Our website is made possible by displaying online advertisements to our visitors. Please consider supporting us by whitelisting our website.

FEMA IS-19: FEMA EEO Supervisor Course Summary

IS-19 – FEMA EEO Supervisor Course

Lesson 1: Introduction

Course Welcome

As a FEMA supervisor, you take actions and make decisions that may impact the equal rights and opportunities of employees. This course provides an overview of your responsibilities in Equal Employment Opportunity (EEO) and will help you to confidently handle equal rights issues and potential issues as they arise. By the end of this course, you should be able to:
  • Describe how diversity benefits FEMA.
  • Explain FEMA’s commitment to equal rights.
  • Identify supervisors’ responsibilities in preventing and dealing with discrimination and harassment.
  • 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 FEMA

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 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.

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: Discrimination and the Law

Lesson Overview

By the end of this lesson you should be able to identify:
  • Identify what constitutes discrimination.
  • Identify 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.

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

Unwelcome Conduct

If the employee did not solicit or invite the conduct and regarded it as undesirable, then that is considered to be “Unwelcome” conduct.

The critical question in these cases is: Did the complainant explicitly or implicitly communicate that the conduct was unwelcome?

Remember these key points when dealing with these situations:

  • Submission does not mean welcomeness.
  • Active participation may defeat the claim.

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.

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.

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).

Limitations on Reasonable Accommodations

An agency is not required to provide reasonable accommodations if in doing so it would be an undue hardship for the Agency as a whole (not the employee’s office). In the case of FEMA, undue hardship is determined by the resources of the Department of Homeland Security.

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

Reasonable Accommodation Process

Once an individual requests reasonable accommodation, you should take the following steps:
  • Consult with the individual to determine what accommodations he or she believes would enable him or her to do the job.
  • If necessary, determine what the essential functions of the employee’s job are and request documentation of the disability and the limitations to be accommodated. Documentation should not be requested if the disability is obvious (e.g., the individual is a wheelchair user).
  • Assess the effectiveness of various accommodations.
  • Select the accommodation that is most appropriate in view of the individual’s and agency’s needs.
Accommodations are only determined on a case-by-case basis. It is important to include the Agency’s Disability Employment Program Manager in the Office of Equal Rights with any issues associated with reasonable accommodation.

Medical/Disability Confidentiality

Agencies must keep medical information about employees confidential. Employees (coworkers) do not have a right to know about a coworker’s medical condition and disability, even when reasonable accommodations that affect them are involved.

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.

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).

Summary

This lesson examined:
  • Laws that protect Federal employees from workplace discrimination and harassment.
  • How supervisors can prevent discrimination and harassment.
In the next lesson you will learn more about the laws that protect Federal employees from discrimination. You will also learn ways to prevent and deal with discrimination and harassment.

Lesson 3: Preventing Discrimination

Lesson Overview

By the end of this lesson you should be able to:
  • Identify the laws that protect Federal employees from discrimination.
  • Describe ways to prevent and deal with discrimination and harassment.

Management Responsibilities

As a FEMA manager, you have a key role in preventing sexual, religious, racial, age, and other forms of discrimination and harassment. You should:
  • Know the Agency’s anti-harassment policy.
  • Set a positive example by treating others with respect.
  • Never make assumptions about jokes.
  • Think before speaking and consider others’ feelings and perceptions.
  • Never go along with the crowd if the behavior is offensive.

Vicarious Liability

An employer is subject to vicarious liability for unlawful harassment if committed by a supervisor with immediate or successively higher authority over the employee. An individual qualifies as a supervisor if:
  1. The individual has authority to undertake or recommend tangible employment decisions affecting the employee, or
  2. The individual has authority to direct the employee’s daily work activities (team leader).
When allegations of discrimination are brought to your attention:
  • Take the allegations seriously.
  • Document all steps you take.
  • Be objective—talk to both parties.
  • Seek advice from the Office of Equal Rights.
  • Where allegations are substantiated, contact Employee Relations for corrective actions.
Management’s failure to address claims of harassment may make the Agency vicariously liable.

