Lesson 1: Introduction

Course Welcome

This course introduces you to FEMA’s commitment to equal employment opportunity. By the end of this course you should be able to:
  • Describe how diversity benefits FEMA.
  • Explain FEMA’s commitment to equal rights.
  • Recognize actions that constitute discrimination.
  • Identify laws that protect Federal employees.
  • Describe the EEO complaint process.

Lesson Overview

This lesson provides an overview of FEMA��s commitment to equal employment opportunity. By the end of this lesson, you should be able to:
  • Describe how diversity benefits FEMA.
  • Explain FEMA’s commitment to equal employment opportunity.

The Changing Face of the American Workforce

America’s population is becoming more diverse. By 2050, minority groups will make up almost half of the U.S. population. Workplaces in turn will become increasingly diverse as people of different cultures, races, lifestyles, ages, and genders work together.

The Changing Face of FEMA

The face of the American workforce is clearly changing, and so is the face of FEMA.

FEMA is committed to creating a workplace environment that is free from discrimination and harassment. It is important that all FEMA employees feel valued and respected so that each of you can do the job that you were hired to do.

Diversity as a Positive Force

Workplace diversity has positive implications for FEMA’s efficiency and effectiveness. A diverse workforce energizes our thinking. We learn from one another and get different perspectives.

An inclusive and tolerant workplace motivates employees to perform to the best of their abilities. It promotes understanding between people, creating a stronger and more focused team.

In addition, when FEMA reflects the diverse communities we serve, we are better positioned to meet their needs. We are able to build trust and goodwill. Community members are more likely to feel comfortable when there are FEMA representatives who look like them.

FEMA’s Commitment to Equal Employment Opportunity (EEO)

FEMA welcomes diverse personnel and maintains a fair environment not just to fulfill EEO requirements, but also to reap the benefits of fresh perspectives and increased vitality.

FEMA’s Office of Equal Rights (OER) is located at FEMA Headquarters. OER promotes affirmative employment, a discrimination-free workplace, and equal access to FEMA programs and benefits. OER’s goals are to bring the fullest human value to the work of the Agency and to fulfill our responsibilities under the Constitution.

EEO Is Everyone’s Job

FEMA leadership has a responsibility for creating a model workplace, and all FEMA employees are responsible for treating all persons in a professional, respectful, and courteous manner.

Harassment of anyone in the workplace affects all employees who must cope with the tension, stress, and possibly decreased performance that is often associated with a hostile work environment.

Summary

This lesson emphasized FEMA’s commitment to creating a workplace where all employees feel valued and respected.

In the next lesson you will learn about what constitutes discrimination so that you are better able to create a workplace that is free from harassment.

Lesson 2: What Constitutes Discrimination?

By the end of this lesson you should be able to identify:
  • What constitutes discrimination.
  • The laws that protect Federal employees from discrimination.

What Constitutes Discrimination?

Unlawful discrimination is the intentional or unintentional process of denying a person his or her equal opportunity for employment or advancement because of:
  • Race
  • Color
  • Religion
  • Sex
  • National origin
  • Age
  • Physical/mental disability
  • Genetic information
The Federal Government has also instituted protections against discrimination and harassment based on sexual orientation and parental status. Discrimination can be unintentional as well as deliberate. Although few people would knowingly or intentionally discriminate, unintentional acts of discrimination are still illegal.

On April 20, 2012, the Equal Employment Opportunity Commission (EEOC) has ruled that gender identity is covered as sex discrimination under Title VII of the Civil Rights Act of 1964 (Mia Macy v. Department of Justice).

Unlawful discriminatory practices include:
  • Harassment on the basis of race, color, religion, sex, national origin, age, disability, or genetic information.
  • Reprisal or retaliation against an individual for filing a claim of discrimination, participating in an EEO investigation, or opposing discriminatory practices.
  • Employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain group.
  • Denying employment opportunities to a person because of marriage to, or association with, an individual of a protected group.

Laws

There are a number of major laws that protect Federal employees and that FEMA operates under and implements. These laws are:
  • Title VII of the Civil Rights Act of 1964
  • Equal Pay Act of 1963
  • Age Discrimination in Employment Act of 1967
  • Rehabilitation Act of 1973
  • Americans with Disabilities Act (ADA) of 1990
  • ADA Amendments Act of 2008
  • Genetic Information Nondiscrimination Act of 2008
  • Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002
  • Other Protections

Title VII of the Civil Rights Act of 1964

Title VII prohibits employment discrimination and harassment based on race, color, religion, sex, national origin, and retaliation. Title VII prohibits:
  • Limiting, segregating, or classifying employees or applicants for employment in any way that would deprive or tend to deprive them of employment opportunities or have an adverse effect on their status as employees.
  • Harassment on the basis of race, color, religion, sex, or national origin.
  • Retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices.
  • Employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain race, color, religion, sex, or national origin.

Religious Accommodation

Under Title VII, an employer is required to accommodate the religious practices of employees and prospective employees unless it would pose an undue hardship on the employer. Some methods for providing reasonable accommodation include:
  • Accrual of comp time for purposes of religious observance.
  • Flexible arrival and departure times.
  • Flexible work breaks.
  • Use of lunch break in exchange for early departure.
  • Staggered work hours.
  • Permitting the employee to make up time lost due to the observance of religious practices.
  • Permitting the employee to wear religious articles of clothing as long as they don’t cause a safety hazard.

