Dealing with “Difficult” People

i Conflict
in fli

Rozmyn Miller,
R Mill Commissioner,
C i i FMCS
David Huang, Commissioner, FMCS

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Statutoryy Mission

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 Defining Difficult

The Dynamics of
Human Interaction

Strategies

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 ICEBREAKER
• Where do you encounter
difficult people the most?

• What characteristics do
these people have?

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Who is the Difficult Person in this Video?

Medea Video

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Difficult People
p Types
yp

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 Difficult People
p Types
yp
• The Pushy, Tyrannical, Bully
• The Sniper
• The ‘Know‐it‐All’
• The Exploder

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 Difficult People
p Types
yp
• The Super‐Agreeables
• The Complainers, Eternal Pessimists,
Criticizers, and Negativists
• The Unresponsives

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 Difficult People
p Types
yp
• The Rumor Monger
• The “Not‐my‐Job’er”
• The Perfectionist

• What else?

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The
h Dynamics off Human
Interaction
and
The Origins of Defensive,
Emotion‐Based
Emotion Based Behaviors

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 Identifying
y g Emotional Responses
p
• What you know
• What you ‘think’ you know
• What you don’t know
• Adopting an attitude of curiosity instead of
defensiveness

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What Do These Things Share in Common?
• Goingg with yyour ‘gut’
g
• Emotional ‘triggers’
• ‘Snap’
Snap judgments
• Visceral reactions
• Biases and stereotypes

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The Dynamics
y of Human Interaction
 Conflict Neuroscience Basics
Li bi
Limbic
(Amygdala and
Hippocampus – where
patterns are stored)
Reptilian
(fight,
(fi h flight,
fli h
freeze)

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Reactions? Thoughts?
Feelings?

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Reactions?
Thoughts?
Feelings?
g

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 Stored Memories/Patterns:
What do I see and hear?
What can I match that to?
What reaction will best
Our Pattern
Pattern‐Seeking
Seeking Brains: promote my survival?
Geared for Survival

Rustle…

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 Stored
Memories/Patterns:
Our Pattern
Pattern‐Seeking
Seeking Brains Hi t
History, conditioning,
diti i
Non‐physical danger situations stereotypes, training.
Adversary!

Must protect!
Don’t Trust!

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 Emotion‐Based Behaviors
• Rapid, often sub‐conscious
• Fight,
Fight Flight,
Flight Freeze = Approach / Avoidance
• Survival and Mitigating “Danger”
• C
Creating
i ‘safe’
‘ f ’ spaces and
d promoting
i collaborative
ll b i
‘approach’ behaviors

• Watch for and Utilize Cues

(hint: fight, flight, freeze responses)

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Addressingg Emotion‐Based Behaviors

If you must deal with an emotionally difficult

person
• Adjust
Adj t th
the safety
f t llevell off th
the environment
i t
• Refocus, reframe, regroup, retreat & return

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Addressingg Emotion‐Based Behaviors
If you must deal with an emotionally
difficult person
• Check yourself: be self‐aware
• Empower them
• Shift locus of control
• Seek 3rd Party Assistance

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 Positive,, Safe Communication
• Is interpreted as a reward by the brain
• Reduces stress and anxiety
• Lessens FFF threat detection response
• Fosters motivation

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 Mindful Self‐Awareness

“He who controls others mayy be powerful,

p , but
he who has mastered himself is mightier still.”
Lao tzu
—Lao‐tzu

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www.eeotraining.eeoc.gov/EXCEL
The Conflict Icebergg
The Facts (often stated as opinions)
The Law(s)
The Positions

Misunderstandings
Perceptions
p
Emotions
Interests
Concerns
Feelings
Beliefs
Values
Needs
Fears
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 Mindfulness in Conflict
• Stop
• Observe
• Note
t

• Ask
• Return focus

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Empowering and Dis‐Empowering
Dis Empowering

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 Empowered
• I feel as though I have a meaningful say in the
outcome.
• I feel responsible and accountable for making a choice.
• I feel supported
pp in myy responsibility
p y to make a choice.
• I am safe to explore options that meet my interests.

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 Dis‐Empowered
p
• I feel trapped, cornered, or unsafe.
• I feel powerless over the outcome
outcome, no control.
control
• I feel as though my input is not going to be considered.
• I don’t
d ’ ffeell responsible
ibl for
f the
h outcome.
• I feel as though you are trying to manipulate me to
meet your needs/interests and not mine.
mine

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 Locus of Control

Empowering
p g Yourself and Others to
Effectively Deal with Conflict

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 Locus of Control
“A person with an internal locus of control
b li
believes that
h h he or she
h can iinfluence
fl events and
d
their outcomes, while someone with an external
locus of control blames outside forces for
everything.”
thi ”
Source: Gillian Fournier (http://psychcentral.com)

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 Re‐Definingg

“What is a Difficult Person?”

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Strategies for Dealing Effectively
with Difficult People

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 People are Difficult for a Reason
• No one‐size‐fits‐all Solution
• Analyze the situation
• Go “to the Balcony”

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 People are Difficult for a Reason
• Have your actions or questions made them feel
disempowered?

• Do you feel
disempowered?

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 When Difficult People
p Attack

• Stay rational
• Be curious

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 When Difficult People Attack
• Resist the urge to get
drawn in and “Win.”

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When Difficult People
p Attack
EMPATHY…

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 Dealingg with Difficult People
p
• Use a Neutral Third Party

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 The Power of the 3rd Side

Using a Neutral 3rd Party to Navigate Difficult

Relationships at Work

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 Neutral Interventions
• A neutral third party
o is not emotionally invested in the
situation
o Is trained to help facilitate interactions
o Can provide coaching and training

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 Neutral Interventions
• A neutral third party
o Can create safe spaces

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Types
yp of Neutral Interventions
• Mediation
• Facilitated Dialogues
• Conflict Coaching
• Teambuilding
• Training

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Q
Questions/Comments
/

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 Your Personal Action Plans
• What are the specific learnings that
resonated?
• What are your personal goals
• H
How will
ill you integrate
i t t the
th skills
kill iinto
t your daily
d il
work?
• Wh
Whatt are your measures off success
(remember locus of control!)

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 Rozmyn Miller, Commissioner, FMCS
rmiller@fmcs.gov
ll f

David Huang,
g Commissioner, FMCS
dhuang@fmcs.gov

Connect with FMCS:

For more information about our agency and the services we provide, visit our website at www.fmcs.gov

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 “The EEOC @ 50: Building on a Legacy…
Looking to a Future of Innovation”

Dealing
D li With EEmotions
ti
in Mediation
Anne
Bachle
Fifer

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Dealing With Negative Emotions
in Mediation

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 If the conflict has gotten so tough
that it needs a mediator,, emotions
are involved.

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Wh t are some negative
What ti emotions
ti you might
i ht experience
i iin a mediation?
di ti ?

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“There won’t be any emotions here today
today.””
 Dealing With Emotions in Mediation

What could
co ld the mediator do
do, regarding part
party
emotions, that does NOT work?

• Ignore
• pp
Suppress
• Misinterpret
• Fuel/exacerbate
• Get sucked in
• Other?
Dealing With Emotions in Mediation

1. Emotions (even negative) are good.

2. Recognize the emotion.
3 Empathize.
3. Empathize
4. Work with the emotion.
5. Don
Don’tt get sucked into it yourself.

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Think of a time when you were feeling an
intense emotion,
and a friend talked you down from itit.
What did the friend do? What worked for you?

Discuss with a partner.

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Dealing With Emotions in Mediation

The Break-up

What emotions do the parties express?

How does mediator deal with their emotions?
 Dealing With Emotions in Mediation
Discuss:
• What
h emotions ddo the
h parties express??
• How does the mediator deal with their
emotions?

The Break-up
 Dealing With Emotions in Mediation

1. Allow parties to express emotions.

2 Help
2. H l parties
ti re-appraisei th
their
i
emotions.
3 Suppress/control escalating
3.
emotions.
4. Address
dd ess needs/interests
eeds/ e es s
prompting the emotions.
5. Create positive emotions.
 Dealing With Emotions in Mediation

1. Allow p
parties to express
p emotions.
- Safer in caucus
- Sometimes valuable in joint session
- Ground rules
 Dealing With Emotions in Mediation

2. Help parties re-appraise their emotions.

- Active listening
- Open-ended questions
 Dealing With Emotions in Mediation
3. Suppress/control escalating emotions.
- Ground rules
- Talk only to the mediator
- “Shuttle
“Sh ttl diplomacy”
di l ”
 Dealing With Emotions in Mediation

4. Address needs/interests p
prompting
p g the emotions.
- Elicit underlying needs and interests.
- Help parties figure out ways to address them.
 Dealing With Emotions in Mediation

5. Create p
positive emotions.
- Identify a positive time in the past.
- Ask how it was “supposed to be.”
- Envision a positive future.
 Dealing With Emotions in Mediation

2. Help parties re-appraise their emotions.

- Active listening
- Open-ended questions
Dealing With Emotions in Mediation

1. Emotions (even negative) are good.

1 good
2. Recognize the emotion.
3. Empathize.
4. Work with the emotion.
5. Don’t get sucked into it yourself.
 “Feelings” Words
“So you felt …..

mad sad glad

• upset •concerned • pleased
• frustrated • disappointed • content
• hurt • unhappy
ppy • relieved
• offended • anxious • satisfied
 “It’s Not About the Nail”

What emotions does the woman display?

What emotions does the man display?

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“It’s Not About the Nail”

Role play in pairs:

One=Girlfriend (G)
One=Mediator (M)
(pretend BF is sitting by, silent)
G duplicates the video; M practices
paraphrasing G.

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Dealing With Emotions in Mediation

What emotions might you expect to

see in an age discrimination case?

How might you empathize?

Ho might you
How o create positive
positi e
emotion?

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Dealing With Emotions in Mediation

What emotions did you see?

H did the
How th mediator
di t empathize?
thi ?

What else did the mediator do to

deal with participants’ emotions?

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“Thibodeau”
“Thib d ”A
Age Discrimination
Di i i ti Case C
Role play in threes:
One=Attorney
One=Mr.
One Mr. Thibodeau
One=Mediator (M)
D li t what
Duplicate h t you saw iin th
the video.
id

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Dealing With Emotions in Mediation

What emotions might you expect to

see in a divorce mediation regarding
a computer business and a minor
child?

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Dealing With Emotions in Mediation

What emotions did you see?

Whatt did the

Wh th mediator
di t do
d to
t deal
d l
with participants’ emotions?

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 Dealing
D li With EEmotions
ti
in Mediation

What have we learned?

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7/31/2015 EEO Data Posted Pursuant to the No Fear Act: Hearings

U.S. Equal Employment Opportunity Commission

Equal Employment Opportunity Data Posted

Pursuant to the No Fear Act:
Hearings

Pursuant to the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (the No Fear Act), Pub. L. 107­174, the Commission is posting the statistical data pertaining to hearings of complaints of employment discrimination
filed by employees, former employees, and applicants for employment under 29 CFR Part 1614.

EQUAL EMPLOYMENT OPPORTUNITY DATA POSTED PURSUANT TO THE NO FEAR ACT ­ HEARINGS

No FEAR regulation citation Data Element Fiscal Year

FY 2000 FY 2001 FY 2002 FY 2003 FY 2004 FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 FY 2015 Q2

706(a)(1) No. of Hearings requested in FY 10,515 9,835 9,639 9,944 9,051 10,279 7,812 7,876 8,050 7,295 7,720 8,123 7,736 7,090 8,091 3,739

706(a)(2) No. of individuals request hearings 9,332 8,973 9,339 9,213 8,396 9,634 7,374 7,451 7,657 6,698 7,257 7,380 3,753 6,854 3,930 3,735

706(a)(3) No. of individuals multiple hearings requests 1,279 1,013 971 1,016 587 507 334 349 331 291 395 657 168 367 97 99

706(a)(4) No. of hearings raising various bases

Race 5,075 4,618 4,638 4,644 3,748 4,445 3,224 3,283 3,151 2,756 2,696 2,720 1,444 2,509 1,340 1,191

Color 859 795 951 883 744 844 623 673 668 661 730 679 380 760 385 364

EPA 11 7 5

Relig 420 391 359 372 350 392 300 295 288 282 250 304 149 245 161 104

Sex 4,620 4,317 4,214 4,203 3,475 4,119 2,951 2,853 2,885 2,519 2,593 2,630 1,319 2,386 1,305 1,147

National Origin 1,247 1,094 1,248 1,049 823 1,006 808 818 757 812 850 1,054 417 751 445 340

Age 3,051 2,860 2,883 2,732 2,180 2,882 2,219 2,181 2,177 2,018 2,167 2,344 1,045 1,807 1,038 856

Disability 2,900 2,617 2,707 2,802 1,812 2,302 1,748 1,690 1,914 1,827 1,925 1,888 999 1,683 954 899

Genetic Information n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a 3 2 3 4 2 6

Reprisal 4,329 3,995 4,016 3,887 3,322 3,820 3,060 3,145 3,333 3,136 3,377 3,625 1,863 3,366 1,858 1,551

EQUAL EMPLOYMENT OPPORTUNITY DATA POSTED PURSUANT TO THE NO FEAR ACT ­ HEARINGS

No FEAR regulation citation Data Element Fiscal Year

FY 2000 FY 2001 FY 2002 FY 2003 FY 2004 FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 FY 2015 Q2

706(a)(5) No. of hearings raising various issues*

Appointment/ Hire 329 168 261 189 418 594 470 394 425 715 616 1,500 197 713 455 363

Assignment of Duties 292 362 357 484 967 1,427 1,146 1,149 1,030 987 1,448 1,467 683 1,772 891 725

Awards 0 0 0 0 1 1 1 99 160 177 243 355 197 297 126 82

Conversion to Full­time 0 0 0 0 0 0 0 0 0 10 22 9 13 9 11 12

Discipline/ Demotion 75 90 98 52 85 97 79 81 106 94 107 155 62 111 85 63

Discipline/ Reprimand 657 694 545 599 1,173 1,796 1,081 1,123 1,365 1,568 1,940 2,497 1,418 2,534 1,721 1,196

Discipline/ Suspension 342 326 269 338 684 801 730 614 632 845 1,110 1,075 598 1,187 699 563

Discipline/ Removal SEE TERMINATION

Duty Hours 0 0 0 0 1 1 0 96 208 422 609 651 347 522 257 348

Evaluation/ Appraisal 0 0 0 0 3 2 5 225 410 898 1,336 1,661 922 1655 938 852

Examination/Test 22 11 15 79 35 78 39 6 17 31 58 23 19 39 6 12

http://www1.eeoc.gov//eeoc/statistics/nofear/hearings.cfm?renderforprint=1 1/4
7/31/2015 EEO Data Posted Pursuant to the No Fear Act: Hearings
Examination/Test 22 11 15 79 35 78 39 6 17 31 58 23 19 39 6 12

Harassment/ Non­sexual 1,790 1,688 1,768 1,764 3,257 3,118 2,648 3,367 4,111 4,131 5,331 5,880 3,263 6,467 3,695 3,351

Harassment/Sexual 329 334 298 264 286 343 267 212 266 251 344 412 161 295 185 228

Medical Exam 8 8 7 12 4 5 3 12 25 91 85 146 50 111 134 111

Pay/Overtime 109 122 175 220 254 376 321 351 472 649 783 949 376 826 470 517

Promotion/ Non­selection 2,234 2,244 2,136 1,853 2,682 3,505 2,678 2,449 2,450 2,313 2,276 2,018 1,198 2,055 1,139 844

Reassignment/ Denied 0 0 0 0 4 2 4 0 0 2 751 561 122 216 206 172

Reassignment/ Directed 0 0 0 0 1 2 0 247 362 431 0 0 200 279 252 218

Reasonable Accommodation 261 296 352 398 485 642 510 833 1,058 1,447 1,977 1,918 1,138 1864 1,153 1,221

Reinstatement 40 42 89 80 128 53 24 42 25 45 80 76 6 62 33 0

Retirement 14 23 14 19 30 28 27 36 47 112 122 85 39 86 54 30

Termination 857 915 864 762 1,438 2,136 1680 1,482 1,635 1,874 1,864 2,439 1,025 1,647 1,035 809

Terms/condition of employment 3,819 3,646 3,955 3,598 5,024 6,197 4,727 2,997 3,359 2,067 3,940 4,492 2,194 3,201 1,622 1,484

Time/attendance 0 0 0 0 5 0 3 591 729 1,037 1,534 1,787 1,030 1,914 1,099 1,100

Training 284 226 220 264 315 388 305 302 294 408 485 658 373 677 287 283

Other 0 0 0 0 3 2,033 1,897 1,075 1,617 1,539 1,493 2,045 655 1,193 540 590

EQUAL EMPLOYMENT OPPORTUNITY DATA POSTED PURSUANT TO THE NO FEAR ACT ­ HEARINGS

No FEAR regulation citation Data Element Fiscal Year

FY 2000 FY 2001 FY 2002 FY 2003 FY 2004 FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 FY 2015 Q2

706(a)(6) Average Processing Time for Hearings 372 336 410 411 355 249 248 248 262 294 332 345 370 383 419 424

No FEAR Data Fiscal Year

regulation Element
citation FY 2000 FY 2001 FY 2002 FY 2003 FY 2004 FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 FY 2015
Q2

706(a)(7) Findings of 275 340 364 341 330 232 203 182 154 150 158 164 147 122 126 40
(i) discrimination
­ Total

# % # % # % # % # % # % # % # % # % # % # % # % # % # % # % # %

706(a)(7) Findings of 45 16.4% 26 7.6% 33 9.1% 54 15.8% 15 4.5% 9 3.9% 14 6.9% 7 3.9% 5 3.3% 6 4% 22 15.9% 18 11% 15 10.2% 19 15.6% 19 15.1% 8 20.0%
(ii) discrimination
­ No. &
percent
without
hearing

706(a)(7) Findings of 230 83.6% 314 92.4% 331 90.9% 287 84.2% 315 95.5% 223 96.1% 189 93.1% 175 96.2% 149 96.8% 144 96% 136 86.1% 146 89% 132 89.80% 103 84.4% 107 84.9% 32 80.0%
(iii) discrimination
­ No. &
percent after
hearing

No FEAR regulation Data Element Fiscal Year

citation
FY 2000 FY 2001 FY 2002 FY 2003 FY 2004 FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 FY 2010 FY 2011 FY 2012 FY 2013

706(a)(8) No. & percentage of all findings of discrimination ­ # % # % # % # % # % # % # % # % # % # % # % # % # % # %

by basis

706(a)(8)(i) Race 44 16% 92 27.1% 93 25.5% 117 34.3% 53 16.1% 54 23.1% 46 22.5% 52 29% 53 34.1% 44 29.3% 19 12% 24 14.8% 6 9.5% 18 14.8%

Color 8 2.9% 38 11.2% 14 3.8% 18 5.3% 1 0.3% 3 1.28% 0 0% 1 .55% 1 .64% 1 .66% 2 1% 1 .6% 0 0% 4 3.3%

EPA 0 0%

Religion 3 1.1% 8 2.4% 6 1.6% 7 2.1% 9 2.7% 3 1.28% 4 1.96% 9 5% 1 .64% 3 2% 1 .6% 3 1.9% 0 0% 2 1.6%

Sex 61 22.2% 107 31.5% 105 28.8% 110 32.3% 133 40.3% 75 32.1% 67 32.8% 40 22% 31 20% 27 18% 30 19% 30 18.5% 17 26.9% 26 21.3%

National Origin 8 2.9% 27 7.9% 14 3.8% 42 12.3% 18 5.5% 5 2.14% 3 1.47% 6 3.3% 7 4.5% 5 3.3% 9 5% 6 3.7% 1 1.5% 7 5.7%

Age 15 5.5% 77 22.7% 54 14.8% 43 12.6% 17 5.2% 17 7.3% 23 11.3% 15 8.2% 16 10.3% 8 12% 35 22% 17 10.4% 7 11.1% 15 12.3%

Disability 24 8.7% 79 23.2% 68 18.7% 80 23.5% 34 10.3% 28 12% 25 12.3% 30 16.5% 25 16.1% 20 13% 30 19% 31 19.1% 9 14.2% 15 12.3%