Questions to Ask Parties and Witnesses

Questions to Ask the Complainant:
  • Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur and is it still ongoing? Where did it occur? How often did it occur? How did it affect you?
  • How did you react? What response did you make when the incident(s) occurred or afterwards?
  • How did the harassment affect you? Has your job been affected in any way?
  • Are there any persons who have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it? Did anyone see you immediately after episodes of alleged harassment?
  • Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • How would you like to see the situation resolved?
  • Do you know of any other relevant information?
Questions to Ask the Alleged Harasser:
  • What is your response to the allegations?
  • If the harasser claims that the allegations are false, ask why the complainant might make untrue allegations.
  • Are there any persons who have relevant information?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • Do you know of any other relevant information?
Questions to Ask Third Parties:
  • What did you see or hear? When did this occur? Describe the alleged harasser’s behavior toward the complainant and toward others in the workplace.
  • What did the complainant tell you? When did s/he tell you this?
  • Do you know of any other relevant information?
  • Are there other persons who have relevant information?
The Supreme Court held that an employer is always liable if harassment culminates in tangible employment action.

The employer may avoid or limit liability by affirmative defense. This includes:

  • Reasonable care to prevent and correct actions.
  • Employee bypassed preventative or corrective opportunities.
  • Training for employees and managers is conducted.
  • Information regarding protections is posted.
  • Policy statements are issued which address the rights of employees.
  • No adverse employment action is taken against the employee.

Examples of Opposition

The anti-retaliation provisions make it unlawful to discriminate against an individual because he or she opposed any practice made unlawful under the employment antidiscrimination statutes.

Some examples of opposition might include:

  • Complaining to a management official about being denied a request for reasonable accommodation.
  • Picketing.
  • Signing a petition to be presented to the administration about a perceived discriminatory practice at the Agency.

Appointing Authorities and Special Employment Programs

Individuals with disabilities can be hired competitively or noncompetitively. Excepted appointing authorities provide an opportunity for individuals with disabilities to be hired noncompetitively so they can demonstrate their ability to do the job.

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.

Appointment Under Special Authorities

The Federal Government’s hiring options include excepted service special appointing authorities for people with disabilities. Federal employers are authorized to use these authorities when considering certain people with disabilities (those who have severe physical, cognitive, or psychiatric disabilities or those who have a history of or who are regarded as having such disabilities).

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.

Authorities for People With Disabilities

  • Schedule A, 5 CFR 213.3102(t) for Hiring People with Mental Retardation. This authority is used to appoint persons with cognitive disabilities (mental retardation) who meet the eligibility requirements. The Office of Personnel Management (OPM) is proposing to substitute the phrase “intellectual disability” for the phrase “mental retardation” without any change to the intended coverage. Upon completion of two years of satisfactory performance the employee may qualify for conversion to the competitive service.
  • Schedule A, 5 CFR 213.3102(u) for Hiring People With Severe Physical Disabilities. This authority is used to appoint persons with severe physical disabilities who: (1) under a temporary appointment have demonstrated their ability to perform duties satisfactorily; or (2) have been certified by a counselor from a State vocational rehabilitation agency (SVRA) or the Department of Veterans Affairs’ Vocational Rehabilitation Office as likely to succeed in performance of duties. Upon completion of two years of satisfactory service under this authority, the employee may qualify for conversion to the competitive service. The Office of Personnel Management (OPM) is proposing to eliminate the requirement that an applicant supply a certification of job readiness.
  • Schedule B, 5 CFR 213.2302(k) for Hiring People Who Have Recovered from Mental Illness. This authority permits appointments at Grades GS-15 and below when filled by individuals who: (1) are placed at a severe disadvantage in obtaining employment because of a psychiatric disability evidenced by hospitalization or outpatient treatment and have had a significant period of substantially disrupted employment because of the disability; and (2) are certified to a specific position by a State vocational rehabilitation counselor or a Department of Veterans Affairs counseling psychologist (or psychiatrist) who indicates that they meet the severe disadvantage criteria stated above, that they are capable of functioning in the position to which they will be appointed, and that any residual disability is not job related. Employment under this authority may not exceed two years following each significant period of mental illness.
  • Schedule A, 5 CFR 213.3102(II) for Hiring Readers, Interpreters, and Other Personal Assistants. This authority permits appointments of readers, interpreters, and personal assistants for employees with severe disabilities when filled on a full-time, part-time, or intermittent basis. Upon completion of at least one year of satisfactory service under this authority, the employee may qualify for conversion to the competitive service.

Interviewing Individuals With Disabilities

When interviewing individuals with disabilities, be sure that you:
  • Ask each applicant the same questions about their qualification, skills, and experience.
  • Follow the lead of the individual with a disability. If she or he does not mention the disability, do not mention it.
  • Focus on the functions of the position and the knowledge, skills, and abilities the individual would bring to the job.
  • Applicants may request reasonable accommodation for the interview. Agencies should generically invite applicants to ask for reasonable accommodations on the job application or when setting up the interview.

