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1.
NO FEAR ACT TRAINING
3. Why is this training important?
At the conclusion of this training, you should know:
The basic provisions of the No FEAR Act and
Important Federal laws making discrimination and retaliation in the workplace illegal.
4. What is the No Fear Act?
The No Fear Act was passed in 2002 and requires:
Increased accountability on the part of Federal agencies;
That Federal agencies pay judgments for discrimination and whistleblower cases out of their budgets instead of a Federal Judgment fund;
That Federal agencies file reports with Congress; and
That Federal agencies train and notify employees of their rights and protections under antidiscrimination and whistleblower laws.
5. Antidiscrimination Laws As a Federal employee, you are protected from discrimination in employment matters on the basis of one of more of the following: race, color, religion, sex, national origin, age, disability, reprisal for engaging in protected activity, or sexual orientation (although not covered by statute, sexual orientation discrimination is prohibited by policy at the U.S. Department of Transportation (DOT)).
6. There are two general theories of discrimination:
Disparate (Adverse) Impact Theory
No discriminatory intent
A facially neutral policy or practice that has a disparate or adverse impact on a protected group
Disparate Treatment Theory
Employer intentionally treats a person differently based on race, color, national origin, sex, religion, age, disability, or EEO activity.
7. Types of Employment Matters Covered 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;
For more information on what constitutes an employment matter, please visit www.eeoc.gov.
8. Title VII of the Civil Rights Act of 1964 Prohibits discrimination in employment based on race, color, religion, sex, national origin, and reprisal or retaliation for having raised discriminatory practices or participating in the EEO process.
Sexual harassment (involving conduct of a sexual nature) as well as harassment based on race, color, religion, sex, national origin, and/or reprisal/retaliation, is prohibited based on the provisions of this law. (Harassment is defined further, below.)
9. Civil Rights Act of 1991 Provides for the recovery of compensatory damages by Federal sector employees who successfully prove discrimination, and provides for obtaining attorneys' fees and the possibility of jury trials. Prior to 1991, the recovery of damages by Federal employees was much more limited.
10. Equal Pay Act of 1963 Prohibits discrimination on the basis of sex in the payment of wages or benefits, where men and women perform work of similar skill, effort, and responsibility for the same employer under similar working conditions.
11. The Pregnancy Discrimination Act An amendment to Title VII of the Civil Rights Act of 1964, makes it unlawful to discriminate against an applicant or employee on the basis of pregnancy, childbirth, or related medical conditions. The Act requires that an employer treat pregnancy the same as any other short-term disability.
12. Section 501 of the Rehabilitation Act of 1973 Prohibits discrimination against qualified individuals with a disability who work in the Federal government or apply for employment with the Federal government. In addition to prohibiting the different treatment of individuals on the basis of a disability, the law also provides that reasonable accommodation must be provided to employees and applicants.
13. The Age Discrimination in Employment Act The Age Discrimination in Employment Act (ADEA) prohibits discrimination against individuals who are 40 years and older.
14. Discrimination based on Sexual Orientation Executive Order 13087, Equal Opportunity in the Federal Government, established, for the first time, a policy in the Federal government prohibiting employment discrimination on the basis of sexual orientation. However, the rights and remedies available to individuals alleging or proving discrimination on this basis are more limited than the civil rights statutes discussed, above. For example, because this protection was established by executive order and not by Congress, there is no right to a hearing or appeal to the EEOC, or to file a civil action in a U.S. District Court.
15. Protection Against Reprisal or Retaliation The antidiscrimination laws mentioned above protect you from reprisal for exercising your rights under those Acts.
Protected activities may include: raising discriminatory practices with an official, contacting an EEO counselor or filing a complaint of discrimination, requesting reasonable accommodation, or providing evidence or testimony about an EEO matter.
16. EEOC Regulations The Equal Employment Opportunity Commission (EEOC) is responsible for the administration and enforcement of equal opportunity laws in Federal employment, and is authorized to issue related rules, regulations, orders and instructions. EEOC regulations may be found at Title 29 of the Code of Federal Regulations, Part 1614.
17. Marital Status & Political Affiliation 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. 5 U.S.C. § 2302(b)(1).
If you believe discrimination has occurred on one of these basis, you may file a written complaint with the U.S. Office of Special Counsel (OSC). You may also be covered by a collective bargaining agreement or administrative grievance procedure. Please check with a union representative or labor relations specialist.
