that Hopkins had an actionable claim of gender discrimination under Title VII.
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Oncale v. Sundown Offshore Oil Services (1998)• Male coworkers physically assaulted and threatened to
rape plaintiff, Joseph Oncale. Supervisors did nothing.
• This was the first case in which the Supreme Court recognized that Title VII prohibits same-sex sexual harassment ...
“... Title VII prohibits “discrimination ... because of ... sex” in the terms or conditions of employment. Our holding that this must extend to sexual harassment of any kind that meets the statutory requirements.”
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After Price Waterhouse and Oncale …Courts and the EEOC have issued numerous decisions holding that Title VII protects transgender employees and sexual orientation. For example:• Schwenk v. Hartford, 116 LRP 19827, 204 F.3d 1187 (9th Cir. 2000)
… Title VII covers transgender people.• Schroer v. Billington, 108 LRP 53915, 577 F.Supp.2d 293 (D.D.C.
2008) … Discrimination based on gender transition is sex discrimination.
• Veretto v. USPS, 111 LRP 46728, EEOC No. 0120110873 (EEOC OFO 2011) … Claims of discrimination based on sexual orientation are claims of bias based on failure to conform to typical gender roles and are covered under Title VII’s sex discrimination prohibition.
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Schroer v. Billington108 LRP 53915, 577 F.Supp.2d 293 (D.D.C. 2008)
• Diane Schroer, a retired National Security Operations Officer, applied to the Library of Congress as a man, and was hired as a Senior Terrorism Research Analyst.
• Shortly after being offered the job, he took his futureboss to lunch to explain he was in the process oftransitioning, and would be starting work as a female.
• The next day, she received a call from her futureboss rescinding the offer because she wouldn’t be a “good fit.”
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Macy v. DOJ (April 2012)112 LRP 20796, EEOC Appeal No. 0120120821 (2012)
• Macy, a former military vet, and Phoenix Police Department detective, applied for a job at DOJ as an agent;
• Was offered the job pending the outcome of a background investigation;
• Five days after informing the selecting official that she was transitioning from male to female and would be starting the job as a female, she received an email indicating that due to budget cuts, the position was no longer available.
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Here’s what EEOC said in the Macy Decision in applying the plain language of Title VII:
“ … Thus, we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination based on sex, and such discrimination therefore violates Title VII.”
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Couch v. Department of Energy (2013)
The Commission relied on the use of derogatory slurs to prove a sex stereotyping claim; the Commission noted that the words “fag” and “faggot” have been historically used in the United States as a highly offensive, insulting, and degrading sex-based epithet against gay men and men who are perceived as insufficiently masculine.
Couch v. Dep’t of Energy, 113 LRP 34982, EEOC No. 0120131136 (Aug. 13, 2013)
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Lusardi v. Dep’t of the Army (2015)Decision by the EEOC holding that the Agency’s restrictions on transgender female’s ability to use a common female restroom facility constituted disparate treatment on the basis of sex and the restroom restrictions combined with hostile remarks, including intentional pronoun misuse, created a hostile work environment on the basis of sex.
Lusardi v. Dep’t of the Army, EEOC No. 0120133395, 115 LRP 14324 (April 1, 2015)
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Baldwin v. Dep’t of Transportation 115 LRP 31813, EEOC No. 0120133080 (July 16, 2015)
Complainant alleged discrimination on the basis of sexual orientation.
Agency FAD indicated it would process the claim under its internal procedures, not through its EEO complaint process.
On appeal EEOC said that the appropriate question IS NOT whether sexual orientation is explicitly listed in the statutory language of Title VII … the appropriate question IS whether the agency relied on sex-based considerations or has taken gender into account when taking the challenged employment action.
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Pending Bill: H.R.5: The Equality Act
This bill has been proposed in Congress—House of
Representatives—and would amend existing civil rights
laws to explicitly INCLUDE sexual orientation and gender
identity as protected characteristics.
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As the nation’s largest employer, the Federal Government should set an example for other employers that employment discrimination based on sexual orientation or gender identity is not acceptable. All federal workers should be able to perform their jobs free from any unlawful discrimination.
Source: Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment: A Guide to Employee Rights, Protections, and Responsibilities
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Table TopicComplaints of discrimination on the basis of sexual orientation should be processed under Title VII of the Civil Rights Act of 1964 and through the federal sector EEO complaint process at 29 C.F.R. Part 1614 as claims of sex discrimination, unless the complainant specifically requests to use a different complaint process after being advised by the Agency that sexual orientation discrimination claims are ordinarily processed under section 1614.1. True or False?2. If other options exist, what might they be?
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Hot Topic:Current LGBTQ Issues
Module 1 (cont.)
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The Price of Exclusion
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Learning Activity: LGBTQ Quiz
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The Cost
FY 2013
FY2014
FY 2015
FY 2016
FY2017
FY2018
Receipts 808 1,100 1,412 1,768 1,762 1,811Monetary Benefits (Millions) $0.9 $2.2 $3.3 $4.4 $5.3 $6.1
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Jurisdictions• EEOC and Agencies – Filing a Claim under the Federal EEO Process
(29 C.F.R. Part 1614)
– Individuals who believe they have been discriminated against based on sexual orientation or gender identity may file a complaint through their agency’s federal sector EEO complaint process.
• OSC – Filing Prohibited Personnel Practice Complaints
– OSC is an independent investigative and prosecutorial agency that investigates complaints alleging prohibited personnel practices, including those involving discrimination based on sexual orientation and gender identification.