Supervising Individuals With Disabilities

As a supervisor of individuals with disabilities, you should:
  • Treat individuals with disabilities like other employees — with respect.
  • Make employees with disabilities feel that they are part of the overall staff. Do not allow mistreatment or exclusion.
  • Report any architectural barriers that may exist (e.g., entrances that have steps and no ramps, lights that are burned out or too dim, or loose railings or pavers).
  • Make sure not to use derogatory labels; remember that language reflects attitude.
Supervisors should try to use “people-first language” when supervising individuals with disabilities. People-first language is a technique used to avoid perceived and subconscious dehumanization of the people having the disabilities.

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.

People-First Language Examples

 
PEOPLE-FIRST LANGUAGE LABELS NOT TO USE
People with disabilities The handicapped or disabled
People with mental retardation
He has an intellectual disability
The mentally retarded
He’s retarded
My son has autism My son is autistic
She has Down Syndrome She’s a Downs kid, a mongoloid
He has a learning disability He’s learning disabled
I have paraplegia I’m a paraplegic
She has a physical disability
She has a mobility impairment
She’s crippled
He’s of short stature He’s a dwarf (or midget)
She has an emotional disability She’s emotionally disturbed
He uses a wheelchair He’s wheelchair bound or confined to a wheelchair
A typical person or a person without a disability  Normal and/or healthy person
He receives special education services He’s in special education
Congenital disability Birth defect
Accessible parking, bathrooms, etc. Handicapped parking, bathrooms, etc.
She has a need for. . . She has a problem with. . .

Retaliation Discrimination

Retaliation means any adverse action that you or someone who works for you takes against the employee because he or she complained about harassment or discrimination. Adverse action includes demotion, discipline, firing, salary reduction, negative evaluation, change in job assignment, or change in shift assignment.

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

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 — 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.
The No FEAR Act also requires Federal agencies to:
  • 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.

Whistleblower Protection Act Information

The Whistleblower Protection Act of 1989, as amended in 1994, provides protection from retaliation, and confidentiality, to Federal employees, former employees, and applicants for employment, who report allegations of fraud, gross mismanagement, or abuse of authority.

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.

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.

Strategies for Avoiding Retaliation Claims

As a management official, there will be times when it is necessary to take some type of disciplinary action against an employee. In order to prevent or minimize the perception that the actions are for retaliatory reasons, you should make sure that all management actions are:
  • Fair and timely,
  • Transparent,
  • Objective,
  • Consistent,
  • Proportionate to the conduct or performance problem being addressed, and
  • Driven by some legitimate nondiscriminatory reason.

Summary

This lesson examined:
  • Laws that protect Federal employees from workplace discrimination and harassment.
  • How supervisors can prevent discrimination and harassment.
In the next lesson you will learn proactive principles and strategies for preventing and minimizing EEO problems or potential problems in the field workplace.

Lesson 4: Proactive Strategies

Lesson Overview

Managerial commitment is the most important element for creating and maintaining a positive work environment. Day-to-day decision making and actions set the tone for what is acceptable behavior in your workplace. Demonstrating commitment to the principles for managing diversity makes like behavior by your employees the rule rather than the exception.

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

Principles To Eliminate EEO Problems

As a supervisor, you should use the proactive strategies described on the next screens to prevent, minimize, or eliminate EEO problems.

Base Decisions and Actions on Job-Related Criteria

You may be wondering how as a supervisor you can be successful in the area of EEO. The answer is quite simple. All employment actions should be based on job-related criteria or qualifications. That is, your decisions—staffing, evaluating performance, or discipline—should be based on the specific duties, responsibilities, and performance requirements of the job.

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.

Ask Appropriate Interview Questions

When interviewing applicants for employment, you must use questions that are fair and that are job-related. The Human Capital Division can provide you with assistance in this area. Follow these steps when conducting interviews:
  1. Write a list of specific qualifications essential for performing the job successfully.
  2. Prepare interview questions in advance and write them down.
  3. Review each question and make sure it is tied to specific job-related criteria.
  4. Ask identical questions of each interviewee.
  5. Keep notes about how and why you decided to hire a candidate.

