USMC / USN requirement of All Civilian and Military Members to Receive Annual Equal Employment Opportunity (EEO) Training. Available Classroom

Transcription

1 MCCS Hawaii

2 USMC / USN requirement of All Civilian and Military Members to Receive Annual Equal Employment Opportunity (EEO) Training. Available Classroom Training Available On-Line Training It is Important for Employees to Know Their Rights and the Laws That Protect Them if They Feel They Have Been Subjected to Discrimination.

3 An applicant, former or current employee may file a discrimination complaint with the agency that allegedly committed the discriminatory act, practice, or personnel action.

4 29 Code of Federal Regulations (CFR) 1614

5 RACE COLOR RELIGION NATIONAL ORIGIN SEX AGE DISABILITY (Physical and/or Mental) REPRISAL/No FEAR Act (Prior EEO Activity)

6 See EEOC s web page at: The Equal Employment Opportunity Commission (EEOC) enforces all of these laws. EEOC also provides oversight and coordination of all federal EEO regulations, practices, and policies.

7 An unlawful employment practice occurs when an employer fails or refuses to hire, discharges, or otherwise discriminates against an individual with respect to a term, condition, or privilege of employment because of an individual s race, color, religion, sex, national origin, age, disability, or reprisal.

8 No person shall be subjected to retaliation for opposing any practice made unlawful by : Title VII of the Civil Rights Act Equal Pay Act Age Discrimination Employment Act Rehabilitation Act Participating in any stage of an administrative or judicial proceeding under those statutes.

9 Answer: Yes An aggrieved person must initiate contact with an EEO Counselor within 45 calendar days of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 calendar days of the effective date of the action.

10 Answer: Yes An EEO Complaint is a complaint filed in accordance with 29 CFR If an employee is covered by a collective bargaining agreement (union) with a Negotiated Grievance Procedure (NGP) that does not exclude processing a grievance involving an allegation of discrimination, the employee may elect to pursue the matter under either the NGP or 29 CFR 1614, but may not employ both procedures. If an employee is not covered by a NGP and files an Administrative Grievance alleging discrimination, the employee will be notified that the processing of the matter will be terminated and the employee given the opportunity to withdraw the allegation of discrimination and continue under the Administrative Grievance Procedure or to proceed under 29 CFR 1614.

11 EQUAL PAY ACT (EPA) OF 1963 Protects men and women who perform substantially equal work (requiring the same skill, effort, and responsibility that are performed under similar working conditions).

12 TITLE VII OF THE CIVIL RIGHTS ACT OF Prohibits employment discrimination based on race, color, religion, sex, or national origin. -- Sexual harassment is a form of sex discrimination in violation of Title VII of the Civil Rights Act of 1964.

13 The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of Discrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII.

14 AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA) of th Protects individuals who are 40 years of age and older.

15 SECTION 501 REHABILITATION ACT OF 1973 Prohibits discrimination against qualified individuals with disabilities who work in the federal government.

16 TITLE I OF THE AMERICANS WITH DISABILITIES ACT OF 1990 (ADA) Prohibits employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments.

17 Under Title VII, the ADA, and the ADEA, it is illegal to discriminate in any aspect of employment, including but not limited to: -- hiring and firing -- compensation, assignment, or classification of employees -- transfer, promotion, layoff, or recall -- job advertisements -- recruitment -- testing -- use of company facilities -- training and apprenticeship programs -- fringe benefits -- pay, retirement plans, and disability leave -- other terms and conditions of employment.

18 Harassment on the basis of race, color, religion, sex, national origin, disability, or age Employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities Denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.

19 EXECUTIVE ORDER prohibits discrimination based on sexual orientation in the federal civilian workforce. NOTE: No complaint rights under 29 CFR 1614, but may in certain circumstances seek assistance from Merit Systems Protection Board (MSPB); Office of Special Counsel (OSC); Negotiated Grievance Procedure (NGP) or an Administrative Grievance Procedure.

20 The types of behavior that create a hostile work environment include unwelcome comments or conduct that unreasonably interfere with an individual s work performance or creates an intimidating, hostile or offensive work environment. Harassment in the workplace occurs when an individual or group of people is treated inappropriately because of their membership in one or more of the protected groups.

21 An employer is always liable for harassment by a supervisor that results in a tangible employment action. Tangible employment actions include: Hiring, firing, promotion, failure to promote, demotion, undesirable reassignment, decision causing significant change in benefits, compensation decision, and work assignment.