Case Study

Sam, Computer Network Specialist
Not too long ago I was fixing a new guy’s computer when he started in with jokes. At first the jokes seemed all right, but after a while he started telling some that were really offensive. Then, he started describing a recent event. He said he was out walking his dog the other day and ran into “this black kid.” He said his dog started barking and growling at the kid. Then he adds that his dog has this “thing about black people, he can tell they’re up to no good around the neighborhood.”

By that time, I was very upset. I told him that I didn’t appreciate those kinds of jokes or comments.

In the next few weeks I had a few run-ins with him that were brought to my supervisor’s attention. It got to the point that I was afraid I might get fired because I couldn’t get along with this guy.

Sexual Harassment

Statistics show that sexual harassment is a common problem. A study conducted by the Merit Systems Protection Board indicated that within the Federal Government more than 40 percent of women felt that they had been sexually harassed on the job at one time.

Sexual harassment is not just a woman’s problem. According to the EEOC, approximately sixteen percent of the sexual harassment charges filed in 2011 were from men claiming that they were harassed. In addition, sexual harassment is the fastest rising type of alleged discrimination.

Title VII and Sexual Harassment

According to Title VII, sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
  • Submission to such conduct is made a condition of employment or is used as a basis for employment decisions, or
  • Such conduct creates a hostile work environment.
To prevent or stop sexual harassment, you must first be able to recognize it.

Examples of Sexual Harassment

Examples of Verbal Harassment (not an exhaustive list):
  • Calling an adult a girl, hunk, doll, babe, honey, etc.
  • Sexual innuendoes, teasing, jokes, or stories
  • Whistling/cat calls
  • Talking about sexual preferences or fantasies
  • Asking questions about social or sexual activities
  • Repeatedly asking someone out who is not interested
  • Spreading rumors about a person’s sex life
  • Unwanted pressure for sexual favors
  • Sexual comments about anatomy
Examples of Nonverbal Harassment (not an exhaustive list):
  • Leering, staring, or looking a person up and down (elevator eyes)
  • Displaying sexually explicit pictures, objects, materials, or cartoons
  • Giving personal gifts
  • Facial expressions such as winking, throwing kisses, or licking lips
  • Sexual or obscene gestures with hands or through body movements
Examples of Physical Harassment (not an exhaustive list):
  • Massages
  • Touching a person’s clothing, hair, or body
  • Unwanted, deliberate touching
  • Blocking a person’s path
  • Actual or attempted rape or sexual assault

Equal Pay Act of 1963

In addition to Title VII, the Equal Pay Act of 1963 (EPA) also protects women in the workplace by prohibiting sex-based wage discrimination.

The EPA prohibits discrimination on the basis of sex in the payment of wages, where men and women perform work of similar skill, effort, and responsibility for the same employer under similar working conditions. The EPA also prohibits retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices.

Case Study

Sonya, Training Officer
During a meeting with my supervisor he asked me if I had a boyfriend. I told him that he was making me very uncomfortable, but he continued to ask inappropriate questions. I kept trying to steer him back to talking about work.

At the end of the meeting, I tried to shake his hand. When he took my hand, he held on to it tightly and then put his other arm around my waist. I told him to let go of me, but he wouldn’t.

Over the next few weeks, my supervisor continued to behave inappropriately. I began calling in sick a lot, and when I was at work I couldn’t concentrate or carry out my duties. I was worried that I might lose my job because of my poor performance.

Age Discrimination in Employment Act of 1967

The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age.

It is unlawful for a supervisor to tell a person who is 45 years old that they are looking for someone who is more mature. It is also unlawful to tell a person who is 65 years old that you are seeking more youthful people in your workforce.

The ADEA specifically prohibits:
  • Statements of age preferences and limitations in job notices or advertisements.
  • Discrimination on the basis of age by apprenticeship programs, including joint labor-management apprenticeship programs.
  • Denial of benefits (including health care benefits) to older employees.
  • Discharging or requiring retirement of any person because of age.
  • Harassment because of age.
  • Retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices.

Case Study

Margaret, Community Relations Field Specialist
I’ve been deployed to a JFO for the past month. Last week, I celebrated my 65th birthday with many of my colleagues, including my supervisor, in attendance.

This past week, my colleagues have been sent to areas that have been harder hit by the disaster. In these areas, conditions are much harder and people are living in tents. My supervisor has not sent me to these areas and now I’m starting to worry that they are going to deactivate me sooner than everyone else.

I’ve come to believe that my opportunities are limited, now that my supervisor knows my age.

Rehabilitation Act of 1973

The purpose of the Rehabilitation Act of 1973 is to provide qualified individuals with equal access to employment opportunities and to the same benefits of employment that are held by people without disabilities.

The Rehabilitation Act prohibits discrimination in all employment practices including job application procedures, hiring, firing, advancement, compensation, training, and other privileges of employment. The Act also prohibits harassment and retaliation based on disability.

The Equal Employment Opportunity Commission (EEOC) has adopted the provisions of the Americans with Disabilities Act as guiding principles of the Rehabilitation Act.

Americans with Disabilities Act (ADA) of 1990 and ADA Amendments Act (ADAAA) of 2008

The ADA (as amended) prohibits discrimination on the basis of disability in employment, State and local government, transportation, public accommodations and facilities, and communication. For example, the ADA:
  • Prohibits discrimination on the basis of disability in recruitment, hiring, promotions, training, pay, social activities, and other privileges of employment. Employers are restricted in what they can ask about an applicant’s disability before making a job offer.
  • Requires State and local governments and other entities serving the public to meet specified architectural standards and ensure effective communication for people with sensory impairments. Any television public announcement produced or funded in whole or in part by the Federal government must be closed-captioned.

