# Presentation: 794169

## No FEAR Act Training

**December 2006**

## What Does This Training Mean to You?

- Congress passed the No FEAR Act to ensure that the rights of employees, former employees, and applicants for employment are protected under discrimination, whistleblower and retaliation laws.
- This training will inform you of the No FEAR Act and other laws making discrimination and retaliation in the workplace illegal.
- This training should take no more than 30 minutes to complete.

## What Does This Training Mean to You?

- At the conclusion of this training, you should:
- Understand the basic provisions of the No FEAR Act.
- Know what Antidiscrimination and Whistleblower Protection Laws protect you.
- Understand how to file a complaint alleging discrimination, retaliation, or a violation of the Whistleblower Protection Laws.

## What is the No Fear Act?

- Congress enacted the Notification and Federal Employee Antidiscrimination and Retaliation Act (No FEAR Act) on May 15, 2002.
- The Act requires that “...Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws.”

## What is the No Fear Act?

- The Act requires Federal agencies to:
- 1) Reimburse the Treasury Judgment Fund for 	payments made in Federal District court cases 	involving violations of discrimination and 	whistleblower laws.
- 2) Post information on its public website relating to 	complaints of discrimination and annually 	report to Congress.
- 3) Train and notify employees on their rights and 	protections under the antidiscrimination and 	whistleblower laws.

## Antidiscrimination Laws

- As a Federal employee, you are protected from illegal discrimination in employment matters on the basis of your race, color, religion, sex, national origin, age, and disability.

## Antidiscrimination Laws

- 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.

## Antidiscrimination Laws

- 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 (unless the accent materially interferes with job performance), 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.

## Types of Employment Matters Covered

- The Antidiscrimination Laws protect you from discrimination concerning the terms and conditions of your employment.
- Below is a list of some of the employment matters covered:
- Hiring, promotion, pay, leave, awards, assignments, training, suspensions, and terminations;
- Requests for reasonable accommodation for religious reasons or for reasons based on disability.

## Types of Employment Matters Covered

- Harassment or creation of a hostile work environment based on race, color, religion, sex, national origin, disability, or age is also covered.
- See DAO 202-955 (Allegations of  Harassment Prohibited by Federal Law)

## Title VII of the Civil Rights Act

- Title VII of the 1964 Civil Rights Act, as amended, protects employees from employment discrimination on the basis of sex, race, color, national origin, or religion.  Sexual harassment and pregnancy discrimination are considered forms of sex discrimination and are prohibited by Title VII.

## Title VII of the Civil Rights Act

- 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.

## Title VII of the Civil Rights Act

- In addition to protection against discrimination because of religion, Title VII also establishes the agency’s duty to provide reasonable accommodation for an employee’s religious beliefs unless doing so would impose an undue hardship on the employer.

## The Age Discrimination in Employment Act

- The Age Discrimination in Employment Act (ADEA) prohibits discrimination against Federal employees who are 40 years of age or older.
- The Act protects older employees from employment actions based on stereotypes or stigmas associated with age.

## The Rehabilitation Act

- The Rehabilitation Act of 1973 prohibits employment discrimination against qualified Federal employees with disabilities.  In addition, agencies must provide reasonable accommodation for a qualified employee or applicant with a disability.
- The nondiscrimination standards of Title I of the Americans with Disabilities Act apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules and regulations.

## The Rehabilitation Act

- Qualified individual with a disability means an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.

## The Rehabilitation Act

- A “disability” is a physical or mental impairment that substantially limits a major life activity (breathing, walking, seeing, hearing, performing manual tasks).

## The Rehabilitation Act

- The terms disability and qualified individual with a disability do not include individuals currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.
- Drug means a controlled substance, as defined in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C 812)

## The Rehabilitation Act

- However, the terms disability and qualified individual with a disability may not exclude an individual who:
- Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in the illegal use of drugs; or,
- Is participating in a supervised rehabilitation program and is no longer engaging in such use; or
- Is erroneously regarded as engaging in such use, but is not engaging in such use.