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Current Issues Impacting LGBTQ• Healthcare• Religious Freedom• Housing • Employment• Parenting
• Marriage• Education • Adoption and
Foster Care• Restrooms• Hate Crimes
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Noteworthy LGBTQ Cases
Know Your PronounsComplainant claimed harassment based on sex (transgender) and reprisal for prior protected activity. Complainant claimed that her supervisor repeatedly referred to her as "he.”Jameson v. U.S. Postal Service, 113 LRP 23467, EEOC No. 0120130992 (May 21, 2013)
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Noteworthy LGBTQ CasesYou Will Be Terminated
Complainant was undergoing treatment for gender identity disorder and, as part of this treatment, legally changed his name from “Cynthia M. Drew” to “Cyrus Ethan Drew.” Complainant submitted a request to the Information Security Officer (ISO) to change his name in the agency’s computer system so that he would have access. The ISO refused to change his name and threatened Complainant with termination.
Complainant v. Dep't of Veterans Affairs, 114 LRP 19783, EEOC No. 0120133123 (Apr. 16, 2014)
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Noteworthy LGBTQ CasesThat’s Not My Name
Complainant alleged that the Agency subjected her to disparate treatment and a hostile work environment based on sex when the Agency restricted her from using the common female restroom and a team leader repeatedly referred to her by her former male name and called her "sir."
Lusardi v. Dep't of the Army, 115 LRP 14324, EEOC No. 0120133395 (April 1, 2015)
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Noteworthy LGBTQ CasesYou’re Going to Hell
Complainant alleged that the Agency subjected him to discrimination based on sex (male) when management failed to investigate and properly deal with an incident of harassment. Specifically, Complainant alleged that a coworker, who was angry with him over a work-related matter, called Complainant a "homo," and said that he was "living in sin and that he would be going to hell." Complainant v. U.S. Postal Service, 115 LRP 8709, EEOC No. 0120133382 (Feb. 11, 2015)
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Noteworthy LGBTQ CasesJurisdictional Debate
Complainant alleged that the Agency subjected him to discrimination on the bases of sex (male, sexual orientation) and reprisal for prior protected EEO activity when he learned that he was not selected for a permanent position as a Front Line Manager (FLM) at the Miami Tower TRACON facility (the Miami facility). The Agency, decided it would process the claim only under its internal procedures concerning sexual orientation discrimination and not through the 29 C.F.R. Part 1614 EEO complaint process.
Baldwin v. Department of Transportation (Federal Aviation Administration), 115 LRP 31813, EEOC No. 0120133080 (July 16, 2015)
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ResourcesWhat You Should Know About EEOC and the Enforcement Protections for LGBT Workershttps://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbtworkers.cfm
OPM-EEOC-OSC-MSPB Guide: Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employmentwww.opm.gov/LGBTGuide
OPM Lesbian, Gay, Bisexual, Transgender (LGBT) Resourceshttps://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/
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Hot Topics inEEO Case Processing
MODULE 2
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HOT TOPICS:1. Accommodation and Undue Hardship: Religious vs
Disability cases2. Service Animal vs. Emotional Support Animal 3. Disability Etiquette in the Workplace4. Social Media Posts – Harassment or Not?5. Uptick in Age Discrimination Claims6. MD-110 Refresher: Roles, Responsibilities,
Counsel Involvement
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HOT TOPIC 1:
Understanding Undue HardshipIn
Religious Accommodation RequestsAnd In
Disability Accommodation Requests
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THE BASICS Title VII of the 1964 Civil Rights Act requires an employer to
reasonably accommodate an employee's religious beliefs or practices unless doing so would cause more than a minimal burden on the operations of the employer's business.
Title I of the Americans with Disabilities Act of 1990 (the "ADA") requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment unless to do so would cause undue hardship.
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Hot Topic:Religious Undue Hardships
Module 2 (cont.)
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Overview• Guidelines on Discrimination Because of
Religion• Alternatives for Reasonable Accommodations• Defining Undue Hardships• Title VII Violations
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29 CFR 1605Guidelines on Discrimination Because of Religion
Reasonable Accommodations - An employer does not have to accommodate an employee's religious beliefs or practices if doing so would cause undue hardship to the employer.
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Alternatives for Reasonable Accommodations
• Allow employees to use leave for religious observances • Time and/or place to pray and ability to wear religious apparel• Flexibility with grooming• Voluntary swaps• Flexible scheduling• Lateral transfers• Change of job assignments• Tests can be rescheduled for accommodation purposes
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When Does An Accommodation Pose An Undue Hardship?
• Factors relevant to undue hardship may include:– The type of workplace– The nature of the employee’s duties– The identifiable cost of the accommodation in relation
to the size and operating costs of the employer– The number of employees who will in fact need a
particular accommodation
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When Does An Accommodation Pose An Undue Hardship? (cont.)
– Compromises workplace safety– Decreases workplace efficiency– Infringes on the rights of other employees – Requires other employees to do more than their
share of potentially hazardous or burdensome work
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Sincerely Held• Title VII requires employers to accommodate only
those religious beliefs that are “sincerely held.”• Therefore, whether or not a religious belief is
“sincerely held” by an applicant or employee is only relevant to religious accommodation, not to claims of disparate treatment or harassment because of religion.
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Request: Interactive Process
As with disability request for reasonable accommodation, employers should engage in an interactive process with the employee seeking religious accommodations.
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When an Employer Requests Clarification:• Employees should provide information that addresses the
employer’s reasonable doubts.• Information does not have to take any specific form.
