# Presentation: 087695

## OSC 2006 NO FEAR ACT TRAINING

**OSC 2006 NO FEAR ACT TRAINING**
** **

***YOUR RIGHTS AND REMEDIES UNDER FEDERAL ANTIDISCRIMINATION AND WHISTLEBLOWER PROTECTION LAWS***

**Scott J. Bloch**
**Special Counsel**
**U.S. OFFICE OF SPECIAL COUNSEL**

## 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 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)
-  29 U.S.C. 206(d)
-  29 U.S.C. 631
-  29 U.S.C. 633a
-  29 U.S.C. 791,  and
-  42 U.S.C. 2000e–16.

## 
“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).

Click to begin the OSC No Fear Act Training.

**“****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).
- Click to begin the OSC No Fear Act Training.

**Whistleblower Protection Laws**

**Notes:**
NOTES:

## The Sense of Congress 

- The United States and its citizens are best served when the Federal workplace is free of discrimination and retaliation.  In order to maintain a productive workplace that is fully engaged with the many important missions before the Government, Congress noted that it is essential that the rights of employees, former employees and applicants for Federal employment under Federal antidiscrimination and whistleblower protection laws be steadfastly protected.  Congress also stated that agencies cannot be run effectively if those agencies practice or tolerate discrimination.

## “It is the policy and intent of the U.S. Office of Special Counsel (OSC) to provide equality of employment opportunity for all persons, and to prohibit discrimination in all facets of employment.”

	Special Counsel Scott Bloch 
	Sept. 30, 2004 
	Policy Statement on Equal 				Employment Opportunity

- 	Special Counsel Scott Bloch
- 	Sept. 30, 2004
- 	Policy Statement on Equal 				Employment Opportunity

**WHAT IS THE****EMPLOYMENT POLICY OF OSC ?**

**Notes:**
NOTES:

## Race Discrimination

- Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the bases of race and color, as well as national origin, sex, and religion.
- 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)

- 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.  Employers should adopt "best practices" to reduce the likelihood of discrimination and to address impediments to equal employment opportunity.

## National Origin Discrimination

- 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.

## What is National Origin Discrimination?

**Examples of violations include:**
- _[Employment Decisions](http://www.eeoc.gov/policy/docs/national-origin.html#III)__Title VII prohibits any employment decision, including recruitment, hiring, and firing or layoffs, based on national origin. _
- _[Harassment](http://www.eeoc.gov/policy/docs/national-origin.html#IV)__Title VII prohibits offensive conduct, such as ethnic slurs, that creates a hostile work environment based on national origin.  Employers are required to take appropriate steps to prevent and correct unlawful harassment.  Likewise, employees are responsible for reporting harassment at an early stage to prevent its escalation._

## Language Discrimination 

- _[Accent discrimination](http://www.eeoc.gov/policy/docs/national-origin.html#VA)__An employer may not base a decision on an employee's foreign accent unless the accent materially interferes with job performance._
- _[English fluency](http://www.eeoc.gov/policy/docs/national-origin.html#VB)__A fluency requirement is only permissible if required for the effective performance of the position for which it is imposed._
- _[English-only rules](http://www.eeoc.gov/policy/docs/national-origin.html#VC)__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._

## Non-citizens 

- _[Coverage of foreign nationals](http://www.eeoc.gov/policy/docs/national-origin.html#VI)_
- 	Title VII and the other antidiscrimination laws prohibit discrimination against individuals employed in the United States, regardless of citizenship.  However, relief may be limited if an individual does not have work authorization.

## Religious Discrimination

- _[Title VII of the Civil Rights Act of l964](http://www.eeoc.gov/policy/vii.html)__ prohibits employers from_
- 	discriminating against individuals because of their religion in hiring,
- 	firing, and other terms and conditions of employment.  Title VII covers employers with 15 or more employees, including state and local governments.  It also applies to employment agencies and to labor organizations, as well as to the federal government.
- Under Title VII:
- Employers may not treat employees or applicants more or less favorably because of their religious beliefs or practices (except to the extent a religious accommodation is warranted).  For example, an employer may not refuse to hire individuals of a certain religion, may not impose stricter promotion requirements for persons of a certain religion, and may not impose more or different work requirements on an employee because of that employee's religious beliefs or practices.
- Employees cannot be forced to participate – or not participate –  in a religious activity as a condition of employment.