22 An employer is liable for a hostile work environment by a supervisor that does not result in a tangible employment action unless it can prove: (1) That it exercised reasonable care to prevent and correct promptly any harassment (2) That the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm otherwise.

23 An employer is liable if management knew or should have known about the harassment and failed to take immediate and appropriate corrective action.

24 An employer is liable if management knew or should have known about the harassment and failed to take immediate and appropriate corrective action within its control.

25 EEOC guidance allows employees to engage in personal religious expression to the greatest extent possible, consistent with workplace efficiency and requirements of Federal law. Agencies are required to accommodate the religious practices of employees and prospective employees unless doing so causes an undue hardship.

26 Supervisors: If an employee asserts a need for religious accommodation, you should do the following: -- Inquire as to the nature of the employee s beliefs -- Consider the sincerity with which the employee holds those beliefs -- Consider the nature of the conflict between the employee s religious beliefs and his or her job obligation -- Consider possible accommodations -- Consider the burdens on business of each accommodation -- Offer an accommodation unless to do so would cause an undue hardship. NOTE: A showing of undue hardship cannot be based on pure speculation.

27 Ensure your actions are free from discrimination! Monitor the conduct of your employees to ensure your workplace is free from hostile, discriminatory, and/or offensive behavior, including sexual harassment Take immediate action to investigate and take appropriate corrective action in cases of inappropriate behavior; to include R&A for sexual harassment. Communicate the discrimination complaint procedures to your employees

28 Carefully examine your words before you speak and/or write. Remember, your comments may reflect a bias. Be consistent in the manner in which you treat your employees. Always apply standards equally. Consider only factors that are objective and job related. Keep fair and accurate records. Make sure your records reflect the facts of a situation rather than an opinion and/or assumption. Never retaliate! Ask yourself - Would you treat an employee who hadn t filed a complaint the same way?

29 Conduct yourself in a manner consistent with the principles of EEO and which reflects positively on the Department of the Navy (DON), and United States Marine Corps. Cooperate with EEO program officials, counselors, agency representatives, and investigators, as required.

30 You have the right to file an EEO complaint if you are an aggrieved employee (one that has suffered with respect to a term, condition, or privilege of your employment as a result of discrimination); You are entitled to a reasonable amount of official time; You have the right to remain anonymous during the precomplaint stage (anonymity is not protected once you file a formal complaint); You have the right to representation throughout the complaint process; The possible election requirement between a NGP and the EEO process; The election requirement in the event that the claim at issue is appealable to the Merit Systems Protection Board (MSPB) (civil service); and You have the right to choose between the agency s ADR process or EEO counseling, where the agency offers ADR. Additional rights and responsibilities are addressed by an EEO Counselor during precomplaint counseling.

31 MCCS Hawaii POSH Prevention of Sexual Harassment

32 NAVY DIRECTIVES REQUIRE ALL EMPLOYEES (CIVILIAN AND MILITARY) RECEIVE ANNUAL PREVENTION OF SEXUAL HARASSMENT (POSH) TRAINING.

33 Identify Subtle Sexual Harassment Understand Definition of Quid Pro Quo Harassment Understand Definition of Hostile Work Environment Harassment Explain the Court s Viewpoint of Perception over Intention Understand Third Party Sexual Harassment

34 Sexual Harassment is a form of sex discrimination which is a violation of Title VII of the Civil Rights Act of 1964.

35 The EEOC defines sexual harassment as follows: Unwelcome sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature constitute sexual harassment when: -- Submission to such conduct is made explicitly or implicitly a term or condition of employment; -- Submission to or rejection of such conduct by an individual is used as a basis for an employment decision affecting individuals; -- Such conduct has the purpose or effect of unreasonably interfering with an individual s work performance or creating an intimidating, hostile or offensive work environment. See EEOC s web page at

36 The victim may be a woman or a man. The victim does not have to be of the opposite sex. The victim does not have to be the person harassed but could be anyone affected by the offensive conduct, which is referred to as a third party.

37 Remember! If your behavior (verbal or non-verbal) with someone else is sexual in nature and such behavior results in others in the vicinity being made to feel threatened, intimidated, or uncomfortable, your behavior could be perceived as creating a hostile work environment.

