Transcript What Would You Do? - Mediterranean District ePortal

An EEO Perspective
Robin Jamison
DSN 338-7558
[email protected]
DODEA Europe EEO Contacts
• A person must contact an EEO official within 45 days of the incident
he or she believes is discriminatory. In DoDDS-Europe you must
contact either:
• Robin Jamison, DSN 338-7558
[email protected]
• William Suddeth, DSN 338-7561
[email protected]
Cell (49)162-234-2064
• DO NOT CONTACT A LOCAL BASE EEO OFFICE. THEY WILL
NOT PROCESS EEO COMPLAINTS FOR DODDS-E
EMPLOYEES. FURTHER, IT COULD RESULT IN YOUR CASE
BEING DISMISSED.
Basis For EEO Complaints
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National Origin
Age
Disability
Sex (to include pregnancy)
Race
Color
Religion
Genetic Information
Reprisal for Prior Protected EEO Activity
• EVERYONE, INCLUDING YOU, IS A MEMBER OF A
PROTECTED CLASS!
Employment Discrimination
• When one distinguishes or differentiates between
people on the basis of their protected class with
respect to a term, condition, or privilege of
employment.
Disparate Treatment
• This is by far the most common theory under
which discrimination complaints are brought
forward. The complainant essentially alleges that
he or she was intentionally treated differently in
connection with an employment-related matter
because of a prohibited factor.
Elements of Retaliation
• There are three essential elements of a retaliation
claim:
• Participation in the EEO process or opposition to
a discriminatory employment practice.
• Adverse action.
• Causal connection between the protected activity
and the adverse action.
Participation
• What is EEO Participation?
• Filed a complaint of discrimination.
• Testified, assisted, or participated in an EEO
proceeding, EEOC or federal court proceedings
in which the statues enforced by EEOC were
challenged.
• Request for a reasonable accommodation.
Opposition
• The anti-retaliation provisions also make it
unlawful to discriminate against an individual
because s/he opposed any practice made
unlawful under the employment discrimination
statutes.
• Examples: threatening to file a discrimination
complaint; complaining to anyone at the
workplace about alleged discrimination against
oneself or others; union activity with an EEO
component
Adverse Actions/Casual Connection
• Adverse actions need not qualify as “ultimate
employment actions” or materially affect the
terms or conditions of employment to constitute
retaliation. (anti-retaliation provisions are
exceptionally broad)
• To establish unlawful retaliation, there must be
proof that the respondent took an adverse action
because the complainant engaged in protected
activity.
Role of the DMEO Office
• We serve as a bridge between the employee and
the leadership. We do not advocate for either
side.
• The DMEO Office puts forth considerable effort in
resolving matters in dispute.
• A complaint is resolved when disputants reach a
mutual understanding of the issue(s) and agree
on a mutually satisfactory outcome.
What We Will Ask You
• You have the burden of production (not proof) to
articulate a legitimate, nondiscriminatory reason
for your actions.
• You don’t have to prove that you did not
discriminate; you must explain the reason(s) for
your action(s).
• Your articulation must be sufficiently clear and
specific to permit the complainant to respond and
present rebuttal evidence.
You Tell Me!
• Luis is investigating a case of non-selection. Rod
Piper claims that Arn Anderson did not select him
for a position because of his race. He states that
Arn did not select him because he, Rod, is
African American. Arn, when asked to explain his
reasons for not selecting Rod, said, “The selectee
was selected due to his military experience and
education and was also concerned that if the
complainant were selected, it would give rise to a
question of pre-selection.”
• Has Arn Anderson met management’s burden in
this instance?
Hostile Work Environment
• In determining whether a working environment is
hostile, relevant factors include the frequency of
the alleged discriminatory conduct, its severity,
whether it is physically threatening or humiliating,
and if it unreasonably interferes with an
employee's work performance. A person must
allege a set of facts which, if proven true, would
indicate they have been subjected to harassment
that was sufficiently severe or pervasive to alter
the conditions of his or her employment.
The Standard
With regard to discriminatory harassment by
coworkers, an agency is liable if it knows or
should have known of the conduct, unless it can
show that it took immediate and appropriate
corrective action.
The adequacy of an agency's response depends
heavily on the facts of the case.
A Bad Day for Mike.
• Mike a program analyst stated while attending a
meeting of a large group of people concerning
securing the environment for an upcoming bomb
test, Manager Tom made a comment he believed
was inappropriate and insensitive. Manager Tom’s
said “I wouldn’t mind sending down one or two
Mexican illegals in for this blast.” Mike asserted
that most of the people in the room laughed and no
manager indicated the comment was inappropriate.
• Mike contacts the EEO officer and states he was
subjected to a hostile work environment. Is Mike
right?
