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Amendments to the US Constitution
- 5th Amendment: December 15, 1791, no person shall be compelled to be a witness against themselves, be subject to double jeopardy for the same offense, nor be deprived of life, liberty, or property, without due process.
- 13th Amendment: December 6, 1865, abolished slavery
- 14th Amendment: July 9, 1868, afforded citizenship to former slaves or people in previous conditions of servitude. It states, “…nor shall any State deprive any person of life, liberty, or property, without due process…” because of their previous status of servitude.
- 15th Amendment: February 3, 1870, allowed citizens to vote without regard to “race, color, or previous condition of servitude.” It should be noted that women were not allowed to vote at this time.
- 19th Amendment: August 18, 1920, women were granted the right to vote.
Civil Rights Acts of 1866 and 1871
- The Civil Rights Act of 1866: The Act states the following: “…all persons born in the United States could make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.” Passed as counterattack against the “Black Codes” in the South due to the 13th Amendment.
- Civil Rights Act of 1871: This particular Act states that when one person causes another person to be denied of their rights guaranteed by the Constitution, federal law, is liable to that person injured in an action of law, Suit of equity, or other proper proceeding for redress.
Disparate Impact (also known as Adverse Impact)
Disparate Impact occurs when the application of a facially neutral employment criterion which has the effect of disadvantaging a certain protected class or classes under the discrimination acts.
Disparate Treatment occurs whenever similarly situated individuals are treated differently due to a Title VII protected category as compared to someone similarly situated and in a separate protected category in an employment situation.
EEO complaint process purpose
To provide an administrative process for accepting, investigating, resolving, and if necessary, adjudicating complaints of discrimination involving federal employees or applicants for employment.
- Occurrence: any incident related to employment practice an individual considers discriminatory
- Counselor contact: within 45 calendar days of occurrence
- Initial meeting: explain the complaint process, the Alternative Dispute Resolution (ADR) Process and the rights and responsibilities of the aggrieved, to include other avenues of redress. The aggrieved must make an election of traditional counseling or ADR
- Counselor conducts inquiry: 30 calendar days (extendable to 90 calendar days total)
- Final interview: aggrieved has 15 calendars from final interview to file formal complaint.
- - ADR: must be completed within 90 days
- - ADR, no resolution: Final Interview executed, aggrieved has 15 days to file formal complaint
- EEO Counselor Report: submitted within 15 calendars of formal claim filing (some agencies require counselor's report for every pre-complaint)
Elements of the formal complaint stage
- Formal complaint filed – must be within 15 days of the Notice of Final Interview
- Agency acknowledges receipt of complaint
- Complaint accepted or dismissed in whole or in part
- Agency requests an investigation (if accepted)
- Complainant notified of investigation
- Complaint investigated
- Report of Investigation (ROI) completed
- ROI mailed to complainant by agency
- Complainant must elect
- - Final Agency Decision (FAD). Decision can be appealed to the EEOC’s Office of Federal Operations (OFO)
- - Hearing by EEOC Administrative Judge based on the record or an actual hearing
- - Both outcomes above can be appealed to the EEOC- Office Federal Operation
- - If additional information is offered which could impact the case, the Complainant can request that the EEOC reconsider the case.
- ADR can be utilized any time throughout process
- Complainants can go to US District Court after appropriate notification or if certain timelines are missed.
Merit Systems Protection Board (MSPB)
- the personnel actions/practices listed below. If a claim is appealable to the MSPB and there is an element of discrimination that is defined as a “mixed case”.
- Adverse actions
- Performance issues
- Reduction in Force (RIF) actions
- Prohibited personnel practices
Qualities of an effective EEO Counselor
Roles of an effective EEO Counselor
- Act as a bridge: (a) interviewing the parties separately and sharing with each person what the other person said; (b) arranging for the two parties to meet and discuss the concern.
- Impartial fact finder: the counselor must give each party an opportunity to tell their side of the story without siding with either person; they must obtain all pertinent documentation surrounding the issue; the counselor compiles a report, if the pre-complaint is filed formal which outlines the facts they have gathered and up-channels it to the EEO Manager.