– For example, written materials or the employee’s own first-hand explanation may be sufficient to alleviate the employer’s doubts about the sincerity or religious nature of the employee’s professed belief such that third-party verification is unnecessary.
• Information does not have to come from a church official or member, but rather could be provided by others who are aware of the employee’s religious practice or belief.
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Grooming
When an employer has a dress or grooming policy that conflicts with an employee’s religious beliefs or practices, the employee may ask for an exception to the policy as a reasonable accommodation.
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Schedules Based on a Seniority System or Collectively Bargained Rights
A proposed religious accommodation poses an undue hardship if it would deprive another employee of a job preference or other benefit guaranteed by a bona fide seniority system or collective bargaining agreement (CBA).
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Voluntary Substitutes and Shift Swaps
The employer’s obligation is to make a good faith effort to allow voluntary substitutions and shift swaps, under circumstances which do not discourage employees from substituting for one another or trading shifts to accommodate a religious conflict.
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Coworker Complaints
• Although infringing on co-workers’ ability to perform their duties or subjecting co-workers to a hostile work environment will generally constitute undue hardship, the general disgruntlement, resentment, or jealousy of co-workers will not.
• Undue hardship requires more than proof that some coworkers complained.
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Security Considerations
• If a religious practice actually conflicts with a legally mandated federal, state, or local security requirement, an employer need not accommodate the practice because doing so would create an undue hardship.
• If a security requirement has been unilaterally imposed by the employer and is not required by law or regulation, the employer will need to decide whether it would be an undue hardship to modify or eliminate the requirement to accommodate an employee who has a religious conflict.
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Change of Job Tasks andLateral Transfer
When an employee’s religious belief or practice conflicts with a particular task, appropriate accommodations may include relieving the employee of the task or transferring the employee to a different position or location that eliminates the conflict with the employee’s religion.
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Tests and Other Selection ProceduresAn employer has an obligation to accommodate an employee or prospective employee when scheduling a test or administering other selection procedures, where the applicant has informed the employer of a sincerely held religious belief that conflicts with a pre-employment testing requirement, unless it would result in an undue hardship.
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Providing Social Security Numbers
It will typically pose an undue hardship for an employer to accommodate an applicant or employee’s asserted religious belief against providing or using a social security number.
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Excusing Union Dues or Agency Fees
• Absent undue hardship, Title VII requires employers and unions to accommodate an employee who holds religious objections to joining or financially supporting a union.
• Such an employee can be accommodated by allowing the equivalent of her union dues (payments by union members) or agency fees (payments often required from non-union members in a unionized workplace) to be paid to a charity agreeable to the employee, the union, and the employer.
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Employer-Sponsored EventsSome employers have integrated their own religious beliefs or practices into the workplace, and they are entitled to do so. However, if an employer holds religious services or programs or includes prayer in business meetings, Title VII requires that the employer accommodate an employee who asks to be excused for religious reasons, absent a showing of undue hardship.
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Religious Reasonable Accommodations
Test Your Knowledge/Table Topics:
Module 2 (cont.)
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SCENARIO 1An employee who works in the Office of Inspection comes to you with a complaint of religious discrimination because her supervisor told her to remove a crucifix from her blazer to work. He told her a co-worker who is of another faith might feel offended if they saw the crucifix on her lapel. He also told her to move some posters relating to her faith from the office windows by her desk. The employee complied but believes that she was discriminated against.
Discrimination Yes No 57
SCENARIO 2When plaintiff was hired by defendant employers, she objected on religious grounds to providing defendants her social security number (SSN), asserting that use of her SSN represented the "mark of the beast." Plaintiff requested defendants accommodate her beliefs by using another identifying number. Instead, Defendant terminated her employment. (Shelly Llynn Baltgalvis, plaintiff, v. Newport News Shipbuilding Inc,)
Discrimination? Yes No
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SCENARIO 3Carol Grotts, a practicing Pentecostal, was hired by Brink's to work as a relief messenger at its Peoria, Illinois, area facility. The relief messenger is one of the uniformed employees the nationwide security firm assigns to its armored car crews. When Grotts, whose religious beliefs preclude her from wearing pants, requested a modification of the standard issue uniform (she requested to wear culottes of uniform material purchased at her own expense instead of pants) Brink's refused her request and terminated her employment.
Discrimination? Yes No 59
SCENARIO 4An Employer required workers to wear pants while operating assembly line machinery to protect them from suffering burns and getting loose clothing caught in machinery. The employer fired a worker who claimed that her religion requires that women wear dresses.
Discrimination? Yes No
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SCENARIO 5The employee converted to Seventh Day Adventist, which forbids work on Saturday, and informed her employer. The employee demanded that the bank provide her a guarantee that she would never be called to work on Saturday. The bank refused to make the guarantee, and terminated Employee when she failed to show up, as scheduled. (Perry Jordan, Appellee, v. North Carolina National Bank)
Discrimination? Yes No 61
SCENARIO 6In Mississippi, an EAP counselor refused on religious grounds to counsel a lesbian employee on her personal relationship with her partner. The counselor argued she had a right, under Title VII, to be excused from counseling employees on subjects that conflicted with her religious beliefs. She was terminated.
Discrimination? Yes No
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SCENARIO 7An employee whose assigned work area is a factory floor rather than an enclosed office asks his supervisor if he may use one of the company’s unoccupied conference rooms to pray during a scheduled break time.