38 VERBAL Sexual stories or questions about a person s sexual experiences or preferences Jokes Using four-letter obscenities Inappropriately commenting on a person s body and/or appearance Asking for dates Making suggestive sounds or whistling Calling someone names such as honey, doll, babe; stud, hunk NON-VERBAL Staring at a person Following or blocking a person Showing sexually explicit pictures, cartoons or other visuals Making suggestive gestures Sending unwanted notes or other material Giving unwanted personal gifts Exposure Touching a person PHYSICAL Leaning over a person Standing too close to a person Brushing up against a person Kissing Caressing Pinching Actual/Attempted Rape

39 EEOC guidelines define two types of sexual harassment: 1. Quid Pro Quo 2. Hostile Work Environment

40 Quid Pro Quo is a Latin phrase which means this for that. It is a legal term used to define an arrangement where sexual favors are solicited from a supervisor/manager (someone in authority) in exchange for job benefits and/or other compensation. Also, Quid Pro Quo would apply anytime job benefits and/or other compensation are withheld from an employee because of his/her rejection of requests for sexual favors or for reacting negatively towards sexuallyoriented behavior.

41 Hiring & Firing; Promotion and Failure to Promote; Demotion; Undesirable Reassignment; A Decision Causing a Significant Change in Benefits; Compensation Decisions; and Work Assignment.

42 Hostile Work Environment is the most common type of sexual harassment. Very often the behavior is subtle. Hostile work environment occurs when conduct of a sexual nature (severe and pervasive) creates an environment that is intimidating, hostile or offensive to an individual, which interferes with that employee s ability to come into the workplace and perform his/her duties.

43 Pervasive behavior is that which is widespread, common, or repeated. Behavior of a sexual nature is considered severe when it would be objectionable to a reasonable person within the circumstances.

44 The Reasonable Person standard is a legal standard used to determine what behavior is offensive in a legal case involving sexual harassment. Keep in mind, that a Court gives more weight to the victim s perception rather than the perpetrator s intention. The question asked is: Would the behavior substantially affect the work environment or psychological well-being of a reasonable female/male from the perspective of the victim?

45 Some questions to be asked: Did the conduct unreasonably interfere with an individual s work performance? Did the conduct create an intimidating, hostile, or offensive working environment? Was the conduct verbal or physical or both? How frequently was the conduct repeated? Who is the alleged harasser (a co-worker, supervisor, or non-employee)? If the harasser was a supervisor, did the individual suffer with respect to a term, condition, or privilege of his/her employment; i.e., a tangible employment action? Did others join in perpetrating the harassment? Was the harassment directed at more than one individual? Remember No one factor controls. An assessment is made based upon the totality of the circumstances.

46 In quid pro quo cases, the answer is yes IF it is linked to the granting or denial of a tangible employment action and/or benefit. In contrast, unless the behavior is pervasive and/or severe, a single incident or isolated incidents of offensive sexual conduct or remarks generally DO NOT create a hostile work environment. A hostile work environment claim generally requires a showing of a pattern of offensive conduct. However, a single incident involving touching/physical contact may be sufficient to constitute a Title VII violation.

47 Answer: YES The Equal Employment Opportunity Commission (EEOC) will evaluate on a case-by-case basis the totality of the circumstances to determine the nature, the frequency, the context, and the intended target of the remarks. Relevant factors may include: (1) whether the remarks were hostile/derogatory; (2) whether the alleged harasser singled out the charging party; (3) whether the charging party participated in the exchange; and (4) the relationship between the charging party and the alleged harasser.

48 Causes Emotional Distress Lowers Productivity Lowers Morale Increases Employee Turnover Rates Increases Absenteeism Inhibits Growth and Creativity

49 When harassment culminates in a tangible employment action, the employer CANNOT raise an affirmative defense. When harassment by a supervisor creates an unlawful hostile work environment but does not result in a tangible employment action, the employer can raise an affirmative defense to liability or damages, which it must prove by a preponderance of the evidence, consisting of two necessary elements: -- The employer exercised reasonable care to prevent and correct promptly any harassment; and -- The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

50 It is your responsibility to ensure the following: 1. Your employees understand there is a ZERO tolerance for inappropriate behavior and the consequences of such behavior. 2. Your employees understand and know their rights and that policy statements are posted on official bulletin boards explaining their rights and the applicable time limits. 3. All employees receive annual Prevention of Sexual Harassment Training. 4. You conduct a prompt, thorough investigation into allegations of harassment and take appropriate corrective action when warranted. 5. Observe (look and listen) the work environment and talk to your employees. Never ignore questionable behavior. Remember Supervisors: Your behavior has a way of setting the tone as to what level of behavior is expected and tolerated! You are an agent of the agency and may be held accountable for any type of harassment.