Individual With a Disability

An individual with a disability is a person who has a physical or mental impairment that substantially limits one or more major life activities that an average person can perform with little or no difficulty, or has a record of such impairment, or is regarded as having such impairment. The law defines specific terms as follows:
  • Physical impairment: Includes disorders of the sense organs (talking, hearing, etc.), motor functions, and body systems such as respiratory, cardiovascular, musculoskeletal, reproductive, digestive, genito-urinary, hemic, lymphatic, skin, neurological, and endocrine systems.
  • Mental impairment: Includes most psychological disorders and disorders such as organic brain syndrome, learning disabilities, and emotional or mental illness. It specifically excludes various sexual behavior disorders, compulsive gambling, pyromania, and disorders due to current use of illegal drugs. If these issues surface, contact Security, Human Resources Department, Office of Equal Rights, and/or Office of the General Counsel for assistance.
  • Major life activities: Include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, breathing, learning, reading, concentrating, thinking, communicating, and working. Major life activities also include the operation of major bodily functions, such as the immune system and normal cell growth, which cover persons with HIV or cancer.
  • Substantially limits: Impairment need not prevent or severely or significantly restrict performance of a major life activity to be considered substantially limiting. Nonetheless, not every impairment will be a disability. Individual need only be substantially limited in one major life activity to have a disability. The severity and duration of impairment determines whether it substantially limits a major life activity. There is no minimum duration for an impairment to be considered a disability, as an impairment lasting fewer than six months may be substantially limiting. An impairment that is episodic or in remission is still a disability if it would substantially limit a major life activity when active. Similarly, an impairment is still regarded as a disability even if the individual uses medication, equipment, learned adaptive behaviors, or other mitigating measures to lessen the effects of the impairment.
  • Regarded as: An employee or job applicant is regarded as disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an actual or perceived impairment that is not transitory and minor. Individuals covered under this provision are not entitled to reasonable accommodation.

Section 508 of the Rehabilitation Act

Section 508 of the Rehabilitation Act requires Federal agencies to provide comparable access to and use of information and services for disabled and nondisabled Federal employees and members of the public.

FEMA has an interagency agreement with the Department of Defense to provide computer and electronic assistance devices to accommodate employees with disabilities.

Reasonable Accommodation

The Rehabilitation Act requires Federal agencies to make reasonable accommodations to the known physical and mental limitations of qualified employees or applicants with disabilities. Reasonable accommodation is making an effort to manage a disabled employee’s work or workplace to meet his or her special needs.

It is important to include the Disability Employment Program Manager in the Equal Rights Office early on in any issues associated with accommodation or undue hardship.

Examples of Reasonable Accommodation

Reasonable accommodation is:
  • Making existing facilities readily accessible to and usable by persons with disabilities.
  • Job restructuring such as shifting responsibility to other employees for minor job tasks that an employee is unable to perform because of a disability, or altering when and/or how a job task is performed.
  • Modification of work schedules such as adjusting arrival or departure times, providing periodic breaks, etc.
  • Providing additional unpaid leave.
  • Acquiring or modifying equipment or devices.
  • Adjusting or modifying examinations, training materials, or policies.
  • Providing qualified readers or interpreters, including sign language.
Reasonable accommodation is not:
  • Eliminating a primary job responsibility to accommodate the person with a disability.
  • Lowering production standards that are applied to all employees (although the employer may have to provide reasonable accommodation to enable an employee with a disability to meet them).
  • Providing personal use items such as eyeglasses, hearing aids, prosthetic limb, wheelchair, or similar devices.
  • Allowing for the violation of uniformly applied conduct rules.
  • Changing a person’s supervisor (although supervisory methods such as method of communicating assignments can be altered).

Case Study

Leung, Registrar for Application for Assistance
I work the FEMA 1-800 number as an Applicant Assistance Specialist. I spend a lot of time on the phone talking with FEMA customers. I have worn a hearing aid for the past 5 years.

Recently, my supervisor told me he had been receiving complaints from customers about my ability to understand them on the phone. He was therefore going to transfer me to a different position where I would not have to talk on the phone to customers. The pay would be the same, but my responsibilities would decrease dramatically.

Case Study

Mike, Disaster Reservist
I’ve been working at a Disaster Recovery Center (DRC) for the past several weeks, and my back problems are getting worse. I’ve had some orthopedic problems for my last several deployments, and I really need an ergonomic chair with lumbar back support.

I don’t know how to make such a request, so I’m going to leave a letter from my doctor on my supervisor’s desk that describes the medical necessity for the chair, and which includes some specifications on what type of chair would be the most effective for my condition. I assume that once my supervisor reads the letter from my doctor, it will be clear that I need a chair, and I will get one.

Genetic Information Nondiscrimination Act of 2008

Every person has dozens of DNA differences that could increase or decrease his or her chance of getting a disease such as diabetes, heart disease, cancer, or Alzheimer’s disease.

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from treating individuals unfairly because of these genetic differences. For example, employers cannot use genetic information to decide whether to hire or fire a worker, and they must keep genetic information confidential.

GINA also prohibits retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices.

Genetic information includes genetic tests of the employee or family members, manifestation of a health condition in the employee’s family, or participation by the employee in genetic research.

Case Study

Rosario, Accountant
My former supervisor was aware of what I went through to arrange proper care for my parents, both of whom have Alzheimer’s. Recently I transferred to a new position, and my new supervisor seems to know all about it. Last week she mentioned my parents and in the next breath suggested changing my job responsibilities so I “won’t have to keep track of so many details.” I pride myself on accuracy and good organizational skills, and I enjoy the complexities of my job. I’m concerned about getting pushed into less interesting work for no valid reason.