Genetic Information n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a 0 0% 0 0% 1 1.5% 0 0%

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7/31/2015 EEO Data Posted Pursuant to the No Fear Act: Hearings
Reprisal 80 29.1% 130 38.2% 179 49.2% 191 56% 55 16.7% 36 15.4% 28 13.7% 22 12.1% 17 10.9% 31 20.6% 29 18% 50 30.9% 21 33.3% 33 27%

706(a)(8)(ii) No. & percentage of NO hearing findings of # % # % # % # % # % # % # % # % # % # % # % # % # % # %

discrim ­ by basis

Race 9 20.6% 26 28.3% 12 12.9% 16 13.7% 5 1.5% 7 25.9% 2 14.3% 1 .55% 6 54.5% 1 33.3% 1 8% 1 10% 1 12.5% 3 21.4%

Color 1 12.5% 9 23.7% 3 21.4% 1 5.5% 0 0% 0 0% 0 0% 0 0% 0 0 0% 0 0% 0% 0 0%

EPA 0 0%

Religion 0 4 50% 1 16.7% 0 2 0.6% 0 0% 1 7.1% 0 0% 0 1 33.3% 1 8% 0% 0 0%

Sex 22 36.6% 16 15% 13 12.4% 7 6.4% 11 3.3% 2 22.2% 5 35.7% 1 .55% 2 18.1% 0 0% 4 30% 3 30% 2 25% 3 21.4%

National Origin 2 25% 5 18.5% 0 3 7.1% 2 .6% 0 0% 1 7.1% 0 0% 0 0 0% 1 8% 0% 1 7.1%

Age 2 13.3% 6 7.8% 8 14.8% 6 14% 3 .9% 3 11.1% 2 14.3% 1 .55% 0 0 0% 2 16% 2 25% 0 0%

Disability 2 8.3% 18 22.8% 2 1.5% 8 10% 2 .6% 5 18.5% 2 14.3% 0 0% 2 18.1% 1 33.3% 3 23% 3 30% 1 12.5% 2 14.3%

Genetic Information n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a 0 0% 0 0% 0% 0 0%

Reprisal 8 10% 24 18.5% 25 14% 14 7.3% 5 1.5% 5 18.5% 1 7.1% 1 .55% 1 9.0% 0 0% 1 8% 3 30% 2 25% 5 35.7%

706(a)(8)(iii) No. & percentage of AFTER hearing findings of # % # % # % # % # % # % # % # % # % # % # % # % # % # %

discrim ­ by basis

Race 35 79.5% 66 71.7% 81 87.1% 101 86.3% 48 14.5% 47 22.8% 44 23.2% 51 28% 47 32.6% 43 29.3% 18 12% 23 15.1% 5 9.1% 15 13.8%

Color 7 87.5% 29 76.3% 11 78.6% 17 94.4% 1 0.3% 3 1.45% 0 0 1 .55% 1 .69% 1 .68% 2 1% 1 .7% 0 0% 4 3.7%

EPA 0 0%

Religion 3 100% 4 50% 5 83.3% 7 100% 7 2.1% 3 1.45% 3 1.6% 9 5% 1 .69% 2 1.36% 0 0% 3 2% 0 0% 2 1.9%

Sex 39 63.9% 91 85% 92 87.6% 103 93.6% 122 36.9% 69 33.4% 62 32.6% 39 21.4% 29 20.1% 27 18.4% 26 18% 27 17.8% 15 27.2% 23 21.3%

National Origin 6 75% 22 81.5% 14 100% 39 92.9% 16 4.8% 5 2.43% 2 1% 6 3.3% 7 4.8% 5 3.4% 8 5% 6 4% 1 1.8% 6 5.6%

Age 13 86.7% 71 92.2% 46 85.2% 37 86% 14 4.2% 14 6.8% 21 11% 14 7.7% 16 11.1% 18 12.2% 33 23% 17 11.2% 5 9.1% 15 13.8%

Disability 7 29.2% 61 77.2% 66 97.1% 72 90% 32 9.7% 23 11.2% 23 12.1% 30 16.5% 23 15.9% 19 13% 27 18% 28 18.4% 8 14.5% 13 12%

Genetic Information n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a 0 0% 0 0% 1 1.8% 0 0%

Reprisal 72 90% 106 81.5% 154 86% 177 92.7% 50 15.2% 31 15% 27 14.2% 21 11.5% 16 11.1% 31 21% 28 19% 47 31% 19 34.5% 28 26%

EQUAL EMPLOYMENT OPPORTUNITY DATA POSTED PURSUANT TO THE NO FEAR ACT ­ HEARINGS

No FEAR Data Element Fiscal Year

regulation
citation FY 2000 FY 2001 FY 2002 FY 2003 FY 2004 FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 FY 2010 FY 2011 FY 2012

706(a)(9) Total Hearings Findings of All Hrg No All Hrg No All No Hrg All No Hrg All No Hrg All No Hrg All No Hrg All No Hrg All No Hrg All No Hrg All No Hrg All No Hrg All No Hrg All
Discrimination ­ ISSUES Hrg Hrg Hrg Hrg Hrg Hrg Hrg Hrg Hrg Hrg Hrg Hrg Hrg

Appointment/ Hire 19 1 18 21 0 21 51 10 41 9 0 9 8 0 8 9 8 1 9 0 9 5 0 5 2 1 1 7 0 7 10 0 10 7 3 4 1 0 1 11

Assignment of Duties 6 0 6 25 5 20 50 4 46 37 0 37 46 2 44 9 7 2 7 0 7 12 0 12 11 1 10 6 0 6 5 1 4 3 0 3 1 0 1

Award 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 1 1 0 1 2 0 2 0 0 0 0 0 0

Convert to fulltime 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Discipline/ Demotion 15 0 15 17 3 14 15 0 15 12 0 12 6 2 4 0 0 0 1 0 1 1 0 1 2 0 2 1 0 1 0 0 0 0 0 0 1 1 0

Discipline/ Reprimand 14 0 14 33 2 31 49 0 49 70 1 69 33 0 33 7 6 1 7 0 7 6 0 6 3 0 3 1 0 1 3 0 3 6 0 6 3 0 3

Discipline/ Suspension 26 1 25 32 5 27 21 2 19 35 0 35 34 0 34 5 5 0 8 1 7 0 0 0 7 1 6 4 0 4 5 1 4 1 0 1 3 0 3

Discipline/ Removal

Duty Hours 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 1 0 0 0 1 0 1 2 0 2 0 0 0

Evaluation/ Appraisal 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 1 3 0 3 3 0 3 4 0 4 5 3 2

Examination/Test 0 0 0 7 0 0 0 7 0 0 0 0 0 0 0 0 0 0 1 0 1 1 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Harassment/ Non­ 149 6 143 116 0 116 247 11 263 208 5 203 168 24 144 43 39 4 21 3 18 22 1 21 26 2 24 22 0 22 27 1 26 34 1 33 14 2 12 23
sexual

Harassment/ Sexual 35 4 31 15 2 13 38 1 37 33 1 32 34 3 31 9 8 1 3 0 3 5 0 5 3 1 2 2 0 2 4 1 3 4 0 4 0 0 0

Medical Exam 0 0 0 0 0 0 0 0 0 1 0 1 2 0 2 0 0 0 0 0 0 1 0 1 1 0 1 1 0 1 0 0 0 0 0 0 0 0 0

Pay/Overtime 14 2 12 19 5 14 14 0 14 6 0 6 23 1 22 1 1 0 22 0 22 2 0 2 0 0 0 2 0 2 2 0 2 2 0 2 0 0 0

http://www1.eeoc.gov//eeoc/statistics/nofear/hearings.cfm?renderforprint=1 3/4
7/31/2015 EEO Data Posted Pursuant to the No Fear Act: Hearings
Promotion/ Non­ 143 26 117 180 8 172 233 11 22 199 27 172 174 15 159 35 31 4 27 4 23 25 0 25 21 1 20 20 0 20 37 2 35 26 3 23 4 0 4 16
selection

Reassignment/Denied 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 5 1 4 1 0 1

Reassignment/Directed 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 3 1 1 0 0 0 0 0 0 0 0 0

Reasonable 7 1 6 28 3 25 30 1 29 24 0 24 22 4 18 7 6 1 10 2 8 13 0 13 9 1 8 7 1 6 7 2 5 13 0 13 6 1 5
accommodation

Reinstatement 5 2 3 6 0 6 4 0 4 0 0 0 2 0 2 1 1 0 0 0 0 0 0 0 1 0 1 0 0 0 0 0 0 0 0 0 0 0 0

Retirement 0 0 0 6 6 0 5 0 5 0 0 0 0 0 0 0 0 0 1 0 1 0 0 0 0 0 0 0 0 0 1 0 1 0 0 0 1 0 1

Termination 48 6 42 63 11 52 69 5 64 55 3 52 64 1 63 18 15 3 17 0 17 14 0 14 12 0 12 14 0 14 10 1 9 14 0 14 7 0 7

Terms/Condition of 265 52 215 349 30 319 385 41 344 345 40 305 316 28 288 46 43 3 59 3 56 48 1 47 40 2 38 24 1 23 26 3 23 31 2 29 14 0 14 17
employment

Time/ Attendance 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 1 11 0 11 1 0 1 3 0 3 0 0 0

Training 8 1 7 21 0 21 26 1 25 21 0 21 25 2 23 6 5 1 1 0 1 1 1 0 0 0 0 3 0 3 0 0 0 1 0 1 0 0 0

Other 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 31 27 4 10 1 9 13 0 13 12 1 11 7 0 7 8 1 7 2 0 2 0 0 0

706(a)(10) Total hearings pend ­ No. 12,494 13,983 14,597 11,723 8,628 5,896 5,806 4,890 5,685 6,545 7,075 7,662 3,097
(i) first requested before
start of FY

706(a)(10) Total hearings pend ­ No. 10,446 11,337 12,128 7,668 8,194 5,815 5,749 4,860 5,633 6,457 6,970 7,500 3,032
(ii) of individuals first
requested before start of
FY

706(a)(11) No. of hearing requests 1,033 1,303 1,630 1,400 7,170 4,919 4,822 3,773 4,028 4,054 4,606 4,793 2,119
not complete in reg time

http://www1.eeoc.gov//eeoc/statistics/nofear/hearings.cfm?renderforprint=1 4/4
 “The EEOC @ 50: Building on a Legacy…
Looking to a Future of Innovation”

EEO Investigation Contracts‐ Want to

Get Paid? Give Me What I Need

Optimizing the Statement of Work (SOW)

to Ensure Exceptional Service and
Deliverables

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 Statement of Work (SOW)

Defines the tasks to be accomplished

and/or
d/ services to b be d
delivered
l dbby the
h
selected contractor.

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 Statement of Work (SOW) (cont.)
• Cornerstone of an Effective Request for
Proposal (RFP)
• Essential to Sound Contract
Management
• Mitigates Contract Risks

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 Why is the SOW so difficult to write?

• Complexity
• Risks
• Expertise
• Time
• Few Rules and No Road Map

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 EEO Investigation Requirements
• Federal Regulation ‐ 29 C.F.R. §1614.108
• EEOC’s Management Directive (MD) 110,
p 6
Chapter

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 “The EEOC @ 50: Building on a Legacy…
Looking to a Future of Innovation”

Equal Employment Opportunity

Commission

Presents:
WWSHD (What Would Sherlock Holmes Do?)

EEO Investigators Toolkit

www.eeotraining.eeoc.gov/EXCEL
Wouldn’t you be surprised to find that your role as an EEO
Investigator has many similarities to that of a detective? Yes,
their roles are different, but some of the same strategies that
help detectives’
detectives problem solve and crack a case can also
translate into the EEO Investigators to streamline the
investigation process. During this presentation will discuss
helpful tools that every investigator should have in their “toolbox”
when conducting an investigation.

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 EEO Investigator Duties
•Be available to answer most questions parties have about
the process.
•Keep parties informed about the charge process, including
the rights and responsibilities of the parties at the
conclusion of the investigation.
•Conduct an appropriate, thorough and timely investigation.
•Allow p
parties to respond
p to the allegations.
g
•Inform parties of the outcome of the investigation.

http://www.eeoc.gov/employers/process.cfm
p g p y p

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Applicable Federal Regulation
29 C
C.F.R.
F R §1614.108
§1614 108
(a) The investigation of complaints shall be conducted by the agency
against which the compliant has been filed.
(b) In accordance with instructions contained in the Commission
Management Directives,
Directives the agency shall develop an impartial
and appropriate factual record upon which to make findings on
the claims raised by the written complaint. An appropriate factual
record is one that allows a reasonable fact finder to draw
conclusions as to whether discrimination occurred
occurred. Agencies may
use an exchange of letters or memoranda, interrogatories,
investigations, fact-finding conferences or any other fact-finding
methods that efficiently and thoroughly address the matters at
issue Agencies are encouraged to incorporate alternative
issue.
dispute resolution techniques into their investigative efforts in
order to promote early resolution of complaints.

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29 CC.F.R.
F R §1614.108
§1614 108
(c) The procedures in paragraphs (c) (1) through (3) of this section apply to the
investigation of complaints:
(1) The complainant, the agency, and any employee of a Federal agency shall
produce such documentary and testimonial evidence as the investigator deems
necessary.
(2) Investigators are authorized to administer oaths. Statements of witnesses shall
be made under oath or affirmation or, alternatively, by written statement under
penalty or perjury.
perjury
(3) When the complainant, or the agency against which a complaint is filed, or its
employees fail without good cause shown to respond fully and in timely fashion to
requests for documents, records, comparative data, statistics, affidavits, or the
attendance of witness(es),
witness(es) the investigator may note in the investigative record
that the decisionmaker should, or the Commission on appeal may, in appropriate
circumstances:

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29 C.F.R. §1614.108
(i) Draw an adverse inference that the requested information,
or the testimony of the requested witness, would have
reflected unfavorably on the party refusing to provide the
requested information;
(ii) Consider the matters to which the requested information or
testimony pertains to be established in favor of the
opposing party;
(iii) Exclude other evidence offered by the party failing to
produce the requested information or witness;
(iv) Issue a decision fully or partially in favor of the opposing party;
or
(v) Take such other actions as it deems appropriate.
(d) Any investigation will be conducted by investigators with appropriate
security clearances. The Commission will, upon request, supply the agency
with the name of an investigator with appropriate security clearances.

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29 C.F.R. §1614.108

(e) The agency shall complete its investigation within 180 days of the
date of filing of an individual complaint or within the time period
contained in an order from the Office of Federal Operations on an
appeal from a dismissal pursuant to § 1614.107. By written
agreement within those time periods, the complainant and the
respondent agency may voluntarily extend the time period for not
more than an additional 90 days. The agency may unilaterally extend
the time period or any period of extension for not more than 30 days
where it must sanitize a complaint file that may contain information
classified pursuant to Exec
Exec. Order No.
No 12356
12356, or successor orders
orders, as
secret in the interest of national defense or foreign policy, provided
the investigating agency notifies the parties of the extension.

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29 C.F.R. §1614.108

(f) Within 180 days from the filing of the complaint, or where a
complaint was amended, within the earlier of 180 days after
the last amendment to the complaint or 360 days after the
fili off th
filing the original
i i l complaint,
l i t within
ithi th
the titime period
i d contained
t i d
in an order from the Office of Federal Operations on an
appeal from a dismissal, or within any period of extension
provided for in p
p paragraph
g p ((e)) of this section,, the agency
g y shall
provide the complainant with a copy of the investigative file,
and shall notify the complainant that, within 30 days of receipt
of the investigative file, the complainant has the right to
request a hearing and decision from an administrative judge
or may request an immediate final decision pursuant to §
1614.110 from the agency with which the complaint was filed.

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29 C.F.R. §1614.108

(g) If the agency does not send the notice required in paragraph (f) of this
section within the applicable time limits, it shall, within those same time limits,
issue a written notice to the complainant informing the complainant that it has
been unable to complete its investigation within the time limits required by §
1614.108(f) and estimating a date by which the investigation will be
completed. Further, the notice must explain that if the complainant does not
want to wait until the agency completes the investigation, he or she may
request a hearing in accordance with paragraph (h) of this section, or file a
civil action in an appropriate United States District Court in accordance with §
1614 407(b) Such notice shall contain information about the hearing
1614.407(b).
procedures.

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29 C
C.F.R.
F R §1614.108
§1614 108

(h) Where the complainant has received the notice required in

paragraph (f) of this section or at any time after 180 days have elapsed
from the filing of the complaint, the complainant may request a hearing
by submitting a written request for a hearing directly to the EEOC office
indicated in the agency's acknowledgment letter. The complainant shall
sendd a copy off the
h request ffor a hearing
h i to the h agency EEO office.
ffi
Within 15 days of receipt of the request for a hearing, the agency shall
provide a copy of the complaint file to EEOC and, if not previously
provided, to the complainant.

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 Maintain Open Communication
•Have a positive attitude
•Treat each investigation with a clear and open mind, free
from biases or prejudices from past investigations and/or
encounters
•Be readily accessible to all parties in the investigation
•Ask witnesses if there are any questions and clarify
i f
information
ti whenh askedk d or when
h necessary

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Gather Relevant Information
•Ask questions in a way that will produce the most
information as possible
•Stay away from solely yes or no questions, mix the
questions up in order to gain the most information.
•When asking yes or no questions, as “why?” as a follow up
question.
•Ask detailed and precise questions to be sure that the
witness understands the exact question.
A k questions
•Ask i that
h theh witness
i h
has kknowledge
l d about
b to
ensure that you are receiving accurate and adequate
answers.

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Assess Whether an Investigation is Thorough
•Complete an Investigative Plan for every
investigation!
•Come up with your own personal checklist
• List the information you hope to receive during the
investigation and deadlines for receiving information.
•Check off items on your list as you complete them.
•Questions to ask yourself at the end of the
investigation:
•Do I have any unanswered questions?
•Am I clear on each p
party’s
y position?
p
•Is there anyone else I need to contact?
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 Sample Investigative Plan
Investigator Assigned

Report of Investigation Date Assigned: ROI Due to Supervisor: ROI Submitted: ROI Due Out:

45 Day Contact Requirement: Date of Incident(s): Date of Counselor or OEO Contact: Timely Contact? Yes or No

15 Day Filing Requirement Date Complaint Filed: NRTF Received by CP: Timely Filed? Yes or No

Notice of Acceptance NOA Due: NOA Submitted: NOA Issued:

Investigative Plan IP Due: IP Submitted: IP Approved:

Claims Accepted:
p

Amendment Claim Accepted:

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 Witnesses
Potential Witnesses Claim? To What Can He/She Testify? Date of Interview Draft Affidavit or Signed Affidavit
(Name/Title) Interrogatories Rcvd.
Sent
Witness 1:

Witness #1
Follow-Up Questions,
Comments, Notes

Witness 2:

Witness #2
Follow-Up Questions,
Comments, Notes

Witness 3:

Witness #3
Follow-Up Questions,
Comments, Notes

Witness 4:

Witness #4
Follow-Up Questions,
Comments, Notes

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 Documents
Type
yp of Document Description
p q
Request Date Date Rcvd.?
From? Requested?

NOTES

NOTES

NOTES

NOTES

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Develop Checkpoints Throughout the Process

•Create a road map.

•Articulate your road map briefly with the witness
witness.
•Let the witness know when you have made
progress in the investigation.
Alert the witness when the investigation is
•Alert
complete.