## 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.

## Undue Hardship

- An employer is not required to accommodate an employee's religious beliefs and practices if doing so would impose an undue hardship on the employer’s legitimate business interests.  An employer can show undue hardship if accommodating an employee's religious practices requires more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees' job rights or benefits, impairs workplace safety, causes co-workers to carry the accommodated employee's share of potentially hazardous or burdensome work, or if the proposed accommodation conflicts with another law or regulation.
- Employers must permit employees to engage in religious expression, unless the religious expression would impose an undue hardship on the employer.  Generally, an employer may not place more restrictions on religious expression than on other forms of expression that have a comparable effect on workplace efficiency.

## Religious Harassment

- Employers must take steps to prevent religious harassment of their employees.  An employer can reduce the chance that employees will engage unlawful religious harassment by implementing an anti-harassment policy and having an effective procedure for reporting, investigating and correcting harassing conduct.

## Pregnancy Discrimination

- The Pregnancy Discrimination Act is an amendment to _[Title VII of the Civil Rights Act of 1964](http://www.eeoc.gov/policy/vii.html)__.  Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII.  Title VII also applies to employment agencies and to labor organizations, as well as to the federal government.  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._

## Hiring

- 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.

## Maternity Leave

- An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work.  However, if an employer requires its employees to submit a doctor's statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.
- If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee.  For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled due to pregnancy to do the same.

## Pregnancy Discrimination (continued)

- Pregnant employees must be permitted to work as long as they are able to perform their jobs.  If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby's birth.  An employer also may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.
- 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.

## Health Insurance

- Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions.  Health insurance for expenses arising from abortion is not required, except where the life of the mother is endangered.
- Pregnancy-related expenses should be reimbursed exactly as those incurred for other medical conditions, whether payment is on a fixed basis or a percentage of reasonable-and-customary-charge basis.
- The amounts payable by the insurance provider can be limited only to the same extent as amounts payable for other conditions.  No additional, increased, or larger deductible can be imposed.
- Employers must provide the same level of health benefits for spouses of male employees as they do for spouses of female employees.

## Fringe Benefits

- Pregnancy-related benefits cannot be limited to married employees.  In an all-female workforce or job classification, benefits must be provided for pregnancy-related conditions if benefits are provided for other medical conditions.
- If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy-related conditions.
- Employees with pregnancy-related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.

## Sex Discrimination

- It is unlawful to discriminate against any employee or applicant for employment 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.

## Sexual Harassment

- Title VII's prohibitions against sex-based discrimination also covers:
- _[Sexual Harassment](http://www.eeoc.gov/types/sexual_harassment.html)_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.

## Equal Pay

- The _[Equal Pay Act of 1963](http://www.eeoc.gov/policy/epa.html)__ 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._

## 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:
- Has a physical or mental impairment that substantially limits one or more major life activities;
- Has a record of such an impairment; or
- Is regarded as having such an impairment.

## 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.

## Reasonable Accommodation(continued)

- An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business.  Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources, and the nature and structure of its operation.
- An employer is not required to lower quality or production standards to make an accommodation; nor is an employer obligated to provide personal use items such as glasses or hearing aids.

## Medical Examinations and Inquiries

- Employers may not ask job applicants about the existence, nature, or severity of a disability.  Applicants may be asked about their ability to perform specific job functions.  A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs.  Medical examinations of employees must be job-related and consistent with the employer's business needs.

## Drug and Alcohol Abuse

- 	Employees and applicants currently engaging in the illegal use of drugs are not covered by the ADA when an employer acts on the basis of such use.  Tests for illegal drugs are not subject to the ADA's restrictions on medical examinations.  Employers may hold illegal drug users and alcoholics to the same performance standards as other employees.

## 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, or disability.  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.

## 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.  The ADEA's protections apply to both employees and job applicants.  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.

## 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.

## Elements of Proof: Reprisal for Whistleblowing5 U.S.C. §§ 1214(b)(4)(A)-(B), 1221(e)

- Must show –
- _Protected Disclosure_ of information under 5 U.S.C. § 2302(b)(8);
- _Personnel Action_ taken, not taken, or threatened;
- Actual or constructive _Knowledge_ of the protected disclosure; and
- Protected disclosure was a _Contributing Factor_  in the personnel action.