Other Protections

Additional protections against discrimination and harassment based on sexual orientation and parental status have been authorized by Executive order.
  • Sexual orientation: Executive Order 13087 (1998) makes it illegal for Federal agencies to discriminate based upon sexual orientation.
  • Parental status: Executive Order 13152 (2000) prohibits Federal agencies from making personnel decisions based on an employee’s or a job applicant’s parental status (having or not having children, raising children in a single-parent or two-parent household, and similar issues).

Case Study

Nick, Community Relations Specialist
I’m a reservist and I work disasters as needed several months each year. On my last deployment, I was one of the first people demobilized, even though my unit still had a lot of work to do. When I asked why, my supervisor said he was doing me a favor…that he knew I must be needed at home, since I’m a single parent.

Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act)

In the past few years there have been class action suits against Federal agencies that point to chronic problems of retaliation against Federal employees. In response to these suits, President Bush signed the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act).

Under Title III of the Act, agencies are required to post, on their public Web sites, statistical data relating to EEO complaints filed against the agency.

No FEAR Act

The Federal Emergency Management Agency Employee Information Provided Under Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act)

On May 15, 2002, President Bush signed the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act) into law, to take effect on October 1, 2003. The No FEAR Act requires that Federal agencies be more accountable for implementing antidiscrimination and whistleblower laws; and measures how the agencies handle violations of antidiscrimination and whistleblower protection laws.

The No FEAR Act was Congress’ response to a study and testimony which found that there were “. . . chronic problems of discrimination and retaliation against Federal employees (and) Federal agencies cannot run effectively if those agencies practice or tolerate discrimination. . . .”

Employees and Applicants’ Rights and Remedies

The act requires that Federal agencies train employees regarding the rights and remedies under antidiscrimination laws and whistleblower protection laws. These rights as set forth under Section 2302 (b) and 2302 (d) of Title 5, United States Code, state:

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, discriminate for or against any employee or applicant for employment on the basis of race, color, religion, sex, national origin, age, disability, marital status, political affiliation, or in violation of the Equal Pay Act.

The No FEAR Act promotes efforts to achieve equal employment opportunity through affirmative employment; and does not reduce any right or remedy available to any employee or applicant for employment in the civil service under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Fair Labor Standards Act of 1938, Section 501 of the Rehabilitation Act of 1973, and laws which prohibit discrimination on the basis of marital status or political affiliation.

Federal Agency Requirements

Among the obligations placed on Federal agencies, the No FEAR Act requires Federal agencies to:

  • Notify employees, former employees, and applicants for employment about their rights and remedies under the discrimination and whistleblower laws.
  • Post statistical data relating to Federal-sector equal employment opportunity complaints on its public Web site.
  • Ensure that their managers have adequate training in the management of a diverse workforce, early and alternative conflict resolution, and essential communication skills.
  • Provide other training to employees and managers that help implement the objectives of the No FEAR Act.
  • Conduct studies on the trends and causes of complaints of discrimination.
  • Implement new measures to improve the complaint process and the work environment.
  • Initiate timely and appropriate discipline against employees who engage in misconduct related to discrimination or reprisal.
  • Reimburse the Judgment Fund for any discrimination and whistleblower related settlements or judgments reached in Federal Court.
  • Produce annual reports of status and progress to Congress, the Attorney General, and the U.S. Equal Employment Opportunity Commission.
Statistical Data Reporting and Use Requirements

The act requires that each Federal agency post statistical data related to processing complaints of discrimination and submit an Annual Report which shall include, with respect to the fiscal year:

  • Number and status or disposition of cases arising under each of the respective provisions of law covered by the act in which discrimination on the part of such agency was alleged.
  • Amount of money required to be reimbursed by the agency in connection with each of such cases, separately identifying the amount of such reimbursements attributable to the payment of attorneys’ fees, if any.
  • Number of employees disciplined for discrimination, retaliation, harassment, or any other infraction of any provision of law referred to in the act.
The agency is required to develop and implement a policy relating to appropriate disciplinary actions against a Federal employee who discriminated against any individual or committed another prohibited personnel practice that was revealed in the investigation of a complaint alleging a violation of any of the laws cited under the act. The Annual Report is required to detail the policy, and post the number of employees disciplined, as well as the specific nature of the discipline taken.

The agency is required to conduct an analysis of the information and other data provided to the Equal Employment Opportunity Commission (EEOC) in compliance with Part 1614 of Title 29 of the Code of Federal Regulations that includes:

  • An examination of trends.
  • Causal analysis.
  • Practical knowledge gained through experience.
The Federal Emergency Management Agency uses this analysis to develop and report on actions planned or taken to improve the Complaint and Civil Rights programs of the Agency. The Agency has issued several agency-wide policies which address the Agency’s commitment to nondiscrimination and retaliation. These policies are signed by the FEMA Administrator and promote his support of the Agency’s antidiscrimination and whistleblower programs. The policies can be accessed on the Agency’s Web site and intranet.

The statistical summary of the Agency’s efforts in the Complaint Program are posted quarterly on the Agency’s Web site. Planned and completed actions which result from the analysis of the workforce profile data are reported in the Agency’s Annual MD 715 Report.

FEMA has launched online Equal Employment Opportunity (EEO) courses that continue this No FEAR Act training by teaching employees about the laws which prohibit discrimination and the process for addressing a complaint of discrimination. In addition, the Department of Homeland Security (DHS) has an online No FEAR Act training course, which is available to employees. These courses are updated annually.