- Counselor to aggrieved: the counselor is charged with informing the aggrieved of the EEO complaint process, explaining the rights and responsibilities of the aggrieved, what is meant by a basis and issue, etc. The counselor does not tell the aggrieved whether they “have a case.”
- Advisor to management: the counselor is charged with informing the management official of their rights and responsibilities, explaining the EEO complaint process, etc … just as they do with the aggrieved. The counselor does not tell the management official what they should do to resolve the complaint; however, the counselor may offer some suggestions, but the ultimate decision rests with management.
Specific Responsibilities of EEO Counselor
- Advise the aggrieved of their rights and responsibiliies in the EEO process
- Advise the aggrieved on the EEO complaint process
- Advise the aggrieved about the agency's ADR program
- Determine the claims and bases raised by the aggrieved
- Advise aggrieved of other avenues of redress
- Conduct an inquiry
- Seek resolution of the dispute at the lowest level, document if any
- Advise the aggrieved of their right to file a formal complaint
- Prepare a report
What a counselor is not
- An ax grinder: Counselors may find themselves listening to a situation that resembles something that they may have experienced. Caution students about the requirement to remain neutral and objective and not take sides. If they are unable to do this, they should recuse themselves from the complaint.
- A decision maker: Remind students that counselors do not determine whether discrimination has occurred.
- Finder of discrimination: Remind students that counselors do not offer any “findings” of discrimination, nor do they offer any recommendations. They simply gather information pertinent to the allegation(s).
- One who tells management or the aggrieved what to do: once they do this, a counselor tends to lose all credibility because they are no longer neutral.
Why is framing a claim important
- It will define the nature of the complaint
- It limits the matters that will be addressed
- It establishes what information will be gathered
- It determines what relief may be granted
How a claim is framed
- The aggrieved should state why they believe the matter occurred, i.e., the basis(es) covered under Title VII.
- The aggrieved should explain their matter(s), impacting the terms, conditions, benefits or privileges of employment in a clear and concise manner.
- The claim should establish the who, what, when, where and how of what allegedly occurred.
Individuals responsible for framing the claim
- The aggrieved: It is their claim, they must be able to articulate their matter.
- The EEO Counselor: There to assist only. Never puts words in an aggrieved person's mouth or write their claim for them.
- The EEO Office: Assists in clarification when and where needed, especially when the counselor requires assistance or when the pre-complaint reaches the formal stage.
Including background information in the claim
- Background information is one of the hardet elements for aggrieved people to understand. Many times they feel hurt, angry, and frustrated, so they want to tell the practitioner everything that has happened in the past that may not have anything to do wth the current claim. The background information should be included when it has some sort of connection to the current claim such as showing how harassment has occurred for years, but state when the most recent harassing situation occurred
- Background information can also include an aggrieved attempting to give the practitioner statements regarding the aggrieved character, morals, and integrity. They believe this will help "prove" their case. In the pre-complaint practitioners try to obtain first hand information regarding the claim, factual information, and statistical information.
How is appointing authority delegated in personnel programs?
Congress delegates to agency heads within the Federal government, such as the department Secretaries (the Army, Air Force, Navy) and to Directors of FBI, IRS, EPA, etc. the authority to appoint and to delegate certain actions within the scope of their respective organizations. These actions include, but are not limited to, hiring, firing, rewarding, and punishing civil service employees.
Civilian Personnel Merit System Principles
- Recruit, select, and advance personnel based on merit
- Treat applicants/employees fairly regardless of race, color, religion, sex, national origin, age, disability, marital status, political group affiliation
- Equal pay for equal work/recognize for performance
- Maintain high standards of integrity and conduct
- Manage employees efficiently and effectively
- Retain/separate based on performance
- Educate/train to benefit organization or individual
- Protect employees from actions based on politics
- Protect employees against reprisal for whistleblower activities
Prohibited Personnel Practices
- Discrimination based on race, color, religion, sex, national origin, age, disability, marital status, political affiliation
- Solicit/consider improper references. This is one of the least understood prohibited practices. It simply means no illegal questioning of people who are or are not in the potential selectee’s supervisory chain. Some selecting officials will call someone “in the know” to try and obtain bad information on the individual.