51 Preventing sexual harassment is EVERYONE S responsibility both both employees and supervisors! Tell the harasser that the conduct is unwanted and offensive and ask that it STOP. Record what happened, documenting who, where, when, what, and any possible witnesses Tell your supervisor or the harasser s supervisor about the incident. Contact the EEO office, at Bldg ,

52 Employees have rights under two separate and distinct processes when raising an allegation of sexual harassment and can exercise their right to file under both. Under 29 CFR 1614, an employee, applicant for employment, or former employee, may bring an allegation of sexual harassment to the EEO Programs Department, HRO Norfolk, alleging discrimination on the basis of sex in violation of Title VII of the Civil Rights Act. Under this process, employees, former employees, or applicants who perceive they have been discriminated against must seek counseling on alleged discriminatory matters within 45 calendar days of the incident or personnel action. Title 10 Section 1561 requires that if an employee notifies command management of a sexual harassment allegation, the CO or OIC of that command will proceed with an investigation in accordance with Title 10 Section At the same time, the employee must be made aware of his/her right to pursue the discrimination complaint process under 29 CFR 1614 and of the 45-calendar day time limit within which to do so.

53 MCCS Hawaii No FEAR Act

54 Congress passed the No FEAR Act to ensure that the rights of employees, former employees, and applicants for employment are protected under discrimination, whistleblower and retaliation laws. This training will inform you of the No FEAR Act and other laws making discrimination and retaliation in the workplace illegal. This training should take no more than 30 minutes to complete.

55 At the conclusion of this training, you should: Understand the basic provisions of the No FEAR Act. Know what Antidiscrimination and Whistleblower Protection Laws protect you. Understand how to file a complaint alleging discrimination, retaliation, or a violation of the Whistleblower Protection Laws.

56 Congress enacted the Notification and Federal Employee Antidiscrimination and Retaliation Act (No FEAR Act) on May 15, The Act requires Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws.

57 The Act requires Federal agencies to: 1) Reimburse the Treasury Judgment Fund for payments made in Federal District court cases involving violations of discrimination and whistleblower laws. 2) Post information on its public website relating to complaints of discrimination and annually report to Congress. 3) Train and notify employees on their rights and protections under the antidiscrimination and whistleblower laws.

58 As a Federal employee, you are protected from illegal discrimination in employment matters on the basis of your race, color, religion, sex, national origin, age, and disability. Illegal discrimination occurs when one employee is treated differently than another employee and treatment is based on race, color, religion, sex, national origin, age, and disability.

59 Employees and applicants are also protected from discrimination based on sexual orientation, parental status and protected genetic information. While these protections are not addressed in the No FEAR Act, you should be aware that discrimination on these bases is prohibited and covered by specific procedures within Department of the Navy and United States Marine Corps. If you believe you have been discriminated against on any of these bases, the same procedures and time frames for EEO counselor contact outlined later in this training will apply.

60 The Antidiscrimination Laws protect you from discrimination concerning the terms and conditions of your employment. Below is a list of some of the employment matters covered: Hiring, promotion, pay, leave, awards, assignments, training, suspensions, and terminations; Requests for reasonable accommodation for religious reasons or for reasons based on disability.

61 Harassment or creation of a hostile work environment based on race, color, religion, sex, sexual orientation, national origin, disability, or age is also covered. The Marine Corps has a zero tolerance policy relating to harassment.

62 Title VII of the 1964 Civil Rights Act, as amended, protects employees from employment discrimination on the basis of sex, race, color, national origin, or religion. Sexual harassment and pregnancy discrimination are considered forms of sex discrimination and are prohibited by Title VII.

63 In addition to protection against discrimination because of religion, Title VII also establishes the agency s duty to provide reasonable accommodation for an employee s religious beliefs unless doing so would impose an undue hardship on the employer.

64 The Age Discrimination in Employment Act (ADEA) prohibits discrimination against Federal employees who are 40 years of age or older. The Act protects covered employees from employment actions based on age.

65 The Rehabilitation Act of 1973 prohibits employment discrimination against Federal employees with disabilities. In addition, agencies must provide reasonable accommodation for an employee or applicant with a disability. A disability is a physical or mental impairment that substantially limits a major life activity (breathing, walking, seeing, hearing, performing manual tasks).

66 A temporary or short term illness is not a disability. An inability to work in only one type of job, for one particular supervisor, or in one location is not a disability. You must be qualified for your position. If you cannot perform the essential functions of the job, with or without reasonable accommodation, you are not qualified.

67 The Federal government has an obligation to seek reasonable accommodation to individuals with disabilities. A reasonable accommodation is an adjustment to the work situation or environment to enable you to perform your job, as long as it is not an undue hardship to the agency.