Whistleblower protections within the Agency, and the processes related thereto, are handled by FEMA’s Human Capital Division. Employees that feel they have been retaliated against because of whistleblower activity or feel they have experienced a violation under whistleblower protection laws should contact the Human Capital Division for processing their complaint.

Reprisal Discrimination

Under all federal EEO laws and the No FEAR Act, employees are protected from reprisal discrimination. Reprisal discrimination is any act of restraint, interference, coercion, discrimination, or revenge against any person who has raised a claim of discrimination, represented a person raising such a claim, acted as a witness to such a claim, or served as an EEO official in processing such a claim.

Case Study

Ann, Administrative Assistant
About a month ago, I was asked to participate as a witness in an EEO counseling matter that involved my supervisor. The matter was brought by one of my coworkers. The EEO Counselor assigned to the matter interviewed me and somehow my supervisor got wind of the fact that I was participating as a witness.

Even though the matter was resolved and eventually dropped, my supervisor has been really rude to me. He has even yelled at me in front of coworkers for the most minor things. My supervisor also cancelled several training opportunities for me that he’d previously approved. My coworkers who weren’t witnesses in the EEO complaint haven’t been treated rudely or had opportunities taken away from them.

Summary

This lesson examined:
  • Laws that protect Federal employees from workplace discrimination and harassment.
  • Definitions and examples of unlawful discrimination.
In the next lesson you will learn what to do if you think you have been a victim of a discriminatory action.

Lesson 3: EEO Complaint Process

Lesson Overview

Complaints of discrimination are taken seriously at FEMA, and the EEO complaint process serves to protect employees from discriminatory practices. In this lesson you will learn how FEMA’s Office of Equal Rights (OER) supports employees by providing information and tools for resolving EEO-related issues and concerns. This lesson also outlines FEMA’s EEO complaint process.

In this lesson, you will learn about:

  • The roles and responsibilities of OER.
  • When to seek assistance from OER.
  • The role of the EEO Counselor.
  • FEMA’s EEO complaint process.
  • The role of Alternative Dispute Resolution in the EEO complaint process.

Understanding the OER

The Office of Equal Rights (OER) provides information and regulations for FEMA employees and applicants for employment on EEO matters. The OER is committed to helping employees resolve potential EEO matters by answering questions from all who believe they have been denied the full benefit of equal opportunity.

Additionally, the OER processes complaints, acknowledges receipt of complaints, accepts or dismisses complaints, conducts investigations and reviews, and processes complaints for final decisions either by the Department of Homeland Security or an EEOC Administrative Judge.

The Equal Rights Officer

The OER provides oversight of all EEO counseling for Headquarters (HQ), Regional Offices, Fixed Facilities, and Disaster-Related Activities. The OER maintains a staff of collateral duty EEO Counselors and Equal Rights Officers to perform counseling services. The counselor does not serve as a representative or advocate of the aggrieved person, or of management. Rather, the counselor acts as a neutral party whose function is to make inquiries to uncover the facts.

In a disaster situation, the Equal Rights Officer position is staffed at the Joint Field Office (JFO) through the Equal Rights Officer (ERO) cadre. The ERO cadre supports the basic mission of the OER by supporting HQ and providing assistance and training, information about reasonable accommodation, civil rights resolution, and counseling.

Flowchart graphic showing EEO Officers linked to both the JFO and Headquarters

Complaints of Discrimination

FEMA has an established EEO complaint process for those who feel that their right to equal opportunity has been violated. The process follows the guidelines set forth by the Equal Employment Opportunity Commission (EEOC).

Complaints of discrimination may be filed by any employee at FEMA, or applicant for employment at FEMA, who believes he or she has been discriminated against on the basis of one or more of the prohibited factors: race, color, national origin, sex (including sexual harassment), age (40 and up), disability, religion, genetic information, and retaliation/reprisal for previous EEO actions (as discussed in Lesson 2).

Complaints of discrimination may also be filed on the basis of sexual orientation and parental status.

Preparing To Enter the EEO Complaint Process

FEMA employees working in office setting Treating a person unfavorably in comparison to others is illegal discrimination when that person’s protected class is a factor in the treatment.

Before initiating the EEO complaint process, employees or applicants for employment should be prepared to explain how their cases are based on unlawful discrimination or discriminatory harassment.

The individual who initiates the EEO complaint process will be referred to as the Complainant.

EEO Complaint Process FAQs

What is the basis of the complaint?

In other words, what is the reason for the action that the individual is complaining about? Covered bases include age (40 and over), color, disability, national origin, race, religion, genetic information, retaliation for previous EEO activity, and sex.

To what protected class does the individual belong?

For the individual to belong to a protected class, his or her complaint must be based on one of the bases noted above.

How are other people, in and out of the individual’s protected class, treated with respect to the complaint?

If only people in a protected class are treated the same as the individual with regard to the act that is being complained about, then the individual may be the victim of unlawful discrimination. For instance, a woman might be able to prove discrimination with regard to denial of leave if:

  1. All other women in the same position and under the same supervisor in the same circumstance are also denied leave,
  2. Men are granted leave in the same situation, and
  3. FEMA does not have a legitimate nondiscriminatory reason for denying the leave of females.
Who, specifically, discriminated against the individual? How has he or she treated others, in and out of the individual’s protected class, with respect to the action?

Does the individual know who is responsible for the act that is being complained about? If not, how can the individual prove discrimination? Generally, separate acts committed by different supervisors are considered irrelevant when proving a case of discrimination.

How did the action being complained about cause a negative effect?