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 Divert Potential Investigation Pitfalls
•Tips for Interacting with Persons with Disabilities
•When speaking with a person with a disability, talk directly to the person, not his or her
companion. This applies whether the person has a mobility impairment, a speech
i
impairment,
i t a cognitive
iti impairment,
i i t iis bli
blind
d or d
deaff and
d uses an interpreter.
i t t
•If the person has a speech impairment and you are having difficulty understanding what he
or she is saying, ask the individual to repeat, rather than pretending to understand. Listen
carefully, and repeat back what you think you heard to ensure effective communication.
If you are speaking
•If ki withith an iindividual
di id l withith a cognitive
iti didisability,
bilit you may need d tto repeatt or
rephrase what you say. If you are giving instructions how to perform a task, you may also
need to give the instructions in writing.
•Relax. When conducting an interview, focus on the subject matter and not on disability
related
l t d issues.
i Treat
T t ththe iindividual
di id l withith the
th same respectt that
th t you extend
t d to
t allll interviewees.
i t i
Any initial concerns will quickly disappear as you focus on effective communication.

http://www.dol.gov/odep/pubs/fact/effectiveinteraction.htm

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 Sample Questions for Investigators
Disability Discrimination: Questions for Complainant about the Disability
1.What is the medical condition that you believe was the basis for the employer’s alleged discrimination?
2. How long have you had this condition?
3 If th
3. the condition
diti h has b
been di
diagnosed
dbby a h
health
lth care professional,
f i l when
h and
d what
h t was th
the di
diagnosis?
i?
4. Do you know how long your condition is expected to last and how do you know?
5. If the condition is of a short duration (weeks or months), have there been or do you expect any permanent or
g
long‐term effects on yyour physical
p y or mental well‐beingg or on yyour level of function?
[Ask follow‐up questions for more detail as necessary]
6. If your condition flares up or gets worse from time to time, how often does this happen, and under what
circumstances? [Goes to episodic, chronic, or recurring impairments, such as depression, back impairments,
tuberculosis, bipolar disorder, epilepsy]
7. If you have even been hospitalized for your condition, when and for how long?
8. If you regularly see a doctor or other health care professional because of your condition, what kind of doctor or
healthcare professional do you see and how often do you see this professional?

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9. Are you undergoing any treatment (such as dialysis, blood transfusions, radiation, or chemotherapy), or do you take any medication (such as insulin
or antidepressants), or use any non‐obvious assistive devices (such as prosthesis or computer devices) to help with your condition? Please describe. IF
YES When
YES: Wh and d ffor h
how llong h
have you undergone
d ttreatment,
t t ttaken
k medication,
di ti or used
d assistive
i ti d devices
i tto h
help
l with
ith your condition?
diti ? A
Are th
there times
ti
when the treatment, medication, or assistive devices you use are less effective (such as when you are stressed or ill, or in certain weather conditions?
Have you had to change your treatment, medication, or assistive devices because they were no longer effective? What are the side effects, or
disadvantages, if any, of these treatments, medications, or assistive devices?

10. With your use of medicines/assistive devices, and considering any side effects or disadvantages of their use, have you experienced any kind of
limitations, problems, or restrictions in any activities? Include limitations in how long or how much you can do activities, limitations in the
circumstances or way in which you can do activities. [Ask about potential major life activities from the list below, as many as may be appropriate for
the condition. Ask follow‐up questions to get more detail as necessary.] Walking Speaking Learning Standing Breathing Thinking Sitting Lifting
Concentrating Seeing Reaching Relating & Getting along with others Hearing Sleeping Reproduction or Sexual Relations Eating Controlling Bodily Waste
Brushing your teeth, bathing, shaving, dressing, hair styling, household chores, grocery shopping, preparing meals, handling personal finances, using
the computer.

11. In more detail, please describe each of the limitations you just identified. How severe are each of the limitations? [Get numbers where applicable,
e.g., how long, how far, how much] If you experience limitations only under certain circumstances, what are those circumstances and how often do
they occur?

12. Did yyou notifyy yyour employer

p y about this condition? If so,, when and where did this notification occur? Did you
y notifyy the employer
p y on more than
one occasion? If so, please describe.

13. What condition did the employer know or believe you to have, and what do you think the employer believed you could not do because of this
condition? [Ask about potential major life activities from the list above, as many as may be appropriate for the condition.] Why do you think this is?

http://www.eeotraining.eeoc.gov/images/content/9B%20Sample%20Interview%20Questions%20_5_%20Aram%20Myrick.pdf

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 Sample Questions for Investigators
Harassment : Questions for the Complainant

1. Identify specific events and dates which compromise the harassment/hostile environment. For each event, identify who, what,
when, where, and how: Who committed the alleged harassment? What exactly occurred or what 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?
Purpose: to elicit complainant’s facts
2. How did the harassment affect you? Has your job been affected in any way?
Purpose: to examine whether there was tangible employment action; to examine the impact .
6

3. Did others witness these events? Who, how, what events were witnessed and on what dates were these events witnessed?
4. Did you tell anyone about the harassment?
5. Who did you tell, when, and what did you tell the person?
Purpose: to elicit complainant’s facts
6. Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person?
Purpose: Affirmative Defense: 1stProng: Employer must take reasonable care to prevent and promptly correct harassment; to test
quality of evidence.
7. Are there any notes, physical evidence, or other documentation regarding the incident(s)?
Purpose: to test if the event occurred.

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8. Did you complain or make known your rejection of the alleged discriminatory conduct? Who did you tell, when, what did you tell the
p
person?
Purpose: goes to issue of unwelcomeness

9. Are you aware of the agency’s anti‐harassment policy? How are you aware? Did you complain pursuant to that policy?
Purpose: Affirmative Defense, 2nd Prong: Employee’s duty to
exercise reasonable care to minimize the damages that result
from violations of the statute.

10. Did you complain about the harassment/hostile work environment? Who did you tell, when, and what did you tell the person?
Purpose: Affirmative Defense, 2ndProng: Employee’s duty to exercise reasonable care to minimize the damages that result from violations of
the statute; to test whether agency knew or should have known of the harassment and failed to take immediate and appropriate corrective
action

11. What happened as a result of your complaint? Did the harassment/hostile work environment stop? When did it stop? Promptly?
Purpose: Affirmative Defense, 1st Prong: Employer must take reasonable care to prevent and promptly correct harassment; to test agency’s
burden to take immediate and appropriate corrective action.

12. Did you take any action to avoid further harm by the perpetrator?
Purpose: Affirmative Defense, 2ndProng: Employee’s duty to exercise reasonable care

13. How would you like to see the situation resolved?

Purpose: Remedy or ADR

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 Sample Questions for Investigators
Promotions/Non
/ Selections: Questions to Ask Management
g

1. What role did you play in the selection process, and when and how did you become involved?
Purpose: to establish facts

2. What qualifications did you seek in the successful candidate?

Purpose: to establish facts; to test agency’s
agency s legitimate
legitimate, non‐discriminatory reason; to test complainant
complainant’ss evidence of pretext

3. How would these qualifications indicate success in performing the job duties?
Purpose: to establish facts; to test agency’s legitimate, non‐discriminatory reason; to test complainant’s evidence of pretext

4. What q
qualifications did the successful candidate have?
Purpose: to establish facts; to test agency’s legitimate, non‐discriminatory reason; to test complainant’s evidence of pretext

5. What qualifications did the complainant have/lack?

Purpose: to establish facts; to test agency’s legitimate, non‐discriminatory reason; to test complainant’s evidence of pretext

6. Why
6 Wh did you choose
h the
h successfulf l candidate?
did ?
Purpose: to establish facts; to test agency’s legitimate, non‐discriminatory reason; to test complainant’s evidence of pretext

7. Why did you not choose the complainant?

Purpose: to establish facts; to test agency’s legitimate, non‐discriminatory reason; to test complainant’s evidence of pretext

http://www.eeotraining.eeoc.gov/images/content/9B%20Sample%20Interview%20Questions%20_5_%20Ara
m%20Myrick.pdf

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 Dealing
g With Hostile Witnesses
When conducting a workplace investigation, it’s not uncommon for
interview subjects to become angry. After all,
employees/employers sometimes feel they are under attack when
they are being questioned in an internal investigation.

In order to keep information flowing itit’ss important for investigators

to develop the interviewing skills to defuse hostility when it arises
and get on the task of gathering information. With common sense
and patience, a good investigator can get through the hostility
hurdle.

http://i-sight.com/resources/5-steps-to-defuse-hostility-in-an-investigation-interview/

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 5 Steps to Defuse Hostility
1. Listen p
patiently
y – Sometimes, just listening properly
without interrupting is enough to neutralize the angry
person’s negative energy. Once the subject has finished
venting, repeat the main points of the argument back to him
or her, so that he or she is clear that yyou have listened and
understood. Take the time to hear the subject out, without
looking at your watch, getting fidgety or trying to move the
conversation on.
2. Don’t be defensive- The more yyou deny, y, the more wrongg you
y sound. If
someone attacks your line of questioning or criticizes your assumptions, don’t
start explaining yourself right away. That puts you on the defensive and gives
your attacker the opportunity to pick apart your reasoning.
3. Don’t
Don t get angry-
angry The longer you you’rere able to stay calm in
the face of an angry interview subject, the more in-control
you will appear in comparison to their irrational state.
Reacting in anger will only destroy your credibility.

http://i-sight.com/resources/5-steps-to-defuse-hostility-in-an-investigation-interview/

www.eeotraining.eeoc.gov/EXCEL
4.Sidestep Loaded Questions- An agitated interviewee might ask a question
containing
t i i underlying
d l i accusations ti or assumptions,
ti such
h as, “What
“Wh t iis th
the company
doing about this prehistoric HR policy?” Many interviewers fall into the trap of
responding to the question as it is asked. The best way to proceed is not to answer
the question, but to challenge the assumption behind the question. Another
alternative is to ask questions back: “Can Can you explain what you mean by that
question?” This will expose what they are really saying, force them to be specific
and give you time to consider how you want to answer. Another option is to use a
transition, such as: “I think the real issue you are objecting to is…”
5. Know when to q quit- There mayy be times when an angry g y interview
subject just won’t or can’t calm down. There can be many reasons
for this, and some of them are beyond the control of the investigator.
There may be other things going on in the person’s life that are
contributing to his or her irrational behavior. There’s no point wasting
h
hours trying
i to reason with i h an iirrational
i l person, so sometimes
i iit’s
’
best to know when to call it quits. You may want to reschedule the
interview for another time when the subject is less emotional or in a better
position to control his or her anger.

http://i-sight.com/resources/5-steps-to-defuse-hostility-in-an-investigation-interview/

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 “The EEOC @ 50: Building on a Legacy…
Looking to a Future of Innovation”

EEO Mediation Cases

Lessons Learned and Best
Practices

Eileen Barkas Hoffman,

Hoffman Rozmyn Miller,
Miller
David Huang, and Ramona Buck
Commissioners FMCS
Commissioners,
www.eeotraining.eeoc.gov/EXCEL
Introductions of the Presenters

Some Information About Us

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Federal Mediation and Conciliation Service
‐ Created in 1947 as an independent agency under
the Taft‐Hartley
Taft Hartley Act
‐ Promotes sound and stable labor‐management
relations
‐ Supports collective bargaining, mediation and
arbitration
‐ Provides
P id conflict fli t resolution
l ti services,
i iincluding
l di
training, facilitation and employment mediation

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Agenda Review
Introductions
Who is in the room?
Typical EEO Mediation Case
How FMCS Gets Involved
Sample Cases
Lessons Learned
Ethical Dilemmas
Best Practices

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Who is in the Room?

• Mediators
• EEO Professionals
• Attorneys
• Government Workers
• A d i
Academics
• Private Industry
• Administrative Law Judges
g
• Managers
• Other?

www.eeotraining.eeoc.gov/EXCEL
A Typical EEO Case

Consider the role given to you and think

about the issues and interests that are
important to you as well as ways this case
might
i ht b
be able
bl tto b
be resolved
l d

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How FMCS gets involved in mediation -

What process we follow -

What happens after mediation?

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Sharing of Sample Cases

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Lessons L
L Learnedd ffrom EEO
Mediation Cases

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Ethical Dilemmas

The Case of the Lawyer

Using the Case for
Discovery

The Case of the Out

Numbered Complainant
(or Respondent)

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Best Practices for the
M di ti off EEO
Mediation
Cases

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 Thank You!

Eileen Barkas Hoffman ebhoffman@fmcs.gov

ebhoffman@fmcs gov
Rozmyn Miller rmiller@fmcs.gov
David Huang dhuang@fmcs.gov
Ramona Buck rbuck@fmcs gov
rbuck@fmcs.gov

Federal Mediation and Conciliation Service

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EEOC CASE UPDATE
FY2015

PROCEDURAL DECISIONS:

Improper Dismissals

Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120141346 (June 27, 2014)

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140093 (May 9, 2014)

Complainant v. Dep’t of Justice, EEOC Appeal No. 0120140320 (April 17, 2014)

Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120122840 (April 16, 2014)

Failure to Cooperate

Reversed:

Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120140352 (April 16, 2014)

Affirmed:

Complainant v. Dep’t of Energy, EEOC Appeal No. 0120140889 (June 10, 2014)

Contract Employees

Complainant v. Department of the Army, EEOC Appeal No. 0120142416 (Dec. 2, 2014)

Complainant v. Central Intelligence Agency, EEOC Appeal No. 0120142273 (Dec. 4, 2014)

Security Clearance:

Complainant v. Department of Justice (DEA), EEOC Appeal No. 0120130912 (March 11, 2015)

MERITS DECISIONS:

Rehabilitation Act

Complainant v. United States Postal Service, EEOC Appeal No. 0120122130 (March 11, 2015)

Complainant v. US Postal Serv., EEOC Appeal No. 0120140761 (June 13, 2014)
Complainant v. Department of Justice, EEOC Appeal No. 0120121339 (May 8, 2015)

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120121221 (May 14, 2014)

Complainant v. Dep’t of Def., EEOC Appeal No. 0120121062 (May 1, 2014)

Complainant v. Tenn. Valley Auth., EEOC Appeal No. 0120120140 (May 1, 2014)

Title VII

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720130009 (May 14, 2014)

Complainant v. Dep’t of Def., EEOC Appeal No. 0120084008 (June 6, 2014)

Complainant v. Dep’t of the Army, EEOC Appeal No. 0120133395 (Apr 1, 2015)

Retaliation Found:

Complainant v. Dep’t of Justice, EEOC Appeal No. 0720120032 (May 1, 2014)

Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120123044 (Apr 10, 2015)

SANCTIONS DECISIONS:

Complainant v. Dep’t of Health & Human Serv., EEOC Appeal No. 0720130003 (June 16, 2014)

Complainant v. Broadcasting Board of Governors, EEOC Appeal No. 0120110117 (Nov. 6, 2014)

CLASS ACTIONS:

Complainant v. Dep’t of State, EEOC Appeal No. 0720110007 (June 6, 2014)

Complainant v. Dep’t of Housing & Urban Dev., EEOC Appeal No. 0120113119 (June 6, 2014)

REMEDIES DECISIONS:

Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0720140013 (June 13, 2014)

Complainant v. Dep’t of the Navy, EEOC Appeal No. 0720130020 (June 18, 2014)

Complainant v. Dep’t of Agriculture, EEOC Appeal No. 0120131896 (May 22, 2014)

Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120112818 (May 14, 2014)
Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120140224 (May 30, 2014)

Complainant v. Environmental Protection Agency, EEOC Appeal No. 0120131489 (Dec 12, 2014)
 “The EEOC @ 50: Building on a Legacy…
Looking to a Future of Innovation”

EEOC LAWS AND

PROCEDURES
The Abridged Version

www.eeotraining.eeoc.gov/EXCEL
 What is the EEOC?
The key federal agency responsible for enforcing
federal laws that prohibit employment
discrimination against individuals based on certain
protected
t t d categories.
t i

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 Mi i Statement
Mission St t t
To promote equal opportunity in employment
through:
– outreach and education,
– compliance and/or voluntary settlement, and, where
necessary,
– the rigorous
g enforcement of the federal civil rights
g
employment laws through administrative and judicial
actions.

www.eeotraining.eeoc.gov/EXCEL
Authority
y & Role
 The EEOC has the authority to investigate charges of discrimination
against employers who are covered by the law.

 Our role in an investigation is to fairly and accurately assess the

allegations in the charge and then make a finding.

 If we find that discrimination has occurred, we will try to settle

the charge.

 If we are unable to settle the charge, we have the authority to

file a lawsuit to protect the rights of individuals and the interests
of the public.

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www.eeotraining.eeoc.gov/EXCEL
 Laws Enforced
f by EEOC
OC
 Title VII of the Civil Rights Act of 1964
1964, as amended (Title VII)
 Equal Pay Act of 1963, as amended (EPA)
 Age Discrimination in Employment Act of 1967, as amended (ADEA)
 Title I & V of the Americans with Disabilities Act of 1990 (ADA)
 ADA Amendments Act of 2008
 Title II of the Genetic Information Nondiscrimination
Act of 2008 (GINA)
( )

www.eeotraining.eeoc.gov/EXCEL
Who is protected?
 An employee

 A temporary worker

 A trainee

 A job applicant

 A former employee

 Non-U.S. citizens regardless of

immigration status

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What Employers Are Covered?
 Private companies
 State or local government agencies
 Private, public schools, and universities
 Non-profit corporations
 E l
Employment t agencies
i
 Labor organizations
 Federal Government—different process
p

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 Discrimination Can Occur in the
Following Scenarios:
 Recruitment and Hiring
 Compensation or Wages
 Promotion/Demotion
 Testing
 Discharge
g
 Discipline
 Job advertisements
 Training and apprenticeship programs
 Different Terms and Conditions: i.e. Job Assignments, Benefits, Leave, Training
 Failure to Accommodate for Disability and Religion

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TITLE VII OF THE CIVIL
RIGHTS ACT OF 1964,
AS AMENDED
(Titl VII)
(Title

www.eeotraining.eeoc.gov/EXCEL
Title VII
Title VII of the Civil Rights Act of 1964
prohibits discrimination based on race,
color,
l religion,
li i sex, national
ti l origin,
i i or
association, and covers all aspects of
employment including retaliation
employment,

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Race
• All races, i.e., White, Black, Asian, Pacific Islander, Native American
• Association with someone of a particular race
• A
Ancestry
t – Racial
R i l or ethnic
th i ancestry
t
• Physical characteristics associated with race
• Race-related illnesses or genetics
• Cultural characteristics related to race or ethnicity
• Perceived race

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Color

 Skin pigmentation
pigmentation, complexion
complexion, shade or tone
 Discrimination can occur between persons of different races or
ethnicities, or between persons of the same race or ethnicity
 Also
Al association
i ti andd perception
ti

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 RELIGION
• Religion defined: moral or ethical beliefs as to right and wrong that
are sincerely held with the strength of traditional religious views.
• Ensures that individuals are protected against religious discrimination
regardless of how widespread their particular religious beliefs or
practices are.
• The law protects not only people who belong to traditional
traditional, organized
religions, such as Buddhism, Christianity, Hinduism, Islam, and
Judaism, but also others who have sincerely held religious, ethical or
moral beliefs.

www.eeotraining.eeoc.gov/EXCEL
 Religious Accommodation
• The law requires an employer or other covered entity to
reasonably accommodate an employee’s religious beliefs
or practices, unless doing so would cause more than a
minimal burden or undue hardship on the operations of the
employer's business.

 This means an employer may be required to make

reasonable adjustments to the work environment that will
allow an employee to practice his or her religion.

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 What is Reasonable Accommodation?
 An adjustment to the work environment that eliminates the conflict
between the employee’s religion and the work rule

 For example:
 flexible scheduling
 voluntary substitutions or swaps
 modifying dress or grooming codes
 modifying
dif i d duties
i
 excusing union dues

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Undue Hardship
• Under Title VII, the Supreme Court has ruled that a religious
accommodation poses an “undue hardship” if it would pose “more than a
de minimis burden” on the operation of the business. Trans World
Airlines,, Inc. v. Hardison 432 U.S. 63 ((1977).
)

• Undue hardship is case-by-case, fact-specific.

• The Title VII “undue hardship”

p defense to religious
g accommodation is
much lower (i.e., easier for an employer to show) than the “undue
hardship” defense to disability accommodation under the American with
Disabilities Act (ADA).

– ADA defines “undue

undue hardship
hardship” as “significant
significant difficulty or expense
expense.”

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Undue Hardship Examples
– impairing workplace safety
– violation of seniority rights
– shifting
hifti too
t much h workk tto other
th employees
l
– more than minimal costs
– workplace disruption
– employee religious expression that is potential harassment of others
– employee religious expression that would be misperceived as employer’s
own message

www.eeotraining.eeoc.gov/EXCEL
 Sex
• Gender based
• Characteristics associated with gender (child birth, related medical
conditions,
diti medical
di l bbenefits,
fit and
d child
hild care lleave))
• Sexual Harassment
• Pregnancy
• Lesbian, Gay, Bisexual, Transgender (LGBT)

www.eeotraining.eeoc.gov/EXCEL
 Sex-based Harassment
 Harassment does not have to be of a sexual nature. It can include
offensive remarks about a person’s sex. For example, it is illegal to
h
harass a woman b
by making
ki offensive
ff i comments t about
b t women iin
general.

