EEO Refresher for Supervisors & Managers

EEO Refresher for Supervisors & Managers Welcome to CNATRA’s online EEO Refresher Training. Topics: Harassment Reasonable Accommodation Alternative Dispute Resolution (ADR) The last slide in this presentation is a completion certificate. Please forward a copy of this certificate to thomas.sheppard@navy.mil to ensure training records are updated. POC: Thomas H. Sheppard CNATRA N124 (361) 961-1781 DSN 861

Model EEO Program – MD-715 • Provides federal agencies with guidance and standards for establishing and maintaining effective affirmative programs of equal employment • Ensures that all employees and applicants for employment enjoy equality of opportunity in the federal workplace regardless of race, color, sex, national origin, religion, disability or engagement in prior protected activity • Examines employment policies, procedures and practices to identify and remove barriers to equal opportunity

Six Essential Elements of a Model Agency: • Demonstrated Commitment from Agency Leadership • Integration of EEO Into Agency’s Strategic Mission • Management & Program Accountability • Proactive Prevention of Unlawful Discrimination • Efficiency • Responsiveness and Legal Compliance

What Can Supervisors Do About Harassment? Your first responsibility is to show you have exercised reasonable care to prevent the harassment Lead by example and do not tolerate behavior that could be interpreted as harassment. Address any complaint that impacts your employee’s work environment, regardless of whether alleged harasser is civilian, military, or contractor. Monitor the workplace and be aware of potential problems (inappropriate jokes, employees’ treatment of co-workers, etc.) Explain to employees their rights and make them feel comfortable using the process.

Types of Harassment: A significant change in employment status. • Hiring and firing • Promotion and failure to promote • Demotion • Discipline • Undesirable reassignment or work assignment, etc. (1) Tangible Employment Action (2) Hostile Work Environment • Actions/behaviors that create an intimidating, hostile, or an offensive work environment. • Regular and repeated actions, gestures, or items displayed in the workplace that unreasonably interfere with job performance. • One incident may be sufficient to state a claim, such as physical contact.

STANDARD OF LIABILITYTangible Employment Action • Automatic liability. An employer is always liable for harassment/action by a supervisor on a prohibited basis that culminates in a tangible employment action. No affirmative defense is available. • The Supreme Court recognized this penalty as appropriate because an employer acts through its supervisors, and a supervisor’s undertaking of a tangible employment action constitutes an act by the employer.

AGENCY’S DEFENSE Hostile Work Environment Affirmative Defense consists of 2 elements: • The employer exercised reasonable care to prevent and correct promptly any harassment. [e.g., anti-harassment policy, complaint process, effective investigative process, confidentiality to the extent possible] • The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Management Inquiry • Protects all parties by gathering facts • Managers/Supervisors are obligated to report allegations of harassment up the chain of command or to the EEO Office. • If you are assigned to conduct a management inquiry: • Advise employee you are required to look into the allegations, that you will speak to any witnesses & the alleged harasser. • Speak to accuser and accused separately and privately • Employee should be told the allegations will be looked into immediately • Advise alleged harasser of the allegations and get their side of the story. • Both should be asked the same questions; AND notify both of them that you will follow up with them at the conclusion of the inquiry. • Verify information provided through witnesses and documents, if available

Contract/Contingent Workers Do not automatically exclude contract or contingent workers from the EEO informal counseling process without a determination whether the individual meets the definition of an agency employee Refer the contract or contingent worker to the EEO Office if they allege harassment or discrimination. The EEO Office will conduct an informal inquiry to make a determination into the employee’s status. The question of whether an employer-employee relationship exists with contractors who work for DoN depends on examining all aspects of the worker's relationship with the contracting agency and the Navy.

Reasonable Accommodation for Religion and Disability An employer must accommodate employees’ religious practices or “sincerely held beliefs” and disabled employees’ requests for accommodation unless the accommodation would cause an undue hardship upon the employer. Undue hardship is significant difficulty or expense when considered in light of employer's size, financial resources, and impact on the operations. Test of “undue hardship” is more rigorous in disability cases.

Reasonable Accommodation for Individuals with Disabilities The Rehabilitation Act of 1973 Americans with Disabilities Act (ADA) of 1990 DoN Civilian Human Resources Manual subchapter 1606 ADA Amendments Act (Sep 2008): Effective Jan. 1, 2009, widened ADA coverage, and will have a significant impact on how "individual with a disability" is defined.

Individual with a Disability and QID An individual with a disability is a person who: Has a physical or mental impairment that substantially limits one or more major life activities; Has a record of such an impairment; or Is regarded as having such an impairment. Qualified individual with a disability (QID) is an employee/applicant who, with or without reasonable accommodation, can perform the essential functions of the job in question.

Requesting Reasonable Accommodation • There are no magic words. • Employee lets the employer know s/he needs an adjustment at work because of a medical condition. • A family member, friend, health professional or other representative may request on an individual’s behalf, but the accommodation can be refused if it isn't needed. • An initial request for accommodation does not have to be in writing. An employer can ask the individual to submit a form or written request, but cannot ignore the verbal request. • An agency may not require that a request for reasonable accommodation be made to a specific agency official.

