Basic EEO Counseling

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Description: This is a course for EEO Counselors (i.e., the work done before any formal complaint), collateral duty as well as permanently assigned. The topics covered include the EEO laws (i.e., Title VII, the ADEA, the Rehabilitation Act, the Civil Rights Act of 1991, the Equal Pay Act), the theories of discrimination, the 1614 regulations, MD-110 and other EEOC Guidance, the Civil Service Reform Act, the counselor’s role, rights and responsibilities of the parties, the various notices, official time, techniques in resolution (to include, joint interviews and mediation techniques), issues concerning timeliness and jurisdiction, collecting information and conducting interviews, documenting the collection of information, terminating counseling, the formal complaint, and writing the counselor’s report.

Length: 4 days.

Table Of Contents
Page
Part 1: Introduction 1
Part 2: The Laws 2

I. The Four EEO Laws Enforced by the EEOC 2
1. Title VII of the Civil Rights Act of 1964 2
2. The Rehabilitation Act 3
3. The Age Discrimination in Employment Act 3
4. The Equal Pay Act 4

II. Family Leave Laws + Executive Orders 4
1. The Family and Medical Leave Act 4
2. The Federal Employee Family Friendly Leave Act 5
3. School/elder care leave – Executive Order 6
4. Status as a Parent – Executive Order 6
5. Genetic Testing and Family History - Executive Order 6

Part 3: The Theories 7

I. The Theories of Discrimination 7

A. Title VII of the Civil Rights Act of 1964 7

1. Disparate Treatment 7
a. Raising an Inference of Discrimination 8
b. The Legitimate Nondiscriminatory Reason 12
c. Pretext 12
2. Accommodation/Religious Discrimination 14
3. Retaliation 15
4. Disparate Impact 16
5. Mixed Motive 19
6. National Origin Discrimination Issues 20

B. The Rehabilitation Act of 1973 22

C. The Age Discrimination in Employment Act 23
Part 4: Disability Discrimination 25

I. The Two Obligations: (1) Nondiscrimination and
(2)The Affirmative Obligation to Accommodate 26

II. Prohibited Discrimination - 26

III. Who is Protected by the Rehabilitation Act (and the ADA)? 28

A. Definition of an Individual With a Disability 29

Exclusions – Individuals Who are Not Covered 30

An impairment that substantially limits
a major life activity 31

a. Physical or mental impairment 32
AIDS/HIV and Infectious Diseases 33
b. Major life activities 34
c. Substantially limits 34

2. A record of a substantially limiting condition 37

3. Regarded as substantially limited 39

B. Definition - "Qualified Individual With a Disability" 41

1. Meet the necessary job prerequisites? 41

2. Perform essential job functions? 42

IV. Reasonable Accommodation - The Affirmative Duty 48

A. What is Reasonable Accommodation? 49

B. Basic Principles of Reasonable Accommodation 50

C. Examples of Reasonable Accommodation 54

D. Technical Assistance 55

1. The Job Accommodation Network (800-526-7234) 55
2. Center for Information Technology Accommodation 55
3. RESNA Technical Assistance Project 56

E. Job Accommodation Ideas 56

V. Undue Hardship 58
VI. Exclusions from Rehabilitation Act Coverage 61

VII. Drug and Alcohol Disability Discrimination 61
A. In General 61
B. Individuals Who Are Protected 63
C. Alcoholism 64
D. Casual Drug and Alcohol Use 64
E. Pre-employment Inquiries About Drug/Alcohol Use 66 F. Direct Threat 67

VIII. Risk of Future Injury 67
A. Factors in Making a Direct Threat Determination 68

IX. Severe Hearing Impairments 69

X. Misconduct Cases 69

XI. Pre-employment Inquiries 69
A. In General 69
B. What is Permissible 70
C. Applicants 71
D. Questions That May Not Be Asked 71

XII. Mental Disabilities 72
A. Definition 72
1. Substantial limitation 73

B. The Application Process 73

C. During Employment 74

1. Inquiry 74
2. Confidentiality 74
3. Fitness for duty examinations 74
4. Reasonable accommodation 74
5. Misconduct 75

XIII. Worker's Compensation and Work Related Injury 75
A. The Application Process 75
B. On-the-job Injury 76
C. Confidentiality 77