 Both victim and the harasser can be either a woman or a man

man, and
the victim and harasser can be the same sex.

 The harasser can be the victim

victim's
s supervisor,
supervisor a supervisor in another
area, a co-worker, or someone who is not an employee of the
employer, such as a client or customer.

www.eeotraining.eeoc.gov/EXCEL
 Sexual Harassment
 It is unlawful to harass a person (an applicant or
employee) because of that person’s sex.

 Harassment can include “sexual harassment” or

unwelcome
u e co e se
sexual
ua ad
advances,
a ces, requests
eques s for
o se
sexual
ua favors,
a o s,
and other verbal or physical harassment of a sexual
nature.

www.eeotraining.eeoc.gov/EXCEL
 Pregnancy Discrimination
 Pregnancy discrimination involves treating a woman (an applicant or
employee) unfavorably because of pregnancy
pregnancy, childbirth,
childbirth or a medical
condition related to pregnancy or childbirth.

 The Pregnancy Discrimination Act (PDA) forbids discrimination based on

pregnancy when h it comes to any aspect off employment,
l including
l d hiring,
h
firing, pay, job assignments, promotions, layoff, training, fringe benefits,
such as leave and health insurance, and any other term or condition of
employment.

www.eeotraining.eeoc.gov/EXCEL
 Pregnancy Based Discrimination
• Maternity leave is determined by the employee and her
physician

• Employers cannot require that an expectant mother begin

maternity leave at specified periods
Example:
Peg told Ed that she was pregnant and asked him to reduce her
workload
kl d as an accommodation.
d ti Ed d
declined
li d tto d
do so.

Was Ed required to accommodate Peg’s pregnancy?

www.eeotraining.eeoc.gov/EXCEL
LGBT / Sex Stereotyping
yp g
• Charges of sex stereotyping are considered claims of sex discrimination under
Title VII. Thus, a charge alleging employment discrimination against an individual
who is lesbian
lesbian, gay
gay, bisexual
bisexual, or transgender may be filed under Title VII with the
EEOC, because it centers on the way in which an individual does not conform
to traditional gender stereotypes.
• The same would apply pp y for harassment based on ggender stereotypes/non-
yp
conformance.
• For example, it is illegal for an employer to deny employment because a woman
does not dress or talk in a feminine manner or, conversely, because a man
d
dresses iin an effeminate
ff i manner or enjoys
j a pastime
i (lik
(like crocheting)
h i ) that
h may
be associated with women.

www.eeotraining.eeoc.gov/EXCEL
 LGBT / Sex Stereotyping
• TRANSGENDER STATUS: Intentional discrimination against
a transgender individual because that person is transgender
is, by definition, discrimination based on sex, and such
discrimination violates Title VII. Macy v. Department of
Justice, EEOC Appeal No. 0120120821 (2012)

• SEXUAL ORIENTATION: Title VII protects gay and lesbian

individuals against sex discrimination
discrimination, which includes gender
stereotyping and same–sex harassment, which is a form of
sexual harassment.

www.eeotraining.eeoc.gov/EXCEL
Recent LGBT Update
• On July 16, 2015, the Commission issued an important federal sector decision,
Complainant v. Department of Transportation, holding that all allegations of
di i i ti on th
discrimination the b
basis
i off sexuall orientation
i t ti will
ill state
t t a claim
l i off di
discrimination
i i ti on
the basis of sex under Title VII. Charges alleging discrimination on the basis of
sexual orientation should be investigated and analyzed using the legal framework in
the decision.
• Complaints of discrimination on the basis of sexual orientation, transgender
status, or gender-identity should be accepted under Title VII and investigated
as claims of sex discrimination in light of Commission precedent.

• As a result of the Department of Transportation decision, the Commission now

recognizes that all claims of sexual orientation discrimination are sex discrimination
claims, regardless of whether there is evidence of sex stereotyping.

www.eeotraining.eeoc.gov/EXCEL
National Origin
g
• Nation of Origin
• Ancestry
• Association
• Perception
• Accent
• English Only

www.eeotraining.eeoc.gov/EXCEL
NATIONAL ORIGIN
- Accent/Language: includes discrimination on the basis of accent,
manner of speaking, or language fluency. It also applies to rules requiring
employees to speak only English in the workplace.

- Multilingualism: may include requiring multilingual employees to

perform more work than unilingual colleagues without additional
compensation.

- Citizenship: The EEO statutes protect all employees who work in the
United States for covered employers, regardless of citizenship status or
work authorization. In addition, discrimination based on citizenship
violates Title VII's prohibition on national origin discrimination if it has the
purpose or effect of discriminating on the basis of national origin.

www.eeotraining.eeoc.gov/EXCEL
 Discrimination based on Accent
• An employment decision based on a foreign accent does not violate Title VII
if an individual’s accent materially interferes with the ability to perform job
duties.
duties
• However, an employer may only base an employment decision on accent if
effective oral communication in English is required to perform job duties and
the individual’s foreign
g accent materially y interferes with his/her ability
y to
communicate orally in English.

Example:
• Acme Spool Company is hiring for a bolt tightener job, which is an unskilled entry-
level assembly line position. The hiring official, Shauna Smith, tells Yung-Mi Lee, a
U.S. citizen born in Korea, that she did not get the job because her foreign accent
makes it difficult to communicate with her.

www.eeotraining.eeoc.gov/EXCEL
 Discrimination based on
English Proficiency
• To justify a requirement that an individual be
fluent in English,
g , an employer
p y would have to
show that the level of fluency required was
materially related to job performance.

www.eeotraining.eeoc.gov/EXCEL
 Speak English Only Rules

• Speak English only rules may violate Title

VII unless an employer shows that the
requirement is necessary for conducting
the business

www.eeotraining.eeoc.gov/EXCEL
AGE DISCRIMINATION
IN EMPLOYMENT ACT
(ADEA)

www.eeotraining.eeoc.gov/EXCEL
 The Age Discrimination in
Employment Act of 1967 (ADEA)
• The ADEA forbids age discrimination against people who are age 40 or
older. It does not protect workers under the age of 40, although some states
do have laws that protect younger workers from age discrimination.

• It is not illegal for an employer to favor an older worker over a younger one,
even if both workers are age 40 or older.

• Discrimination can occur when the victim and the person who inflicted the
discrimination are both over 40.

www.eeotraining.eeoc.gov/EXCEL
Employment Applications
• A request on the part of an employer for information such
as “date of birth” or “state age” on an employment
application
li ti fform isi not,t in
i itself,
it lf a violation
i l ti off the
th ADEA.
ADEA

• Because the request

q that an applicant
pp state his age
g may y
tend to deter older applicants or otherwise indicate
discrimination based on age, employment application
forms which request such information will be closely
scrutinized to assure that the request is for a permissible
purpose and not for purposes proscribed by the ADEA.

www.eeotraining.eeoc.gov/EXCEL
 Involuntary Retirement and
Reduction In Force (RIF)
• Mandatory Retirement
– Cannot force someone to retire due to eligibility for retirement

• Reduction in Force (RIF)

– Employers must not use age or eligibility for retirement as factors in
deciding who is laid off
– Employers should establish objective criteria and be consistent when
applying the criteria
– Pension Vesting; Health Insurance Costs; High Salaries; Years of
Service will be closely scrutinized by EEOC

www.eeotraining.eeoc.gov/EXCEL
 Stereotypes of Older Workers
as compared to young employees:
 More costly
 Harder to train
 Less adaptable
 L
Less motivated
ti t d
 Less flexible
 More resistant to change
 Less energetic

www.eeotraining.eeoc.gov/EXCEL
EQUAL PAY ACT (EPA)

www.eeotraining.eeoc.gov/EXCEL
 The Equal Pay Act (EPA)
 Prohibits wage discrimination based on gender
 Both
B th men andd women are covered d under
d thi
this llaw.
 Employers may not pay unequal wages to men and
women who perform substantially equal work in the
same establishment.

www.eeotraining.eeoc.gov/EXCEL
 The Equal Pay Act
 Applies when men and women perform substantially
equal work requiring similar skill, effort and
responsibility
 The jobs need not be identical, but they must be
substantially equal.
 Job
J b content
t t ((nott jjob
b titl
titles)) d
determines
t i whether
h th jjobs
b
are substantially equal.

www.eeotraining.eeoc.gov/EXCEL
Women still make only 78¢ for every dollar earned by
men — and for women of color and women with
disabilities, the numbers are even worse.

Source: National Women’s Law Center

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 Forms of Compensation
 All forms of pay are covered by this law
 salary,
salary overtime pay
pay, bonuses
bonuses, stock options
options, profit
sharing and bonus plans, life insurance, vacation and
holiday pay, cleaning or gasoline allowances, hotel
accommodations, reimbursement for travel expenses,
and benefits.

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AMERICANS WITH
DISABILITIES ACT
(ADA)

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Americans with Disabilities Act of 1990
ADA Amendments Act (ADAAA) of 2008
• P
Prohibits
hibit employment
l t di
discrimination
i i ti against
i t
individuals with disabilities in the private sector,
and in state and local governments (ADAAA effective
as off JJanuary 1
1, 2009)

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 Individual with a Disability
A person who has a physical or mental impairment
that substantially limits one or more major life activities,
(1) is regarded as having such an impairment.
(2) that has a record of such an impairment, or

www.eeotraining.eeoc.gov/EXCEL
 “Substantially Limited”
Limited Redefined
 An impairment need NOT prevent, or significantly or
severely restrict
restrict, performance of a major life activity to
be “substantially limiting.”

 To
T hhave a di
disability
bili (or
( to have
h a record
d off a disability)
di bili )
an individual must be substantially limited in
performing a major life activity as compared to most
people in the general population.

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 Major Life Activities
Include, but are not limited to, caring for oneself,
performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, lifting, bending, speaking,
breathing learning,
breathing, learning reading
reading, concentrating
concentrating, thinking
thinking,
communicating, and working.

www.eeotraining.eeoc.gov/EXCEL
 Essential Functions
• The fundamental job duties of the employment
position the employee or applicant must be able to
perform

• If unable to perform the essential functions with or

without a reasonable accommodation, then the
employee or applicant is not an individual with a
disability under the ADA

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 Mitigating
g g Measures
• Under the ADAAA, mitigating measures (other than ordinary corrective lenses) are
not considered when deciding whether a person has a disability

• Mitigating measures include:

– Medication, medical supplied and equipment, low vision and hearing devices,
prosthetics, mobility devices, etc.
– Use of assistive technology
– Reasonable accommodations
– Learned behavioral or adaptive
– neurological modifications

www.eeotraining.eeoc.gov/EXCEL
 “Regarded
g As” Disabled
• ADAAA gives us a much broader definition of “regarded as” disabled

• “Regarded as” covers anyone subjected to an action because of a

real or perceived physical or mental impairment

• “Regarded
Regarded as”
as excludes impairments that are transitory (less than
six months) and minor

• Individuals who are “regarded

regarded as”
as disabled are not entitled to a
reasonable accommodation in their workplace

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 Reasonable Accommodation
• Reasonable accommodation to the known physical and
mental limitations of an individual with a disability is
required unless the employer can show undue hardship
• Employee or applicant must notify employer of need for
accommodation or need of accommodation must be
apparent
• No fancy words required to request reasonable
accommodation
• INTERACTIVE DIALOGUE

www.eeotraining.eeoc.gov/EXCEL
 Three Categories
g of Reasonable
Accommodation
 Changes to a job application process
 Changes to the work environment, or to the way
a job is usually done
 Changes that enable an employee with a
disability to enjoy equal benefits and privileges of
employment (such as access to training).

www.eeotraining.eeoc.gov/EXCEL
 Undue Hardship
• An action that requires significant difficulty or
expense ini light
li ht off certain
t i ffactors
t
• Nature of the accommodation
• Net cost of the accommodation
• Overall financial and other resources of the employer
• Impact of the accommodation on employer’s operation

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Job Accommodation Network (JAN)
http://askjan.org/
Provided by the U.S.
S Dept off Labor - Office
Off off
Disability Employment Policy

JAN's mission is to facilitate the employment and

retention of workers with disabilities by providing
employers, employment providers, people with
disabilities, their familyy members, and other
i t
interested
t d parties
ti withith iinformation
f ti on jjob
b
accommodations, entrepreneurship, and related
subjects.

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ADA p
provides certain pprotection for those who are
not qualified individuals with a disability:
For example:
- Medical examinations and inquiries: The ADA's restrictions on medical examinations and
inquiries apply regardless of whether an individual has a disability.

- Confidentiality: The ADA's provisions regarding maintenance and confidentiality of medical records
apply regardless of whether an individual has a disability. Separate medical file required.

- Association: The ADA prohibits discrimination against a qualified individual because of his/her
association with a person with a disability. For example, an employer may not refuse to hire someone
who is qualified,
qualified but does not have a disability
disability, because she has a child with a disability
disability.

- Retaliation: The ADA prohibits retaliation against any individual who has engaged in protected
activity (which includes requesting a reasonable accommodation).

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GENETIC INFORMATION
NONDISCRIMINATION
ACT (GINA)

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 Genetic Information Nondiscrimination
Act of 2008
Under Title II of GINA, it is illegal to discriminate against employees or
applicants beca
because se of genetic information
information.

•Prohibits use of genetic information to discriminate in employment

•Restricts employers and other entities covered by GINA from

requesting, requiring, or purchasing genetic information

•Requires that covered entities keep genetic information confidential,

confidential
subject to limited exceptions

•Includes prohibition on harassment and retaliation

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 What is Genetic Information?
1. An individual’s genetic tests
2. Genetic tests of family members
3. The manifestation of a disease or disorder in family members
(family medical history) – all conditions - not limited to
conditions currently known to be inheritable
4. Request for or receipt of genetic services by an individual or
family member
 Meaning: genetic test, counseling, education.
5. Genetic information of a fetus carried by an individual or family
member or of an embryo legally held by the individual or family
member using an assisted reproductive technology.

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 Genetic Information
Does NOT Include
 Information about an individual’s or family member’s
race, sex, ethnicity, or age
 The fact that an individual currently has a disease or
disorder (manifested condition) – this individual would be
protected
p otected by tthe
e ADA if tthe
eddisease
sease rises
ses to tthe
e level
e e oof a
disability.

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 Di ti ti
Distinctions between
b t GINA and
d the
th ADA
• GINA prohibits discrimination based on genetic information and not
on the basis of a manifested condition. The prohibition to use of
genetic information is absolute.

• ADA prohibits discrimination on the basis of manifested conditions

that meet the definition of disability.

www.eeotraining.eeoc.gov/EXCEL
Retaliation p
prohibited under all
federal EEO statutes

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 Retaliation
 Opposition to discrimination or participation in
covered proceedings
p g
 Adverse action
 Causal connection between the protected activity y
and the adverse action

It is illegal to fire, demote, harass or otherwise retaliate against an

applicant or employee engaging in protected activity.

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 What is a Protected Activity?
Protected activity under EEOC’s laws includes:

• Filing a Charge, testifying, assisting, or participating in any manner

in a discrimination proceeding (such as asn investigation, lawsuit, or
hearing under the applicable statute)

• Opposing a practice made unlawful by one of the employment

discrimination statutes

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 Adverse Action
 An adverse action is an action taken to try to keep
someone from
f opposing
i a discriminatory
di i i t practice,
ti
or from participating in an employment
discrimination proceeding.
p g

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 Protected Forms of Opposition
 Threatening to file or assist in filing a charge
charge, complaint
complaint, grievance
and/or lawsuit alleging discrimination
 Complaining about discrimination to management, union, employees
and/or newspapers
 Organizing
O i i or participating
ti i ti iin a group which hi h opposes unlawful
l f l
employment discrimination
 Refusing to obey an order because of a belief that it constitutes
unlawful employment
p y discrimination
 A protected activity can also include requesting a reasonable
accommodation based on religion or disability.

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Examples of Unlawful Retaliation
 Harassment and Intimidation
 Increased surveillance
 Denial of employment benefits
 Discharge, discipline, demotion, reassignment
 Acceleration of disciplinary actions
 Unjustified negative evaluations and reports
 Denial of promotion
 Refusal to hire
 Negative
g reference of former employee
p y in retaliation for his/her
opposition to discrimination or participation in EEO process
 Unwarranted contesting of unemployment compensation claims

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REMEDIES AND RELIEF

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 Voluntary Relief
 Mediation
 Settlement
 Conciliation

Types of Relief
 Monetary
 Non-Monetary

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 Monetary Relief
 Back Pay
 Front Pay
 Benefits
 Compensatory Damages
 Punitive
P iti D Damages
 Liquidated Damages
 Attorney
Attorney’s
s Fees

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 Non-Monetary
Specific Injunctive Relief
Seniority
Seniority Adjustments
Training
Expunge Records
References
Non-Retaliation
Policy Correction
Reporting Requirements

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 EEOC’S CHARGE AND
INVESTIGATION PROCESS

www.eeotraining.eeoc.gov/EXCEL
 Filing
Fili a complaint
l i t
process:
Intake process:
• Typically, charging party submits completed
questionnaire
• Initial contact by phone, walk-in, fax, or mail
- Charging party interviewed
• Attorney-drafted
Att d ft d charges
h

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 Jurisdictional Thresholds

• Coverage: Generally, 15 or more employees; although

some statutes require more (ADEA 20+)
20+).

• Immigration
g status is irrelevant during
g investigation.
g
EEOC will NOT ask about an individual’s immigration
status.

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Statutory Deadline for Charge Filing
Title VII, ADEA, ADA, GINA

- within 300 days of the act of harm for jurisdictions with a

Fair Employment Practices Agency (FEPA)
- 180 days
y for jjurisdictions without a FEPA
- EEOC charge is a prerequisite to a federal civil action

EPA
- within 2 years of the act of harm; within 3 years if the violation
was willful
- can go directly to court without first filing EEOC charge

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CHARGE PROCESSING
• After receiving information that constitutes a charge,
notice of the charge is served to the Respondent within
10 days
• Notice of the charge may or may not include a signed
charge
• Signed charge is served to Respondent once received
b EEOC
by
• Notice may request that Respondent submit a position
statement by deadline

www.eeotraining.eeoc.gov/EXCEL
 The EEOC Process

INTAKE

INTERNAL CHARGE ANALYSIS

CHARGE SERVED TO COMPANY & FEPA W/IN 10 DAYS

MEDIATION Early Dismissal

SUCCESSFUL RIGHT TO
UNSUCESSFUL INVESTIGATION SUE NOTICE
MEDIATION MEDIATION

DETERMINATION
RESPONDENT’S POSITION STATEMENT
REQUEST FOR INFORMATION
WITNESS INTERVIEWS
DOCUMENT REVIEWS
NO
CAUSE CAUSE
PRE DETERMINATION INTERVIEWS

UNSUCESSFUL
CONCILIATION
DISMISSAL SUCCESSFUL
RIGHT TO CONCILIATION
SUE NOTICE DISMISSAL
RIGHT TO
SUE NOTICE
EEOC National Statistics – FY 2014
Charges Filed = 88,778
Retaliation 37,955 42.8%
Race 31,073 35.0%
Sex 26,027 29.3%
Disability 25,369 28.6%
Age 20,588 23.2%
National Origin 9,579 10.8%
Religion 3,549 4.0%
Color 2,756 3.1%
Equal Pay 938 1.1%
GINA 333 0.4%

www.eeotraining.eeoc.gov/EXCEL
Employer Best Practices
• Policies should be in writing and distributed to all supervisors and employees.
• The disciplinary policy should be progressive in nature.
• Consistent application is crucial: similarly-situated employees who commit the
same infraction should be given the same punishment.
• Ensure that all employees in similar jobs have the same access to mentoring
programs, choice assignments or other career development opportunities.
• Make selection based on qualifications
qualifications.
• The supervisor or manager should document facts that support a
recommendation or decision regarding recruitment, hiring, promotion, discipline
and discharge.
• Document any rare reasons for deviation.
• Train all employees in EEO laws and company policies.

www.eeotraining.eeoc.gov/EXCEL
 HOW TO CONTACT YOUR LOCAL EEOC
OFFICE
• EEOC has offices nationwide:
– 1-800-669-4000 or 1-800-669-6820 (TTY)
– www.eeoc.gov
– @EEOCnews
– @EEOCespanol
• Services are free of charge
g
• Language interpretation is also available

www.eeotraining.eeoc.gov/EXCEL
QUESTIONS???????

