AN OVERVIEW OF CIVIL RIGHTS (EEO)

OPENING EXERCISE: Read through these three situations before we begin to talk about the material. Try to form some preliminary judgements about how civil rights might help this person or whether the facts fail to show a violation of law:

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Alicia comes to you to complain that something twisted is going on with her manager. He has said to her and several other women that everyone should dress professionally and for woman that means heels and a skirt. They don�t have to do this, but he has this theory that the length of time a woman spends in grade awaiting promotion is related to the length of her heels. The longer the heals, the shorter the wait. However, since he is only a ranking official and never a selecting official, he says it is only a theory. He regularly goes to lunch with the three women in the group that do wear heels and skirts almost everyday. They seem to be a very friendly group. He "bumps" into them during the day and they do the same to him--pretending it was an accident their bodies touched. At other times, he will put his arm around one of them, touch their hair or even massage their shoulders, but he only massages when asked to do so. Others tell Alicia they have heard the manager refer to these women as his "Angels" or his "Good girls." All of this sounds familiar to you since you know this manager and the fact that the only people in his group to awards or promotions in the last three years are the women who dress the way he wants them to.

 

 

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Chad, a white male employee, who has been a secretary for years, has been passed over several times for promotion to the next level. All those jobs are held by women and he can never seem to get ahead despite being on the BQ list several times. Most recently, this employee, who is also 51 years old, was passed over for promotion when the agency hired someone from outside the federal government who happens to be 41.

 

 

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Monica is a secretary who wants the union to force her manager to put up panel dividers around her desk. Too much sunlight gives her headaches, which her doctor verifies, and she wants to be shielded from it. Otherwise, she has to take too much sick leave. Her manager refused to do anything and even seems to be raising the blinds often just to aggravate her. What can we do?

 

 

OBJECTIVES: At the end of this class the participants should be able to do the following:

1. Explain why it is important for NTEU to vigorously enforce various civil rights statutes, and especially how it strengthens a contract grievance to make this allegation.

2. Recognize whether the legal criteria necessary to allege a civil rights violation are present in a case. These criteria are known as "prima facie" tests.

3. List the various grounds, statutes, or other authorities upon which to allege a civil rights violation.

4. List the various options for filing a complaint or challenge and draft a grievance alleging a civil rights violation.

5. Describe what can be done in a chapter to increase the enforcement of civil rights in a chapter.

Here are some reasons why we want stewards to be well-prepared to identify and enforce civil rights statutes. How many more can you think of ?

1. It protects the rights of the individual member.

2. It helps overcome underrepresentation and exclusion.

3. It punishes the use of the very same tactics we see whenever a manager is practicing other forms of favoritism or bias.

1. The Civil Rights Act of 1964, Amended 1972 and 1991--Prohibits discrimination based on race, color, religion, sex, or national origin. Also included are prohibitions against sexual harassment.

2. The Age Discrimination in Employment Act--Prohibits age discrimination against those 40 and over.

3. The Equal Pay Act Within the Fair Labor Standards Act

   Prohibits sex-based pay discrimination.

4. The Pregnancy Act of 1978, an Amendment to the CRA of 1964. Prohibits discrimination in pay, benefits, etc. based on pregnancy.

5. The Rehabilitation Act-- Prohibits discrimination based on disabling conditions-- providing federal employees the same protection that the Americans with Disabilities Act provides private sector employees. More specifically, it provides,"The President may prescribe rules which shall prohibit...discrimination because of a handicapping condition in...a position, the duties of which...can be performed efficiently by an individual with a handicapping condition, except that the employment may not endanger the health or safety of the individual or others. (This is the federal sector equivalent of the American with Disabilities Act which does not apply to federal sector employment.(29 USC 791- See also 5 USC 7203))

6. EEOC Regulations (29 CFR Section 1614.203)

   Agencies shall give full consideration to the hiring, placement and advancement of qualified mentally and physically handicapped persons. The federal government shall become a model employer of handicapped individuals. An agency shall not discriminate against a qualified physically or mentally handicapped individual.

   and

   An agency shall make reasonable accommodations to the known physical and mental limitations of an applicant or employee who is a qualified individual with a handicap, unless the agency can demonstrate that the reasonable accommodation would impose an undue hardship.

7. Prohibited Personnel Practices--Prohibits discrimination based on marital status as well as any conduct which does not affect performance, e.g., sexual orientation, pregnancy, etc. More specifically, these provide, "The Employer shall not...discriminate for or against any employee or applicant for employment... on the basis of handicapping condition, as prohibited under... the Rehabilitation Act of 1973... nor... discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others...

There are many places where discrimination can take place. Here are the personnel actions that the law says should be particularly scrutinized.