XIV. Collective Bargaining Agreements 78

XV. Guidelines for the Sensitive Use of Language 79
Part 5: EEO Harassment Claims 80

I. The Definition of Sexual Harassment 81

II. Responding to a Charge of Sexual Harassment 82

A. The Employee's Response 82

B. The Supervisor's Response 84

C. The NNSA Service Center’s Response 87

III. A Better Understanding of Sexual Harassment 89

A. Did the Conduct Occur? 89

B. Was the Conduct Sexual? 90

C. Was the Conduct Unwelcome? 90

D. Was The Work Environment Made Hostile? 91

E. Employer Liability for EEO Based Harassment 93

1. For Sexual Harassment by Co-Workers 94

2. For Sexual Harassment by Supervisors 94

a. In quid pro quo cases 94

b. In hostile environment cases 95

Reasonable Care by an Employer 95

Reasonable Care by an Employee 96

Summary - What the NNSA Service Center Must Do 97

F. Isolated Instances Of Sexual Favoritism 97

G. Prompt And Effective Remedial Action 98

H. Some Questions To Ask 98
I. Off-Duty Sexual Harassment 100

J. Harassment by Non-Employees 101

K. Same-Sex Harassment 102

III. Agency Regulations 103

Part 6: The Functions Of Other Agencies 104

I. Introduction 104

II. The Merit Systems Protection Board (MSPB) 104

III. Federal Labor Relations Authority (FLRA) 104

IV. Grievance Arbitration 104

V. The Office of Personnel Management (OPM) 105

VI. Office Of Special Counsel (OSC) 105

Part 7: Mixed Cases 106

Part 8: Disciplinary And Performance Actions 108

I. Disciplinary Actions 108

II. Performance Actions 111

Part 9: Dispute Resolution And Settlement 114

I. Alternative Dispute Resolution 114

II. Settlements 116

A. Enforcement of Settlement Agreements 116

B. The Settlement Advantages 117

C. The Settlement Disadvantages 117

III. Settlement Options and Legal Considerations 118

A. The Legal Principles 118

B. 76 Settlement Options 120

IV. Sample Settlement Paragraphs 127
Part 10: Interest Based Bargaining 141

Part 11: An Overview of Mediation 146

Part 12: EEO Counseling - An Overview 150

I. Introduction 150

II. Duties of the EEO Counselor 151

III. The EEO Counselor's Plan 154
A. What is the Issue? 155
B. What is the Basis? 155
C. Are Any of These 13 Procedural Issues Present? 156
D. Gathering the Necessary Information 157
E. In What Order Will I Seek Information? 158
F. What Settlement Ideas Have the Parties Suggested? 158
Discussion - Interviews by EEO Counselors 159

Discussion – Effective Interviewing Techniques

Discussion - Principles of Interviewing 161

Discussion - Potential Problems 163
Discussion - Document Review 164
Discussion - Settlement 165
Discussion - Report Writing 166

IV. Should A Formal Complaint be Accepted or Rejected? 167
1. Timeliness 167
Exceptions 168
a. Not aware of the time limits 168
b. Not aware of the discrimination 169
c. Prevented from making EEO contact 170
d. Continuing violations 172
2. Failure to State a Claim 176
3. Claim Pending or Decided by the EEOC 177
4. Basis of a Federal Court Action 178
5. Raised in a Negotiated (Union) Grievance Process 179
6. Raised Before the MSPB 180
7. Mootness 182
8. A Proposed Personnel Action 183
9. The Complainant Cannot be Located 184
10. Failure to Prosecute/Cooperate 185
11. "I Was Mislead" 185
12. Breach of a Settlement Agreement 186
13. Problems With Processing an EEO Complaint 187

V. The Final Interview 188

VI. The EEO Counselor's Report 191

• EEO Counselor's Report Checklist 193

Part 13: Affirmative Action 195

Part 14: Remedies for Discrimination 197

Part 15: Religion in the Federal Workplace and the
Religious Exercise & Expression Guidelines 198

I. What are the Rules? 198

A. The Civil Rights Act of 1964 198

B. The Constitution 203

C. Guidelines on Religious Exercise and Expression 204

Part 16: Compensatory Damages 209

Overview 209

A. Available in the Administrative Process 210

B. Amount for Emotional Distress 211

Illustrative Cases 229

Part 17: Sexual Orientation Complaints 218

Part 18: Exercises 220
EEO Counselor Quiz 224
EEO Observer’s Critique Sheet 227

DOE / NNSA Policies and Forms After the Red Page

EEO Precomplaint Counseling Intake Form 1

DOE Albuquerque Operations Office Mediation Program 6

Notice of Final Interview with EEO Counselor and Right to File
a Formal Complaint of Discrimination 18

DOE EEO Counselor’s Report 20

EEOC EEO Counselor’s Report 23

DOE Complaint of Discrimination 26

The Federal Sector Process Last Two Pages