79
www.eeotraining.eeoc.gov/EXCEL
 “The EEOC @ 50: Building on a Legacy…
Looking to a Future of Innovation”

EEOC LAWS AND

PROCEDURES
The Abridged Version
Presented by
Evangeline Hawthorne
National Outreach Coordinator
August 11, 2015

www.eeotraining.eeoc.gov/EXCEL
 What is the EEOC?
The key federal agency responsible for enforcing
federal laws that prohibit employment
discrimination against individuals based on certain
protected
t t d categories.
t i

www.eeotraining.eeoc.gov/EXCEL
 Mi i Statement
Mission St t t
To promote equal opportunity in employment
through:
– outreach and education,
– compliance and/or voluntary settlement, and, where
necessary,
– the rigorous
g enforcement of the federal civil rights
g
employment laws through administrative and judicial
actions.

www.eeotraining.eeoc.gov/EXCEL
Authority
y & Role
 The EEOC has the authority to investigate charges of discrimination
against employers who are covered by the law.

 Our role in an investigation is to fairly and accurately assess the

allegations in the charge and then make a finding.

 If we find that discrimination has occurred, we will try to settle

the charge.

 If we are unable to settle the charge, we have the authority to

file a lawsuit to protect the rights of individuals and the interests
of the public.

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www.eeotraining.eeoc.gov/EXCEL
 Laws Enforced
f by EEOC
OC
 Title VII of the Civil Rights Act of 1964
1964, as amended (Title VII)
 Equal Pay Act of 1963, as amended (EPA)
 Age Discrimination in Employment Act of 1967, as amended (ADEA)
 Title I & V of the Americans with Disabilities Act of 1990 (ADA)
 ADA Amendments Act of 2008
 Title II of the Genetic Information Nondiscrimination
Act of 2008 (GINA)
( )

www.eeotraining.eeoc.gov/EXCEL
Who is protected?
 An employee

 A temporary worker

 A trainee

 A job applicant

 A former employee

 Non-U.S. citizens regardless of

immigration status

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What Employers Are Covered?
 Private companies
 State or local government agencies
 Private, public schools, and universities
 Non-profit corporations
 E l
Employment t agencies
i
 Labor organizations
 Federal Government—different process
p

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 Discrimination Can Occur in the
Following Scenarios:
 Recruitment and Hiring
 Compensation or Wages
 Promotion/Demotion
 Testing
 Discharge
g
 Discipline
 Job advertisements
 Training and apprenticeship programs
 Different Terms and Conditions: i.e. Job Assignments, Benefits, Leave, Training
 Failure to Accommodate for Disability and Religion

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TITLE VII OF THE CIVIL
RIGHTS ACT OF 1964,
AS AMENDED
(Titl VII)
(Title

www.eeotraining.eeoc.gov/EXCEL
Title VII
Title VII of the Civil Rights Act of 1964
prohibits discrimination based on race,
color,
l religion,
li i sex, national
ti l origin,
i i or
association, and covers all aspects of
employment including retaliation
employment,

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Race
• All races, i.e., White, Black, Asian, Pacific Islander, Native American
• Association with someone of a particular race
• A
Ancestry
t – Racial
R i l or ethnic
th i ancestry
t
• Physical characteristics associated with race
• Race-related illnesses or genetics
• Cultural characteristics related to race or ethnicity
• Perceived race

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Color

 Skin pigmentation
pigmentation, complexion
complexion, shade or tone
 Discrimination can occur between persons of different races or
ethnicities, or between persons of the same race or ethnicity
 Also
Al association
i ti andd perception
ti

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 RELIGION
• Religion defined: moral or ethical beliefs as to right and wrong that
are sincerely held with the strength of traditional religious views.
• Ensures that individuals are protected against religious discrimination
regardless of how widespread their particular religious beliefs or
practices are.
• The law protects not only people who belong to traditional
traditional, organized
religions, such as Buddhism, Christianity, Hinduism, Islam, and
Judaism, but also others who have sincerely held religious, ethical or
moral beliefs.

www.eeotraining.eeoc.gov/EXCEL
 Religious Accommodation
• The law requires an employer or other covered entity to
reasonably accommodate an employee’s religious beliefs
or practices, unless doing so would cause more than a
minimal burden or undue hardship on the operations of the
employer's business.

 This means an employer may be required to make

reasonable adjustments to the work environment that will
allow an employee to practice his or her religion.

www.eeotraining.eeoc.gov/EXCEL
 What is Reasonable Accommodation?
 An adjustment to the work environment that eliminates the conflict
between the employee’s religion and the work rule

 For example:
 flexible scheduling
 voluntary substitutions or swaps
 modifying dress or grooming codes
 modifying
dif i duties
d i
 excusing union dues

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Undue Hardship
• Under Title VII, the Supreme Court has ruled that a religious
accommodation poses an “undue hardship” if it would pose “more than a
de minimis burden” on the operation of the business. Trans World
Airlines,, Inc. v. Hardison 432 U.S. 63 ((1977).
)

• Undue hardship is case-by-case, fact-specific.

• The Title VII “undue hardship”

p defense to religious
g accommodation is
much lower (i.e., easier for an employer to show) than the “undue
hardship” defense to disability accommodation under the American with
Disabilities Act (ADA).

– ADA defines “undue

undue hardship
hardship” as “significant
significant difficulty or expense
expense.”

www.eeotraining.eeoc.gov/EXCEL
Undue Hardship Examples
– impairing workplace safety
– violation of seniority rights
– shifting
hifti too
t much h workk to
t other
th employees
l
– more than minimal costs
– workplace disruption
– employee religious expression that is potential harassment of others
– employee religious expression that would be misperceived as employer’s
own message

www.eeotraining.eeoc.gov/EXCEL
 Sex
• Gender based
• Characteristics associated with gender (child birth, related medical
conditions,
diti medical
di l bbenefits,
fit and
d child
hild care lleave))
• Sexual Harassment
• Pregnancy
• Lesbian, Gay, Bisexual, Transgender (LGBT)

www.eeotraining.eeoc.gov/EXCEL
 Sex-based Harassment
 Harassment does not have to be of a sexual nature. It can include
offensive remarks about a person’s sex. For example, it is illegal to
h
harass a woman b
by making
ki offensive
ff i comments t about
b t women iin
general.

 Both victim and the harasser can be either a woman or a man

man, and
the victim and harasser can be the same sex.

 The harasser can be the victim's

victim s supervisor,
supervisor a supervisor in another
area, a co-worker, or someone who is not an employee of the
employer, such as a client or customer.

www.eeotraining.eeoc.gov/EXCEL
 Sexual Harassment
 It is unlawful to harass a person (an applicant or
employee) because of that person’s sex.

 Harassment can include “sexual harassment” or

unwelcome
u e co e se
sexual
ua ad
advances,
a ces, requests
eques s for
o se
sexual
ua favors,
a o s,
and other verbal or physical harassment of a sexual
nature.

www.eeotraining.eeoc.gov/EXCEL
 Pregnancy Discrimination
 Pregnancy discrimination involves treating a woman (an applicant or
employee) unfavorably because of pregnancy,
pregnancy childbirth
childbirth, or a medical
condition related to pregnancy or childbirth.

 The Pregnancy Discrimination Act (PDA) forbids discrimination based on

pregnancy when h it comes to any aspect off employment,
l including
l d h hiring,
firing, pay, job assignments, promotions, layoff, training, fringe benefits,
such as leave and health insurance, and any other term or condition of
employment.

www.eeotraining.eeoc.gov/EXCEL
 Pregnancy Based Discrimination
• Maternity leave is determined by the employee and her
physician

• Employers cannot require that an expectant mother begin

maternity leave at specified periods
Example:
Peg told Ed that she was pregnant and asked him to reduce her
workload
kl d as an accommodation.
d ti Ed d
declined
li d tto d
do so.

Was Ed required to accommodate Peg’s pregnancy?

www.eeotraining.eeoc.gov/EXCEL
LGBT / Sex Stereotyping
yp g
• Charges of sex stereotyping are considered claims of sex discrimination under
Title VII. Thus, a charge alleging employment discrimination against an individual
who is lesbian
lesbian, gay
gay, bisexual
bisexual, or transgender may be filed under Title VII with the
EEOC, because it centers on the way in which an individual does not conform
to traditional gender stereotypes.
• The same would apply pp y for harassment based on ggender stereotypes/non-
yp
conformance.
• For example, it is illegal for an employer to deny employment because a woman
does not dress or talk in a feminine manner or, conversely, because a man
d
dresses iin an effeminate
ff i manner or enjoys
j a pastime
i (lik
(like crocheting)
h i ) that
h may
be associated with women.

www.eeotraining.eeoc.gov/EXCEL
 LGBT / Sex Stereotyping
• TRANSGENDER STATUS: Intentional discrimination against
a transgender individual because that person is transgender
is, by definition, discrimination based on sex, and such
discrimination violates Title VII. Macy v. Department of
Justice, EEOC Appeal No. 0120120821 (2012)

• SEXUAL ORIENTATION: Title VII protects gay and lesbian

individuals against sex discrimination
discrimination, which includes gender
stereotyping and same–sex harassment, which is a form of
sexual harassment.

www.eeotraining.eeoc.gov/EXCEL
Recent LGBT Update
• On July 16, 2015, the Commission issued an important federal sector decision,
Complainant v. Department of Transportation, holding that all allegations of
di i i ti on th
discrimination the b
basis
i off sexuall orientation
i t ti will
ill state
t t a claim
l i off di
discrimination
i i ti on
the basis of sex under Title VII. Charges alleging discrimination on the basis of
sexual orientation should be investigated and analyzed using the legal framework in
the decision.
• Complaints of discrimination on the basis of sexual orientation, transgender
status, or gender-identity should be accepted under Title VII and investigated
as claims of sex discrimination in light of Commission precedent.

• As a result of the Department of Transportation decision, the Commission now

recognizes that all claims of sexual orientation discrimination are sex discrimination
claims, regardless of whether there is evidence of sex stereotyping.

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National Origin
g
• Nation of Origin
• Ancestry
• Association
• Perception
• Accent
• English Only

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NATIONAL ORIGIN
- Accent/Language: includes discrimination on the basis of accent,
manner of speaking, or language fluency. It also applies to rules requiring
employees to speak only English in the workplace.

- Multilingualism: may include requiring multilingual employees to

perform more work than unilingual colleagues without additional
compensation.

- Citizenship: The EEO statutes protect all employees who work in the
United States for covered employers, regardless of citizenship status or
work authorization. In addition, discrimination based on citizenship
violates Title VII's prohibition on national origin discrimination if it has the
purpose or effect of discriminating on the basis of national origin.

www.eeotraining.eeoc.gov/EXCEL
 Discrimination based on Accent
• An employment decision based on a foreign accent does not violate Title VII
if an individual’s accent materially interferes with the ability to perform job
duties.
duties
• However, an employer may only base an employment decision on accent if
effective oral communication in English is required to perform job duties and
the individual’s foreign
g accent materially y interferes with his/her ability
y to
communicate orally in English.

Example:
• Acme Spool Company is hiring for a bolt tightener job, which is an unskilled entry-
level assembly line position. The hiring official, Shauna Smith, tells Yung-Mi Lee, a
U.S. citizen born in Korea, that she did not get the job because her foreign accent
makes it difficult to communicate with her.

www.eeotraining.eeoc.gov/EXCEL
 Discrimination based on
English Proficiency
• To justify a requirement that an individual be
fluent in English,
g , an employer
p y would have to
show that the level of fluency required was
materially related to job performance.

www.eeotraining.eeoc.gov/EXCEL
 Speak English Only Rules

• Speak English only rules may violate Title

VII unless an employer shows that the
requirement is necessary for conducting
the business

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AGE DISCRIMINATION
IN EMPLOYMENT ACT
(ADEA)

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 The Age Discrimination in
Employment Act of 1967 (ADEA)
• The ADEA forbids age discrimination against people who are age 40 or
older. It does not protect workers under the age of 40, although some states
do have laws that protect younger workers from age discrimination.

• It is not illegal for an employer to favor an older worker over a younger one,
even if both workers are age 40 or older.

• Discrimination can occur when the victim and the person who inflicted the
discrimination are both over 40.

www.eeotraining.eeoc.gov/EXCEL
Employment Applications
• A request on the part of an employer for information such
as “date of birth” or “state age” on an employment
application
li ti fform isi not,t in
i ititself,
lf a violation
i l ti off th
the ADEA.
ADEA

• Because the request

q that an applicant
pp state his age
g may y
tend to deter older applicants or otherwise indicate
discrimination based on age, employment application
forms which request such information will be closely
scrutinized to assure that the request is for a permissible
purpose and not for purposes proscribed by the ADEA.

www.eeotraining.eeoc.gov/EXCEL
 Involuntary Retirement and
Reduction In Force (RIF)
• Mandatory Retirement
– Cannot force someone to retire due to eligibility for retirement

• Reduction in Force (RIF)

– Employers must not use age or eligibility for retirement as factors in
deciding who is laid off
– Employers should establish objective criteria and be consistent when
applying the criteria
– Pension Vesting; Health Insurance Costs; High Salaries; Years of
Service will be closely scrutinized by EEOC

www.eeotraining.eeoc.gov/EXCEL
 Stereotypes of Older Workers
as compared to young employees:
 More costly
 Harder to train
 Less adaptable
 L
Less motivated
ti t d
 Less flexible
 More resistant to change
 Less energetic

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EQUAL PAY ACT (EPA)

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 The Equal Pay Act (EPA)
 Prohibits wage discrimination based on gender
 Both
B th men andd women are covered d under
d thi
this llaw.
 Employers may not pay unequal wages to men and
women who perform substantially equal work in the
same establishment.

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 The Equal Pay Act
 Applies when men and women perform substantially
equal work requiring similar skill, effort and
responsibility
 The jobs need not be identical, but they must be
substantially equal.
 Job
J b content
t t (not
( t job
j b titl
titles)) d
determines
t i whether
h th jjobs
b
are substantially equal.

www.eeotraining.eeoc.gov/EXCEL
Women still make only 78¢ for every dollar earned by
men — and for women of color and women with
disabilities, the numbers are even worse.

Source: National Women’s Law Center

www.eeotraining.eeoc.gov/EXCEL
 Forms of Compensation
 All forms of pay are covered by this law
 salary,
salary overtime pay
pay, bonuses
bonuses, stock options
options, profit
sharing and bonus plans, life insurance, vacation and
holiday pay, cleaning or gasoline allowances, hotel
accommodations, reimbursement for travel expenses,
and benefits.

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AMERICANS WITH
DISABILITIES ACT
(ADA)

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Americans with Disabilities Act of 1990
ADA Amendments Act (ADAAA) of 2008
• P
Prohibits
hibit employment
l t di
discrimination
i i ti against
i t
individuals with disabilities in the private sector,
and in state and local governments (ADAAA effective
as off January
J 1,
1 2009)

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 Individual with a Disability
A person who has a physical or mental impairment
that substantially limits one or more major life activities,
(1) is regarded as having such an impairment.
(2) that has a record of such an impairment, or

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 “Substantially Limited”
Limited Redefined
 An impairment need NOT prevent, or significantly or
severely restrict
restrict, performance of a major life activity to
be “substantially limiting.”

 To
T have
h a disability
di bili (or( to have
h a record
d off a disability)
di bili )
an individual must be substantially limited in
performing a major life activity as compared to most
people in the general population.

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 Major Life Activities
Include, but are not limited to, caring for oneself,
performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, lifting, bending, speaking,
breathing learning,
breathing, learning reading
reading, concentrating
concentrating, thinking
thinking,
communicating, and working.

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 Essential Functions
• The fundamental job duties of the employment
position the employee or applicant must be able to
perform

• If unable to perform the essential functions with or

without a reasonable accommodation, then the
employee or applicant is not an individual with a
disability under the ADA

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 Mitigating
g g Measures
• Under the ADAAA, mitigating measures (other than ordinary corrective lenses) are
not considered when deciding whether a person has a disability

• Mitigating measures include:

– Medication, medical supplied and equipment, low vision and hearing devices,
prosthetics, mobility devices, etc.
– Use of assistive technology
– Reasonable accommodations
– Learned behavioral or adaptive
– neurological modifications

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 “Regarded
g As” Disabled
• ADAAA gives us a much broader definition of “regarded as” disabled

• “Regarded as” covers anyone subjected to an action because of a

real or perceived physical or mental impairment

• “Regarded
Regarded as”
as excludes impairments that are transitory (less than
six months) and minor

• Individuals who are “regarded

regarded as”
as disabled are not entitled to a
reasonable accommodation in their workplace

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 Reasonable Accommodation
• Reasonable accommodation to the known physical and
mental limitations of an individual with a disability is
required unless the employer can show undue hardship
• Employee or applicant must notify employer of need for
accommodation or need of accommodation must be
apparent
• No fancy words required to request reasonable
accommodation
• INTERACTIVE DIALOGUE

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 Three Categories
g of Reasonable
Accommodation
 Changes to a job application process
 Changes to the work environment, or to the way
a job is usually done
 Changes that enable an employee with a
disability to enjoy equal benefits and privileges of
employment (such as access to training).

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 Undue Hardship
• An action that requires significant difficulty or
expense ini light
li ht off certain
t i ffactors
t
• Nature of the accommodation
• Net cost of the accommodation
• Overall financial and other resources of the employer
• Impact of the accommodation on employer’s operation

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Job Accommodation Network (JAN)
http://askjan.org/
Provided by the U.S.
S Dept off Labor - Office
Off off
Disability Employment Policy

JAN's mission is to facilitate the employment and

retention of workers with disabilities by providing
employers, employment providers, people with
disabilities, their familyy members, and other
i t
interested
t d parties
ti withith iinformation
f ti on jjob
b
accommodations, entrepreneurship, and related
subjects.

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ADA p
provides certain pprotection for those who are
not qualified individuals with a disability:
For example:
- Medical examinations and inquiries: The ADA's restrictions on medical examinations and
inquiries apply regardless of whether an individual has a disability.

- Confidentiality: The ADA's provisions regarding maintenance and confidentiality of medical records
apply regardless of whether an individual has a disability. Separate medical file required.

- Association: The ADA prohibits discrimination against a qualified individual because of his/her
association with a person with a disability. For example, an employer may not refuse to hire someone
who is qualified,
qualified but does not have a disability
disability, because she has a child with a disability
disability.

- Retaliation: The ADA prohibits retaliation against any individual who has engaged in protected
activity (which includes requesting a reasonable accommodation).

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GENETIC INFORMATION
NONDISCRIMINATION
ACT (GINA)

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 Genetic Information Nondiscrimination
Act of 2008
Under Title II of GINA, it is illegal to discriminate against employees or
applicants beca
because se of genetic information
information.

•Prohibits use of genetic information to discriminate in employment

•Restricts employers and other entities covered by GINA from

requesting, requiring, or purchasing genetic information

•Requires that covered entities keep genetic information confidential,

confidential
subject to limited exceptions

•Includes prohibition on harassment and retaliation

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 What is Genetic Information?
1. An individual’s genetic tests
2. Genetic tests of family members
3. The manifestation of a disease or disorder in family members
(family medical history) – all conditions - not limited to
conditions currently known to be inheritable
4. Request for or receipt of genetic services by an individual or
family member
 Meaning: genetic test, counseling, education.
5. Genetic information of a fetus carried by an individual or family
member or of an embryo legally held by the individual or family
member using an assisted reproductive technology.

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 Genetic Information
Does NOT Include
 Information about an individual’s or family member’s
race, sex, ethnicity, or age
 The fact that an individual currently has a disease or
disorder (manifested condition) – this individual would be
protected
p otected by tthe
e ADA if tthe
eddisease
sease rises
ses to tthe
e level
e e oof a
disability.

