Mediator's Refresher Training
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Description: Some federal agencies, such as the Forest Service, require that the agency representative at the mediation of an EEO dispute (called a “Resolving Official”) be a different supervisor or manager than the Responding Official, the agency official alleged to have discriminated against the complainant, to enhance the possibility of settlement. This course provides the Resolving Officials with knowledge of the EEO laws, the process of mediation and the agency’s specific procedures for EEO mediations. It combines an explanation of EEO and mediation with role play in mediation and interactive classroom discussion. It includes discussions with experienced mediators and advocates at mediation (the partners in VG&G) and a panel discussion with experienced Resolving Officials. This course has been taught for the most senior Forest Service Resolving Officials (the Chief’s Cadre) and for the Pacific Southwest Region (Region 5) and the Intermountain Region (Region 4). As with other VG&G courses, the materials are tailored for specific agencies and regions based upon prior consultations, and we inquire about any sensitive issues. The course sometimes includes an “EEO Update”, a two hour discussion of the latest developments, and trends in EEO, with other supervisors, EEO and HR staff participating. The course manual can be tailored for specific agencies and agency locations.
Length: 1 or 2 days.
TABLE OF CONTENTS
PART 1: INTRODUCTION & OVERVIEW
Mediation Decisions – What Will You Do?
Bases Of Discrimination
PART 2: THE EEO LAWS
A. The Four EEO Laws
1. Title VII (race, color, sex, religion, national origin)
2. The Rehabilitation Act (disability)
3. Age Discrimination in Employment Act (age)
4. Equal Pay Act (equal pay for equal work)
B. Two Family Leave Laws (and two Executive Orders)
1. The Family and Medical Leave Act
2. The Federal Employees Family Friendly Leave Act
3. Executive Order (No Discrimination Against Parents)
4. Executive Order (No Genetic Testing Discrimination)
PART 3: THE THEORIES
A. Title VII
1. Disparate Treatment
2. Accommodation (religion)
3. Retaliation
4. Disparate Impact
5. National Origin
a. Speak English only
b. Foreign accent
PART 4: DISABILITY DISCRIMINATION COMPLAINTS
I. The Two Obligations: (1) Nondiscrimination and
(2)The Affirmative Obligation to Accommodate
II. Prohibited Discrimination
A. The 8 Kinds of Prohibited Discrimination
III. Who is Protected by the Rehabilitation Act?
A. The Definitions of a "Person With a Disability"
• Exclusions - Individuals Not Covered
1. "A physical or mental impairment that substantially limits one or more major life activities"
a. "Physical or mental impairment"
• AIDS and Infectious Diseases
b. "Major life activities"
c. "Substantially limits"
• Temporary Impairments
• Substantially Limited in Working
2. A Record of a Substantially Limiting Condition
3. Regarded as Substantially Limited
B. Definition of a Qualified Individual With a Disability
1. Meet the necessary job prerequisites?
2. Perform essential job functions with or without a
reasonable accommodation?