- Political coercion
- Obstruct the right to compete (this is another one of the lesser understood prohibited practices). This simply means deliberately keeping information from an employee regarding competing for a position, or promising to take care of them later on because the manager selected someone else this time.
- Influence withdrawal from competition (this one is also a lesser understood prohibited practices). Some managers will tell a potential selectee that they aren’t ready for those responsibilities, etc.)
- Using unauthorized preferences (it’s easiest to explain this by referring to “authorized preferences” such as Veterans Readjustment Act, Spousal Preference). Anything that is not an “authorized preference” is thereby an unauthorized preference.
- Nepotism (some people think this simply means hiring a relative, however, it means hiring a relative who will work directly for the selecting official)
- Reprisal for whistle-blowing
- Reprisal due to exercise of rights (Examples-EEO, MSPB, IG, Union, etc)
- Discrimination based on non-job related conduct (students have an issue with this once in a while, especially recently retired military or current active duty personnel). One example of this may be frequenting certain night clubs, drinking during private hours, having certain friends of which a supervisor may not approve.
- Knowingly violate veterans’ preference requirements
- Violation of Merit System Principles
Civilian Personnel Management
- Position Classification
- Banded Systems
- Classificaton appeals
- Filling/Staffing positions
- Merit Promotion Programs
- Career Programs
Civilian Personnel Programs
- Management Employee Relations (MER/EMR)
- Employee Development and Training, Government Employees’ Training Act (GETA)
- Student Programs
- Data/Systems Management
What is harassment
- Verbal or physical conduct that isolates, denigrates, or shows hostility or aversion toward an individual based on that person’s protected group.
- Categories protected by Civil Rights Act of 1964: Race, Color, Religion, Sex, National origin, Retaliation
- Categories protected by additional sources: Parental status (13160, 2000), Sexual orientation (13087, 1998), Age, Disability, GINA (13148, 2000)
Workplace Harassment Prevention
- Clearly communicating to employees that unwelcome harassing conduct will not be tolerated.
- Establishing and reinforcing an effective complaint or grievance process.
- Providing anti-harassment training to their managers and employees
- Taking immediate and appropriate action when an employee complains.
- Striving to create an environment in which employees feel free to raise concerns and are to be confident that those concerns will be addressed.
List impacts of Sexual Harassment
- Financial costs
- Decreased productivity – focus is on the harassment and not on the job. Side effects of stress and stress-related illness.
- Lowered morale – would you want to work in a place where you faced harassing behavior?
- Increased employee turnover – harassment will drive employees out to other jobs causing the need for additional hiring and training. This gets expensive and also cuts into productivity.
- Loss of credibility – harassment can tarnish the reputation of employees, supervisors, commanders, and the organization as a whole.
Employer liability for harassment
- The employer is automatically liable for harassment by a supervisor. If the supervisor's harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
- The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.
- The employer is protected if sued for acts that are within the scope of their duties. Courts have stated that unwelcome sexual remarks to an employee are not within the scope of official duties and, therefore, are not immune.
- When investigating allegations of harassment, the investigating body looks at the entire record: including the nature of the conduct and the context in which the alleged incidents occurred. A determination of whether harassment is severe or pervasive enough to be illegal is made on a case-by-case basis.
Employee Roles with regard to harassment
- Inform the harasser directly that conduct is unwelcome and must stop. Be specific. (Encouraged, not mandatory)
- Report harassment to management at an early stage to prevent its escalation
What is sexual harassment
- A form of sex discrimination that involved unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature
- submission to such conduct is made either explicitly or implicitly a term or condition of a person's job, pay or career
- Submission to or rejection of such coduct by a person is used as a basis for career or employment decisions affecting that person
- Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile, or offensive working environment.
What are the two types of sexual harassment
- Hostile work environment
- Quid pro Quo
Purpose of an EEO complaint inquiry
- Prompt and efficient processing of complaints: Every employee has the right to pursue the complaint process. They also have the right for prompt and efficient processing of their complaint.