68 The accommodation does not have to be specifically what is requested by the employee. It does have to be a reasonable, effective accommodation. The Agency has no obligation to change performance standards or to eliminate essential functions of your position as a reasonable accommodation.

69 The Equal Pay Act of 1963 prohibits federal agencies from paying employees of one sex lower wages than those of the opposite sex for performing substantially equal work.

70 The Antidiscrimination laws mentioned previously protect you from reprisal for exercising your rights under those Acts. Protected activities may include filing a complaint of discrimination, requesting reasonable accommodation, giving evidence or testimony to an investigator or in a hearing, or complaining about or protesting perceived discrimination against you or another employee.

71 You must contact an EEO counselor within 45 calendar days from when you first became aware of the alleged discrimination. The names and telephone numbers of EEO counselors are available on bulletin boards, the intranet or you may contact your EEO Officer. Employees complaining about age discrimination may give notice of intent to sue to the Equal Employment Opportunity Commission within 180 days of the alleged discrimination.

72 The counselor will try to resolve the complaint and may offer you an opportunity to use Alternative Dispute Resolution (ADR) to resolve your complaint. If the complaint is not resolved, you will be provided a Notice of Right to File a Complaint. You must file within 15 calendar days from receipt of the Notice.

73 You are entitled to a reasonable amount of official time to prepare and present your complaint. While there is no set time, official time is normally granted in terms of hours, not days. You are also entitled to official time to meet with a counselor, an investigator or to participate in the hearing.

74 Federal law makes it illegal to discriminate against Federal employees because of their marital status or political affiliation or to retaliate against employees for exercising their rights. If you believe discrimination has occurred on one of these basis, you may file a written complaint with the Department of Defense Inspector General (DODIG). You may also pursue such a complaint through your administrative grievance system or the negotiated grievance procedures, if applicable.

75 A manager or supervisor is required to: Ensure you have legitimate, non-discriminatory reasons for the actions you take. Ensure you treat employees fairly and equitably. Provide reasonable accommodation to individuals with disabilities. Check with HR if you have questions about whether reasonable accommodation is appropriate. Only disclose medical information to officials with a need to know and keep medical information separate from personnel files as required by the Health Insurance Portability and Accountability Act.

76 Provide a reasonable amount of official time to an employee who requests time to work on an EEO complaint. Cooperate with an EEO counselor or EEO investigator. Failure to do so may result in a disciplinary action. Ensure employees are not subjected to a hostile work environment because of their race, color, national origin, age, sex or disability. Act on all complaints of harassment. Document discussions/inquires Don t retaliate against an employee for filing a complaint or for his/her participation in an EEO/Harassment investigation.

77 A Federal employee with authority to take, direct others to take, recommend or approve any personnel action must not use that authority to take or fail to take, or threaten to take or fail to take, a personnel action against an employee or applicant because of disclosure of information by that individual that is reasonably believed to evidence: Violations of law, rule or regulation; Gross mismanagement; Gross waste of funds; An abuse of authority; or A substantial and specific danger to public health or safety.

78 Employees may not disclose information if disclosure is specifically prohibited by law or if the information is required under Executive Order to be protected from disclosure in the interest of national security. A Federal agency cannot retaliate against an employee or applicant because that individual exercises his or her rights under the Whistleblower Protection Act. 5 U.S.C 2302(b)(8) prohibits retaliation against an employee or applicant for making a protected disclosure.

79 DoD Directive , "Reprisal Protection of Nonappropriated Fund Instrumentality Employees/Applicants," revised on October 16, 2001, provides that DoD Component Inspectors General may accept reprisal allegations from nonappropriated fund employees. The Directive further provides that the Component Inspectors General must forward the reprisal allegations to the DODIG for resolution

80 A complaint may be filed with the DOD component Inspector General or with DODIG at Department of Defense Inspector General, ATTENTION: Defense Hotline, 1900 Defense Pentagon, Washington, DC, For guidance for the content of Complaint of Reprisal or for on-line submission see DoD Hotline web site at

81 For questions about the Discrimination Laws, contact your EEO Officer. For a detailed explanation of the EEO complaint process visit the web at Information regarding the Whistleblower Act and Protections can be obtained from your local HR Office, or visit

82 To view DoD No FEAR Act Notice, go to ngnotice.htm -

83 Camp Marine Lejeune Corps Base MCCS Hawaii EEO Office, EEO Office Bldg. at (on the right at the main gate going out)

84 Print Name & Date Command/Office Signature & Employee ID # Supervisor Signature