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 Di ti ti
Distinctions between
b t GINA and
d the
th ADA
• GINA prohibits discrimination based on genetic information and not
on the basis of a manifested condition. The prohibition to use of
genetic information is absolute.

• ADA prohibits discrimination on the basis of manifested conditions

that meet the definition of disability.

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Retaliation p
prohibited under all
federal EEO statutes

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 Retaliation
 Opposition to discrimination or participation in
covered proceedings
p g
 Adverse action
 Causal connection between the protected activity y
and the adverse action

It is illegal to fire, demote, harass or otherwise retaliate against an

applicant or employee engaging in protected activity.

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 What is a Protected Activity?
Protected activity under EEOC’s laws includes:

• Filing a Charge, testifying, assisting, or participating in any manner

in a discrimination proceeding (such as asn investigation, lawsuit, or
hearing under the applicable statute)

• Opposing a practice made unlawful by one of the employment

discrimination statutes

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 Adverse Action
 An adverse action is an action taken to try to keep
someone from
f opposing
i a discriminatory
di i i t practice,
ti
or from participating in an employment
discrimination proceeding.
p g

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 Protected Forms of Opposition
 Threatening to file or assist in filing a charge
charge, complaint
complaint, grievance
and/or lawsuit alleging discrimination
 Complaining about discrimination to management, union, employees
and/or newspapers
 Organizing
O i i or participating
ti i ti iin a group which hi h opposes unlawful
l f l
employment discrimination
 Refusing to obey an order because of a belief that it constitutes
p y
unlawful employment discrimination
 A protected activity can also include requesting a reasonable
accommodation based on religion or disability.

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Examples of Unlawful Retaliation
 Harassment and Intimidation
 Increased surveillance
 Denial of employment benefits
 Discharge, discipline, demotion, reassignment
 Acceleration of disciplinary actions
 Unjustified negative evaluations and reports
 Denial of promotion
 Refusal to hire
 Negative
g reference of former employee
p y in retaliation for his/her
opposition to discrimination or participation in EEO process
 Unwarranted contesting of unemployment compensation claims

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REMEDIES AND RELIEF

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 Voluntary Relief
 Mediation
 Settlement
 Conciliation

Types of Relief
 Monetary
 Non-Monetary

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 Monetary Relief
 Back Pay
 Front Pay
 Benefits
 Compensatory Damages
 Punitive
P iti D Damages
 Liquidated Damages
 Attorney
Attorney’s
s Fees

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 Non-Monetary
Specific Injunctive Relief
Seniority
Seniority Adjustments
Training
Expunge Records
References
Non-Retaliation
Policy Correction
Reporting Requirements

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 EEOC’S CHARGE AND
INVESTIGATION PROCESS

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 Fili
Filing a complaint
l i t
process:
Intake process:
• Typically, charging party submits completed
questionnaire
• Initial contact by phone, walk-in, fax, or mail
- Charging party interviewed
• Attorney-drafted
Att d ft d charges
h

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 Jurisdictional Thresholds

• Coverage: Generally, 15 or more employees; although

some statutes require more (ADEA 20+)
20+).

• Immigration
g status is irrelevant during
g investigation.
g
EEOC will NOT ask about an individual’s immigration
status.

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Statutory Deadline for Charge Filing
Title VII, ADEA, ADA, GINA

- within 300 days of the act of harm for jurisdictions with a

Fair Employment Practices Agency (FEPA)
- 180 days
y for jjurisdictions without a FEPA
- EEOC charge is a prerequisite to a federal civil action

EPA
- within 2 years of the act of harm; within 3 years if the violation
was willful
- can go directly to court without first filing EEOC charge

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CHARGE PROCESSING
• After receiving information that constitutes a charge,
notice of the charge is served to the Respondent within
10 days
• Notice of the charge may or may not include a signed
charge
• Signed charge is served to Respondent once received
b EEOC
by
• Notice may request that Respondent submit a position
statement by deadline

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 The EEOC Process

INTAKE

INTERNAL CHARGE ANALYSIS

CHARGE SERVED TO COMPANY & FEPA W/IN 10 DAYS

MEDIATION Early Dismissal

SUCCESSFUL RIGHT TO
UNSUCESSFUL INVESTIGATION SUE NOTICE
MEDIATION MEDIATION

DETERMINATION
RESPONDENT’S POSITION STATEMENT
REQUEST FOR INFORMATION
WITNESS INTERVIEWS
DOCUMENT REVIEWS
NO
CAUSE CAUSE
PRE DETERMINATION INTERVIEWS

UNSUCESSFUL
CONCILIATION
DISMISSAL SUCCESSFUL
RIGHT TO CONCILIATION
SUE NOTICE DISMISSAL
RIGHT TO
SUE NOTICE
EEOC National Statistics – FY 2014
Charges Filed = 88,778
Retaliation 37,955 42.8%
Race 31,073 35.0%
Sex 26,027 29.3%
Disability 25,369 28.6%
Age 20,588 23.2%
National Origin 9,579 10.8%
Religion 3,549 4.0%
Color 2,756 3.1%
Equal Pay 938 1.1%
GINA 333 0.4%

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Employer Best Practices
• Policies should be in writing and distributed to all supervisors and employees.
• The disciplinary policy should be progressive in nature.
• Consistent application is crucial: similarly-situated employees who commit the
same infraction should be given the same punishment.
• Ensure that all employees in similar jobs have the same access to mentoring
programs, choice assignments or other career development opportunities.
• Make selection based on qualifications
qualifications.
• The supervisor or manager should document facts that support a
recommendation or decision regarding recruitment, hiring, promotion, discipline
and discharge.
• Document any rare reasons for deviation.
• Train all employees in EEO laws and company policies.

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 HOW TO CONTACT YOUR LOCAL EEOC
OFFICE
• EEOC has offices nationwide:
– 1-800-669-4000 or 1-800-669-6820 (TTY)
– www.eeoc.gov
– @EEOCnews
– @EEOCespanol
• Services are free of charge
g
• Language interpretation is also available

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QUESTIONS???????

79
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EEOC EXCEL CONFERENCE 2015 –
ETHICS CLE

ATTORNEY DISCIPLINE AND LITIGATION

ETHICS

presented by

H C LAY S MITH , III,

H. III E SQ .
&
A NTHONY I.
I B UTLER , E SQ .

A UGUST 12,
12 2015
 Disclaimer
This presentation
Thi t ti i for
is f educational
d ti l purposes only l and
d does
d nott
constitute, nor is it intended to be, legal advice. It is recommended that
you seek legal counsel for your specific matter.

Any images contained herein are used under the Fair Use Doctrine for
educational purpose and belong to their respective owners.

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Course Objectives
Att
Attorney Discipline
Di i li
◦ Purpose & Mission of Bar Counsel
◦ Bar Counsel Statistics

◦ Disciplinary System
Duty as an “Advocate” Rules
◦ Hypothetical Scenarios
Litigation Ethics Rules
◦ Hypothetical Scenarios
Best Practice Tips

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Purpose
p of Attorneyy
Regulators
Bar Counsel,
B C l through
th h its
it attorneys
tt andd investigators,
i ti t i
investigates
ti t
“professional misconduct or incapacity,” and prosecutes all disciplinary
actions of attorneys whose conduct violates the Rules of Professional
g g in the unauthorized p
Conduct as well as those engaged practice of law.

o D.C. Stats

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Jurisdiction of Disciplinary
Authority
JJurisdiction
i di ti off the
th di
disciplinary
i li authority
th it isi that
th t in
i which
hi h attorney
tt i admitted
is d itt d tto
practice, regardless of where lawyers conduct occurs. See RPC 8.5(a).
No Statute of Limitation, See D.C. Bar R XI § 1(C)
Unauthorized Practice of Law. Exceptions See D.C. Bar R 49 § (c)(1) – “Providing
authorized legal services to the United States as an employee thereof”

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 A Lawyer’s Responsibilities
Commentt [13] to
C t the
th Preamble
P bl and d Scope
S off the
th ABA’s
ABA’ Model
M d l Rules
R l off
Professional Conduct states, “Lawyers play a vital role in the
preservation of society. The fulfillment of this role requires an
understandingg byy lawyers
y of their relationship p to our legal
g system.
y The
Rules of Professional Conduct, when properly applied, serve to define
that relationship.”

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Obligations of the Advocate
To be Competent.

To be Truthful.

To be Zealous.

To Preserve Confidentiality.

To Keep your Client Informed.

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Responsibilities of Government
Attorneys
G
Government
t iis your client.
li t See
S RPC 1.13
1 13

Officer of the Court: Obligations to tribunal may trump obligations to client.

See RPC 3.3.
33

Revolving Door Conflicts. See RPC 1.11.

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Hypothetical #1: Electronic Discovery
You are suing Acme, Inc. in a religious accommodation matter. During discovery, you
requested access to Acme’s computer servers for a forensic search of emails regarding your
client’s request for an accommodation. Specifically, you requested access to Acme’s systems
for a forensic search of email. Emails that yyou p
properly
p y advised Acme would be subpoenaed
p
in your pre‐litigation discussions and, therefore, demanded their preservation.
Initially, you are informed by defense counsel that Acme was in the middle of
converting/upgrading their email system and therefore the access you seek would be delayed
by “a few months” at best. You later learn that during the alleged “conversion,” defense
counsel assisted in the destruction of critical evidence maintained by his client. During your
review of other discovery provided in Acme’s response to your Request for Production of
Documents, you learn that the defendant was advised, by “zealous” defense counsel, to
“upgrade” their email system in preparation for litigation.

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Hypothetical #1 Questions
Did defense
d f counsell violate
i l any ethical
hi l rules?
l ?
If so, which one(s)?

What options do you have to remedy this behavior:

During litigation?
Under the Rules?

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Model Rules Implicated in
Hypothetical #1

Rule 3.4 Fairness to Opposing Party and Counsel

Rule 4.1 Truthfulness in Statements to Others

Rule 8.3 Reporting Professional Misconduct

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Hypothetical #2: More Electronic
Discovery
Continuing with the scenario from Hypothetical #1, you and defense
counsel discuss the production of the emails regarding the
accommodation request. Although defense counsel acknowledges that the
requests are reasonable
bl andd would ld probably
b bl be
b allowed,
ll d defense
d f counsell
objects to the disclosure and files a protective order.

While the motion is pending, defense counsel refuses to comply with any
of your requests for production of documents and refuses to answer any
interrogatories propounded as they may conflict with a ruling granting his
protective order.

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Hypothetical#2 Questions
Did defense
d f counsell violate
i l any ethical
hi l rules?
l ?
If so, which one(s)?

What options do you have to remedy this behavior:

During litigation?
Under the Rules?

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Model Rules Implicated in Hypothetical #2
Rule 3.1 Meritorious Claims and Contentions

Rule 3
3.2
2 Expediting Litigation

Rule 3.3 Candor Toward the Tribunal

Rule 3.4 Fairness to Opposing Party and Counsel

Rule 8.3 Reporting

p g Professional Misconduct

Rule 8.4 Dishonesty

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Hypothetical #3: Boilerplate
Objections
You issue the following Request for Documents to Acme:
“Produce all documents concerning the terms of Plaintiff’s employment with Acme and
all Acme subsidiaries,, includingg but not limited to anyy offer letters,, employment
p y
agreements, contracts, and applicable policy manuals or procedures.”
Acme’s response to the document requests:
This request is overly broad and unduly burdensome
burdensome, and is not reasonably calculated
to lead to the discovery of material admissible in evidence at the trial of this matter in
that it contains no time limit whatsoever, and clearly seeks documents outside of the
limitations period governing this action.”

And so forth for the majority of your document requests.

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Hypothetical #3
What are the
Wh h possible
ibl ethical
hi l and
d professional
f i l
violations?

Failure to state objections to a document request with

particularity violate FRCP 34(b)(2).

“With particularity” standard is considered to be the

same level as “with
with specificity
specificity” standard required of
objections to interrogatories under FRCP 33(b)(4).

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Model Rules Implicated in Hypothetical #3
Rule 3.1 Meritorious Claims and Contentions

Rule 3
3.3
3 Candor Toward the Tribunal

Rule 3.4 Fairness to Opposing Party and Counsel

Rule 8.3 Reporting Professional Misconduct

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Federal Rules Implicated in
Hypothetical #3
Rule 26(g): “By signing, an attorney or party certifies that to
the best of the person’s knowledge, information, and belief
formed after a reasonable inquiry . . .”

(A) with respect to a disclosure

disclosure, it is complete and correct as of
the time it is made; and

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 FRPC 26(g) (cont’d)
(B) with respect to a discovery request, response, or objection, it
is:
(i) consistent with these rules and warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law, or
for establishing new law;
(ii) not interposed for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation; and
(iii) neither unreasonable nor unduly burdensome or expensive, considering
the needs of the case, prior discovery in the case, the amount in controversy,
and the importance of the issues at stake in the action.

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

Federal Rules Implicated in Hypothetical
#3
Probable violation of FRCP 26(g) certification requirement:

“The very act of making such boilerplate objections is

prima facie evidence of a Rule 26(g) violation,
violation because if
the lawyer had paused, made a reasonable inquiry, and
discovered facts that demonstrated the [basis], he or she
would have disclosed them in the objection.” Mancia v.
Mayflower Textile Servs.
Servs Co.,
Co 253 F.R.D.
F R D 354,
354 355 (D.
(D Md.
Md
2008).

Would the result be different if Acme also added: “Subject

Subject
to an without waiving these objections, any responsive
non‐privileged documents will be produced?”
 Federal Rules Implicated in
Hypothetical #3
 Rule
R l 26(g)(3):
26( )(3) court sanctions
i for
f improper
i
certification mandatory, if no substantial justification

 Statute: 28 U.S.C. § 1927 (SCOTUS: “even if

procedural rules exist to sanction the same
conduct )
conduct”)

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Boilerplate Objections & FRCP 33, 34
FRCP 33(b)(4) requires
i thath “[ “[t]he
]h grounds
d for
f objecting
bj i to
an interrogatory must be stated with specificity,” and if not
asserted timely “is waived.” Thus, boilerplate objections
and
d vague assertions
i off privilege
i il come up short
h underd theh
Rule.

FRCP 34(b)(2)(B) requires the attorney for the party

receiving the requests to substantiate any “objection to the
request, including the reasons.”

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Hypothetical #4: Improper Privilege
Assertion
Plaintiff
Pl i tiff produces
d documents
d t to
t Acme,
A b
butt without
ith t a
privilege log.

 What
h should
h ld Acme’s
’ counsell do?
d ?

After several requests,

requests 60 days later,
later Plaintiff produces a privilege
log claiming work‐product privilege as to documents predating
the discriminatory acts. Also, documents purportedly protected
by attorney‐client privilege do not appear to reflect a request for
l l advice
legal d i or containi confidential
fid i l information.
i f i

 What should Acme’s counsel do?

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Hypothetical #4: Improper Privilege
Assertion
FRCP 26(b)(5) requires
i the
th party
t asserting
ti a privilege
i il tto state
t t its
it
objection with information sufficient to allow others to assess its
privilege claims:

(A) Information Withheld. When a party withholds information otherwise

discoverable by claiming that the information is privileged or subject to
protection as trial
trial‐preparation
preparation material, the party must:

(i) expressly make the claim; and

(ii) describe the nature of the documents, communications, or tangible things not produced or
disclosed ‐‐ and do so in a manner that
that, without revealing information itself privileged or
protected, will enable other parties to assess the claim.

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Hypothetical #4: Improper Privilege
Assertion
FFailure
il to
t produce
d a privilege
i il log
l att allll or ffailing
ili tot provide
id sufficient
ffi i t
information as to the elements of privilege in the privilege log

 May justify a finding of waiver of privilege as to all documents logged.

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Hypothetical #4: Improper Privilege
Assertion
F i ll improper
Facially i assertions
ti off privilege:
i il

◦ In addition to finding of waiver, sanctions can often be anything short of

di
dispositive
i i relief,
li f e.g., reversing
i the
h burden
b d off prooff onto offending
ff di party.
Koehler v. Bank of Bermuda, Ltd., 2003 WL 289640, at **11‐12 (S.D.N.Y. Feb.
11, 2013)

◦ “Where the court finds that a party used in‐house counsel to apply a veneer
of privilege to non‐privileged business communications, the court should
impose costs on the party.” B.F.G. of Ill., Inc. v. Ameritech Corp., 2001 WL
1414468 at *6
1414468, 6 (N
(N.D.
D Ill.
Ill Jun 26,
26 2013).
2013)

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Litigation Ethics
Rule
l 4.1 Truthfulness
hf l in Statements to Others
h
Rule 4.2 Communication Between Lawyer and
Person Represented By Counsel
Rule 4.3 Dealing with Unrepresented Parties
Rule 4.4 Respect for Rights of Third Persons

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 General Tips to Avoid a Grievance
Read the Rules of Professional Conduct

Read your jurisdictions decisions on disciplinary matters

Contact the Legal Ethics Committee Hotline

Attend Continuing Legal education Seminars

Join Bar Associations

Find a Mentor

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 General Tips to Avoid a Grievance
If you have a drug, alcohol, mental illness, or practice problems, contact

the Lawyers’ Assistance Program

Carry Malpractice Insurance

Maintain Good Health and Exercise Regularly!


H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.
 Good Reference Books
A SSummary off th
the Law
L off LLawyering
i iin D.C
D C by
b David
D id B
B. IIsbell
b ll
Red Flags: A Lawyer’s Handbook on Legal Ethics by Lawrence Fox &
Susan R. Marlyn
The ABA/BNA Lawyer’s Manual on Professional Conduct
The Law of Lawyering by Geoffrey Hazard, Jr. & William Hodes

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 The End
(Please feel free to tweet your friends and tell them how great it was)

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

 Thank you!

H. C L AY S M I T H , III, E S Q . ANTHONY I. BUTLER, ESQ.

410.685.5342
(202) 638‐1501
a b u t l e r @ t b m g l a w. c o m
s m i t h c @ d co b c . o rg
w w w. t b m g l a w. c o m
Tw i t t e r : @ a b u t l e r l a w
Tw i t t e r : @ t b m g

H. CLAY SMITH, ESQ. ANTHONY I. BUTLER , ESQ.

Investigator Refresher
Training
Provided by the

US Equal Employment Opportunity Commission

EXCEL TRAINING CONFERENCE 2015

www.eeotraining.eeoc.gov/EXCEL
2
 INTRODUCTION

As an Investigator, you operate in an environment that is woven together by the laws

that protect federal employees and the people you encounter. Each complaint that you
work on provides you with an opportunity for professional development. This
Investigator Refresher course will provide you with another opportunity to reflect,
recharge, and importantly, learn.

This training is intended to

1. Provide you with an update on significant cases;

2. Reinforce the use of the Models of Proof in guiding your investigation; and
3. Increase your awareness of, often overlooked, ―red flags‖ or ―red herrings‖.

We have identified the essential skills of a successful investigator. It is absolutely

critical that investigators be sharp when it comes to:

 Thorough understanding of the models of analysis;

 Excellent communication skills (written/verbal/listening); and
 Awareness of ―red flags‖ and ―red herrings.‖

In this training today, you will have the opportunity to refresh yourself on the models of
proof through practical applications. You will read, interpret, plan and identify models of
proof that will guide your investigation. You will work with case studies that will
challenge you to identify any ―red flags‖ or ―red herrings‖. You will also have the
opportunity to network with other Investigators and share ideas and knowledge.

Welcome to the Investigator Refresher, let’s get started.

3
 AGENDA

Investigator Refresher Training

U S Equal Employment Opportunity Commission

EXCEL TRAINING CONFERENCE 2015

8:30 – 9:00 Welcome & Introductions/Icebreaker

9:00 - 10:15 Case Updates

10:15 - 10:30 Break

10:30 - 12:00 Models of Proof

12:00 – 1:00 LUNCH

1:00 - 2:30 Red Flags/Red Herrings

2:30 - 2:45 Break

2:45 - 3:45 Red Flags/Red Herrings continued

3:45 - 4:15 Wrap Up/Final questions

4:15 - 4:30 Evaluations

4
 Table of Contents

Section I: Case Update 2015 ......................................................................................... 9

Section II: Models of Proof ........................................................................................... 19

Section III: Red Flags/Red Herrings .............................................................................. 58

Appendix ....................................................................................................................... 86

5
6
 ―The EEOC @ 50: Building on a Legacy…
Looking to a Future of Innovation‖

CASE UPDATES 2015

Investigator Refresher Training
U S Equal Employment Opportunity Commission
EXCEL TRAINING CONFERENCE 2015

Bismarck Myrick
Director, Office of Equal Employment Opportunity and Diversity
U S Patent & Trademark Office

Alexis D. Howard
Acting Branch Chief, Agency Oversight Division
U S Equal Employment Opportunity Commission

www.eeotraining.eeoc.gov/EXCEL

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 Procedural Decisions
Improper Dismissals

● Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No.