The individual must be able to demonstrate harm with regard to the act. The harm cannot be anticipated or prospective.

What is management’s reason for the action?

Does FEMA have a legitimate nondiscriminatory reason for the act being complained about? If so, the act is not unlawful.

Why does the individual believe he or she was discriminated against?

The individual has the burden of proof in a discrimination complaint. If the individual cannot explain why he or she believes unlawful discrimination occurred, then FEMA’s “nondiscriminatory reasons” are likely to be validated in a decision.

Has the individual been denied a reasonable accommodation?

Has the individual requested and been denied a request for a reasonable accommodation with regard to a disability or observance of religion? Did FEMA provide a business reason for the denial? In disability cases, the agency can deny a reasonable accommodation to a person with a qualified disability only if the accommodation would cause an undue hardship on the agency. In the case of FEMA, undue hardship is determined by the resources of the Department of Homeland Security. If the accommodation would impose a burden on FEMA that cannot be resolved, FEMA is not required to allow the accommodation. However, effective alternatives should be sought, and it is recommended that the Disability Employment Program Manager be contacted prior to denying an accommodation.

Informal Stage of the Complaint Process

The goal of the informal stage of the complaint process is to resolve EEO disputes at the lowest possible level, through either EEO counseling or Alternative Dispute Resolution (ADR).

In EEO counseling, the EEO Counselor will talk with the Complainant and try to resolve the issue informally. If the Complainant elects to use ADR, mediation or some other form of ADR will be employed to seek resolution.

If discussions are successful, the case is closed. But if, at the conclusion of the informal stage of the complaint process, the dispute has not been resolved, the Complainant will receive written instructions on how to file a formal EEO complaint.

Flowchart graphic of the Informal Stage of the EEO Complaint Process

Initial Contact

If an employee or applicant feels he or she has been the victim of unlawful discrimination, that individual can initiate the complaint process by contacting an EEO Officer.

The Complainant must initiate contact with an EEO Officer:

  • Within 45 days of the occurrence of the alleged discriminatory act, or
  • Within 45 days of discovering the alleged discriminatory act.
During the initial meeting the Equal Rights Officer will describe to the Complainant how the EEO complaint process works, including timeframes, procedures, and the Complainant’s rights and responsibilities within the process.

 

If you have any questions on timelines, contact the Office of Equal Rights.

 

Role of the EEO Counselor

If the Complainant chooses to proceed beyond the initial meeting, an EEO Counselor will be assigned. Once assigned, a counselor will work with the Complainant to facilitate resolution of the dispute.

During the informal stage of the complaint process, an EEO Counselor will:

  • Educate the Complainant about the EEO complaint process.
  • Instruct the Complainant in writing about his or her rights and responsibilities in the EEO complaint process.
  • Determine the issues and EEO basis of the complaint.
  • Inform the Complainant of the option to enter into either informal EEO counseling or ADR.

Initial Counseling

During initial EEO counseling, the counselor will:
  • Engage in discussion with the Complainant to assess possible remedies.
  • Conduct a limited inquiry with appropriate FEMA personnel to develop an understanding of the complaint.
  • Work with the disputing parties to resolve the complaint informally.
Initial counseling must be completed within 30 days from the date the OER was contacted to request counseling. Prior to the end of the 30-day period, if agreed to by the Complainant and authorized by the Director, Office of Equal Rights, initial counseling may be extended for an additional period not to exceed 60 days. If the matter cannot be resolved, the Complainant may file a formal complaint.

Reaching a Resolution

If, at the end of counseling, the complaint has been resolved, the EEO Counselor will:
  • Develop a resolution agreement to be signed by the parties involved; or,
  • Ask the Complainant to sign and submit a withdrawal.
In either situation, the EEO Complaint Process is terminated.

Proceeding to the Formal Stage of the Complaint Process

If at the end of counseling, the complaint has not been resolved, the EEO Counselor will:
  • Conduct a final interview with the Complainant during which the results of the inquiry and attempts at resolution are summarized.
  • Issue the Complainant written instructions on how to proceed with the formal complaint.

Alternative Dispute Resolution (ADR)

Alternative Dispute Resolution (ADR) employs alternative methods of resolving disputes rather than using litigation or formal administrative procedures. By helping parties to identify their interests, communicate more effectively, and explore creative solutions, ADR often leads to durable outcomes that satisfy each party’s interests while at the same time enhancing, building, and rebuilding workplace relationships.

Some common types of ADR include the following:

  • Informal discussions,
  • Coaching,
  • Mediation,
  • Conciliation,
  • Facilitation,
  • Arbitration, and
  • Early neutral evaluation.
These ADR processes may be used separately or together, depending on the situation.

ADR in the Informal Stage of the Complaint Process

At the discretion of FEMA, the Complainant may be offered ADR in conjunction with EEO counseling. If the Complainant chooses to accept ADR, a neutral third party will be assigned to the complaint. The third party’s role is to facilitate resolution of the complaint. The Neutral has no authority to make or impose any decision; rather, he or she facilitates a process to enable the parties to resolve their dispute.

The informal stage of the complaint process may be extended up to 90 calendar days when utilizing ADR.

What Is Mediation?

Mediation is a form of ADR frequently used to seek resolution of EEO complaints. Mediation is a predetermined process with the following steps:
  • Each party is allowed to present their concerns without interruption.
  • The parties hold joint discussions to clarify disputed issues, identify concerns, and explore areas of agreement and/or disagreement.
  • The mediator may conduct private meetings with each of the parties to assist with problem solving.
  • The parties reconvene and begin negotiations with the goal of reaching a written agreement.

