OSC 2013 NO FEAR ACT TRAINING Apr-17 OSC 2013 NO FEAR ACT TRAINING YOUR RIGHTS AND REMEDIES UNDER FEDERAL ANTIDISCRIMINATION AND WHISTLEBLOWER PROTECTION LAWS U.S. OFFICE OF SPECIAL COUNSEL June 19, 2013

What is the No Fear Act? On May 15, 2002, Congress enacted the Apr-17 What is the No Fear Act? On May 15, 2002, Congress enacted the “Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002,” which is now known as the No FEAR Act. One purpose of the Act is to “require that Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws.” To this end, the No FEAR Act requires that all federal agencies train employees about the rights and remedies available to them under the Antidiscrimination Laws and Whistleblower Protection Laws applicable to them.

Federal Antidiscrimination and Whistleblower Protection Laws Apr-17 Federal Antidiscrimination and Whistleblower Protection Laws “Federal Antidiscrimination Laws” refers to: 5 U.S.C. 2302(b)(1) 5 U.S.C. 2302(b)(9), as applied to conduct described in 5 U.S.C. 2302(b)(1) 5 U.S.C. 2302(b)(10) 29 U.S.C. 206(d) Equal Pay Act 29 U.S.C. 621 Age Discrimination in Employment Act 29 U.S.C. 791 Rehabilitation Act 42 U.S.C. 2000e–16 Civil Rights Act of 1964 42 U.S.C. 2000ff-11 Genetic Information Nondiscrimination Act “Federal Whistleblower Protection Laws” refers to: 5 U.S.C. 2302(b)(8) or 5 U.S.C. 2302(b)(9), as applied to conduct described in 5 U.S.C. 2302(b)(8).

Apr-17 Race Discrimination Under Title VII of the Civil Rights Act of 1964, equal employment opportunity cannot be denied any person because of his/her racial group or perceived racial group, race-linked characteristics (e.g., hair texture, color, facial features), or marriage to or association with someone of a particular race or color. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups.

Race Discrimination (continued) Apr-17 Race Discrimination (continued) It is unlawful to discriminate against any individual in regard to recruiting, hiring and promotion, transfer, work assignments, performance measurements, the work environment, job training, discipline and discharge, wages and benefits, or any other term, condition, or privilege of employment. Title VII prohibits not only intentional discrimination, but also neutral job policies that disproportionately affect persons of a certain race or color and that are not related to the job and the needs of the business. Title VII also prohibits harassment based on race. Neutral Job Policies Example: A minimum height requirement may screen out disproportionate numbers of Asian-American and Latino job applicants. Coded words and Conduct Example: Jones v. UPS Ground Freight, 683 F.3d 1283 (11th Cir. 2012) A reasonable jury could find that African American truck driver was subjected to actionable hostile work environment "because of race" where (1) plaintiffs trainer told him, "I know how to train you Indians," and when plaintiff said he was not an Indian, the trainer responded, "I don't care what race you are, I trained your kind before," (2) plaintiff repeatedly found remnants of bananas left on his personal truck and not on the vehicles of his White co-workers; (3) he witnessed three White coworkers all wearing confederate shirts or hats on the same day during the period he began seeing bananas on his truck more frequently and (4) two of the coworkers plaintiff had seen wearing confederate garb confronted him one night about his having complained about the bananas and confederate garb.

National Origin Discrimination Apr-17 National Origin Discrimination Title VII prohibits employers from discriminating against individuals because of their national origin. National origin discrimination means treating someone less favorably because he or she comes from a particular place, because of his or her ethnicity or accent, or because it is believed that he or she has a particular ethnic background. National origin discrimination also means treating someone less favorably at work because of marriage or other association with someone of a particular nationality. Violations include: discrimination in employment decisions (recruitment, hiring, firing, layoffs, etc.) and harassment based on national origin. Discrimination against individuals employed in the United States is prohibited, regardless of citizenship. However, relief may be limited if an individual does not have work authorization. Example: An employer who won't allow anyone with an accent to work with the public, but there are instances where basing a decision on a foreign accent may be permissible. See next slide.