0120141346 (June 27, 2014).

● Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140093

(May 9, 2014).

● Complainant v. Dep’t of Justice, EEOC Appeal No. 0120140320

(April 17, 2014).

● Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No.

0120122840 (April 16, 2014).

www.eeotraining.eeoc.gov/EXCEL

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 Procedural Decisions
Failure to Cooperate

Reversed:

● Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No.

0120140352 (April 16, 2014).

Affirmed:

● Complainant v. Dep’t of Energy, EEOC Appeal No.

0120140889 (June 10, 2014).

www.eeotraining.eeoc.gov/EXCEL

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 Procedural Decisions
Contract Employees

•Complainant v. Dep’t of the Army, EEOC Appeal No.

0120142416 (December 2, 2014).

•Complainant v. Central Intelligence Agency, EEOC Appeal

No. 0120142273 (December 4, 2014).

www.eeotraining.eeoc.gov/EXCEL

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 Procedural Decisions
Security Clearance

Complainant v. Dep’t of Justice (DEA), EEOC Appeal No.

0120130912 (March 11, 2015).

www.eeotraining.eeoc.gov/EXCEL

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 Merit Decisions
Rehabilitation Act
Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122130 (March
11, 2015).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140761 (June 13,
2014).

Complainant v. Dep’t of Justice, EEOC Appeal No. 0120121339 (May 8,

2015).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120121221 (May 14,
2014).

Complainant v. Dep’t of Defense, EEOC Appeal No. 0120121062 (May 1,

2014).

Complainant v. Tennessee Valley Authority, EEOC Appeal No. 0120120140

(May 1, 2014).

www.eeotraining.eeoc.gov/EXCEL

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 Merit Decisions
Title VII
Complainant v. U.S. Postal Serv., EEOC Appeal No.
0720130009 (May 14, 2014).

Complainant v. Dep’t of Defense, EEOC Appeal No.

0120084008 (June 6, 2014).

Complainant v. Dep’t of the Army, EEOC Appeal No.

0120133395 (April 1, 2015).

www.eeotraining.eeoc.gov/EXCEL

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 Merit Decisions
Retaliation Found

Complainant v. Dep’t of Justice, EEOC Appeal No.

0720120032 (May 1, 2014).

Complainant v. Dep’t of Veterans Affairs, EEOC Appeal

No. 0120123044 (April 10, 2015).

www.eeotraining.eeoc.gov/EXCEL

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 Sanction Decisions

Complainant v. Dep’t of Heath & Human Services,

EEOC Appeal No. 0720130003 (June 16, 2014).

Complainant v. Broadcasting Board of Governors,

EEOC Appeal No. 0120110117 (November 6, 2014).

www.eeotraining.eeoc.gov/EXCEL

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 Class Actions

● Complainant v. Dep’t of State, EEOC Appeal No.

0720110007 (June 6, 2014).

● Complainant v. Dep’t of Housing & Urban Development,

EEOC Appeal No. 0120113119 (June 6, 2014).

www.eeotraining.eeoc.gov/EXCEL

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 Remedies Decisions
Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0720140013
(June 13, 2014).

Complainant v. Dep’t of the Navy, EEOC Appeal No. 0720130020 (June 18,
2014).

Complainant v. Dep’t of Agriculture, EEOC Appeal No. 0120131896 (May 22,

2014).

Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120112818 (May

14, 2014).

Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120140224 (May

30, 2014).

Complainant v. Environmental Protection Agency, EEOC Appeal No.

0120131489 (December 12, 2014).

www.eeotraining.eeoc.gov/EXCEL

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17
18
 ―The EEOC @ 50: Building on a Legacy…
Looking to a Future of Innovation‖

Models of Proof
Investigator Refresher Training
U S Equal Employment Opportunity Commission
EXCEL TRAINING CONFERENCE 2015

Bismarck Myrick
Director, Office of Equal Employment Opportunity and Diversity
U S Patent & Trademark Office

Alexis D. Howard
Acting Branch Chief, Agency Oversight Division
U S Equal Employment Opportunity Commission

www.eeotraining.eeoc.gov/EXCEL

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19
 Models of Proof

There are many different fact patterns that land on an Investigator’s desk and,
sometimes, they are convoluted and confusing. That makes it difficult to always know
what to do on each complaint. Even while investigating a complaint, many things can
surface that can cloud the issues of the case or require a change in your course of
action. You, often times, have no control over how much extraneous information each
complaint will have associated with it because you are dealing with people and their
perceptions and beliefs.

How do you keep your investigation focused and stay on track?

The answer lies in properly identifying the Models of Proof so that you can be the most
efficient and effective during your investigation and not miss important elements or go
off on irrelevant tangents.

There are various types of evidence gathered during an investigation. The types of
evidence obtained will depend on the facts at issue.

Circumstantial evidence: This type of evidence suggests that

discrimination motivated the alleged bad actor. It must be sought in every
complaint alleging a disparity in treatment based on a covered basis.

This type of evidence may require you to gather information on individuals who
are similarly situated to the complainant (comparative).

Statistical circumstantial evidence may also be gathered, as appropriate. For

example, this evidence may provide proof when claims involve the comparative
treatment of groups, as in a claim of pattern or practice of discrimination, or the
adverse effect of a policy or practice.

Circumstantial evidence that shows the agency relied upon policies or reasons
rarely used or applied, or applied unevenly is another way to prove a disparate
treatment case.

Direct evidence: This type of evidence consists of facts revealing that

intentional discrimination caused an adverse action. With this type of
evidence one need not resort to inference or circumstantial evidence.

20
All evidence gathered should be material to the complaint, relevant to the issue(s)
raised in the complaint, and as reliable as possible. If you utilize your Models of Proof
to guide your investigation, you will gather the material, relevant and reliable evidence
that you need to develop an impartial and appropriate factual record.

Now let’s review the Models of Proof.

21
 Models of Proof
Guide Your Investigation
Know Your Role
Know The Types of Evidence
Know The Characteristics of Good Evidence
Know the Law
Know The Theories of Discrimination
Prepare a Plan

www.eeotraining.eeoc.gov/EXCEL

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22
 EEO Investigator
“a person officially designated and
authorized to conduct inquiries into
claims raised in EEO complaints.”
--Management Directive 110-6.IV.b

www.eeotraining.eeoc.gov/EXCEL

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 Types of Evidence
• Circumstantial Evidence
– Comparative
– Statistical
– Reliance on policies or reasons rarely
used or applied, or applied unevenly
• Direct Evidence

www.eeotraining.eeoc.gov/EXCEL

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 Evidence Should Be:
• Material
• Relevant
• Reliable

www.eeotraining.eeoc.gov/EXCEL

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 DISCRIMINATION:
BASIS
+
ISSUE
+
INJURY

www.eeotraining.eeoc.gov/EXCEL

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 Laws Enforced by the EEOC::
• Title VII of the Civil Rights Act of 1964
• The Age Discrimination in
Employment Act of 1967 (ADEA)
• The Rehabilitation Act of 1973
• The Genetic Information
Nondiscrimination Act of 2008 (GINA)
• The Equal Pay Act of 1963 (EPA)

www.eeotraining.eeoc.gov/EXCEL

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 All Aspects of Employment Covered::
Non-exhaustive list includes:

• Application • Benefits
• Hiring • Transfer
• Harassment • Discharge
• Performance Evaluation • Promotion
• Reference
• Training

www.eeotraining.eeoc.gov/EXCEL

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 Theories of Discrimination::
• Disparate Treatment
• Disparate Impact
• Harassment
• Accommodation (Religion & Disability
Only)

www.eeotraining.eeoc.gov/EXCEL

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 Disparate Treatment:
Where a Complainant alleges that the
agency treated another individual
better than it treated him/her or
otherwise treated him/her differently
because of that individual’s
membership in a protected group.

www.eeotraining.eeoc.gov/EXCEL

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 MODELS OF PROOF
Disparate Treatment
◦ Prima Facie Case (Complainant)

◦ Legitimate, Nondiscriminatory Reason(s) (Agency)

◦ Pretext (Complainant)*
*There may be adjustments to Model of Proof

www.eeotraining.eeoc.gov/EXCEL

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 Disparate Impact:

Where a Complainant alleges

that an Agency policy or
practice appears to be neutral
but affects one protected
group more than it affects
other groups.

www.eeotraining.eeoc.gov/EXCEL

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 MODELS OF PROOF
Disparate Impact

◦ Neutral Employment Practice Has Disproportionate Adverse

Effect on Protected Class (Complainant)

◦ Practice is Job Related and Consistent with Business

Necessity(Agency)

◦ Alternative Employment Practice Available with less Disparate

Impact (Complainant)*
*There may be adjustments to Model of Proof

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 HARASSMENT:
Unwelcome conduct that is based on race, color,
religion, sex (including pregnancy), national
origin, age (40 or older), disability, genetic
information or retaliation.

www.eeotraining.eeoc.gov/EXCEL

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 MODELS OF PROOF
Harassment
• Member of a statutorily protected class;
• Unwelcome conduct related to protected class;
• Conduct complained of was based on protected class;
• Conduct had purpose or effect of unreasonably interfering
with work performance and/or creating an intimidating,
hostile, or offensive work environment OR resulted in a
tangible employment action; and
• Basis for imputing liability to the employer.

www.eeotraining.eeoc.gov/EXCEL

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 MODELS OF PROOF
Religious Accommodation
• Under Title VII, an agency has a duty of
reasonable accommodation for sincerely held
religious beliefs and practices unless to do so
would cause an undue hardship.
• In terms of religious accommodation, undue
hardship can mean significant cost or other non-
cost factors.

www.eeotraining.eeoc.gov/EXCEL

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 MODELS OF PROOF
Disability Accommodation

• Qualified Individual with a Disability;

• Agency aware of disability and need for accommodation;
• Accommodation exists that would allow Complainant to
participate in application process, perform essential
functions of job, or enjoy equal benefits & privileges of
employment; and
• Agency fails to provide effective accommodation.

www.eeotraining.eeoc.gov/EXCEL

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 Scenario 1
Has Len stated a claim of unlawful harassment?

Identify the statute and basis.

What is the adverse employment action to which

he was subjected?

Identify the Models of Proof.

What information do you need to obtain and from

what sources?

www.eeotraining.eeoc.gov/EXCEL

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 Scenario 2
What are Jane’s allegations?

Identify the basis(es) and issue(s)?

Identify the Model(s) of Proof.

www.eeotraining.eeoc.gov/EXCEL

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 Scenario 3
What are Rick’s allegations?

Identify the basis(es) and issue(s)?

Identify the Model(s) of Proof.

www.eeotraining.eeoc.gov/EXCEL

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 Final Comments
• A good investigator utilizes the Models of Proof to guide their
investigation.

– Results in evidence that is material, relevant and reliable.

– Investigative Summary will succinctly state issues and

delineate the evidence addressing both sides of each
issue.

www.eeotraining.eeoc.gov/EXCEL

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 MODELS OF PROOF

DISPARATE TREATMENT UNDER TITLE VII, ADEA AND REHABILITATION ACT

Proof of Disparate Treatment via Circumstantial Evidence (HIRING/PROMOTION)

Complainant Presents A Prima Facie Case:

1) Complainant (C) is a member of protected class

2) Complainant applied for a job for which complainant met the stated qualifications
3) Complainant was rejected
4) Agency (AG) filled job or continued to seek applications from individuals with
similar qualifications (AG’s selection of individual outside of C’s protected class
supports inference of discrimination but this is not always a required element of
proof.

Agency Articulates a Reason for Its Actions

AG articulates legitimate, nondiscriminatory reason for rejecting C

Complainant Identifies Pretext/Provides Rebuttal

The reasons advanced by AG are a pretext to hide discrimination. Examples of such

evidence:

1) Evidence that reason advanced by AG is not believable

2) Evidence that similarly situated individuals outside C’s class were treated
differently

3) Evidence of bias by AG’s decision makers towards individuals of C’s class

4) Statistical evidence showing underemployment of members of C’s class (this

evidence is helpful but not usually determinative

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Proof of Disparate Treatment via Circumstantial Evidence
(DISCHARGE/DISCIPLINE)

Complainant Presents a Prima Facie Case

1) C is a member of protected class

2) C was performing at satisfactory level
3) C was discharged or otherwise disciplined
4) C was replaced by employee outside the protected class (this is not always a
required element of proof)

Agency Articulates a Reason for Its Action(s)

AG articulates a legitimate, nondiscriminatory reason for discharging or disciplining C

Complainant Identifies Pretext/Provides Rebuttal

The reasons advanced are a pretext to hide discrimination

*Note: C’s claim is not necessarily defeated if an element of the prima facie case is
missing, as long as there is other evidence which reasonably gives rise to an inference
of discrimination. Also, a claim should not be dismissed based on lack of certain
evidence if C was not in a position to have access to such evidence.

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 Direct Evidence of Exclusionary Policy under Title VII, ADEA

Complainant Presents a Prima Facie Case

Testimony or documentary evidence of an employment policy or practice to exclude

from a job or otherwise adversely treat individuals in C’s protected class

Agency Articulates a Reason for Its Action(s)

AG disproves discriminatory policy or practice, or proves statutory defense such as

Bona Fide Occupational Qualification (BFOQ)

*Note: Under the Rehabilitation Act, an AG can justify a blanket policy that excludes
individuals with a particular covered disability if it can prove that the policy is job related
and consistent with business necessity, and that the particular C could not perform the
job even with a reasonable accommodation.

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 Proof of Mixed Motives for Disparate Treatment

Complainant Presents a Prima Facie Case

Testimony or documentary evidence that directly proves discrimination against C on the

basis of his/her protected class was a motive in the challenged action

Agency Articulates a Reason for Its Action(s)

AG discredits proof of discriminatory motive or raises statutory defense such as BFOQ

Relief

AG is liable at minimum injunctive relief and attorney’s fees. If AG proves that the
challenged action was also based on legitimate motive and that this motive would have
induced it to take same action regardless of the discrimination, it avoids liability for
reinstatement, back pay or damages.

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 After Acquired Evidence of Legitimate Motive for Disparate Treatment

Proof

C proves through circumstantial or direct evidence that discrimination was the true
motive operating at the time of the challenged action.

Relief

If AG proves that there was a legitimate basis for challenged action that AG discovered
after-the-fact, and that this evidence would have induced it to take the same action
regardless of the discrimination, then AG will usually avoid liability for reinstatement,
back pay and compensatory damages (other than damages for emotional harm) for the
period after the evidence was discovered.

46
 Harassment (Any Protected Basis)

Complainant Presents a Prima Facie Case

1) C was subjected to unwelcome comments or conduct based upon his/her

protected class status

2) The conduct resulted in a tangible job action or was sufficiently severe or

pervasive to interfere with C’s work performance to create a hostile work
environment (measured by standard of reasonable person in C’s situation)

3) Basis exists for holding AG liable for harassment

Agency Articulates a Reason for Its Action(s)

For supervisory/management harassment:

AG is automatically liable if the harassment resulted in a tangible employment

action. If it did not, AG is still liable unless it proves that it took reasonable care
to prevent and correct promptly the harassment and that C unreasonably failed to
take advantage of any preventive or corrective opportunities provided by AG

For co-worker harassment:

AG is liable if it knew or should have known of the harassment and failed to take
immediate and appropriate corrective action

For non-employee harassment:

AG is liable if it knew or should have known of the harassment and failed to take
immediate and appropriate corrective action and AG had some control over the
harasser

47
 Retaliation

Complainant Presents a Prima Facie Case

1) C opposed what C reasonably and in good faith believed to be an unlawful

employment practice or C participated in the EEO process

2) AG subjected C to adverse treatment

3) There was a causal connection between C’s protected activity and the adverse
action (shown, e.g., by timing of adverse treatment soon after C’s protected
activity)

Agency Articulates a Reason for Its Action(s)

AG articulates a legitimate, nondiscriminatory reason for the adverse action

Complainant Identifies Pretext/Provides Rebuttal

Reasons advanced by AG are a pretext to cover retaliatory motive. Examples of such

evidence:

1) Evidence that the reason advanced by the AG is not believable

2) Evidence that similarly situated individuals who did not oppose discrimination or
participate in the EEO process were treated differently

48
DISPARATE IMPACT UNDER TITLE VII, ADEA AND REHABILITATION ACT

Disparate Impact Title VII, ADEA

Complainant Presents a Prima Facie Case

Neutral employment practice has disproportionate adverse effect on C’s protected class

Agency Articulates a Reason for Its Action(s)

AG proves that challenged practice is job related and consistent with business necessity

Complainant Identifies Pretext/Provides Rebuttal

There is an alternative employment practice that would be substantially as effective but

would have less disparate impact

49
Discriminatory Qualification Standards and Selection Criteria under
Rehabilitation Act

Complainant Presents a Prima Facie Case

1) C has physical or mental impairment that substantially limits one or more major
life activities

2) A neutral qualification standard or selection criterion screens out C on the basis

of his/her disability and C satisfies the other job requirements

Agency Articulates a Reason for Its Action(s)

1) AG proves that challenged standard is job related and consistent with business
necessity

2) AG proves that C could not meet the standard with reasonable accommodation

50
GENETIC INFORMATION NONDISCRIMINATION ACT (GINA)

GINA Acquisition

Complainant Presents a Prima Facie Case

1) C is an applicant, employee or former employee of AG

2) AG requested, required, or purchased, genetic information about C

Agency Articulates a Reason for Its Action(s)

AG asserts one of six exceptions to the genetic prohibition:

1) Inadvertent acquisition;

2) Offer of health or genetic services, e.g. wellness program;

3) FMLA request to care for family member with serious health condition;

4) Commercially and publicly available documents;

5) Genetic monitoring of effects of toxic substances in the workplace; or

6) DNA testing of employees by AG that engages in DNA testing for law

enforcement or human remains identification purposes, if used for quality
control only

Complainant Identifies Pretext/Provides Rebuttal

The reason advanced by AG is not believable

51
 GINA Use

Complainant Presents a Prima Facie Case

1) C is an applicant, employee or former employee of AG

2) AG makes an adverse employment decision about C (refusal to hire, termination,
setting compensation, or altering any terms, conditions or privileges of
employment) based on genetic information

Agency Articulates a Reason for Its Action(s)

AG articulates a legitimate, nondiscriminatory reason for its adverse action

Complainant Identifies Pretext/Provides Rebuttal

The reasons advanced by AG are a pretext to hide genetic discrimination. Examples of

such evidence:
Reason advanced by AG is not believable
Similarly situated individuals outside C’s class were treated differently
Evidence of concern about genetic information expressed by AG’s decision
makers
Similar treatment of other individuals whose genetic information is known to AG

52
OTHER FORMS OF UNLAWFUL DISCRIMINATION

Title VII: Failure to Provide Religious Accommodation

Complainant Presents a Prima Facie Case

1) C sincerely holds religious belief that conflicts with job requirement

2) C informed supervisor of conflict and need for accommodation

3) AG failed to provide a reasonable accommodation

Agency Articulates a Reason for Its Action(s)

C’s requested accommodation would result in more than minimal hardship to AG

Rehabilitation Act: Failure to Provide Reasonable Accommodation

Complainant Presents a Prima Facie Case

1) C is a qualified individual with a physical or mental impairment that substantially

limits one or more major life activities

2) C notified AG of his/her disability and need for accommodation

3) There is an accommodation that would allow C to participate in the application

process; to perform the essential functions of the job; or to enjoy equal benefits
and privileges of employment

4) AG failed to provide an effective accommodation

Agency Articulates a Reason for Its Action(s)

The requested accommodation would pose an undue hardship

53
 EPA: Sex Based Wage Disparity

Complainant Presents a Prima Facie Case

1) Unequal pay between C and other employee(s) of opposite sex

2) The jobs at issue require substantially equal skill, effort and responsibility and are
performed under similar working conditions within the same establishment

Agency Articulates a Reason for Its Action(s)

Wage difference is based on a seniority, merit, or incentive system, or on any other

factor other than sex

A Models of Proof Chart is included in the Appendix as Appendix A.