## The Rehabilitation Act

- A temporary or short term illness is not a disability.
- You must be qualified for your position.
- If you cannot perform the essential functions of the job, with or without reasonable accommodation, you are not qualified.

## The Rehabilitation Act

- A reasonable accommodation is an adjustment to the work situation or environment to enable you to perform your job, as long as it is not an undue hardship to the agency.

## The Rehabilitation Act

- The accommodation does not have to be specifically what is requested by the employee.  It does have to be a reasonable, effective accommodation.
- The Agency has no obligation to change performance standards or to eliminate essential functions of your position as a reasonable accommodation.

## The Rehabilitation Act

- 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.

## The Equal Pay Act

- The Equal Pay Act of 1963 prohibits federal agencies from paying employees of one sex lower wages than those of the opposite sex for performing substantially equal work.

## Protection Against Reprisal or Retaliation

- The Antidiscrimination laws mentioned above also protect you from reprisal for exercising your rights under those Acts.
- Protected activities may include filing a complaint of discrimination, requesting reasonable accommodation, giving evidence or testimony to an investigator or in a hearing, or complaining about or protesting perceived discrimination against you or another employee.

## If You Believe Discrimination Occurred

- _You must contact an EEO counselor within __*45 calendar days*__ of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action, or when you first became aware of the alleged discrimination_.
- The names and telephone numbers of EEO counselors are available on bulletin boards, or Internet web sites, or by contacting your EEO Officer.  See** **_[http://www.osec.doc.gov/ocr/contact.html](http://www.osec.doc.gov/ocr/contact.html)__._

## If You Believe Discrimination Occurred

- The counselor will try to resolve the complaint and may offer you an opportunity to use Alternative Dispute Resolution (ADR) to resolve your complaint.
- If the complaint is not resolved, you will be provided a Notice of Right to File a Complaint.  You must file within ***15 calendar days*** from receipt of the Notice.
- Employees covered by a negotiated bargaining agreement which permits allegations of discrimination, may elect to proceed under the negotiated bargaining agreement, rather than filing a formal complaint of discrimination.  You cannot do both.

## If You Believe Discrimination Occurred

- You are entitled to a reasonable amount of official time to prepare and present your complaint.
- While there is no set time, official time is normally granted in terms of hours, not days.
- You are also entitled to official time to meet with a counselor, an investigator or to participate in the hearing.

## If You Believe Discrimination Occurred

- While discrimination based on sexual orientation is not covered under the No FEAR Act, you should be aware that the Department addresses these complaints under DAO 215-11.

## Marital Status & Political Affiliation Discrimination

- Federal law makes it illegal to discriminate against Federal employees because of their marital status or political affiliation or to retaliate against employees for exercising their rights.
- If you believe discrimination has occurred on one of these basis, you may file a written complaint with the U.S. Office of Special Counsel.  You may also pursue such a complaint through the administrative grievance system (DAO 202-771) or the negotiated grievance procedures, if applicable.

## Manager and Supervisor Responsibilities

- A manager or supervisor is required to:
- Ensure that there is a legitimate, non-discriminatory reason for the actions taken.
- Ensure employees are treated fairly and equitably.
- Provide reasonable accommodation to qualified individuals with disabilities.  Check with your EEO Officer if you have questions about whether reasonable accommodation is appropriate.
- Only disclose medical information to officials with a need to know and keep medical information separate from personnel files.

## Manager and Supervisor Responsibilities

- Provide a reasonable amount of official time to an employee who requests time to work on an EEO complaint.
- Cooperate with an EEO counselor or EEO investigator.  Failure to do so may result in disciplinary action.
- Ensure employees are not subjected to a hostile work environment because of their race, color, religion, national origin, age, sex or disability.
- Act on all complaints of harassment.