Responsibilities During Mediation

During the mediation process, each party has a responsibility to:
  • Share relevant information.
  • Ask questions to clarify any unclear statement—but not to interrogate.
  • Keep all discussions confidential (with exceptions if information is criminal in nature or involves waste, fraud, or abuse, or if there is a threat of physical harm).
If the Complainant does not elect to use ADR during the informal stage of the EEO complaint process, it may still be offered later on in the formal or the hearing stages.

Successful ADR

If ADR is successful, then:
  • The Neutral and the parties develop the terms of a Resolution Agreement.
  • The Neutral records the terms of the Agreement in writing, then forwards this information to the OER.
  • The OER drafts the Resolution Agreement and coordinates the review and approval of the Agreement by both parties.
  • Both parties sign the Resolution Agreement.
  • The EEO complaint process ends.

Unsuccessful ADR

If ADR is not successful, then:
  • The Complainant retains his or her right to continue with the EEO complaint process.
  • A “Notice of Right To File a Discrimination Complaint” is issued to the Complainant informing him or her of the right to file a formal EEO complaint.
  • The informal stage of the complaint process is terminated.

Case Study

Sam, Computer Network Specialist
Two weeks after the incidents, I contacted the FEMA Office of Equal Rights. An EEO Counselor was assigned to work with me. The counselor informed me about the EEO complaint process, ADR, and important deadlines. I elected to try mediation, a form of ADR, to resolve the matter, because I wanted to keep the situation confidential and I really wanted to work things out quickly.

We came to agreement at the mediation session. The terms of the Resolution Agreement were put into writing and signed 10 days later. We were all required to sign the papers.

As part of the settlement remedies, my supervisor agreed to counsel my coworkers about discontinuing inappropriate jokes and comments in the workplace. Also, all office employees were sent to EEO sensitivity training sessions.

Formal Stage of the Complaint Process

The formal stage of the EEO complaint process begins when a formal complaint of discrimination is filed. FEMA can either accept or dismiss the complaint. If the complaint is accepted, it is then investigated.

At the discretion of FEMA, ADR may also be offered during the formal stage. The formal stage concludes when the Complainant either requests a hearing and decision by the Equal Employment Opportunity Commission (EEOC) or requests a final agency decision from FEMA.

Filing a Formal Complaint

An employee may file a written formal complaint with the Director, Office of Equal Rights (OER), within 15 calendar days after the final counseling interview.

Acceptance or Dismissal of Complaint

If the complaint is accepted, the individual is notified of the issues, and all relevant information pertaining to the complaint is collected.

If the complaint is dismissed, in part or whole, the Complainant is provided, in writing, the reason(s) for dismissal and informed of the right to appeal the decision.

Investigation of the Complaint

After a complaint is accepted, then FEMA will develop a complete and factual record upon which to make findings on the matters raised by the written complaint and will investigate. The investigation must be completed and file provided to the Complainant within 180 days of filing the complaint, unless the Complainant and Director, Office of Equal Rights, agree in writing to an extension.

ADR in the Formal Stage of the Complaint Process

During the formal stage, ADR may again be offered to the Complainant and the employer.

If ADR is successful, then:

  • The Neutral and the parties develop the terms of a Resolution Agreement.
  • The terms of the Agreement are forwarded to the EEO Officer, who drafts the Resolution Agreement.
  • The EEO Officer coordinates the review and approval of the Agreement and both parties sign it.
  • The EEO complaint process ends.
If ADR is unsuccessful, then processing of the complaint continues.

Case Study

Ann, Administrative Assistant
Within a week of the most recent incident with my supervisor, I contacted the FEMA Office of Equal Rights, which assigned an EEO Counselor to work with me. I was advised of important deadlines and was offered the option of using mediation, a form of ADR, to resolve my case.

I elected to use mediation, but a settlement couldn’t be reached within the 90-day timeframe. At that time, the EEO Counselor issued me a Notice of Right To File a Discrimination Complaint. I filed a formal complaint with FEMA a week later.

FEMA accepted my complaint and assigned an Investigator. As the investigation was being completed, mediation was again offered as an option for resolving the case. I elected to use mediation again, and this time a settlement was reached.

Requesting an EEOC Hearing or Final Agency Decision

Within 30 days of the receipt of the investigative file, the Complainant has the right to request an EEOC Hearing or request an immediate final agency decision from FEMA. The Complainant may request a hearing at any time after 180 days have elapsed from the filing of the complaint. Hearings are conducted by an Administrative Judge appointed by the EEOC.

At the discretion of the EEOC, ADR (such as mediation) may be offered in an attempt to resolve the matter prior to the hearing. The Administrative Judge must issue a decision within 180 days of a request for a hearing.

Complaints alleging discrimination on the basis of sexual orientation and parental status are decided by final agency decision because these protections are offered by Executive order.

Requesting EEOC Hearing

A Complainant has 30 days from receiving the Report of Investigation and election notice to request either an EEOC hearing and decision or a final agency decision from FEMA.

In addition, if the investigation has not been completed within 180 days, the Complainant may request a hearing.

EEOC Hearing Process

Before learning more about EEOC hearings, it is helpful to look at the entire EEOC hearing process.
Flowchart graphic of the EEOC Hearing Process.

Burden of Proof

During the hearing the burden of proof is on the Complainant. This means that the Complainant must:
  • Demonstrate the existence of unlawful discrimination by a preponderance of the evidence.
  • Convince the judge that his or her version of the events is accurate.
  • Prove that he or she was treated differently from similarly situated employees not in his or her protected class (i.e., race, religion, etc.).
  • Show that FEMA’s explanation for the alleged discrimination is false.