Does the employer have to accommodate? Yes No
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SCENARIO 8Roger is a receptionist stationed at a desk in the front lobby of the ACME building through which all employees, clients, and other visitors must enter. At a recent service at Roger’s church, the minister distributed posters with the message “Jesus Saves!” and encouraged parishioners to display the posters at their workplaces in order to “spread the word.” Roger displayed the poster on the wall above their respective work stations.Is Roger’s action okay acceptable by Title VII? Is Roger’s action okay if he sits in a personal workspace?
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SCENARIO 9Each December, the president of ACME corporation directs that several wreaths be placed around the office building and a tree be displayed in the lobby. Several employees complain that to accommodate their non-Christian religious beliefs, the employer should take down the wreaths and tree, or alternatively should add holiday decorations associated with other religions.
What do you think?
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Disability Reasonable AccommodationsTest Your Knowledge/Table Topics:
Module 2 (cont.)
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What is a reasonable accommodation?1. A new employee who uses a wheelchair informs his employer that
his wheelchair cannot fit under the desk in his office.2. An employee with muscular degeneration informs her employer
that she needs a wheelchair.3. A cleaning company rotates its staff to different floors on a weekly
basis. One crew member has a psychiatric disability which does not affect his ability to perform the various cleaning functions, but it does make it significantly difficult to adjust to alterations in his weekly routine. He asks for a reasonable accommodation and proposes staying on one floor permanently.
Table Topic Discussions
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In general, a disability reasonable accommodation is:
any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.
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There are three categories of reasonable accommodations
1. Modifications or adjustments to a job application process;
2. Modifications or adjustments to the work environment, or to the way in which the position is customarily performed;
3. Modifications or adjustments that enable an employee with a disability to enjoy equal benefits and privileges of employment.
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Some examples of disability reasonable accommodation include:
• Making existing facilities accessible • Job restructuring• Part-time or modified work schedules • Acquiring or modifying equipment • Changing tests, training materials, or policies • Providing qualified readers or interpreters • Reassignment to a vacant position
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Undue Hardship• No change or modification is required if it would cause
"undue hardship" to the employer. • An “undue hardship" claim means significant difficulty
or expense in relationship to the cost or difficulty of providing a specific accommodation.
• Also, undue hardship refers to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.
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Test Your KnowledgeAn employee requests extended medical leave. Does an employer have to hold open an employee's job as a reasonable accommodation?
Can the employer claim undue hardship?
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Test Your KnowledgeAn employee works for a morning newspaper, operating the printing presses which run at night between 10 p.m. and 3 a.m. Due to her disability, she now needs to work in the daytime.
The employer states a claim of undue hardship.
Is it?
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Disability Undue HardshipCoe v. U.S. Postal Service, 103 LRP 37407, EEOC No. 01A20972 (Aug. 11, 2003)
• An agency cannot just assert “undue hardship” in denying an accommodation, and cannot just reassign an employee somewhere else.
• Reassignment is the accommodation of last resort, and should be employed only after it has been determined that:
(1) there are no effective accommodations that would allow theemployee to perform the essential functions of her position; or
(2) all other reasonable accommodations would pose an unduehardship.
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Areas of Inquiry for InvestigatorsFor undue hardship defenses, the Investigator needs to gather:
1) Evidence showing how a specific accommodation entails significant difficulty or expense.
2) Evidence showing how the accommodation would impact other employees doing their jobs.
3) Evidence showing the impact an accommodation would have on the agency’s operation.
4) Evidence showing that the agency considered any and all options that could have provided that would not have resulted in undue hardship.
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HOT TOPIC 2:Service Animal vs. Emotional Support Animal
Module 2 (cont.)
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DEFINITIONSUnder Title III of the federal Americans with Disabilities Act (ADA) and virtually all state laws, a service animal is a dog or small horse that has been trained to perform work or tasks for the benefit of a person with a disability. They have a JOB to do.
Emotional support animals—also called therapy or comfort animals—have not been trained to perform work or tasks. Instead, they provide their owners companionship, a calming presence.
The ADA provides no protection for emotional support animals in public accommodations.
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What does "do work or perform tasks" mean?
The dog must be trained to take a specific action when needed to assist the person with a disability. For example: A person with diabetes may have a dog that is trained to alert him
when his blood sugar reaches high or low levels. A person with depression may have a dog that is trained to remind
her to take her medication. A person who has epilepsy may have a dog that is trained to detect
the onset of a seizure and then help the person remain safe during the seizure.
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Undue Hardship
Both service animal and emotional support animals may be excluded from the workplace if they pose either an undue hardship or a direct threat in the workplace.
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Accommodating Employees with Service Animals
Service dogs must be on a leash, harnessed or tethered unless it interferes with the service animal’s work or the individual’s disability.
Service dogs should be controllable, and it is in the individual’s best interest if the dog knows verbal/hand signals such as sit, stay, come, down and heel.
The service dog should also be housebroken. 80
Accommodating Employees with Service Animals (cont.)
• Has the employee who uses the service animal been consulted regarding possible accommodations?
• Once accommodations are in place, would it be useful to meet with the employee who uses the service animal to evaluate the effectiveness of the accommodations and to determine whether additional accommodations are needed?
• Do supervisory personnel and employees need training regarding the such matters?
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Accommodation Ideas for Individuals with Service Animals
• Allow the employee with a disability to bring his or her service animal to work.
• Allow the employee to take leave in order to participate in individualized service animal training.
• Provide the employee with a private/enclosed workspace.• Provide the employee with an office space near a door and/or
out of high traffic areas.• Provide general disability awareness training on the use of
service animals in the workplace.