- Gives the agency notice of the employee’s claim: This is a way that the agency is put on notice that there may be an issue for which they could be liable and that there is remedy.
- Assists the employee in defining the complaint against the agency: Employees may not know the correct language or they may not understand fully the complaint process. The counseling process and the counselor is the conduit between the employee and the process
- Attempts informal resolution of the complaint: Counselors are the first step in assisting the aggrieved with their allegations and their communication with management and vice versa. This is a prime opportunity for the counselor to assist in resolution at the lowest possible level before people get dug in to their positions.
How to conduct the EEO complaint inquiry
- Interview the aggrieved:
- Assist the aggrieved in determining the claim(s) and basis(es) for the complaint.
- The initial interview with the aggrieved should include determining jurisdictional areas, timeliness, and identify any witnesses.
- Discuss resolution possibilities. Many organizations require different things at this point if resolution is successful such as a resolution letter, a settlement agreement, and/or a withdrawal letter.
- Discuss rights and responsibilities. It is the responsibility of the counselor to provide the aggrieved with information regarding other avenues of redress as well as their rights and responsibilities during the pre-complaint and formal complaint process.
- Conduct a final interview which is communicating a summary of the inquiry. The counselor will advise the aggrieved of the right to file a formal complaint if resolution attempts are unsuccessful.
- Prepare a written counselor report (if required by agency and/or upon the filing of a formal complaint).
- Prepare a report to document actions taken and information retrieved during the pre-complaint processing if the aggrieved files a formal complaint.
- Interviews Management Official: when the counselor makes the appointment to interview the management official, they must advise them that they have the right to representation.
- Explain the aggrieved person’s allegations and summarize the reasons for facts they gave for believing there has been discrimination. Reminder – do not use any information that may give away the identity of an anonymous person.
- Explain or answer any questions about EEO counseling and the Federal complaint process. Emphasize the Counselor’s role is to attempt to resolve at the lowest level, if possible.
- Give the agency an opportunity to present their position and ask officials to suggest ways the problem might be resolved.
- Interview Witnesses:
- Counselors should interview people with first hand knowledge of the claims raised only.
- Hearing it from aggrieved does not count
- Specific to allegations raised
- Can be asked if they’ve had similar incident, if from same management official or supervisor
- Can ask their perspective of the immediate working area
- Request and review appropriate documentation / agency records: the type of allegation will determine what needs to be reviewed. A few common documents that counselors retrieve include - Official personnel files, Agency policy letters, Merit Promotion Plan, Union contract(s), Standard Operating Procedures/Operating Instructions/Regulations, Vacancy announcements, Job descriptions, Selection packets
- Conducting the final interview:
- Summarize the information received during the inquiry including documents and interviews with the management officials and witnesses. It is not recommended to have witnesses write out their own statements as they get confused with interrogations, investigations and interviews. The statements should be a summary of the conversation as the counselor understands it. Using signed statements from witnesses is a “cop out” for counselors who don’t know how to explain their interviews or don’t want to pass on “bad” information.
- Provide aggrieved with the Notice of Right to File a Formal Complaint and inform the aggrieved they have 15 calendar days from that date to initiate a formal EEO complaint if they are not satisfied and who they may file with, to include addresses. This notice will vary from agency to agency, so counselors need to be able to explain the information in the notice. Some organizations also provide the formal complaint form as well. If so, the counselor should be able to explain this form also.
Rights and responsibilities of the aggrieved
- The right to anonymity.
- The right to representation.
- Explain the agency Alternative Dispute Resolution (ADR) program – if the program is available to the aggrieved they need to exercise their option. The counselor must be able to explain both processes (ADR and the traditional process).
- The possible election requirement between a negotiated grievance procedure and the EEO process. The aggrieved has to decide which process they are going to use; however, until a signature is obtained in either process, they can use both. Once a signature is obtained, they have made their option. The first process with signature takes precedence.
- The election requirement in the event that the claim at issue is appealable to the Merit Systems Protection Board, i.e., a mixed case.