 

Guidelines for Questioning When Interviewing

Listed below are areas considered illegal and legal when interviewing:

Illegal Questions Legal Questions
  • Age
  • Color
  • Marital status
  • National origin
  • Physical or mental disability
  • Race
  • Religion
  • Sex
  • Arrest record
  • Children/childcare
  • Birth control or family planning
  • Credit references or credit history
  • Height and weight
  • Transportation
  • Unwed motherhood
  • Citizenship
  • Genetic or medical information
  • If an alien, Alien Registration Number
  • Authorization to work in the U.S.
  • Military work experience
  • Past work experience
  • Education
  • Reasons for leaving last job
  • Reasons for interest in this job
  • Objections to traveling

Handle Poor Performance Fairly and Consistently

When handling poor performers, it is important that you answer the following questions with a “YES” before disciplining the employee.
  • Is the same performance required of all employees in that position?
  • Have all other employees with comparable performance levels been handled in the same manner?
  • Have you communicated just what you expect of the employee?
  • Is it reasonable to expect the employee to do this?
  • Has there been unbiased, “objective” documentation of the situation/problem?
  • Does the employee understand the possible consequences of his or her continued behavior?
  • Has he or she been given performance feedback and warnings with adequate time to change his or her behavior? Has this been documented?
  • Has the employee been placed on a Performance Improvement Plan (PIP) to address specific deficiencies?

Accommodate Individuals With Disabilities

Like all employers, FEMA is required to provide accommodation to qualified individuals with disabilities.

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.

Tips for Working With Individuals With Disabilities

  • During an interview, you may not ask the applicant about the existence, nature, or severity of a disability unless the disability is obvious (e.g., blindness, using a wheelchair) and it might impact performing the essential functions of the job. You may ask the applicant about his or her ability to perform essential job functions, not the disability.
  • You can ask an employee whether a reasonable accommodation is needed when an employee has not asked for one if the disability is obvious (e.g., blindness, using a wheelchair) and if it may impact the essential functions of the job (e.g., sight and mobility are essential functions for the position at issue).
  • Do not assume that an employee has a disability unless it is obvious or there is record of such disability. Some physical or mental difficulties such as motor coordination problems or dyslexia may not interfere with the individual’s performance on the job.
  • If an employee tells you that he or she is disabled or is seeking an accommodation, discuss reasonable accommodation options available that would permit the employee to perform the essential functions of the job.
  • The determination of what constitutes a “reasonable accommodation” is complex and is decided on a case-by-case basis. You should therefore always contact the Disability Employment Program Manager in the OER for guidance.
  • The Reasonable Accommodations Manual for FEMA provides guidance on how to handle requests for reasonable accommodation from employees and applicants for employment.

Be Aware of Environments More at Risk for Discrimination and Harassment

Some work environments are at greater risk for discrimination and harassment than others are. The work environment you manage or supervise has a high potential for bias and discrimination if:
  • It is composed of a distinct “majority” group and distinct “minority” group(s).
  • It was formerly dominated by a particular group of individuals, but is currently in transition to a population of more diverse employees.
  • It tolerates the use of offensive or biased language, racial or sexual epithets, and/or telling of racial or ethnic jokes.

Be Sensitive to Cues Indicative of Discrimination and Harassment

Many bias and discrimination incidents go unreported because the affected individual does not know how to handle the situation, fears the repercussions of confronting the offenders, or simply has decided not to report the situation.

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.

Some early warning signs that discrimination might be an issue include:
  • Changes in work habits such as decreased productivity, unusual absenteeism, or a decline in morale.
  • Withdrawal from other members of the work environment or discomfort around an individual or a group of individuals.
  • Conscious avoidance of an individual or individuals when going to lunch, taking a break, etc.
  • Aggressive or antagonistic behavior.
  • Rumors that hint at harassment or discrimination.
  • Increased sensitivity or loss of any sense of humor.

Foster a Positive Work Environment

The best way supervisors can avoid or minimize the potential of EEO-related problems is by creating a work environment that is respectful and fair.

Summary

In this lesson, you reviewed several strategies for preventing and minimizing the violation of employees’ rights to equal opportunity. In the next lesson, you will learn about the role of OER and the EEO complaint process.

Lesson 5: 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. As a supervisor, it is your responsibility to fully comply with the EEO laws and regulations, policy guidance, and other written instructions.

