FEMA IS-19: FEMA EEO Supervisor Course Summary

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.

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 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.

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).

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.

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 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.

Reasonable accommodation does not include personal items such as hearing aids and eyeglasses.

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.

Individuals with disabilities should be equally recruited for vacancies announced throughout the merit promotion program. Additionally, individuals with disabilities should also be equally recruited for upward mobility and other special employment programs.

The authorities provide a unique opportunity to demonstrate the potential to successfully perform the essential duties of a position with or without reasonable accommodation in the workplace.

The rationale behind people-first language is that it recognizes that someone is a person, a human being, or a citizen first, and that the disability is a part, but not all of them. The technique is to use the term “person with a disability,” putting the person first, rather than “disabled person,” which puts the disability first. People-first language is widely preferred in the discussion of most disabilities.

Retaliation can also include hostile behavior or attitudes—by you or someone who works for you—toward an employee who complains.

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.

A Federal agency violates the Whistleblower Protection Act if it takes or fails to take (or threatens to take or not take) a personnel action with respect to any employee, former employee, or applicant because of any disclosure of information by the employee, former employee, or applicant that he or she reasonably believes evidences a violation of a law, rule, or regulation; gross mismanagement; gross waste of funds; abuse of authority; or substantial and specific danger to public health or safety.

Any person who feels he or she has been the subject of discrimination and suffered an adverse employment action that violated their rights provided by the Whistleblower Protection Act should contact FEMA’s Human Capital Division.

In this lesson, you will learn about proactive principles and strategies for preventing and minimizing EEO problems or potential problems in the field workplace.

In addition, any tools used to assist you with your decisions must also be job-related. Examples include job announcements, pre-selection tests, interview questions, job application forms, and performance appraisals.

Reasonable accommodation is any modification or adjustment to a job or environment that enables a qualified individual with a disability to perform the essential functions of the job.

For example, a reasonable accommodation can include raising a desk to accommodate a wheelchair, purchasing an extra-large computer monitor, or making changes to work schedules.

However, there are certain warning signs that can signal when bias, discrimination, or harassment is occurring. Many of these warning signs can apply to a host of problems (e.g., stress), so a supervisor is wise to begin with asking questions, regardless of the cause.

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.

A resolution may allow everyone, but particularly the aggrieved, to move past the events at issue with a renewed focus on accomplishing Agency business. Further, avoidance of protracted and costly administrative and judicial proceedings, with the accompanying financial and human costs, is generally in everyone’s best interest.

While the earliest stages of the EEO complaint process present the best opportunity for resolution, it is never too late to settle a complaint. The key is to think win-win.

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.

Supervisors should provide all reasonable resources to the employee as he or she enters the complaint process and should never attempt to deter the employee’s participation in the process.

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 observation 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. If the accommodation would impose a burden on the Department of Homeland Security that cannot be resolved, FEMA may deny the accommodation as requested. However, effective alternatives should be sought, and it is recommended that the Disability Employment Program Manager be contacted prior to denying an accommodation.

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

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.

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.

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 Office is 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 the Equal Rights Office.