EEO for Supervisors and Managers

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Description: Emphasis on the way to avoid missteps and how the actions of managers and supervisors can affect the workplace. Participants are taught the basics regarding  of  EEO law, the process and their responsibilities with respect to EEO.  Use of real life federal sector scenarios and group discussion to address more unclear areas of EEO law. Emphasis on the way to avoid missteps and how the actions of managers and supervisors can affect the workplace. Other subjects that may be covered include federal sector disciplinary actions, interviewing and selection, EEO investigations and hearings, religious and other forms of expression in the federal workplace and USERRA. Participants receive a 250-page book, tailored for specific clients, that is used during the training and as a future reference.

Length: 4 or 8 hours.

TABLE OF CONTENTS
Page

PART 1: INTRODUCTION & OVERVIEW 1

Bases Of Discrimination 2

PART 2: THE EEO LAWS 3
A. The Four EEO Laws 3
1. Title VII (race, color, sex, religion, national origin) 3
2. The Rehabilitation Act (disability) 4
3. Age Discrimination in Employment Act (age) 4
4. Equal Pay Act (equal pay for equal work) 4

B. Two Family Leave Laws (and an Executive Order) 5
1. The Family and Medical Leave Act 5
2. The Federal Employees Family Friendly Leave Act 5
3. Executive Order (an extra 24 hours of LWOP) 6
4. Executive Order (No Discrimination Against Parents) 7
5. Executive Order (No Genetic Testing Discrimination 7

PART 3: THE THEORIES 8
A. Title VII 8
1. Disparate Treatment 8
2. Accommodation (religion) 11
3. Retaliation 12
4. Disparate Impact 13
5. National Origin 14
a. Speak English only 14
b. Foreign accent 14
PART 4: DISABILITY DISCRIMINATION COMPLAINTS 15

I. The Two Obligations: (1) Nondiscrimination and
(2)The Affirmative Obligation to Accommodate 16

II. Prohibited Discrimination 16

A. The 8 Kinds of Prohibited Discrimination 16

III. Who is Protected by the Rehabilitation Act? 18
A. The Definitions of a "Person With a Disability" 19
• Exclusions - Individuals Not Covered 20

1. "A physical or mental impairment that substantially limits one or more major life activities" 21

a. "Physical or mental impairment" 22
• AIDS and Infectious Diseases 23

b. "Major life activities" 24
c. "Substantially limits" 24
• Temporary Impairments 25
• Substantially Limited in Working 26

2. A Record of a Substantially Limiting Condition 27

3. Regarded as Substantially Limited 29

B. Definition of a Qualified Individual With a Disability 31

1. Meet the necessary job prerequisites? 31

2. Perform essential job functions with or without a
reasonable accommodation? 32

a. Essential functions of a job 32
b. Identifying the essential functions of a job 33
c. Evidence as to whether a job function is essential 34
d. Changing essential job functions 37
e. Considering reasonable accommodation 37

IV. Reasonable Accommodation 38

A. What is Reasonable Accommodation 39

B. Basic Principles of Reasonable Accommodation 40

C. The Interactive Process 44

1. The Request for Reasonable Accommodation 44

2. Input from a Health Professional 45

3. The Interactive Process 45

D. Examples of Reasonable Accommodation 46

E. Technical Assistance 47

1. The Job Accommodation Network (800-526-7234) 47

2. Center for Information Technology Accommodation 47

3. RESNA Technical Assistance Project 48

F. Job Accommodation Ideas 48

V. Undue Hardship 50

VI. Exclusions from Rehabilitation Act Coverage 53

VII. Drug and Alcohol Disability Discrimination 53
A. In General 53
B. Individuals Who Are Protected 55
C. Alcoholism 56
D. Casual Drug and Alcohol Use 56
E. Pre-employment Inquiries About Drug/Alcohol Use 58 F. Direct Threat 59

VIII. Risk of Future Injury 59

A. Factors in Making a Direct Threat Determination 60

IX. Severe Hearing Impairments 61

X. Performance and Misconduct Cases 61

XI. Pre-employment Inquiries 61
A. In General 61
B. What is Permissible 62
C. Applicants 63
D. Questions That May Not Be Asked 63

XII. Mental Disabilities 64
A. Definition 64
1. Substantial limitation 65

B. The Application Process 65

C. During Employment 66

1. Inquiry 66
2. Confidentiality 66
3. Fitness for duty examinations 66
4. Reasonable accommodation 66
5. Misconduct 67
XIII. Worker's Compensation and Work Related Injury 67
A. The Application Process 67
B. On-the-job Injury 68
C. Confidentiality 69

XIV. Collective Bargaining Agreements 70

PART 5: EEO HARASSMENT CLAIMS 71

I. The Definition of Sexual Harassment 72

II. Responding to a Sexual Harassment 73

A. The Employee's Response 73

B. The Supervisor's Response 76

C. The Agency’s Response 82

III. A Better Understanding of Sexual Harassment 83

A. Did the Conduct Occur? 83

B. Was the Conduct Sexual? 84

C. Was the Conduct Unwelcome? 84

D. Was The Work Environment Made Hostile? 85

E. Employer Liability for EEO Based Harassment 87

1. For Sexual Harassment by Co-Workers 88

2. For Sexual Harassment by Supervisors 88

Summary - What Agencies Must Do 91

F. Isolated Instances Of Sexual Favoritism 91

G. Prompt And Effective Remedial Action 92

H. Some Questions To Ask 92

I. Off-Duty Sexual Harassment 94

J. Harassment by Non-Employees 95

K. Same-Sex Harassment 96

III. Agency Regulations 97

PART 6: REMEDIES FOR DISCRIMINATION 98

PART 7: COMPENSATORY DAMAGES 99

A. Available in the Administrative Process 100

B. Determining the Amount of Compensatory Damages 101

PART 8: FEDERAL SECTOR ADVERSE ACTIONS 107

I. Disciplinary Actions 107

A. Adverse Actions 107

B. Process for Taking an Adverse Action 107

C. A Primer on Charges and Penalties 108

1. Charges 108

Attendance Related Offenses 108
Falsification 109
Threatening Conduct 109
Theft 109
Sexual Harassment 110
Insubordination 110
Physical Inability to Perform a Job 111
Indefinite Suspensions 111