By the end of this lesson, you should be able to:

  • Describe the roles and responsibilities of the Office of Equal Rights (OER).
  • Identify when to seek assistance from OER.
  • Explain the role of the EEO Counselor.
  • Describe FEMA’s EEO complaint process.
  • Explain the role of Alternative Dispute Resolution (ADR) 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.

How Supervisors Can Support the EEO Complaint Process

As a supervisor, you will need to provide reasonable resources for the EEO complaint process to ensure efficient and successful operation.

Guidelines to Follow

What Supervisors Should Do When They Receive a Discrimination or Harassment Complaint

Below are guidelines to follow if an employee comes to you with a complaint involving discrimination or harassment.

Guidelines To Follow

Consult with your Equal Rights Office (ERO) on site or call the Office of Equal Rights (OER):

  • Meet in private with the person who has a complaint to clarify the issue and determine what exactly happened. Questions you may ask include:
    • What exactly happened? What was specifically done or said that leads you to believe you were harassed/discriminated against?
    • Where did it happen (in the field office, at lunch, in the field, after office hours, off the work site)?
    • When did it happen (date and times)?
    • Has it occurred more than once? If yes, when and where? How long has this been going on?
    • Were other people present when the incident(s) occurred? Were there any witnesses?
    • Have you shown or told the person that the behavior is unwelcome?
    • Whom did you talk with about what happened?
  • Take notes and assure the employee that you will be looking into and dealing with the matter promptly. Read back your notes to ensure you understood properly.
  • Ask the person complaining what they would like to see happen (i.e., what action are they seeking in order to resolve the matter?).
  • As soon as possible (no more than 3 to 5 days), talk to the person who has been accused of the harassment/discrimination. Find out his or her perspective on what happened. Your objective is not to reprimand the person at this point. It is simply to gather information/facts. Begin the conversation by saying, “The purpose of this meeting is to discuss an allegation of harassment/discrimination.” Ask if the specific behavior(s) in question took place. Involve the alleged person’s supervisor, if necessary. Keep all information confidential and insist that other supervisors and managers involved follow this important rule.
  • Once you have collected the information, discuss what you have learned with the ERO or with the OER (if there is no ERO on site). Discuss ways to resolve the issue.
  • If the issue cannot be resolved, or if it results in the need to take disciplinary action, involve OER and Employee and Labor Relations prior to taking such action.
  • Once you work with OER to determine the appropriate course of action, close the loop. Then, meet again with the person with the complaint to let him or her know you have responded to the complaint. The employee is not entitled to know specific disciplinary action that may be taken by management.

Supervisor’s Role in Early Intervention

Continually assessing the work environment by actively engaging in discussions with employees allows for early identification of issues. It allows you to spot trends as they develop and increases the chances of addressing issues effectively while they are manageable and before expensive and extensive corrective action is required.

Resolving Allegations of Discrimination

As a supervisor or manager, you may find yourself dealing with allegations of discrimination. When faced with allegations, you should immediately consider whether the complaint can be resolved. Some of the considerations include:
  • What is fair to the Complainant,
  • What is acceptable to you,
  • What is consistent with law and agency policy, and
  • What is in the overall best interest of the Agency.

The Win-Win Approach

Should you be approached by an EEO Counselor, take advantage of the opportunity to have the counselor assist you and the aggrieved in reaching a common understanding and working toward resolution as quickly as possible.

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.

Preparing To Enter the EEO Complaint Process

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.

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.

EEO Complaint Process FAQs

Is There a Basis To Address the Complaint Through the EEO Complaint 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.

Informal Stage of the Complaint Process

Complaint Process Flowchart

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.

Supervisors should be aware of the timeline and provide appropriate reasonable time for the employee to meet with the EEO Counselor.

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:
  • Ask the Complainant to sign a Withdrawal Form, or
  • Establish a resolution agreement with the terms of the agreement.
  • Terminate the EEO complaint process.
As a manager or supervisor, it important that you participate in good faith in resolution efforts.

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.
Supervisors should be aware of the timelines and provide reasonable accommodations for the employee to fulfill the requirements set forth in the formal stage of the complaint process.

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.

Formal Stage of the Complaint Process

Formal Stage of the Complaint Process Flowchart

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 DHS – Civil Rights and Civil Liberties.

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.

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

Within 30 days of the receipt of the investigation 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.

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.

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.
If the Administrative Judge rules in favor of the Agency, 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.

Formal Stage of the Complaint Process Flowchart

 

 

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.

Decision for the Complainant

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.

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 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.