a. Essential functions of a job
b. Identifying the essential functions of a job
c. Evidence as to whether a job function is essential
d. Changing essential job functions
e. Considering reasonable accommodation
IV. Reasonable Accommodation
A. What is Reasonable Accommodation
B. Basic Principles of Reasonable Accommodation
C. The Interactive Process
D. Examples of Reasonable Accommodation
E. Technical Assistance
1. The Job Accommodation Network (800-526-7234)
2. Center for Information Technology Accommodation
3. The RESNA Technical Assistance Project
F. Job Accommodation Ideas
1. The Cost of Reasonable Accommodation
2. Reasonable Accommodation Problems & Solutions
V. Undue Hardship
VI. Medical Examinations
VII. Drug and Alcohol Disability Discrimination
A. In General
B. Individuals Who Are Protected
C. Alcoholism
D. Casual Drug and Alcohol Use
E. Pre-employment Inquiries About Drug/Alcohol Use
F. Direct Threat
VIII. Risk of Future Injury
A. Factors in Making a Direct Threat Determination
IX. Severe Hearing Impairments
X. Misconduct and Threat Cases
XI. Pre- and Post- Employment Inquiries
A. In General
B. What is Permissible
C. Mental Disabilities
D. Applicants
E. Questions That May Not be Asked
• Summary - Pre-Employment Inquiries
F. Post-Employment Inquiries
XII. Mental Disability
A. Definition 1. Substantial impairment
B. The Application Process
C. During Employment
1. Inquiry
2. Confidentiality
3. Fitness for duty examinations
4. Reasonable accommodation
5. Misconduct
XIII. Worker's Compensation and Work Related Injury
A. The Application Process
B. On-the-job Injury
C. Confidentiality
XIV. Collective Bargaining Agreements
PART 5: SEXUAL HARASSMENT COMPLAINTS
I. The Definition of Sexual Harassment
II. Responding to a Charge of Sexual Harassment
A. The Employee's Response
B. The Supervisor's Response
C. The Forest Service's Response
III. A Better Understanding of Sexual Harassment
A. Did the Conduct Occur?
B. Was the Conduct Sexual?
C. Was the Conduct Unwelcome?
D. Was The Work Environment Made Hostile?
E. Agency Liability For A Supervisor's Actions
1. In quid pro quo cases
2. In hostile environment cases
F. Isolated Instances Of Sexual Favoritism
G. Prompt And Effective Remedial Action
H. Some Questions To Ask
I. Off-Duty Sexual Harassment
J. Harassment by Non-Employees
K. Same-Sex Harassment
IV. Agency Regulations
PART 6: REMEDIES FOR DISCRIMINATION
PART 7: COMPENSATORY DAMAGES
A. Available in the Administrative Process
B. Determining the Amount of Compensatory Damages
PART 8: FEDERAL SECTOR DISCIPLINARY ACTIONS
I. Disciplinary Actions Based on Misconduct
A. Adverse Actions
B. Process for Taking an Adverse Action
C. Determining the Appropriate Penalty
• The Douglas Penalty Factors
D. The More Important Douglas Factors
E. Threat Cases
F. MSPB Review of Agency Adverse Actions
G. Union Representation
II. Performance Actions
PART 9: DISPUTE RESOLUTION AND SETTLEMENT
• The Settlement Advantages
I. Alternative Dispute Resolution
A. The Advantages of Using ADR
B. The Various Techniques
II. Settlements
A. The Settlement Rules (Legal Principles)
B. 77 Settlement Options
PART 10: INTERVIEWING & SELECTION
A. The Selection Process
B. The Interview Process
C. Suggested Interview Questions
D. Contact References
E. Suggested Reference Questions
F. Documenting Your Selection
G. Communicating Your Selection Decision
H. Non Selection Claims – Recent Case Update
• The Way It Was Intended
• The Mistakes
• Some Key Points
• Non Selection/Interviewing Exercises
PART 11: SUPERVISOR'S LIABILITY
PART 12: RETALIATION COMPLAINTS
PART 13: AFFIRMATIVE ACTION IN FEDERAL EMPLOYMENT
I. In General
II. Special Emphasis Programs
III. Affirmative Action in the Courts
IV. The EEOC Addresses Affirmative Action
PART 14: INVESTIGATIONS AND HEARINGS
• A Supervisor's Role in EEO Complaints, Investigations and Hearings
• Tips for Witnesses in EEOC Hearings
PART 15: EEO COUNSELING - AN OVERVIEW
PART 16: WHISTLEBLOWER REPRISAL
PART 17: OTHER FEDERAL AGENCIES
I. Introduction
II. The Merit Systems Protection Board (MSPB)
III. Federal Labor Relations Authority (FLRA)
IV. Grievance Arbitration
V. The Office of Personnel Management (OPM)
VI. Office Of Special Counsel (OSC)
PART 18: RELIGION IN THE WORKPLACE
I. What Are the Rules?
A. The Civil Rights Act of 1964
1. Religious Accommodation
2. Sincerity of Religious Belief
3. Proof of Religious Discrimination
4. "Undue Hardship" & Accommodation Examples
5. Applicants for Employment
6. The Importance of Doing it Right
7. Disparate Treatment Theory also Applies
B. The Constitution
C. Guidelines on Religious Exercise and Religious
Expression in the Federal Workplace
II. Religious Expression
A. Key Concepts
B. Expression in Public Areas
C. Supervisors and Religious Discrimination
D. Hostile Work Environment
III. Accommodation of Religious Exercise
A. Key Concepts
B. Establishment of Religion
• Exercises
PART 19: SEXUAL ORIENTATION DISCRIMINATION
PART 20: HOW TO PREVENT AND EFFECTIVELY RESPOND
TO EEO COMPLAINTS
A. Prevention of EEO Complaints
B. Effective Responses to EEO Complaints
PART 21: AN OVERVIEW OF MEDIATION
I. The Mediation Process
A. Summary of the Stages of Mediation
B. How the Mediator Helps the Parties to Settle
C. Facilitating Communication
D. Forms of Mediator Influence
E. The Mediator’s Opening Statement
F. Opening Statements of the Parties
G. Defining Issues and Setting an Agenda
H. Brainstorming: Generating Settlement Options
II. ADVICE TO ADVOCATES IN MEDIATION
A. Representing Clients at Mediation
1. Prepare and Plan
2. Devise a Strategy
3. At the Mediation Session
Ten Common Mistakes Made by Counsel in Mediation
PART 24: NEW AND PROPOSED LEGISLATION
EEO Quiz
Appendix
Steps In Processing An EEO Complaint
Overview Of the EEO Complaint Process