**Notes:**
NOTES:

## Protected Whistleblower Disclosures5 U.S.C. §  2302 (b)(8)

- Violation of any law, rule, or regulation
- Substantial and specific danger to public health or safety
- _Gross waste of funds_
*	**	**More than a debatable expenditure.*
- _Gross mismanagement_
- More than *de minimus* wrongdoing or negligence – an action that creates a risk of significant adverse impact on the accomplishment of an agency’s mission.
- _Abuse of authority_
- 	An arbitrary or capricious exercise of power that injures another, or benefits the abuser or others.

## Protected Whistleblower Disclosures(continued)5 U.S.C. § 2302 (b)(8)

- Generally prohibited when made to _any person_ (except the wrongdoer).
- _Need not be accurate_ to be protected.
- Protected if employee has a _reasonable belief_ that it is true – test is both objective and subjective.
- _No requirement_ that employee go through chain of command.
- Whistleblower’s _personal motivation does not affect_ reasonableness of a disclosure.
- Employee or applicant is _protected if employer mistakenly believes_ he or she is a whistleblower.

## 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.

- Prohibited by law,
- 			_**or**_
- Required by Executive Order to be secret for national security or foreign affairs reasons.

**Protected Whistleblower Disclosures****(*****continued*****)****5 U.S.C. § 2302 (b)(8)**

## Corrective Action:Whistleblower Reprisal Matters5 U.S.C. §§ 1214(b)(4)(B), 1221(e)(1)

- 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.

## Contributing Factor

- 	Any factor which alone or in connection with others tends to affect in any way the outcome of the personnel action at issue.
- Can be established by _Knowledge/Timing_ alone.
- Often established by _Circumstantial Evidence_.

## 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.

## 
The following scenario is an example of a violation of  
5 U.S.C. § 2302 (b)(9):

	Supervisor Jane proposes suspending employee Jack because employee Jack filed a whistleblower reprisal complaint alleging that his performance rating was lowered because of his prior protected whistleblowing.

- The following scenario is an example of a violation of
- 5 U.S.C. § 2302 (b)(9):
- 	Supervisor Jane proposes suspending employee Jack because employee Jack filed a whistleblower reprisal complaint alleging that his performance rating was lowered because of his prior protected whistleblowing.

**Other Protected Activities:****5 U.S.C. § 2302 (b)(9) (*****continued)***

## OSC EEO Directives

- The following EEO directives are accessible on OSC’s intranet:
-  		“Anti-Harassment Policy” 			OSC Directive 1400-35
- 		“EEO, Non-Discrimination, and
- 			Anti-Harassment Policies”		OSC Directive 1400-26
- 		“Equal Employment Opportunity Program”	OSC Directive 1400-42
- 		“Procedures for Accommodation
- 			of Persons with Disabilities”	OSC Directive 1400-38.1

## OSC Whistleblower Protection Information

- More information about whistleblower rights and  remedies is available on OSC’s web site (_[www.osc.gov](http://www.osc.gov/)_).

## 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 to file a written complaint, or visit _[www.osc.gov](http://www.osc.gov/)__ to learn more.  _
- If you feel you have been discriminated against in violation of antidiscrimination laws, contact your EEO counselor (on the following page).  You may also contact the Equal Employment Opportunity Commission about filing a complaint at 1-800-669-4000 or visit _[www.eeoc.gov](http://www.eeoc.gov/)__ to learn more._

## OSC EEO Counselors

_**HEADQUARTERS   **__                       _
- James Booker (202) 254-3675
- Mariama Liverpool (202) 254-3609
- Jason Weidenfield (202) 254-3615
- 1730 M. St., N.W. (Suite 300)
- Washington, D.C. 20036-4505
_**DETROIT FIELD OFFICE**_
- Lovie Jones
- 477 Michigan Avenue, Suite 495
- Detroit, MI 48226
- Telephone: (313) 226-4441, ext. 6221
_**DALLAS FIELD OFFICE**_
- William Miller
- 525 Griffin Street (Room 824, Box #103)
- Dallas, TX 75202
- Telephone: (214) 747-1519, ext. 4224
_**SAN FRANCISCO BAY AREA FIELD OFFICE**_
- Kristi van Greunan
- Oakland Federal Building
- 1301 Clay Street (Suite 1220N)
- Oakland, CA 94612-5217
- Telephone (510) 637-3464, ext. 5227

**Notes:**
NOTES:

## OSC EEO Director

**William Reukauf**
**1730 M. St, N.W., Suite 300**
**Washington, DC 20036-4505**
**Telephone (202) 254-3600**

## Congratulations!

- 	You have now completed the No Fear Act training of 2006.  Please complete your certification statement and email it to your agency Human Resources or Training Office.”