FEMA IS-18: FEMA EEO Employee Course: Course Summary

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.

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 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.

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.

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.

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).

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 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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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

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

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 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.

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.

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

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.