• Appointment
• Promotions
• Pay
• Benefits
• Discipline
• Details
• Training
• Awards
• Reassignment
• Redeployment
• Appraisals
• Reinstatement

"Any other significant change in duties or responsibilities that is inconsistent with salary or grade." (5 USC Section 2302 (a) (2))

The shop steward does not have to make a formal or final judgement as to whether there is discrimination when you are considering filing a grievance. If it looks like the employee has a case or you cannot rule out that he or she does, make the allegation in the grievance. However, if you or the employee wants to file an EEO complaint with the agency rather than a grievance, consult the National Field Representative first. NTEU does not have a duty to fairly represent employees in the EEO complaint procedure.

The General Disparate Treatment Test- This is a case where the employee alleges he or she was treated less favorably by management because of any of the grounds on which we can file a complaint, e.g., race, gender, etc.

Step #1- All the union representative needs to know is whether the employee has a "prima facie" case. If he or she does, then make the allegation and start collecting information.

The "Prima Facie" for Selection Cases- McDonnell-Douglas v. Green

1. Does the employee belong to a race or other class that is protected or in the minority in this situation?

2. Did the employee apply and was he/she qualified?

3. Did the employer reject or pass over the employee despite his/her qualifications?

4. After the employee was passed over, did the employer seek applicants or select another applicant for the situation who was no more qualified than the employee and not of the same protected group?

After the union shows a "prima facie" case exists, two things happen.

Step #2- Management has the obligation to present some legitimate, nondiscriminatory reason for not selecting the grievant. For example,

• The complainant could not work effectively with management. 89 FEOR 3097.
• The complainant had less work experience than the selectee. 89 FEOR 1024.
• The selectee had more promotion potential. 80 FEOR 7030.

Step #3- Once management does this, the employee and union have to show that the reason offered was pretextual or false. In the end the employee has the burden of convincing the arbitrator or judge that the employer intended to discriminate based on the employee's protected class status. Here are some hints of when a decision is more likely than not to be pretext:

• When the employee's performance is blamed for the nonselection, but there is no preexisting documentation. (45 FEP 1818)
• When the employee is criticized or passed over right after complaining of discrimination. (45 FEP 1818)
• When the evaluation of the employee was subjective, e.g., without formal guidelines, not written, or unreviewed by other authorities. (44 FEP 1549.
• When the employee is over documented in comparison to his/her peers. (43 (FEP 972)
• When the evaluation turns on a factor that was not to be considered in the evaluation. (42 FEP 1567)
• When management relies on facts that occurred after the decision. (32 FEP 1796)
• When the employee's alleged errors are due to other employees, inadequate management training, or flawed management systems. (43 FEP 518)

Look for these in any grievance response to a charge of disparate treatment discrimination.

SEXUAL HARASSMENT is defined as "unwelcome sexual advances, requests for sexual favors, or verbal or physical conduct of a sexual nature...." 29 C.F.R. �1604.11. Sexual harassment is a form of sexual discrimination, making it a violation of �703 (a)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. �2000e-2(a)(1).

QUID PRO QUO is a type of sexual harassment suggesting that. ". . . if you do something sexual for me, I will provide a tangible job benefit to you." Legally it is "submission to such conduct (unwelcomed sexual advances, requests for sexual favors, or verbal or physical conduct of a sexual nature) is made either explicitly or implicitly a term or condition of an individual's employment," 29 C.F.R. �1604.11(a)(1), or "submission to or rejection of such conduct . . . by an individual is used as the basis for employment decisions affecting such individuals." 29 C.F.R. �1604.11(a)(2).

You have prima facie evidence of Quid Pro Quo sexual harassment when,

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the injured employee belongs to a statutorily protected group;

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he/she was subjected to unwelcome sexual ADVANCES, requests for sexual favors, or other verbal or physical conduct of a sexual nature which was not solicited or desired; [The "unwelcome" nature can be shown by an employee: 1) lodging complaints promptly after harassment; 2) attempting to use the in-house grievance procedure; and/or 3) seeking a transfer.]

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the harassment complained of was based on sex; (i.e.- but for the complainant's sex, he/she would not have been the object of the harassment)

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his/her's reaction to the harassment affected tangible aspects of the employee's compensation, terms, conditions, or privileges of employment; generally, there need not be any actual economic loss for a suit to maintain.

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the alleged harasser is essentially the employee's boss and is in position to control some aspect of the employee's job.

If you can prove these factors exist, management normally must come forward with a legitimate explanation of the personnel action that is not rebutted.

HOSTILE ENVIRONMENT is"conduct [which] has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment." 29 C.F.R. �1604.11(a)(3).