## Whistleblower Protection Laws

- A Federal employee with authority to take, direct others to take, recommend or approve any personnel action must not use that authority to take or fail to take, or threaten to take or fail to take, a personnel action against an employee or applicant because of disclosure of information by that individual that is reasonably believed to evidence:
- Violations of law, rule or regulation;
- Gross mismanagement;
- Gross waste of funds;
- An abuse of authority; or
- A substantial and specific danger to public health or safety.

## Whistleblower Protection Laws

- Employees may not disclose information if disclosure is specifically prohibited by law or if the information is required under Executive Order to be protected from disclosure in the interest of national security.
- A Federal agency cannot retaliate against an employee or applicant because that individual exercises his or her rights under the Whistleblower Protection Act.
- 5 U.S.C § 2302(b)(8) prohibits retaliation against an employee or applicant  for making a protected disclosure.

## Filing a Whistleblower Protection Complaint

- If the personnel action _is_ within the Merit System Protection Board’s (MSPB) jurisdiction, the appellant may file a complaint with the Office of the Special Counsel (OSC) before filing an appeal with the MSPB, or may choose to go directly to MSPB with an appeal.
- If the appellant chooses to go directly to the MSPB:
- The appeal must be filed no later than 30 days after the effective date of the action being appealed, or 30 days after receipt of the agency’s decision, whichever is later.

## Filing a Whistleblower Protection Complaint

- If a stay request has been filed with the MSPB without prior filing of an appeal:
- The appeal must be filed within 30 days after the date the appellant received the order ruling on the stay request.
- If the personnel action does _not_ fall under the MSPB jurisdiction, the appellant must first file a complaint with the OSC before filing an appeal with the MSPB.

## Filing a Whistleblower Protection Complaint

- A complaint may be filed with OSC by using Form OSC-11 (Complaint of Possible Prohibited Personnel Practice or other Prohibited Activity)
- Form OSC-11 can be obtained by contacting:
- Office of Special Counsel (OSC)
- Complaints Examining Unit
- 1730 M Street, NW, Suite 218
- Washington, DC 20036-4505
- 800-872-9855 (toll free) or 202-653-7188

## Filing a Whistleblower Protection Complaint

- A complaint may also be filed electronically with OSC by clicking on _[http://www.osc.gov](http://www.osc.gov/)__._

## Filing a Whistleblower Protection Complaint

- After the OSC complaint process is exhausted, the appellant may file an appeal with the MSPB:
- No later than 65 days after the date that OSC’s written notification was issued terminating the investigation; or
- If notification was received more than 5 days after the date of issuance, the MSPB appeal must be filed within 60 days after the date OSC’s notification was received.
- If OSC has not notified the appellant that it will seek corrective action within 120 days of the filing date, the appellant may file an MSPB appeal at any time after the 120 day period expires.

## Where Do I Go For More Information?

- For questions about the Discrimination Laws, contact your EEO Officer.
- For a detailed explanation of the EEO complaint process, visit the web at _[http://www.osec.doc.gov/ocr/eeoprocess.html](http://www.osec.doc.gov/ocr/eeoprocess.html)_, or  _[http://www.access.gpo.gov/nara/cfr/waisidx_03/29cfr1614_03.html](http://www.access.gpo.gov/nara/cfr/waisidx_03/29cfr1614_03.html)_, or _[http://www.eeoc.gov](http://www.eeoc.gov/)_.
- Information regarding the Whistleblower Act and Protections can be obtained from your local HR Office, or visit _[www.osc.gov](http://www.osc.gov/)_.

## No FEAR Act Notice

- To view Commerce’s No FEAR Act Notice, go to _[http://](http://www.osec.doc.gov/ocr/)__[www.osec.doc.gov/ocr](http://www.osec.doc.gov/ocr/)__[/](http://www.osec.doc.gov/ocr/)_.

## Print Certificate of Completion

**Certificate of Completion**
**for**
**The No FEAR Act Training**
*This certifies successful completion of the No FEAR interactive online course through the U.S. Department of Commerce Learning Center in December of 2006.*