- The requirement that the aggrieved person file a complaint within 15 calendar days of receipt of the Counselor’s notice of right to file a formal complaint in the event they wish to file a formal complaint at the conclusion of counseling or ADR.
- The right to file a notice of intent to sue when age is alleged as a basis for discrimination and of the right to file a lawsuit under the ADEA instead of an administrative complaint of age discrimination.
- The right to go directly to a court of competent jurisdiction on claims of sex-based wage discrimination under the Equal Pay Act even though such claims are also cognizable under Title VII
- The right to request a hearing before an EEOC Administrative Judge (except in a mixed case) after 180 calendar days from the filing of a formal complaint, or after completion of the investigation, whichever comes first.
- The right to an immediate final decision after an investigation by the agency
- The right to go to US District Court 180 calendar days after filing a formal complaint or 180 days after filing an appeal.
- The duty to mitigate damages, interim earnings or amounts that could be earned by the individual with reasonable diligence generally must be deducted from an award of back pay.
- The duty to keep the agency and EEOC informed of their current mailing address and to serve copies of appeal papers on the agency.
- Where counseling is selected, the right to receive in writing within 30 calendar days of the first counseling contact (unless the aggrieved person agrees in writing to an extension) a notice terminating counseling and informing the aggrieved of:
- (a) the right to file a formal individual or class complaint within 15 calendar days of receipt of the notice
- (b) the appropriate official with whom to file a formal complaint
- (c) The complainant’s duty to immediately inform the agency if the complainant retains counsel or a representative. Any extension of the counseling period may not exceed an additional sixty (60) calendar days
- Where the aggrieved person agrees to participate in an established ADR program, the written notice terminating the counseling period will be issued upon completion of the dispute resolution process or within 90 calendar days of the first contact with the EEO Counselor.
- That only those claims raised at the counseling stage, or claims that are like or related to those that were raised, may be the subject of a formal complaint, and how to amend a complaint after it has been filed.
- The identity and address of the EEOC field office to which a request for a hearing must be sent in the event that the aggrieved person files a formal complaint and requests a hearing.
- The name and address of the agency official to whom the aggrieved person must send a copy of the request for a hearing. The EEO Counselor should advise the aggrieved person of their duty to certify to the Administrative Judge that they provided the agency with a copy of the request for hearing.
- The time frames in the complaint process.
- The class complaint procedures and the responsibilities of a class agent, if the aggrieved person informs the EEO Counselor that they wish to file a class complaint.
- That rejection of an agency’s offer of full resolution may result in the limitation of the agency’s payment of attorney’s fees or costs.
- That the agency must consolidate two or more complaints filed by the same complainant after appropriate notice to the complainant.
- Hold separate meetings: use this approach when tempers can get in the way of substantive discussion; the counselor needs a better understanding of issues and priorities to be able to control a subsequent joint meeting; the counselor needs to help one or both parties be realistic about possible solutions
- Holdiing joint meetings: when the parties' positions are based on different facts or different perceptions of the same facts; when the parties have not had an opportunity to talk with each other or would like a way to reopen discussion; when the counselor is confident they will be able to control the joint meeting.
- Conducting conference calls, seperate calls, or emails
- When the parties are in different locations and are not logistically able to meet face to face
- when the issues are comparatively easy to deal with, such as those based on a misunderstanding or incorrect information; when the counselor needs more information to determine if counseling is productive, and scheduling a meeting for this purpose is too time-consuming
Techniques for success
- Preparation: Create an atmosphere, which is open to good communication and dialog; Prepare to listen attentively; Prepare to be non-judgmental and not intimidated by anyone
- Factors to consider in assessing the situation:
- 1. The nature of the alleged discriminatory acts and characteristics of the dispute between the parties.
- 2. The relationship between the aggrieved person and the agency
- 3. Whether the Counselor must gather facts beyond those provided by the aggrieved and the agency.
- 4. Acceptance by the aggrieved person and the agency of various resolution techniques.
- Resolution Techniques: Holding separate meetings; Holding joint meetings; Conducting conference calls, separate calls, or emails;