National Origin Discrimination (Language) Apr-17 National Origin Discrimination (Language) Accent discrimination An employer may not base a decision on an employee’s foreign accent unless the accent materially interferes with job performance. English fluency A fluency requirement is only permissible if required for the effective performance of the position for which it is imposed. English-only rules English-only rules must be adopted for nondiscriminatory reasons. An English-only rule may be used if it is needed to promote the safe or efficient operation of the employer’s business. Continuation from slide 6 – if the accent makes the employee’s speech incomprehensible, and the employee must speak with the public as part of his job, the accent would interfere with job performance.

Religious Discrimination Apr-17 Religious Discrimination Title VII prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. Employees cannot be forced to participate – or not participate – in a religious activity as a condition of employment. Employers must take steps to prevent religious harassment of their employees. Example: Dediol v. Best Chevrolet, Inc., 655 F.3d 435 (5th Cir. 2011) (reversing summary judgment for the defendant car dealership on the plaintiff salesman's claim of age and religious harassment, Fifth Circuit held that plaintiffs Title VII religious hostile work environment claim survived summary judgment given the supervisor's disparaging comments about the plaintiff’s religion approximately 12 times over two months- e.g., "go to your God and [God] would save your job"; "God would not put food on your plate"; and "[G]o to your f" * * *ng God and see if he can save your job."). Age harassment discussed on later slide.

Religious Discrimination Reasonable Accommodation Apr-17 Religious Discrimination Reasonable Accommodation Employers must reasonably accommodate employees’ sincerely held religious practices unless doing so would impose an undue hardship on the employer. A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his religion. An employer might accommodate an employee’s religious beliefs or practices by allowing: flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers, modification of grooming requirements and other workplace practices, policies and/or procedures. EEOC v. Abercrombie & Fitch Stores, Inc., 798 F. Supp. 2d 1272 (N.D. Okla. 2011) (granting summary judgment to EEOC where Abercrombie & Fitch interviewed a Muslim woman for a position as a salesperson but declined to hire her because she wore a head-scarf which violated the company's "Look Policy" which prohibited wearing caps - employee did not have to specifically ask for an accommodation when the hiring manager already knew of the conflict), on appeal, No. 11-5110 (lOth Cir.).

Apr-17 Sex Discrimination It is unlawful to discriminate against any employee or applicant because of his/her sex in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals on the basis of sex. Title VII prohibits both intentional discrimination and neutral job policies that disproportionately exclude individuals on the basis of sex and that are not job-related.

Sex Discrimination Pregnancy Discrimination Apr-17 Sex Discrimination Pregnancy Discrimination The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar disabilities or limitations.

Sex Discrimination Pregnancy Discrimination (continued) Apr-17 Sex Discrimination Pregnancy Discrimination (continued) An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition or because of the prejudices of co-workers, clients, or customers. Pregnant employees must be permitted to work as long as they are able to perform their jobs. Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave. EEOC v. Houston Funding, 114 Fair Empl. Prac. Cas. (BNA) 799, 2012 WL 73494 Employee on maternity leave informed her employer that she was breastfeeding and lactating and asked to use a back room to pump breast milk, employer said her position had been filled because it thought she had abandoned her job. The 5th Circuit overruled the lower court holding that subjecting a female employee to an adverse employment action because she is lactating or expressing breast milk “clearly imposes upon women a burden that male employees need not--indeed, could not--suffer” and thus would violate Title VII.

Sex Discrimination Sexual Harassment Apr-17 Sex Discrimination Sexual Harassment Title VII’s prohibitions against sex-based discrimination also covers: Sexual Harassment This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment. Hoyle v. Freightliner LLC, 650 F.3d 321 (4th Cir. 2011) (holding plaintiff, a female tractor-trailer truck assembler, was entitled to a trial on her claim of a sex-based hostile work environment which included photos of scantily clad women, sexually provocative calendars, computer screensavers with nude pictures of women, and a work key ring with a tampon attached to it; Fourth Circuit concluded that a jury could reasonably find that sexualizing the work environment in common areas is detrimental to female employees and satisfies the "because of sex" requirement).