Purpose of Final Agency Decisions

Instead of requesting an EEOC hearing and decision, a Complainant may request a final agency decision. As with an Administrative Judge’s decision, the burden of proof is on the Complainant.

A final agency decision includes findings on the merits of each issue in the complaint and appropriate remedies and relief if discrimination is found.

If discrimination is not found, the Complainant may appeal the decision to either the EEOC Office of Federal Operations (OFO) or file a civil action in Federal court.

Flowchart graphic of Final Agency Decision (FAD) Review and Possible Outcomes.

Rendering a Decision

A final agency decision must be issued by the Department of Homeland Security (DHS) within 60 days of receiving the request for a decision.

Like a decision from an Administrative Judge, a final agency decision includes:

  • Findings on the merits of each issue in the complaint.
  • An analysis of the evidence on each issue. The burden of proof rests with the Complainant.
  • Appropriate remedies and relief if discrimination is found.

Appealing to the EEOC

If the Complainant is not satisfied with the final agency decision, he or she can file an appeal with the EEOC Office of Federal Operations (OFO) within 30 days of receipt of the decision.

The decision on an appeal to the EEOC is considered final unless the Complainant requests reconsideration within 30 days. It is up to the EEOC whether to reconsider the case.

EEOC Final Decision

Within 180 days of a request for a hearing, the Administrative Judge must make a determination whether discriminatory actions or discrimination have been proven.

The Administrative Judge issues a finding either in favor of the:

  • Complainant, or
  • Agency.

Decision for the Complainant

If the Administrative Judge rules in favor of the Complainant, the Complainant is entitled to a “make whole remedy.” A “make whole remedy” is designed to place the Complainant in the situation which he or she would have been in had the discrimination not occurred, and may include:
  • Attorney’s fees and compensatory damages.
  • Back pay (with interest if applicable) and lost benefits.
  • Actions to correct the source of the identified discrimination.
  • Stopping the specific discriminatory practices involved.
If the Administrative Judge rules in favor of the Complainant, the Agency can either:
  • Accept the Administrative Judge’s decision, or
  • Appeal to the EEOC Office of Federal Operations (OFO) within 40 days from receiving the decision.
Flowchart showing if decision is reached for Complainant.

Decision for the Agency

If the Administrative Judge rules in favor of FEMA, then the Complainant may either:
  • Appeal to the EEOC Office of Federal Operations (OFO) within 30 days from receipt of the decision, or
  • File a civil action in Federal court within 90 days from receipt of the decision.
Flowchart showing if decision is reached for Agency.

Case Study

Leung, Registrar for Application for Assistance
Four weeks after being told that I would be losing my position, I contacted an Equal Rights Officer (ERO). An EEO Counselor was assigned to work with me. The counselor informed me about the EEO complaint process and important deadlines. Counseling was completed within 30 days, although a resolution was not reached. I then was issued a “Notice of Right To File a Discrimination Complaint.”

I filed a formal complaint with FEMA 7 days later. FEMA accepted my complaint and assigned an Investigator. The investigation was not completed within the 180-day timeframe. I was informed that in my case, because the investigation was not completed within the timeframe, I could move forward by requesting an EEOC hearing. I requested an EEOC hearing.

My case was brought before an Administrative Judge. It was up to me to prove that FEMA treated me differently because of my hearing impairment. In the end, the Administrative Judge found that although I asked for accommodations, the Agency did not comply. The Judge stated that FEMA had discriminated against me by changing my position without providing me the necessary accommodations to successfully do my job. The decision was made in my favor.

Case Study

Margaret, Community Relations Field Specialist
Two weeks after being passed over for the assignment, I contacted the FEMA Office of Equal Rights about my situation. An EEO Counselor was assigned to my case. The counselor sought to determine the issues and EEO bases of my complaint.

Counseling was completed in 30 days, but a resolution of my complaint wasn’t reached. I was then issued a “Notice of Right To File a Discrimination Complaint.” I filed a formal complaint with FEMA 10 days later. FEMA accepted and investigated my complaint.

At the conclusion of the investigation, I requested a final agency decision. The written decision explained that I had not been discriminated against. Even though the other Field Specialists sent to the hard-hit site were younger, they were better qualified because they all speak Spanish fluently whereas I only speak English.

The explanation for the assignment of the younger employees seemed reasonable, so I accepted the decision and decided not to file an appeal with the EEOC.

Case Study

Sonya, Training Officer
Five days after the most recent encounter with my supervisor, I contacted the FEMA Office of Equal Rights about my situation. An EEO Counselor was assigned to my case. The counselor informed me about the EEO complaint process and important deadlines.

I then elected to use counseling to resolve my complaint. Counseling was completed within 30 days; however, a resolution was not reached and I was issued a “Notice of Right To File a Discrimination Complaint.” I filed a formal complaint with FEMA 10 days later.

FEMA accepted my complaint and assigned an Investigator. The investigation was completed after 90 days. I then requested a final agency decision 10 days after I received the report of the investigation.

The final agency decision found that the agency supervisor had sexually harassed me. As a result, the supervisor was removed from his position and reassigned.

Summary

This lesson outlined the process of filing an EEO complaint. Remember that the goal of the informal stage of the complaint process is to resolve EEO disputes at the lowest possible level.

It is important to understand the procedures, sequence of steps, and timeframes involved in the EEO complaint process. Keep in mind that the Equal Rights Officers are here to provide you with guidance to help resolve these issues.

If you ever have any questions about the EEO complaint process or timelines, contact an Equal Rights Officer.