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Therapy Animals
• These too are usually dogs, sometimes cats, and occasionally another type of pet, and these too are classified as pets.
• Therapy animals are trained, tested, licensed, and insured to provide emotional support to people coping with the effects of illness, injury, or aging.
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Calming an Anxiety May Not Qualify as a Service Animal
• The ADA makes a distinction between psychiatric service animals and emotional support animals. If the dog has been trained to sense that an anxiety attack is about to happen and take a specific action to help avoid the attack or lessen its impact, that would qualify as a service animal.
• However, if the dog’s mere presence provides a comfort, that would not be considered a service animal under the ADA.
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Documentation Requests by Employer• Documentation might include a detailed description of how the
animal would help the employee in performing job tasks and how the animal is trained to behave in the workplace.
• However, the individual with the disability may be required to provide documentation confirming their dog is a service dog.
• An employee seeking such an accommodation may suggest that the employer permit the animal to accompany them to work on a trial basis.
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Employer’s Responsibilities• Must engage in the interactive process with the
employee as with any reasonable accommodation request.
• In the case of a service animal or emotional support animal, if the disability is not obvious and/or the reason for the reason the animal is needed is not clear, an employer may request documentation to establish the existence of a disability and how the animal helps the individual perform his or her tasks.
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Do Employers Have to Create a Relief Area for Service Animals?
YES?
NO?
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Does the Employer Have the Right to Ask the IWD for Documentation to Use Service Animals?
• Yes• No• It depends on…
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Noteworthy Cases
Complainant began working for Tridev as a desk clerk and he began bringing his service animal to work. After he discussed his disability and the use of his service animal with the hotel's general manager, his hours were cut. Complainant then told the general manager that he was discriminating against him by cutting his hours because of his disability and he was going to file a discrimination complaint. The general manager fired the complainant.EEOC v. Tridev Hospitality, Inc., Civil Action No. 5:13-CV-00647-D
He Dogged Me Out
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Noteworthy Cases
Complainant alleged that he was discriminated based on his disability (generalized anxiety disorder and perceived physical disability) and in reprisal for prior EEO activity when:he was denied a reasonable accommodation in that the agency would not allow him to keep his pet bird for emotional support, on the premises of the facility without certain restrictions being met. Specifically, not to fly around.Mennen v. U.S. Postal Service, 102 LRP 28583, EEOC No. 01A13112 (Sept. 25, 2002)
All Cooped Up
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Sources• Job Accommodation Network• Department of Justice Civil Rights Division,
Disability Rights Section• US Department of Justice: ADA Requirements
for Service Animals• ADA National Network• www.myassistancedoginc.org
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HOT TOPIC 3:Disability Etiquette in the Workplace
Module 2 (cont.)
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Things To Remember
• Individuals with disabilities are people!
• Individuals with disabilities are whole people!
• They expect to be treated with the same dignity and respect that you do.
• Just because someone has a disability does not mean he/she is unable.
Is it any less a rose?
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Disability Etiquette in General = Basic Dignity and Respect
• Don’t patronize a person by patting them on the head or back.
• Shake hands even if it appears as if they have limited use of their arms or have an artificial limb. The simple gesture will be appreciated.
• If not a handshake, then lightly touch the individual on the shoulder or arm to welcome their presence.
• Look at and speak directly to the person, not through their companion, care-taker, or interpreter.
• Treat adults as adults.
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Speech Disability Etiquette Tips• Be a good listener.
• Be 100 percent attentive when conversing with an individual who has difficulty speaking.
• Let the person complete their own sentences.
• Be patient and do not try to speak for them.
• Do not pretend to understand, if you don’t; instead, tell the person what you do understand and allow them to respond.
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Wheelchair Etiquette Tips• Do not automatically assist the individual without permission. It
is ok to offer assistance. However, if the offer is not accepted, respect his/her decision!
• If you will be speaking with an individual in a wheelchair for more than a couple minutes, find a place where you can sit down to give the individual a more comfortable viewing angle.
• A person’s wheelchair is part of his/her own personal space. Never move, lean on, rock, or touch his/her wheelchair without permission. In addition to being rude, it can be dangerous.
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Hearing Disability Etiquette Tips• Do not shout at a hearing-impaired person unless they request you to.
Just speak in a normal tone but make sure your lips are visible.
• Keep conversations clear and find a quiet location to communicate.
• If you are asked to repeat yourself, don’t get offended by answering “Nothing, it’s not important,” which implies the person is not worth repeating yourself for. It is demeaning; so be patient and comply.
• Show consideration by facing the person directly and by keeping things (such as your hands) away from your mouth while speaking.
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Visual Disability Etiquette Tips• When meeting someone with a visual disability, identify yourself and
others who with you (e.g. “Jane is on my left and Jack is on my right”).
• Continue to identify the person who is speaking, much like you do when you are on a conference call and can’t see one another.
• If you go out to dinner with an acquaintance with a visual disability, ask if you can describe what is on the menu or what is on his/her plate.
• When walking with someone with a visual impairment, don’t grab their arm; offer them your arm for guidance. They will likely keep a half-step behind to anticipate curbs and steps.
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What does this mean for Counselors and Investigators?
• It is a normal human emotion to feel anxious or awkward to be around someone who we perceive as different from ourselves, especially if we have limited experience interacting with people with disabilities. The other person may have some anxieties dealing with you.
• Remind yourself that talking to someone with a disability is just like talking to anyone else, because it’s true!
• Be friendly … Be patient.