2. The Nexus 111

3. The Penalty 112

• The Douglas Penalty Factors 114

C. The More Important Douglas Factors 110

D. MSPB Review of Agency Adverse Actions 117

E. Union Representation 118

II. Performance Actions 118

PART 9: DISPUTE RESOLUTION & SETTLEMENT 124

• The Settlement Advantages 124

I. Alternative Dispute Resolution 125

A. The Advantages of Using ADR 127

B. The Various Techniques 126

II. Settlements 128

A. The Settlement Rules (Legal Principles) 128

B. 77 Settlement Options 130

III. Advice to Advocates in Mediation 138

A. Representing Clients at Mediation 138

1. Prepare and Plan 138

2. Devise a Strategy 140

3. At the Mediation Session 141

Ten Common Mistakes Made by Counsel in Mediation 143

PART 10: INTERVIEWING & SELECTION 145

A. The Selection Process 146

B. The Interview Process 146

C. Suggested Interview Questions 148

D. Contact References 148

E. Suggested Reference Questions 149

F. Documenting Your Selection 151

G. Communicating Your Selection Decision 151

H. Non Selection Claims – Recent Case Update 152

• The Way It Was Intended 152

• The Mistakes 153

I. Some Key Points 158

• Practices to Avoid in Selections and Interviews 159

• Non Selection/Interviewing Exercises 160

PART 11: SUPERVISOR'S LIABILITY 161

PART 12: RETALIATION COMPLAINTS 163

I. What is EEO-Based Retaliation? 164

A. Participation Retaliation 165

1. The federal sector EEO process 165

2. Participation in the EEO process 166

B. Opposition Retaliation 166

1. Only a “good-faith” belief is required 166

2. The manner of opposition must be reasonable 167

C. Retaliatory Harassment 168

D. Proving Retaliation 169

E. Representation and Official Time 171

1. Official time for complainants 171

2. Official time for representatives 172

II. What Supervisors Must Do 172

• Retaliation Exercise 173

PART 13: AFFIRMATIVE ACTION IN FEDERAL EMPLOYMENT 178

I. The Affirmative Employment Program 178

II. Special Emphasis Programs 179

III. Affirmative Action in the Courts 180

IV. The EEOC Addresses Affirmative Action 183

PART 14: INVESTIGATIONS AND HEARINGS 185

• A Supervisor's Role in EEO Complaints, Investigations and Hearings 185

• Tips for Witnesses in EEOC Hearings 189

PART 15: EEO COUNSELING - AN OVERVIEW 191

• The Six Duties of an EEO Counselor 191

I. Contacting the EEO Counselor 192

II. EEO Counseling 192

PART 16: WHISTLEBLOWER REPRISAL 193

PART 17: OTHER FEDERAL AGENCIES 194

I. Introduction 194

II. The Merit Systems Protection Board (MSPB) 194

III. Federal Labor Relations Authority (FLRA) 194

IV. Grievance Arbitration 194

V. The Office of Personnel Management (OPM) 195

VI. Office Of Special Counsel (OSC) 195

PART 18: RELIGION IN THE WORKPLACE 196

I. What Are the Rules? 196

A. The Civil Rights Act of 1964 196

1. Religious Accommodation 196

2. Sincerity of Religious Belief 197

3. Proof of Religious Discrimination 197

4. Undue Hardship 198

5. Possible Accommodations 198

6. Applicants for Employment 200

B. The Constitution 201

C. Guidelines on Religious Exercise and Religious Expression in the Federal Workplace 202

1. Religious Expression 202

a. Key Concepts 202
b. Expression in Public Areas 204
c. Supervisors and Religious Discrimination 204
d. Hostile Work Environment 204

2. Accommodation of Religious Exercise 204

a. Key Concepts 204
b. Establishment of Religion 205
• Exercises 206

PART 19: SEXUAL ORIENTATION DISCRIMINATION 207

Proposed Legislation 208

PART 20: HOW TO PREVENT AND EFFECTIVELY RESPOND
TO EEO COMPLAINTS 209

A. Prevention of EEO Complaints 209
B. Effective Responses to EEO Complaints 218

PART 21: USERRA - The Uniformed Services Employment and Reemployment Rights Act of 1994 220

Purpose 220

A. Who and What is Covered? 221
B. Notification Requirements 223
1. Employee Obligations 223
2. Agency Obligations 223

C. Employee Rights 223
PART 22: NO FEAR LAW AND SUPREME COURT DISABILITY CASE 228

PART 23: EXERCISES 231

Workplace Issues Discussions 231
Harassment Quiz: True or False? 240
EEO Quiz 241

PART 24: 2006 SUPPLEMENT – AFFIRMATIVE ACTION 249

I. Workforce Diversity 249
II. MD-715: Self Assessment and Removal of Barriers 250

The Federal Employee EEO Process The last page