Interactive Process • Parties should engage in an informal and flexible interactive process to identify precise limitations of the employee and what accommodations could overcome those limitations. • Management’s failure to engage in the interactive process alone is generally insufficient to support a finding of disability discrimination, but can lead to liability for the agency. • Equally, the individual is also responsible for the process by meeting, suggesting accommodation, providing documentation as requested, etc.

Management, HRO and the disabledemployee must meet to determine if the employee’s medical documentation is sufficient to make a disability analysis. The interactive discussion should include: Review of the employee’s completed request form Clarification of the physical or mental impairment. Request for medical information, if needed. Options for accommodation. Interactive Process

When the Employee is not a QID If an employee is found not to have a qualifying disability, the command is not obligated to fulfill the accommodation request. The command should notify the employee in writing that s/he does not qualify and why. The letter must also explain the arrangement provided, if any. In other words, the command or activity advises the employee it does not consider the employee to be disabled but will try to help the employee anyway even though they are not obligated to do so. Commands are advised to seek further advice from their servicing HRO Labor Advisor and the EEO Office.

Medical Documentation • Medical information or a medical exam cannot be requested before an offer of employment is extended unless applicant requests accommodation. • Reasonable documentation is documentation needed to establish the person has a disability, and that the disability necessitates a reasonable accommodation. • The agency may request only information relevant to making a decision about reasonable accommodation. • Generally management cannot ask for an entire medical record because it likely contains unrelated information. • An agency may require documentation about the disability or limitations come from an appropriate professional: doctor, social worker, or rehab counselor.

Medical Information – Privacy Rights • Never request medical documentation without HRO involvement or at least a medical release • Medical information and documentation are protected under Health Insurance Portability & Accountability (HIPAA) privacy laws • Medical information is to be retained separately from the individual’s personnel files. • RA files are maintained in the EEO Office. • Never discuss an employee’s medical condition with anyone who does not have an official need to know.

Undue Hardship An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. An employer is not required to lower quality or production standards to make an accommodation; nor is an employer obligated to provide personal use items such as glasses or hearing aids. An employer must also consider whether the employee can perform the work safely without being a threat to self and/or others

Examples of Reasonable Accommodations Making existing facilities more accessible Restructuring job Utilizing part time or modified work schedules Telework Providing qualified readers or interpreters Acquiring or modifying equipment

Accommodation Resources If the employee who is an individual with a disability cannot be accommodated in his/her current position a job search will be conducted in the following steps: Management/HRO/HRSC/Echelon II Command conducts job search Command-wide vacant positions Area-wide Major Claimant-wide Navy-wide • Computer/Electronics Accommodations Program (CAP): www.tricare.mil/cap • CNRH Reasonable Accommodation POC: Ms. Lacy Lynn, 471-0231

Accommodation for Religious Beliefs/Practices Complainant must show: He or she a bona fide religious belief that conflicts with an employment requirement; He or she informed the agency of that belief; and The employment requirement would force the complainant to abandon a fundamental aspect of his or her belief. The agency must show it made a reasonable effort to accommodate the complainant’s belief; and The agency must show that accommodating the belief would cause more than a deminimis(little or no impact) hardship on its operations.

To accommodate employees’ beliefs, the government allows limited expression so long as that activity does not imply that the government endorses a particular religious belief. If an employer accommodates one religion, it must offer comparable accommodation to other religions. Employers may authorize use of facilities for religious discussion or prayer but only if the employer offers similar space to other groups for non-work related gatherings. Accommodation for Religious Beliefs/Practices

Navy ADR Policy SECNAVINST 5800.13A: “ADR techniques shall be used as an alternative to litigation or formal administrative procedures to the maximum extent practicable…Every issue in controversy, regardless of the subject matter, is a potential candidate for ADR.” Mediation is the preferred method of ADR for DoN, and can be elected at any point in the process. Contact Ms. Carla Kishimori, EEO ADR Convener, by phone: (808) 471-0283 or email: carla.kishimori@navy.mil. In the past, if an employee chose ADR in the EEO complaints process, management’s participation was voluntary

Alternative Dispute Resolution (ADR)and the EEO Complaints Process Effective 31 December 2008, the Secretary of the Navy changed the ADR provision to require that rejection of ADR by management must be justified in writing in accord with the Civilian Human Resources Manual, Subchapter 1614.1 Management’s rejection of ADR must be made by a level of management, normally the 2nd level supervisor or higher, who was not involved in the action that gave rise to the complaint The signed rejection will be included in the official EEO record and may not be the subject of any new or additional claim

What is Mediation? • Mediation is the ADR Process used by the Navy • People are encouraged to resolve problems in ways that work for them • Disputing parties may have representation • Settlements are voluntary • Neutral Facilitator • Improve the working relationship by communication and clarification • Accelerated Resolution • If problem is not resolved, may continue to pursue complaint through the EEO Process

Who are your EEO Officials?

Certificate of Completionis hereby granted to____________________________________to certify satisfactory completion of EEO Refresher for Supervisors Date: ______________________ Thomas H. Sheppard Thomas H. Sheppard, PhD Civilian Training Officer

EEO Refresher for Supervisors & Managers