18. 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 and the intranet or you may contact your civil rights office. See http://www.dotcr.ost.dot.gov for a list of civil rights offices. (The Federal Aviation Administration also has a National Intake Unit to initiate a pre-complaint that may be accessed on 1-888-WK-IT OUT (1-888-954-8688)
Employees complaining about age discrimination can bypass the Administrative process and go directly to the courts.
19. If You Believe Discrimination Occurred The counselor will try to resolve the complaint and will offer you an opportunity to request the use of Alternative Dispute Resolution (ADR) to resolve your complaint. Mediation is the form of ADR used at the Department to attempt to resolve EEO related disputes. The ADR website address is http://www.dotcr.ost.dot.gov/asp/adr.asp
If the complaint is not resolved, you will be provided a Notice of Right to File a Formal Complaint. You must file within 15 calendar days from receipt of the Notice.
Employees covered by a negotiated bargaining agreement which permits allegations of discrimination may elect to proceed under the negotiated bargaining agreement, rather than filing a formal complaint of discrimination.
20. If You Believe Discrimination Occurred
You are entitled to the following:
To be represented, and
A reasonable amount of official time to work on an EEO complaint.
21. Whistleblower Protection Laws 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.
22. Whistleblower Protection Laws 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.
23. Filing a Whistleblower Protection Complaint If the personnel action is within the Merit System Protection Board’s (MSPB) jurisdiction, the appellant may file a complaint with the Office of the Special Counsel (OSC) before filing an appeal with the MSPB, or may choose to go directly to MSPB with an appeal.
If the appellant chooses to go directly to the MSPB:
The appeal must be filed no later than 30 days after the effective date of the action being appealed, or 30 days after receipt of the agency’s decision, whichever is later.
If an Alternate Dispute Resolution (ADR) process is used, the appellant may extend the filing period by 30 days, for a total of 60 days.
24. Filing a Whistleblower Protection Complaint If a stay request has been filed with the MSPB without prior filing of an appeal:
The appeal must be filed within 30 days after the date the appellant received the order ruling on the stay request.
If the personnel action does not fall under the MSPB jurisdiction, the appellant must first file a complaint with the OSC before filing an appeal with the MSPB.
25. Filing a Whistleblower Protection Complaint A complaint may be filed with OSC by using Form OSC-11 (Complaint of Possible Prohibited Personnel Practice or other Prohibited Activity)
Form OSC-11 can be obtained by contacting:
Office of Special Counsel (OSC)
Complaints Examining Unit
1730 M Street, NW, Suite 218
Washington, DC 20036-4505
800-872-9855 (toll free) or 202-653-7188
26. Filing a Whistleblower Protection Complaint After the OSC complaint process is exhausted, the appellant may file an appeal with the MSPB:
No later than 65 days after the date that OSC’s written notification was issued terminating the investigation; or
If notification was received more than 5 days after the date of issuance, the MSPB appeal must be filed within 60 days after the date OSC’s notification was received.
If OSC has not notified the appellant that it will seek corrective action within 120 days of the filing date, the appellant may file an MSPB appeal at any time after the 120 day period expires.
27. Manager and Supervisor Responsibilities A manager or supervisor is required to:
Ensure all personnel and work-related actions are based on legitimate, non-discriminatory reasons.
Provide reasonable accommodation to qualified individuals with disabilities, as appropriate.
Cooperate with any investigative authority within the Department.
28. Manager and Supervisor Responsibilities A manager or supervisor is required to:
Keep medical information separate from personnel files.
Provide a reasonable amount of official time to an employee who requests time to work on an EEO complaint.
Ensure employees are not subjected to a hostile work environment based on race, color, national origin, religion, age, disability, sex, reprisal or sexual orientation.
Act promptly with regard to all allegations of harassment.
29. Where Do I Go For More Information? For questions about the antidiscrimination laws and policies, contact your Operating Administration Civil Rights Office or the Departmental Office of Civil Rights (DOCR). http://www.dotcr.ost.dot.gov/asp/DOTPart.asp
For a detailed explanation of the EEO complaint process, please visit http://www.dotcr.ost.dot.gov
Information regarding the Whistleblower Protection Act can be obtained from your local HR Office, or visit www.osc.gov
30. No FEAR Act Notice
To view DOT’s No FEAR Act Notice, go to
http://www.dotcr.ost.dot.gov/asp/nofear.asp