You have a prima facie case of Hostile Environment sexual harassment when,

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he/she belongs to a statutorily protected group;

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he/she was subjected to unwelcomed verbal or physical CONDUCT of a sexual nature, which was not solicited or desired. "Unwelcomed" can be shown by an employee: 1) lodging complaints promptly after harassment; 2) attempting to use the in-house grievance procedure; and/or 3) seeking a transfer.

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the harassment complained of was based on sex; (i.e.- but for the complainant's sex, he/she would not have been the object of the harassment)

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the harassment is creating an intimidating, hostile, or offensive work environment

In assessing the hostility of an environment, the courts look to the "totality of circumstances" and several courts look at these from what they call the perspective of a "reasonable woman" not just a "reasonable person."

1. frequency of discriminatory conduct (must be severe and pervasive), although in some instances once can be enough;

2. the seriousness of discriminatory conduct;

3. whether it was physically threatening/humiliating or a mere offensive utterance;

4. whether it unreasonably interfered with an employee's work performance;

5. the victim perceives the environment to be hostile and abusive;

6. psychological harm.

The Employer is liable when:1) It knew or should have known that condition was occurring, or 2) It did not take corrective action after first report. If the employer takes immediate action to stop harassment, the employer will not be held liable under Title VII.

SEXUAL FAVORITISM 29 C.F.R. �1604.11(g).

Where employment opportunities or benefits are granted because of an employee's submission to the employer's sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other employees who were qualified for, but denied that employment opportunity or benefit.

While the general "prima facie" test applies to discriminating against someone because of a disability, a different type of discrimination occurs when the employer refuses to make a reasonable accommodation for a disabled employee. In that type of case, this is prima facie test (see Jones v. Postmaster General (1988):

1. Except for the handicapping condition, the applicant is qualified for the position;

2. The applicant has a handicap which prohibits him/her from meeting the physical requirements of the position; and

3. There are plausible reasons to believe that the handicap could be accommodated.

Individual with Handicap(s): One who (1) has a physical or mental impairment which substantially limits one or more of such person's major life activities (caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working), (2) has a record of such an impairment, or (3) is regarded as having such an impairment.

Physical or Mental Impairment: (1) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal; special sense organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or (2) any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. (For example, under the right circumstances the following have been found to be handicapping impairments: allergies, sickle cell anemia, diabetes, HIV/AIDS)

Qualified Individual with Handicap(s): With respect to employment, an individual with handicap(s) who, with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health and safety of the individual or others and who, depending upon the type of appointing authority being used: (1) meets the experience and/or education requirements...or (2) meets the criteria for appointment under one of the special appointing authorities for handicapped persons.

Essential Duties: The fundamental job duties of the employment position the individual with the disability holds or desires. The term does not include marginal duties of the position. More specific factors are listed in 29 CFR 1630.2 (n).

Reasonable Accommodation: May include, but shall not be limited to: (1) making facilities readily accessible to and usable by individuals with handicaps, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions.

Undue Hardship: In determining...whether an accommodation would impose an undue hardship on the operation of the agency in question, factors to be considered include: (1) the overall size of the agency's program with respect to the number of employees, number and type of facilities and size of budget; (2) the type of agency operation, including the composition and structure of the agency's work force; and (3) the nature and the cost of the accommodation.

In any discrimination action you file, you should ask for all of the following remedies unless it is obvious that one or more will not apply. These not only make the employee whole, but also give you more bargaining room to settle the case and raise the stakes of management letting the case go to hearing.

1. An unconditional offer to each identified victim of discrimination of placement in the position the person would have occupied but for the discrimination suffered, or a substantially equivalent position;

2. Payment to each identified victim of discrimination on a make-whole basis for any loss of earnings the person may have suffered as a result of the discrimination;

3. Payment of up to $300,000 for provable damages to victims of intentional discrimination;

4. Appropriate punishment of any managers involved in the discrimination pursuant to 5 USC Section 2303 (b) (1).

5. Notification to all employees in the appointing office of their right to be free of unlawful discrimination and assurance that this discrimination will not recur;

6. Commitment that corrective or preventative action will be taken so that similar violations will not recur;

7. Commitment that the agency shall cease from engaging in the specific unlawful employment practice found in the case.

8. Reasonable and appropriate attorney fees.

Use the forms on the following pages to draft a grievance based on the facts in one of the cases found in the opening section.

NTEU GRIEVANCE ADDENDUM

You have three options for pursuing a civil rights violation, i.e. filing a grievance, filing an EEO complaint, or filing a complaint with the Merit Systems Protection Board.

However, once you file using one of these procedures, you can not raise the issue in any other forum. The first one you or the employee file determines the forum. Outlined below are some of the advantages of each.

MSPB Process (See the file deadline of the specific personnel action)