• Put your Best Foot Forward and remember the more youare at ease, the more it puts the other person at ease.
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HOT TOPIC 4:Social Media Posts: Harassment or Not?
Module 2 (cont.)
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SCENARIO
Can the agency take action against an employee who posts a harassing comment on a coworker’s blog or Facebook page after work?
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California Court of Appeals Upholds $1.6 Million Verdict in Favor of Employee
with a Disability who was Harassed by Co-workers on a Blog!
Feb. 2012
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Espinoza vs. Orange County• Complainant was a Juvenile Hall Corrections Officer with a disability: his
right hand was missing fingers and thumb.• Evidence presented at trial included blog postings of co-workers calling
him: “one armed bandit” and “rat claw boy.”• One blogger offered co-worker a $100 reward if they posted a picture of
Complainant’s right hand (which he often kept in his pocket because he was self-conscious).
• Other incidents included employees mimicking him by putting their right hand in their pocket when they saw him; and writing “the claw” on his work cart.
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Decisions on Conduct Outside of the Workplace
• Several Circuit Courts have addressed whether conduct that occurs outside of the workplace can be raised in a claim of harassment:
• In Crowley v. L.L. Bean, Inc., 119 LRP 26188, 303 F.3d 387, 409-410 (1st Cir. 2002) the Court determined that the co-worker's conduct outside the workplace explained why his presence around the plaintiff at work created a hostile work environment.
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Decisions … continuedIn Lapka v. Chertoff (DHS) 108 LRP 13658, 517 F.3d. 974 (7th Cir. 2008):
• The plaintiff alleged that she was raped by a Department of Homeland Security employee while attending an agency-sponsored mandatory training course.
• The agency argued that it happened after hours and should not be considered workplace harassment.
• The Court rejected this argument, stating that "harassment does not have to take place within the physical confines of the workplace to be actionable; it need only have consequences in the workplace.”
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Decisions … continuedIn Knowlton v. DOT (112 LRP 32530, EEOC No. 0120121642 (2012)):
• The Complainant alleged that a co-worker posted a racist comment about him on social media (Facebook).
• The Agency sought to dismiss it for failure to state a claim.
• The EEOC found that an allegation of harassment made on a co-worker’s social media account could be raised as part of a hostile work environment claim.
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Thus
It is well-established that harassing conduct that occurs outside of duty hours and outside of the workplace setting can still create liability for an employer if the nature and manner of the offensive conduct affects the working environment
andthat would also include harassment on social media!
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EEOC Select Task Force on the Study of Harassment in the Workplace (2016)WHEN “ZERO TOLERANCE” POLICIES ARE NOT ENOUGH
Employer’s anti-harassment policy should make it clear that harassment of co-workers on SOCIAL MEDIA carries the weight of any other workplace interaction.
Employer may be liable for a hostile work environment claim • If it was AWARE of the postings, or• If the employee was using EMPLOYER-OWNED DEVICES for the
harassing behavior.
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EEOC Select Task Force Also Addressed the
Pros and Cons of Zero Tolerance Policies… well-intentioned, but misleading
… conveys a one-size fits all approach
“Thus, while it is important for employers to communicate that absolutely no harassment will be permitted in the workplace, we do not endorse the term "zero tolerance" to convey that message.”
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Remember …The agency is liable for harassment that occurs during duty hours, as well as for unwelcome behavior that occurs off-duty or off the premises if such conduct has the effect of creating a work environment that would be intimidating to a reasonable person.
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HOT TOPIC 5:Age Discrimination Claims
Module 2 (cont.)
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A Message From Acting EEOC Chair, Victoria Lipnic,
Older Workers Month, May 2019“Today's strong economy is good news for workers as there are millions of job openings and many workers are in high demand. While that should be good news for older workers, we see little sign that employers are seeking out older workers to fill that demand.”
[NOTE: Age discrimination was the 2nd most frequently alleged basis of federal complaints filed in FY16.]
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ADEA Case StudyJohn is 55 and has worked for his agency for 20years. He applied for promotion to asupervisory position as Branch Chief. During hisinterview, he was asked about his retirement plans. He was not selected. A 41-year-old man was selected.
Table Discussion:Has the ADEA been violated?
What questions do you need to ask?
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HOT TOPIC 6:MD-110 Chapter 1 Section IV:Avoiding Conflicts of Interest
Module 2 (cont.)
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Chapter 1 Section IV:Addresses potential conflicts of interest in processing federal sector EEO complaints
(1) When the agency’s EEO function should be separated from the agency personnel function.
(2) When the alleged responsible management official is the head of the agency.
(3) When the alleged responsible management official is the EEO Director or supervisor in the EEO Office.
(4) When a firewall should be established between the agency’s EEO complaint function and the agency’s defensive function.
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Chapter 1 Section IV: Agency Authority and Responsibility
Complainant v. Dep’t of Defense, 114 LRP 27554, EEOC No. 0120084008 (June 6, 2014) (finding that an agency representative should not interfere with the development of the EEO investigative record by "using the power of its office to intimidate a complainant or her witnesses.")
Rucker v. Dep’t of the Treasury, 111 LRP 10445, EEOC No. 0120082225 (Feb. 4, 2011) (stating an agency "should be careful to avoid even the appearance that it is interfering with the EEO process.”)
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Separation of EEO Complaint Program from the Agency's Personnel Function
• The EEO function must be carried out in an impartial manner.
• The EEO function must be kept separate from the personnel function.