CASE BY CASE
In assessing whether a hostile work environment
exists, all of the circumstances must be
considered, including the frequency of the
discriminatory conduct; its severity; whether it
was physically threatening or humiliating, or a
mere offensive utterance; whether it was hostile
or patently offensive; whether the alleged
harasser was a co-worker or a supervisor.
REASONABLE PERSON STANDARD
Whether an objectively hostile or abusive work
environment exists is based on whether a
reasonable person in the complainant's
circumstances would have found the alleged
behavior to be hostile or abusive. The incidents
must have been sufficiently severe and pervasive
to alter the conditions of complainant's
employment and create an abusive working
environment.
Hostile Work Environment
• EEOC regulations are not to be used as a
general civility code. Rather, they forbid only
behavior so objectively offensive as to alter the
conditions of the victim's employment. Title VII
does not create a right to work in a pleasant
environment; merely one that is free from illegal
discrimination.
What Would You Do?
• Michelle comes to you and says she feels as if her co-workers are
bullying her into quitting. She claims they have started rumors that she
got her current position due to her mother’s personal friendship with the
director. She relates that her co-workers often make sarcastic remarks
about her “connections.” She tells you that she feels “shunned” and
how her co-workers tell her to “look it up” or “shouldn’t you know that” if
she has a question. She tells you that no one talks to her unless it is
work related and even then the communication is terse and to the point.
“I feel very isolated,” Michelle says. You have not witnessed any of this
and this is the first time you have heard about it.
• What would you do?
First Responder to Harassment
Allegation
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Listen without interruption (i.e. phone calls).
Don’t formulate an opinion.
Get it in writing.
Go over the Anti-Harassment Policy with the
employee.
• Let your immediate supervisor know.
• Contact DMEO if you need assistance.
• Follow-up with the employee making the
complaint.
YOU SET THE TONE!
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Actively Listen.
Be Sincere.
Be Objective.
Don’t Express an Opinion.
Ask Open Ended Questions.
Address complaints no matter how trivial they
may seem to you at the time.
• Keep the employee making the complaint
informed.
The Sensational Six!
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Who did it (and who else was there)?
When did they do it?
Where did it happen?
What, specifically, did they do to you?
How did they do it?
Why did they do it (what is the background or
what led up to the incident)?
What Would You Do?
• You overhear a teacher (Asian-American)
call your secretary (Hispanic) "dumb,"
"incompetent," and tell her that she is just a
secretary, a lowly GS-05, nothing to the
office, and she intends to make the
secretary's life miserable. Before leaving,
she tells the secretary that she needs to go
back to her home country because no one
can understand what she says.
What Would You Do?
• A. You call both the secretary and the teacher into your office to get
them to talk to one another and resolve their differences.
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B. You document the time, place, and events that took place; call your
MER for advice, and call the teacher into your office for a meeting
concerning the comments you overheard. At the meeting you inform
the teacher that discriminatory remarks will not be tolerated; that
professionalism is expected at all times; and progressive disciplinary
action will be taken if it ever happens again.
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C. Since the secretary never came to you about the comments, you do
nothing about it.
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D. You believe that the teacher had been provoked because you agree
that the secretary is dumb and therefore you take steps to terminate her.
Sexual Harassment Allegations
• Report all sexual harassment allegations to the
Superintendent’s office immediately.
• Sexual harassment allegations must be
investigated by the Area or District office.
• Please notify DMEO of all allegations of sexual
harassment immediately.
KEY POINT!
• It is generally not advisable to reassign the
employee making the complaint.
Root Cause Analysis
• Define the problem.
• Collect evidence.
• Identify the causal relationships associated with
the defined problem.
• Identify which causes if removed or changed will
prevent recurrence.
• Identify effective solutions that prevent
recurrence, are within your control, meet your
goals and objectives and do not cause other
problems.
Reasonable Accommodation
• The best advice I can give; Call Me or William
Suddeth!
Mindtwister
You and your AP have the unenviable task of counseling Billy
Flawless for not following your instructions. Billy bristles at your criticism. “I don’t
care what any of you toadies think,” Billy sneers. “I carry this school on my back.
I’m the only reason people put their kids in this school.”
When you attempt to direct the discussion to a more productive path, Billy stands up
and interrupts, “I would love to listen to what you hypocrites have to say. But
my moral compass dictates that I don’t need to speak to you miscreants
anymore. And now I’ve not only lost my appetite, but I’ve lost my will to be in
your presence. Thank you very much. ” Billy walks out of the office and
leaves the building. The next day, Billy arrives with documentation from his
doctor stating that he is suffering from a recognized mental disorder and is
currently undergoing therapy and treatment. “Yesterday’s meeting really
exacerbated my medical conditions,” Billy explains. “My doctor says I
shouldn’t be placed in stressful situations. But I forgive you.” After Billy
leaves your AP looks at you and says, “I don’t care. We still need to
take disciplinary action.”