Sex Discrimination Gender Identity and Sex-Stereotyping Apr-17 The EEOC has held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is covered under Title VII of the Civil Rights Act of 1964. See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012) The Commission has also found that claims by lesbian, gay, bisexual, and straight individuals alleging sex-stereotyping state a sex discrimination claim under Title VII. See Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011); Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011) Example – Gender Identity: Macy v. Holder, EEOC DOC 0120120821,2012 WL 1435995 (April20, 2012) (complainant contended she was tentatively hired by ATF but the position was revoked for a pretextual reason when ATF learned she was transitioning from male to female; complainant filed a formal EEO complaint with ATF. The Commission held that her claim was simply a different way of stating the same claim of discrimination "based on ... sex," which covers discrimination not just based on biological sex, but also based on gender ("the cultural and social aspects associated with masculinity and femininity"). Example – Sex Stereotyping: Though sexual orientation is not protected under title VII, In Veretto, the EEOC found that the complainant stated a claim under title VII when a coworker harassed him after discovering that he was planning to marry a man (the coworker saw their wedding announcement in the newspaper). The gender stereotype at issue in Veretto’s claim was that an essential part of being a man is marrying a woman.

Apr-17 Equal Pay The Equal Pay Act of 1963 requires that men and women be given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal. Title VII also prohibits compensation discrimination on the basis of sex. Unlike the Equal Pay Act, however, Title VII does not require that the claimant’s job be substantially equal to that of a higher paid person of the opposite sex or require the claimant to work in the same establishment. King v. University Healthcare Sys., L.C., 645 F.3d 713 (5th Cir. 2011) (a jury found that plaintiff, an anesthesiologist, failed to show that her employer paid her less than a male anesthesiologist because of her sex in violation of Title VII, yet the jury also held that the employer violated the Equal Pay Act; the Fifth Circuit held there was no inconsistency between these two conclusions: "The allocations of burdens in EPA and Title VII claims ... differ in a way that may, in some cases, result in an employee prevailing on her EPA claim but not her Title VII claim. Specifically, where a plaintiff makes an adequate prima facie case for both an EPA and a Title VII claim, the defendant bears the burden of persuasion to prove a defense under the EPA, whereas it has only a burden of production to show a legitimate nondiscriminatory reason for its actions under Title VII, with the ultimate burden of persuasion remaining with the plaintiff.").

Disability Discrimination Apr-17 Disability Discrimination Title I of the Americans with Disabilities Act of 1990 (ADA) prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA’s nondiscrimination standards apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules and regulations.

What is a Disability? An individual with a disability is a person who: Apr-17 What is a Disability? An individual with a disability is a person who: Has a physical or mental impairment that substantially limits one or more major life activities (such as walking, talking, seeing, hearing, or learning). Has a record of such an impairment; or Is regarded as having such an impairment.

Reasonable Accommodation Apr-17 Reasonable Accommodation A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, but is not limited to: Making existing facilities used by employees readily accessible to and usable by persons with disabilities; Job restructuring, modifying work schedules, reassignment to a vacant position; Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters. An employer is required to make a reasonable accommodation to the known disability of a qualified employee or applicant if it would not impose an “undue hardship” on the operation of the employer’s business. Reasonable Accommodation Permitted: Miller v. Illinois Dept of Transp., 643 F.3d 190 (7th Cir. 2011) (despite bridge worker's fear of heights, he could and did perform most work at heights- the only exception being the rare instance when he had to work at heights in extreme and exposed positions – the agency regarded the worker as an individual with a disability. The Seventh Circuit held that his request not to work at heights in extreme and exposed positions was a reasonable accommodation and not a request to remove an essential function; importantly, there was substantial evidence that plaintiffs bridge crew "worked effectively as a team, taking advantage of each member's abilities and accommodating each member's limitations"- e.g., one worker could not weld, and another had allergies and thus could not spray paint or mow grass -and "crew members would swap assignments as needed to enable the crew to complete those tasks;" thus the Seventh Circuit stated that "[w]hat sets this case apart from [earlier cases in which the court held that requests for a 'helper' or requests to rotate work tasks were not reasonable] is [plaintiffs] evidence that it was in fact normal course for individual members of the bridge crew to substitute and reassign tasks among themselves according to individual abilities, preferences, and limitations"). Reasonable Accommodation Not Permitted: Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233 (9th Cir. 2012) (where hospital had a rule against more than 5 unplanned absences during a rolling 12-month period, Ninth Circuit held nurse with fibromyalgia (which affected her sleep and caused pain) who worked in hospital's neo-natal intensive care unit was not a qualified individual with a disability because the hospital produced evidence that regular on-site attendance was essential (given the nature of the job) and, the Ninth Circuit held, the plaintiffs desired accommodation of being allowed an unspecified number of unplanned absences above the 5 permitted under the hospital's policy "essentially asks for a reasonable accommodation that exempts her from an essential function").