• The same agency official(s) responsible for executing and advising on personnel actions may not also be responsible for managing, advising, or overseeing the EEO pre-complaint or complaint processes.
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Complaints Where the Allegation Presents a Conflict of Interest
A. When the alleged Responsible Management Official is the Head of the Agency or a member of his/her immediate staff, or occupies a high-level position of influence in the agency.
B. When the alleged Responsible Management Official is the EEO Director or Supervisor in the EEO Office.
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Separation of EEO Complaint Program from the Agency’s Defense Function
In order to enhance credibility of the EEO office and the integrity of the EEO complaints process:• There must be a firewall between the EEO function and the
agency's defensive function.• The EEO Director should be provided with sufficient legal
resources (either directly or through contracts) so that the legal analyses necessary for reaching final agency decisions can be made within the autonomous EEO office.
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Final Thoughts on Conflicts of Interest(MD-110)
• EEO officials must have the confidence of the agency and its employees.
• It is inconsistent with their neutral roles for EEO Counselors, EEO Investigators, EEO Program Managers, or EEO Directors to represent agencies or complainants in connection with the processing of discrimination complaints.
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MD-110 ScenariosTest Your Knowledge/Table Topics:
Module 2 (cont.)
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SCENARIO 1
Your witness is uncooperative, i.e., they are reluctant to be interviewed until they find out why you are interviewing them and who else you are interviewing.
What do you do?
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SCENARIO 2
If an employee brings a matter to EEO counseling that falls outside of the EEO arena, or that can best be handled by filing a grievance for example, how should the counselor handle that?
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SCENARIO 3Investigations must be finished within 180 days of
filing a complaint, unless the EEO Officer or
designee and the complainant agree in writing to an
extension of not more than an additional 90 days.
True? ___ False?__ Explain:_______124
SCENARIO 4
If the Aggrieved Person has a representative, can that person sign the settlement agreement?
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SCENARIO 5
What if a party neglects to ask for attorney fees before the agreement is signed, can they come back later and ask for it?
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SCENARIO 6If an employee has to take medication which must be refrigerated during the day, but does not want to use the communal refrigerator for this purpose, and asks the agency to purchase a small refrigerator for his personal use, is the agency obligated to do so as a reasonable accommodation?
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SCENARIO 7
Right before an office luncheon, the supervisor asks his employees to bow their heads so that he can bless the food.
Is this permissible?
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SCENARIO 8
What is the difference between a mixed motive and a mixed case?
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SCENARIO 9
Is the RMO the only one who can be accused of reprisal?
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SCENARIO 10During EEO counseling, the aggrieved person informs you of the desire to have a representative, and therefore plans to make a request for a reasonable amount of duty time to go out and find one.
How would you advise this person?
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Taking Your Skills to the Next LevelMODULE 3
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Interviewing Skills:Asking the Right Type of Questions
Module 3 (Part 1)
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You Received A Case: Now What?
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Meeting the Aggrieved
Initial actions Disputes not involving discrimination Disputes where special procedures apply (i.e.,
mixed case, negotiated grievance procedure, age, etc.)
Jurisdictional requirements
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Meeting Agency Officials
Explain the process and responsibilities. Explain the allegations. Obtain response to each allegation as it pertains
to each basis. Ask agency official to suggest ways the problem
might be resolved.
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Conducting the Inquiry Focusing the inquiry will require a clear
understanding of the basis/issues alleged. Determine what documents are relevant to the
inquiry. Should you obtain documents, or not. Witnesses. Keep in mind your role!
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Common Types of Questions EEO Counselors Use
TypesDirect HypotheticalIndirect RedirectingOpen LoadedClosed ReflectiveFiltering Clarifying
Source: The Art of Asking: Ask Better Questions, Get Better Answers by Terry J. Fadem (2009)
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Types of Questions• Direct – Most likely to yield a direct answer.
– Example: Did you give the employee a mid-term performance review?
• Indirect – Generally used to establish rapport with the respondent.– Allows a soft approach to controlling discussion– Example: Were you aware of any other types of complaint
processes that the employee may have participate in?
Source: The Art of Asking: Ask Better Questions, Get Better Answers by Terry J. Fadem (2009)
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Types of Questions (cont.)• Open – Used for maximizing the opportunity for any
type of response.– Example: Can you give some other suggestions for
possible solutions to this matter?
• Closed – Not recommended for EEO Counseling inquiries.
• Filtering – Used to exclude extraneous information.– Example: Were there any other performance reviews
during the rating period?Source: The Art of Asking: Ask Better Questions, Get Better Answers by Terry J. Fadem (2009)
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Types of Questions (cont.)• Hypothetical – Used for expanding beyond limitations of a
discussion.– Example: Since the Aggrieved was not selected because of….are
there other possibilities for resolve that may help the Aggrieved’s qualifications?
• Redirecting – Used for refocusing attention.– Example: Can we return to the selection criteria of the panel?
• Loaded – Used to get commitment.– Example: So, Mr./Ms. _____you are willing to offer the Aggrieved a
leadership development course?
Source: The Art of Asking: Ask Better Questions, Get Better Answers by Terry J. Fadem (2009)141
Types of Questions (cont.)• Reflective – EEO Counselors use with caution- You
are not investigators.– Example: In looking back on the rating year did you
see clues of the Aggrieved’s performance declining?
• Clarifying – Use to refine a previous message.– Example: What competencies would the Aggrieved
need to obtain to improve?