54
 EXERCISES

In the following exercises you will be asked to identify the bases, issues and Models of
Proof appropriate to each scenario and answer any follow up questions.

SCENARIO 1

Len filed a claim alleging he was subjected to a hostile work environment. Len has been
employed as an information technician with the agency since 2010. Len said since 2012
he has told Tere, a female information technician, he was not interested in her and that
he had a girlfriend. Len said Tere would talk about having sex with him, talk about how
good his body looked, and grab his chest and backside. Len said he repeatedly
complained to his supervisor that Tere was sexually harassing him. Len said his
supervisor told him he had nothing to complain about and should take advantage of the
situation. After Tere embarrassed Len at the agency’s holiday party in December 2013
in front of his girlfriend, Len complained to the EEO counselor in January 2014. Len’s
supervisor said Len told him a couple of times that Tere was bothering him but denied
that Len complained about Tere sexually harassing him.

Has Len stated a claim of unlawful harassment?

Identify the statute and basis. What is the adverse employment action to which he was
subjected?

Model(s) of Proof:

What information do you need to obtain and from what sources?

Best practice tip: Prepare an investigative plan identifying the current

information/evidence, additional information and evidence needed, and the source of
the evidence/information. Sample Investigative Plan included as Appendix B in the
Appendix section.

55
 SCENARIO 2

Jane, a 25-year employee with the agency, applied for a promotion to administrative
officer and was informed that she was qualified for the position. Two other agency
persons who are younger than Jane also applied for the position. The agency selected
a 32-year old female with l0 years of employment with the federal government for the
position. Jane alleges that the agency discriminated against her because of her age
(50) when she was not promoted to the administrative officer position.
Joe, the 40-year old selecting official is the department manager who interviewed all
three candidates. Joe said Jenene was the most qualified candidate and had the most
potential to be successful in the position.
Jane stated her belief that she was the most qualified candidate for the job. Jane
provided information to show that she had performed a majority of the duties of the
position during the last 10 years; had previously applied for the position but was not
selected; trained the current selectee and previous selectee in most of the job’s key
functions; and had been detailed 90 days to the position during the application and
selection process. Jane also showed that her previous performance evaluations rated
her at the highly effective to outstanding levels.

What are Jane’s allegations? basis(es) and issue(s)?

Model(s) of Proof:

56
 SCENARIO 3

Rick was hired in 2008 as a supply clerk with the duties of ordering non-food supplies
for the agency’s shipping and receiving department. During the government hiring
freeze in 2013, Rick was also assigned the duty of delivering stationery and copier
paper and supplies to the administrative offices. In March 2014, Rick had a heart attack
which was complicated by coronary disease and diabetes. Rick requested 12 weeks
FMLA leave which was approved. In June, Rick submitted medical documentation that
he was not able to return to work and requested additional leave as a reasonable
accommodation and used his remaining annual and sick leave. On August 10, Rick
requested an additional 30 days leave without pay as a reasonable accommodation.
The agency asked Rick to provide medical documentation about his projected date of
return to work. Rick’s doctor provided a statement that Rick should be able to return to
work with some restrictions on/about September 15. The restrictions included not lifting
more than 10 pounds.
The agency informed Rick by letter that he was expected to report to work on
September 15, ready and able to perform all of his job duties. The agency denied Rick’s
request for light duty (not lifting more than 10 pounds) because it said he needed to
deliver the paper and other supplies, which weigh more than 10 pounds, to the
administration offices at least once a week. The agency said that if Rick could not
perform the delivery duties, he was not a qualified individual with a disability because he
was not able to perform the essential functions of his job. It stated that he could not be
accommodated without causing an undue hardship on its operations, so Rick would be
discharged.
Rick filed an EEO claim alleging he was denied a reasonable accommodation and
threatened with discharge because of his disability. Rick also alleged the agency
retaliated against him for requesting a reasonable accommodation. Rick said that he
could perform the essential functions of his supply clerk job and that delivering the
stationery and other supplies to administration was not an essential function of his job.

What are Rick’s allegations: bases and issues?

Model(s) of Proof:

Now that we have reviewed the Models of Proof, you are ready to move on to the next
session on Red Flags/Red Herrings.

57
SECTION III: Red Flags/Red Herrings

58
 What is the difference

between a red flag and a red herring?

A RED FLAG is a signal that something is important or there is a problem that should be
noticed, noted, or dealt with.

Red flags may include potential bases and issues, relevant evidence, individuals who may be a
potential witness, and/or process or procedural issues.

Example: When a Complainant notes that she thinks she was discriminated against
because she was close to retirement, this should be a red flag that she may be alleging
age discrimination.

A RED HERRING is something that may seem important, when in reality it is misleading
or distracting you from the relevant issues you should be focusing on. A red herring may lead
you to a false conclusion.

An example of a red herring may be something that may seem like a procedural issue on its
face, however your knowledge of EEO laws, regulations, and case precedent lets you know that
this really isn’t an issue.

Example: Complainant didn’t file her complaint until 20 days after she was given her
right to file a formal complaint; however she was in the hospital for 16 of those 20 days.
While this should be noted in the ROI, too much time and attention shouldn’t be focused
on it because EEOC precedent says that this is sufficient evidence to require tolling of
the time limits for filing an EEO complaint.

59
Attachment
(A)

60
From: LOREN MARTIN [mailto:LOREN.MARTIN@FEDERALAGENCY.COM]
Sent: Thursday, May 22, 2014 11:05 AM
To: Rosario, Denise
Subject: Re: Filing a complaint about my performance evaluation

(Attachment to email)

Hi Denise,

I received this email from Frank Rible, but since I am not involved in EEO I was not sure
what to do with it. I am forwarding it to you. Please contact him.

Sincerely,

Loren Martin, Supervisory Manager

Federal Agency

61
From: FRANK RIBLE [mailto:FRANK.RIBLE@FEDERALAGENCY.COM]
Sent: Thursday, May 1, 2014 8:46 AM
To: Martin, Loren
Subject: Filing a complaint about my performance evaluation

Good morning Mr. Martin,

I saw your name on an EEO poster in the break room as a person I should contact if I
believe that I have been subjected to discrimination. I know you do not work in the
Equal Employment Opportunity Office, and you are not a collateral duty Counselor, but I
hope this is the right way to start the process in accordance with the EEO poster. The
EEO Counselor who I had contacted in the past is no longer an employee with the
Agency and I do not know who else to contact.

A month ago on April 1, 2014, I received a negative performance evaluation from my

supervisor Davis Jones that contains what I believe is a comment about my past EEO
complaints and a comment about my sexual orientation. Specifically, in one section my
supervisor stated ―Mr. Rible is not a team player, and if he spent more time doing his
work instead of always complaining about how he is treated he would be better able
complete his tasks on time.‖ Additionally, in another section of the performance
evaluation he stated, ―Mr. Rible does not make any effort to fit in with his colleagues and
always insists on doing things different, including talking about his personal lifestyle
choices.‖ This is not the first time that Mr. Jones has made comments like this. Mr.
Jones continuously makes many comments in front of me that have to do with being a
―trouble maker‖ and has made many negative comments that have to do with my sexual
orientation. The work environment has gotten really bad, and I really want it to stop. I
would like to start the EEO process and file an EEO complaint. How do I begin?

---Frank Rible

62
63
Attachment
(B)

64
 FSUSW LOCAL: 303
Federated Society of United Stated Workers STEP: 1

OFFICIAL GRIEVANCE FORM

Name of Employee: Frank Rible________ Department: OIT________________

Classification: OIT Specialist______________________________________________

Work Location: Washington, D.C.___ (X) Headquarter Office ( ) Field Office

Immediate Supervisor: Davis Jones________ Title: Supervisor__________________

Statement of Grievance:

On April 2, 2014, Mr. Frank Rible contacted FSUSW, Local 303. Mr. Rible believed he
received a negative performance evaluation. Mr. Rible believes his poor performance
evaluation was a violation of Collective Bargaining Agreement (CBA) section
1245.25(b), for the following reasons:

The performance evaluation only contained the signature of the first level
supervisor and not both the first and second level supervisors, as required by the
CBA section 1245.25(b).

Additionally, the Union believes that the performance evaluation contains

comments that could be discriminatory in violation of the CBA section 1297.27(f).

As a result, the Union is hereby filing this grievance on its own motion and for its
own purpose, in accordance with CBA section 2264.35(a), in an effort to ensure
that no other employee be subjected to this same violation of the CBA.

List applicable violation(s):

Section 1245.25(b);
Section 1297.27(f);
Section 2264.35(a)

Federated Society of United States Workers F38

65
 FSUSW LOCAL: 303
Federated Society of United Stated Workers STEP: 1

Adjustment required:

While Mr. Rible chose not to pursue a grievance, the union hereby requests the
following:

a. Mr. Rible’s performance evaluation be evaluated and signed by both first

and second level supervisors.
b. Mr. Rible’s rating be raised to Outstanding.
c. Discriminatory comments in Mr. Rible’s performance evaluation narrative
be removed.
d. All previous versions of Mr. Rible’s performance evaluation be removed
from his personnel files.
e. We also ask that the Agency do the same for any other employee whose
performance evaluation did not follow the CBA.
f. Finally, we ask that the supervisors involved receive training on what is
required under the CBA.

 I authorize the F.S.U.S.W. Local 303 as my representative to act for me in the

disposition of this grievance.

Date: May 19, 2014___ Signature of employee: _________________

Signature of Union Representative: John Thompson Title: Union President_

THIS STATEMENT OF GRIEVANCE IS TO BE MADE OUT IN TRIPICATE ALL

THREE ARE TO BE SIGNED BY THE EMPLOYEE AND/OR THE FSUSW
REPRESENATIVE HANDLING THE CASE.

Original to: Frank Rible (copy sent via email)

Copy: Davis Jones, Supervisor (copy sent via email)
Copy: Local Union Grievance File (copy sent via email)

NOTE: ONE COPY OF THIS GRIEVANCE AND ITS DISPOSITION TO BE KEPT IN

GRIEVANCE FILE OF LOCAL UNION.

Federated Society of United States Workers F38

66
67
Attachment
(C)

68
From: DENISE ROSARIO [mailto:DENISE.ROSARIO@FEDERALAGENCY.COM]
Sent: Friday, May 23, 2014 9:15 AM
To: Jones, Davis
Subject: Complaint from Frank Rible

Good morning Mr. Jones,

This email is to inform you that Frank Rible has contacted our office in regards to his
performance evaluation dated April 1, 2014. Mr. Rible believes that the performance
evaluation was discriminatory against him. Please send me a copy of the performance
evaluation as soon as possible, and please let’s meet to discuss the matter. Are you
available on May 28, 2014, at 2:00 pm to meet?

Sincerely,

Denise Rosario, EEO Counselor

Federal Agency

(202) 555-5555

denise.rosario@federalagency.com

69
From: DAVIS JONES [mailto:DAVIS.JONES@FEDERALAGENCY.COM]
Sent: Tuesday, May 27, 2014 11:27 AM
To: Rosario, Denise
Subject: Re: Complaint from Frank Rible

Good morning Ms. Rosario,

I received your email that Frank has contacted your office about his performance
evaluation.

This issue has already been resolved. Last week I changed the performance evaluation
to an Outstanding and revised the narrative and took out the statements that Frank has
raised with you.

This is a moot subject and his allegations have no merit, just like all of the other claims
he has brought to your office!

Since Frank began working here 15 years ago, he has filed 14 EEO complaints, some
against me and some against other supervisors and coworkers that I have heard about,
and he hasn’t won once. Not only is he abusing the EEO process, but his lies are
costing the government a lot of time and money. Is it possible for me to discipline him
for slander, libel, and wasting government resources by bringing these false claims?

Can we ask him to provide the government for restitution for all of the man hours that
have been spent on these complaints, as well as costs for all of the paper, ink, etc. that
has gone into these complaints?

Thanks for any information on how we can address this situation,

Davis Jones, Supervisor

70
71
Attachment
(D)

72
 United States Federal Agency
Office of Equal Opportunity-Assistant Secretary
1234 Main Street
Washington, D.C. 10101

June 1, 2014

Mr. Frank Rible

1 Malibu Court
Baltimore, MD 21204

RE: Notice of Final Interview and Notice of Right to File and EEO Complaint

Dear Mr. Rible,

On May 1, 2014, you contacted Mr. Loren Martin, Supervisor. Mr. Martin was listed on
an EEO poster as a contact.

Mr. Martin forwarded your concerns to our office on May 22, 2014.

You alleged that you were discriminated against on the basis of sexual orientation and
reprisal for prior protected EEO activity when you received a negative performance
evaluation which contained discriminatory statements.

In accordance with 29 C.F.R. § 1614.105(d), unless the aggrieved person agrees to a

longer counseling period under paragraph (e) of this section, or the aggrieved person
chooses an alternative dispute resolution procedure in accordance with paragraph
(b)(2) of this section, the Counselor shall conduct the final interview with the aggrieved
person within 30 days of the date the aggrieved person contacted the agency's EEO
office to request counseling.

You did not agree to an extension of the final interview in accordance with 29 C.F.R. §
1614.105(e), and as such we did not have time to meet and finish the counseling
process. Therefore, your email dated May 1, 2014, will be considered the claims you
raised with the EEO Counselor.

73
This notice serves as notice of your right to file a discrimination complaint. You have
the right to file a discrimination complaint within 15 days of receipt of the notice. You
may file the complaint with:

Ms. Bernie S. Wright

EEO Director
United States Federal Agency
1234 Main Street
Washington, DC, 10101

It is your duty to assure that the agency is informed immediately if you retain counsel or
a representative.

Signed,

Denise Rosario

Denise Rosario

EEO Counselor

74
75
Attachment
(E)

76
To Whom it May Concern,

I, Frank Rible, designate John Thompson as my non-attorney representative.

Signed,

Frank Rible June 7, 2014_____________

Frank Rible Date

77
Attachment
(F)

78
 United States Federal Agency-Office of Equal Opportunity-Assistant Secretary
Civil Rights Complaint Form - FORMAL

(1) Name:_Frank Rible (2) Office: Headquarters (3) Work Telephone (202) 555-5555_

(4) Home Address___1 Malibu Court, Baltimore, MD 21204_____________________

(5) Home Telephone (410) 555-5555_ (cell): (410) 555-5100_________________

(6) List Reason(s) for complaint (check all boxes that apply):

X_age __color __disability __genetic information __national origin

__race __religion X_reprisal __sex

X_other (explain) sexual orientation

(7) Briefly explain reason(s) for complaint(s)—you may attach narrative if desired.

On April 1, 2014, I received a negative performance evaluation from my supervisor,

Davis Jones that contains, what I believe, are comments about my past EEO complaints
and a comment about my sexual orientation. I received an ―EXCEEDS‖ rating instead
of the ―OUTSTANDING‖ rating that I have received every year. The narrative in my
performance evaluation is also the same as it has been every year except for the
addition of two comments that I believe are an indication of discrimination on the bases
of sexual orientation and reprisal for my prior protected EEO activity.

First, in one section my supervisor added ―Mr. Rible is not a team player, and if he spent
more time doing his work instead of always complaining about how he is treated he
would be better able complete his tasks on time.‖ By ―complaining‖ he is referring to my
EEO complaints, obviously. He also is saying that I am not a ―team player‖ because I
won’t sit back and be quiet about his discrimination and harassment like everyone else
does, because they are afraid of his retaliation.

Additionally, in another section of the performance evaluation my supervisor included

the following statement, ―Mr. Rible does not make any effort to fit in with his colleagues
and always insists on doing things different, including talking about his personal lifestyle
choices.‖

Mr. Jones was obviously talking about the fact that I am gay when he stated that I talk
about my ―personal lifestyle choices.‖ This is offensive on many levels. First, being gay
is not a choice. Second, there is no gay lifestyle. And third, if my non-gay coworkers
are allowed to talk about their significant others and what they did on the weekends,
then I should be allowed to talk about that too!

79
This is not the first time that Mr. Jones has made harassing comments like this. For
example, on March 3, 2014, Mr. Jones asked me why my pants were so tight and asked
if I could only find woman’s pants, and then under his breath said they were ―gay pants.‖
On January 2, 2014, Mr. Jones asked other coworkers what they and their spouses did
for New Years Eve, and when I started to speak he stopped me and said he didn’t want
to hear about my lifestyle. On December 19, 2013, Mr. Jones told me to act more
manly.

He also constantly makes comments about my EEO activity. For example, on January
5, 2014, when I walked into the room Mr. Jones said to coworkers ―Oh, he’s here, watch
what you say.‖ On January 30, 2014, Mr. Jones told me that I am not a team player
because I don’t have everyone’s back and coworkers are afraid that I am going to ―rat‖
on them. On February 28, 2014, Mr. Jones told me that I should stop complaining
about how unfair the workplace is and start working.

Further, on May 16, 2014, I learned that I was not selected for a position in our Denver,
Colorado office. The selecting official for this position was Jake Nathan, a supervisor in
Denver. I believe this was based on my age because a less qualified person who is
more than 20 years younger than me was selected for the position. Mr. Nathan knew
that I was older because my resume shows my long years of experience and the dates
that I graduated high school and college.

My work environment has become hostile and intolerable. I would like Mr. Jones to be
removed as my supervisor, to be disciplined, and I would like all supervisors to have
EEO training. I would also like to have $300,000 in damages.

(8) Date action took place: December 19, 2013, January 2, 2014, January 30, 2014,
March 3, 2014, February 28, 2014, April 1, 2014, May 16, 2014________________

(9) Date first contact with EEO: May 1, 2014___

(10) Are you represented _X_ Y __N

John Thompson (on behalf of Frank Rible)___ June 7, 2014___________________

Signature Date

80
81
Attachment
(G)

82
From: BERNIE WRIGHT [mailto:BERNIE.WRIGHT@FEDERALAGENCY.COM]
Sent: Tuesday, July 1, 2014 2:35 PM
To: Robbins, Samuel
Subject: Re: Complaint #2014-00024

(Attachment to email)

Good afternoon Sam,

Please see the attached email from a representative from the Office of General Counsel
and be sure to comply.

Sincerely,

Ms. Bernie S. Wright

EEO Director
United States Federal Agency
1234 Main Street
Washington, DC, 10101

*Soaring in Excellence*

Think Green Keep It On the Screen.

Please consider the environment before printing this e-mail.

83
From: DONNE MILTER [mailto:DONNE.MILTER@FEDERALAGENCY.COM]
Sent: Tuesday, July 1, 2014 12:12 PM
To: Wright, Bernie
Subject: Complaint #2014-00024

Good afternoon Ms. Wright,

In accordance with 29 CFR § 1614.108 (a), the Agency is the one given the authority to
conduct investigations, and 1614.108(b) states that the Agency shall develop an
impartial and appropriate factual record upon which to make findings on claims raised
by the written complaint. Management Directive EEO 110 (MD-110) Chapter 6, section
IV(A) also states that the EEO Director has control over the investigation and will ensure
a proper investigation is conducted. As a result, you have control over the investigators.

Please make sure that before the investigator interviews anyone in this case that
someone from our office to talks to witnesses first. Please make sure the investigator
communicates with our office and coordinates all interviews with them accordingly.
Additionally, our office should be reviewing all witness affidavits before they are signed
by the witness. Further, as we are representing both the Agency and Mr. Jones, I want
to make sure that the investigator makes us aware of everything piece of evidence
Complainant presents as soon as the investigator receives it – we don’t need to wait for
the report of investigation.

Finally, it has come to our attention that Mr. Rible has a vacation scheduled for the
week of August 11, 2014. Please try to schedule his interview at that time. If Mr. Rible
does not attend, we may be able to show that he failed to respond fully or in a timely
fashion, or failed to attend the interview, and perhaps can draw an adverse inference
against him according to 1614.108(c)(3)(i).

Sincerely,

Donne Milter, Attorney

Office of General Counsel

84
85