What would you do?
What You Do Not Have To Do.
• In accommodating a disability, you are NOT required to:
• Remove an essential function from a job;
• Create a job for an employee;
• Remove or reduce production requirements;
• Excuse inappropriate or wrongful conduct, EVEN IF
THE BAD CONDUCT IS CAUSED BY THE
DISABILITY!
Identifying The Problem.
• What are the essential functions of the job?
• What is the specific barrier or obstacle the
employee identifies as hindering his/her ability to
perform his/her job?
• How can the barrier be overcome with an
accommodation?
Interactive Dialogue Is Required.
Keep it non-adversarial. Here is an example of an initial response to an
accommodation request:
Dear Serwaa,
Please complete the attached accommodation request form. This will help
me assist you in identifying an effective accommodation that enables you
to perform your assigned duties. We can then meet and discuss
accommodation options. At this time, no further medical documentation is
needed. Please return the accommodation request form to me as soon as
possible so we can work together to identify an effective accommodation.
Your Hero,
William
Some Accommodation Suggestions
• Reallocating or redistributing the marginal functions of a
job.
• Modify the essential functions of a job (changing when or
how they are done).
• Modify the work schedule.
• Acquisition or modification of equipment and devices.
• Reassignment is the accommodation of last resort.
• Permitting the use of accrued leave or unpaid leave.
• Providing reserved parking.
• Making facilities readily accessible to and usable by
an individual.
Brainteaser
You are made aware by several colleagues that Wendy has cancer.
You begin to notice Wendy appears lethargic and ill at times. Two
weeks ago Wendy started using a cane and seems to have really
slowed down. She often appears to be in pain. This disturbs you
because you know Wendy to be a very active and enthusiastic
person. Your AP approaches you about her concern for
Wendy. “I’m not going to have Wendy coach volleyball this year so
she has more time to recover each day. I’m also going to refrain from
sending her TDY to the conference in Wiesbaden next month. She is
really struggling and I’m worried about her.”
What would you do?
Who Must Raise The Issue?
• The burden is squarely on the employee to raise
the issues of disability and reasonable
accommodation
Effective Accommodation Required.
• The agency is not required to provide the
specific accommodation requested by the
employee! The agency may provide another
accommodation that will allow the employee to
perform the essential functions of his job. The
accommodation provided should be related to the
disability and be assigned to assist the employee
in performing the essential functions of his job.
What Would You Do?
You have assigned Linda, a teacher, to bus duty on
Mondays, Wednesdays and Fridays. Linda tells you she
recently had a hip replacement due to a degenerative disease.
She says walking and standing for extended periods can be
very difficult for her and she is not able to walk up and down
the sidewalk each afternoon and remain standing for 30
minutes without a break.
What would you do?
Key Points – Reasonable
Accommodations
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You have resources at your disposal.
Call or email William Suddeth or Robin Jamison.
Contact Charles Montanez, DMEO Disability Program Manager, at DODEA HQ, 703-5883231, or by email at [email protected]
The Office of General Counsel can be contacted as well. Carla Eldred, DSN 334-2502,
[email protected] and Max Selz, DSN 334-2775, [email protected]
Don’t excuse misconduct or performance deficiencies.
It is the employee’s responsibility to ask for an accommodation.
Keep the dialogue non-adversarial and collaborate with the employee to find an effective
accommodation.
Don’t unilaterally impose an accommodation on an employee.
Don’t make an accommodation “off the books.” Document it with the appropriate forms.
The purpose of a reasonable accommodation is to allow the employee to perform their
essential duties, not remove those duties.
Identify an effective accommodation. An employee is not entitled to the accommodation of
their choice.
Always provide the employee the “reasonable accommodation request” form.
Seek guidance from DMEO or General Counsel before asking the employee to provide
medical documentation.
Seek guidance from General Counsel before requesting a fitness for duty exam.
Reasonable Accommodation forms are at:
http://www.dodea.edu/offices/eeo/forms.cfm?sid=6
KEY POINTS - HARASSMENT
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You have resources at your disposal.
Call or email William Suddeth or Robin Jamison.
Contact Phil Brown, LER Specialist, at DSN 338-7553 or by email at
[email protected]
The Office of General Counsel can be contacted as well. Carla Eldred, DSN
334-2502, [email protected] and Max Selz, DSN 334-2775,
[email protected]
Listen to the employee.
Get their complaint in writing.
Don’t express an opinion.
Go over the anti-harassment policy with the employees involved.
Address harassment complaints right away.
Follow-up with the employee and see if the situation has improved.
Document your efforts.
Report all sexual harassment allegations to the DSO and the DMEO office.