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Remember• Before asking any questions, the EEO
Counselor must know what to do with the answer, i.e.:– Will my questions cover who, what, when, where, and
how?– Will my questions lead to possible resolution?– Are my questions relevant to the case and theory of
discrimination?
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Types of Questions: Body LanguageGeneral Body Language Rules
1. Maintain open arms 7. Face your respondent2. Look the person in the eye 8. Sit erect3. Keep both feet on the ground 9. No, fidgeting, shaking or rocking4. Lean slightly forward after asking
question (shows interest)10. Keep a relaxed face.
(Expressions can display unintended emotions)
5. Look friendly and receptive (Not like a crossexaminer)
11. Breathe normally. (Heavy sighs can unsettle respondent)
6. Stay alert (Keep your listening ears on)
12. Appear prepared for the answer (Always expect the unexpected)
Source: The Art of Asking: Ask Better Questions, Get Better Answers by Terry J. Fadem (2009)
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Brief Primer on Writing Settlement Agreements
Module 3 (Part 2)
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Settlement Agreements:
• Are legally binding contracts.• Must contain valid consideration (i.e., something
of value).• Must be enforceable.
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1. Legally Binding Contract• EEOC regulations provide that any settlement agreement
knowingly and voluntarily agreed to by the parties is binding on both parties.
• There must be a meeting of the minds of what each party is agreeing to.
• Agreements be made in writing and signed by both parties… however there is one exception!
• May not involve waiver of remedies for future violations.
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2. Must Contain Valid Consideration
• Something of value to one party must be exchanged for something of value to the other party.
• Valid consideration means that each party must agree to do something (i.e., incur some legal detriment) in exchange for the other party’s agreement to do something.
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An Agreement Lacks Consideration When . . . • It provides nothing more than what the complainant
is already entitled, or • It provides something that it is already required to provide.
Example 1: “Complainant will be provided a workplace free of harassment and discrimination.”
Example 2: “Complainant will be rated fairly during the upcoming rating period.”
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3. The Agreement Must Be Enforceable
• Settlement terms must convey provisions that can be fulfilled.
• Settlement terms are unenforceable if they:– Violate an existing law.– Provide a remedy greater than what a court
would order if a case were to go to trial.– Are coerced.
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Breach of SettlementGenerally Falls Within 4 Categories
1) Vague, ambiguous, no meeting of the minds on what the parties agreed to
2) Unenforceable terms
3) Lacking in substantive benefits
4) Agency noncompliance
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Well-Written Settlement AgreementsContain One Last Best Practice
. . . A Zipper Clause• Clarifies for all parties that settlement is limited to what’s
written the four corners of the agreement.
• Example of a Zipper Clause . . . “This agreement reflects that all of the terms and conditions of settlement as agreed by the parties are written herein, and that no promises, oral or written, have been made that are not reflected in the written agreement.”
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White House Executive Order 13839 May 25, 2018
Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles, provides as follows:
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The “Clean Records” Provision
Sec. 5. Ensuring Integrity of Personnel Files. Agencies shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee's performance or conduct in that employee's official personnel records, including an employee's Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action.
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For More Information on Writing Effective Settlement Agreements
Executing Enforceable Settlement Agreements:Guidance for Federal Agencies
By Roslyn BrownLRP Publication 4266
To Order:Call toll free …1-800-341-7874Email … [email protected]
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The EEO process is depending on youto put your best foot forward at all times!
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Speaker’s BioRoslyn D. Brown
Roslyn D. Brown began her federal career at the EEOC in 1974 as an Equal Opportunity Specialist, investigating private-sector EEO complaints. After working for 20 years at the EEOC, Roslyn joined the ranks of federal EEO practitioners at Treasury / U.S. Customs Service in July 1994 as Deputy Special Assistant to the Commissioner, Office of National EEO Program.
She joined the Internal Revenue Service in June 1999 as the Director of Discrimination Complaint Review. In 2006 she became the Director of Affirmative Employment Programs at HUD. In 2007, she welcomed the opportunity to become the Director of Intelligence Community EEO Outreach for the Office of the Director of National Intelligence where she remained until retirement on April 30, 2009. Currently, she is President/CEO of her own enterprise, EEO Workplace Strategies.
Roslyn has an MPA Degree from George Washington University. She is a certified Mediator for the District of Columbia (1992), and she also attended the Program on Negotiations at Harvard University. Over the course of her federal career, she had three articles published: in The Public Manager magazine in 1995; in The New Millennium Treasury Reinvention Magazine in 1999; and in the IRS Leader’s Digest magazine in Oct. 2001. In 2010, she became a published author. Her book is entitled, Executing Enforceable Settlement Agreements: Guide for Federal Agencies, available at LRP Publications (1-800-341-7874, Product #4266).
Roslyn has been a presenter at several national public forums including, but not limited to, the Federal Dispute Resolution Conference since 2001, Federal News Radio, and Federal Workplace Conferences.
Contact Information: [email protected]
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Speaker’s BioOliver C. Allen, Jr.
Oliver, is a renowned and dynamic national speaker with over 28 years of leadership and training experience. He has served in numerous senior leadership positions with the Federal government and in the military and currently is the CEO for Training and Development Strategies, LLC. He is also an adjunct faculty member with the University of Phoenix with a focus on advanced career development and organizational management. He is the recipient of the Attorney General’s Award for Equal Employment Opportunity and the Justice Management Division’s Leadership Collaboration Award. He received his Bachelor of Science degree in Business Administration from Strayer College and a Master of Science in Administration in Human Resources from Central Michigan University.
Contact Information: [email protected]/703-615-6753
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