Apr-17 Age Discrimination The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. Dediol v. Best Chevrolet, Inc., 655 F.3d 435 (5th Cir. 2011) (reversing summary judgment for the defendant car dealership on the plaintiff salesman's claim of age and religious harassment, Fifth Circuit held that hostile work environment claims under the ADEA are cognizable, and concluded that plaintiffs age-based harassment claim survived summary judgment given evidence that his supervisor made profane, age-based references to him up to half a dozen times a day- e.g., "old man," "old mother******," and "pops"- and the record was "replete with incidents of physically threatening behavior" by the plaintiffs supervisor, including the supervisor's threatening to "kick [the plaintiffs] ass,“ and he steered business to plaintiffs younger coworkers

Genetic Information Discrimination Apr-17 Genetic Information Discrimination It is unlawful to discriminate against employees or applicants because of genetic information. Title II of the Genetic Information Nondiscrimination Act (GINA) prohibits the use of genetic information in making employment decisions and restricts employers and other entities covered by Title II from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information. The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. It is also unlawful to harass a person because of his or her genetic information. The EEOC announced that they had settled a case with a company for a violation of an employee’s GINA rights. The case involved using medical questionnaires as part of the hiring process. Asking questions that reveal family medical histories, and thus genetic backgrounds, is prohibited as part of the hiring process. The company then went on to exacerbate their mistake by using this information to then deny positions or to rescind offers based upon this information.

Retaliation Prohibited Apr-17 Retaliation Prohibited It is unlawful to retaliate against an individual for opposing employment practices that discriminate based on race, color, religion, sex, age, national origin, pregnancy, disability, or genetic information. It is also unlawful to retaliate against an individual for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation. Dozier-Nix v. District of Columbia,_ F. Supp. 2d _, 2012 WL 1081168 (D.D.C. Mar. 31, 2012) (plaintiff and her husband both worked for employer, and a supervisor subjected plaintiff to unwanted touching, looks and gestures, comments, and solicitations for sex, and said he would not give her husband the permanent work assignment he wanted unless plaintiff had sex with him; the district court held that plaintiffs rebuffing of the supervisor's advances constituted protected activity and that plaintiff had a viable retaliation claim based on her supervisor's refusal to give plaintiffs husband a permanent assignment Ali v. District of Columbia Gov't, 810 F. Supp. 2d 78 (D.D.C. 2011) (When a Muslim employee complained that he felt singled out for failing to follow a sign-in procedure, his supervisor told him that if he did not drop his complaints then his best friend and other coworkers would also have to be disciplined for the same infraction; the district court held the supervisor's threat to discipline and likely terminate plaintiffs close friend was materially adverse under the broader standard for adverse action and that the retaliatory threat to fire a third party can be actionable retaliation).

Apr-17 Political Affiliation, Marital Status, Sexual Orientation, and Status as a Parent The Civil Service Reform Act of 1978 makes it illegal to discriminate in personnel actions against Federal employees because of their marital status, political affiliation, or based on conduct which does not adversely affect the performance of the applicant or employee -- which can include sexual orientation discrimination, or to retaliate against employees for exercising their rights. 5 U.S.C. 2302(b)(1), (b)(9) & (b)(10). Executive Order 11478, section 1 (as amended by Executive Orders 13087 and 13152) prohibits discrimination on the basis of sexual orientation and status as a parent.

Whistleblower Protection 5 U.S.C. § 2302 (b)(8) Apr-17 Whistleblower Protection 5 U.S.C. § 2302 (b)(8) A federal employee authorized to take, direct others to take, recommend or approve any personnel action may not engage in reprisal for whistleblowing – i.e., take, fail to take, or threaten to take or fail to take a personnel action with respect to any employee or applicant because of: Any disclosure of information by the employee or applicant that he or she reasonably believes evidences: * A violation of a law, rule or regulation, * Gross mismanagement, * Gross waste of funds, * Abuse of authority, or * A substantial and specific danger to public health or safety.

Protected Whistleblower Disclosures (continued) 5 U.S.C. § 2302 (b)(8) Apr-17 Protected Whistleblower Disclosures (continued) 5 U.S.C. § 2302 (b)(8) Disclosure not protected (unless made to the Special Counsel or Inspectors General), when disclosure is – Prohibited by law, or Required by Executive Order to be secret for national security or foreign affairs reasons.

Corrective Action: Whistleblower Reprisal Matters 5 U. S. C Corrective Action: Whistleblower Reprisal Matters 5 U.S.C. §§ 1214(b)(4)(B), 1221(e)(1) Apr-17 Can be obtained if - Disclosure of information was a Contributing Factor in a personnel action, Unless Agency shows by Clear and Convincing Evidence that it would have taken the same personnel action in the absence of the disclosure.

Other Protected Activities: 5 U.S.C. § 2302 (b)(9) Apr-17 Other Protected Activities: 5 U.S.C. § 2302 (b)(9) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority : Take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of – (A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation; (B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in (A); (C) cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; or (D) for refusing to obey an order that would require the individual to violate a law.

Apr-17 Filing a Complaint If you think you have been subjected to retaliation, contact the Complaints Examining Unit at the U.S. Office of Special Counsel at 1-800-872-9855 or visit www.osc.gov to file a written complaint If you feel you have been discriminated against in violation of antidiscrimination laws, contact your OSC EEO counselors, listed on OSC’s Intranet and slide 29. You may also contact the Equal Employment Opportunity Commission if you have questions about filing a complaint (1-800-669-4000) or visit www.eeoc.gov to learn more.

Apr-17 OSC EEO Directives The following EEO directives are accessible on OSC’s intranet: “EEO, Non-Discrimination, OSC Directive 1400-51 and Anti-Harassment Policy” “Procedures for Accommodation OSC Directive 1400-52 of Persons with Disabilities” * OSC is currently in the process of updating the EEO Directive and creating a separate Anti-Harassment Policy

SAN FRANCISCO BAY AREA FIELD OFFICE Apr-17 OSC EEO Counselors HEADQUARTERS James Booker (202) 254-3675 Mariama Liverpool (202) 254-3609 1730 M. St., N.W. (Suite 300) Washington, D.C. 20036-4505 DETROIT FIELD OFFICE Lovie Jones 211 West Fort Street, Room 521 Detroit, MI 48226 Telephone: (313) 226-4441, ext. 6221 DALLAS FIELD OFFICE Anne Edgette 525 Griffin Street (Room 824, Box #103) Dallas, TX 75202 Telephone: (214) 747-1519, ext. 4233 SAN FRANCISCO BAY AREA FIELD OFFICE Kristi van Greunen Oakland Federal Building 1301 Clay Street (Suite 1220N) Oakland, CA 94612-5217 Telephone (510) 637-3464, ext. 5227 NOTES:

Acting OSC EEO Director Apr-17 Acting OSC EEO Director Shirine Moazed 1730 M. St, N.W., Suite 300 Washington, DC 20036-4505 Telephone (202) 254-3600

Apr-17 Congratulations! You have now completed the No FEAR Act training of 2013. Please complete your certification statement and email it to Osborne Mack.