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					                   OEDCA DIGEST
 Vol. III, No. 4         Department of Veterans Affairs                       Fall 2000
                      Office of Employment Discrimination
                             Complaint Adjudication



Summaries of Selected Decisions Issued by the Office of
 Employment Discrimination Complaint Adjudication



                                FROM THE DIRECTOR

The Office of Employment Discrimination Complaint Adjudication is an independent, ad-
judication unit created by statute. Located in the Office of the Secretary, OEDCA‟s
function is to issue the Department‟s final decision or order on complaints of employ-
ment discrimination filed against the Department. The Director, whose decisions are
not subject to appeal by the Department, reports directly to the Secretary of Veterans
Affairs.

Each quarter, OEDCA publishes a digest of selected decisions issued by the Director
that might be instructive or otherwise of interest to the Department and its employees.
Topics covered in this issue include reprisal and per se reprisal claims, “pre-selection”,
same-sex sexual harassment, disability discrimination, and cultural diversity training.

Also included in this issue is the fourth in a series of articles concerning frequently
asked questions and answers pertaining to the rights and responsibilities of employees
and employers with regard to requests for reasonable accommodation of a disability.

The OEDCA Digest is available on the World Wide Web at: www.va.gov/orm.


                                  Charles R. Delobe


Case Summaries………………………………………………………………………………2
Frequently Asked Questions and Answers on Reasonable Accommodation………....11
“Fedmanager” Article: Discriminatory Remarks in the Workplace…………..…………20
                             OEDCA DIGEST

                       I                           questions being posed to the complai-
                                                   nant‟s witnesses by the EEO counselor.
OEDCA FINDS REPRISAL WHERE                         The EEO manager thereafter ap-
SUPERVISOR ENGAGED IN CON-                         proached the counselor regarding the
DUCT AIMED AT INTERFERING WITH                     supervisor‟s concerns.2
THE PROCESSING OF A SEXUAL
HARASSMENT COMPLAINT                               Finally, the EEO counselor testified that
                                                   several employees were unwilling to
OEDCA recently issued a final agency               speak with her on the record concerning
decision finding that a supervisor had             the supervisor‟s behavior because they
engaged in “per se retaliation” in con-            feared that he would retaliate against
nection with a subordinate‟s sexual ha-            them. Moreover, the counselor noted
rassment complaint against that super-             that many employees at the facility re-
visor.1                                            garded the supervisor as an intimidating
                                                   figure.
Shortly after the complainant had con-
tacted an EEO counselor to complain                By engaging in the conduct described
about sexual harassment, her supervi-              above, the supervisor violated the anti-
sor approached one of her co-workers,              retaliation provisions of EEOC‟s regula-
who was also a potential witness, and              tions. It is a per se (i.e., automatic) vi-
accused her of “going over to the other            olation of those regulations to take any
side.” The co-worker understood the                action intended to or that might restrain
comment to mean that the supervisor                or interfere with, or might otherwise
was accusing her of supporting the                 have a chilling effect on potential utiliza-
complainant in her sexual harassment               tion or participation in the EEO process
complaint.                                         by complainants or witnesses. Intent to
                                                   retaliate is not a necessary element in a
Later, the supervisor also had discus-             per se violation case. Moreover, a per
sions with some of the complainant‟s
                                                   2
witnesses regarding meetings they were                 The EEO manager should not have ap-
scheduled to have with the EEO coun-               proached the counselor concerning the matter,
selor assigned to the complainant‟s                as doing so gave the appearance that the EEO
                                                   process at the facility was subject to the control
sexual harassment complaint. Although              of individuals accused of discrimination. This
he initially denied having any such dis-           and other similar problems, however, were recti-
cussions, he later admitted meeting with           fied when the Department of Veterans Affairs
them and advising them “to make sure               subsequently reorganized its internal EEO com-
you tell the truth.” The supervisor also           plaint process. Among other things, the reor-
                                                   ganization removed EEO counselors from the
approached the EEO manager at the                  chain of command at the facility where the dis-
facility to voice his displeasure at the           crimination allegedly occurred and created a
                                                   professional corps of full-time counselors who
1
   The complainant did not allege a claim of re-   now report directly to an EEO field manager
prisal in her sexual harassment complaint.         employed by the Office of Resolution Manage-
However, OEDCA ordered a supplemental in-          ment. The managers in turn report directly to
vestigation because evidence bearing on such a     the Deputy Assistant Secretary for Resolution
claim appeared in the report of investigation on   Management in VA Central Office, Washington,
her underlying complaint of sexual harassment.     D.C.


                                                                                                   2
                          OEDCA DIGEST

se violation is possible even if the          been approved and the subsequent an-
wrongdoer takes no adverse action             nouncement by the Chief, Dietetics Ser-
against the complainant or other partici-     vice at the complainant‟s facility that
pants in the EEO process. Finally, it is      some employees in that service might
not necessary to show that the wrong-         be eligible.
doer actually succeeded in restraining or
interfering with the process – only that      The complainant was aware, prior to her
he or she took actions designed to or         retirement, of rumors that such buyouts
that could have resulted in such restraint    might be approved, but she was unwil-
or interference.                              ling to delay her retirement. When she
                                              later learned that buy-outs had been
The lesson here for supervisors and           approved, she filed an EEO complaint
managers is obvious – avoid any ac-           alleging that management officials reta-
tions, statements or discussions with         liated against her because of her prior
complainants, witnesses, potential wit-       EEO activity by not informing her prior to
nesses, or officials with EEO complaint       her retirement that she might be eligible
processing responsibilities that could        for a buy-out.
reasonably be interpreted as an attempt
to restrain or otherwise influence the        The complainant‟s reprisal claim is pre-
processing or outcome of an EEO com-          mised on the fact that she had visited
plaint.                                       the EEO office four years earlier to in-
                                              quire whether she could receive an up-
                                              grade from WG-3 to WG-4. She never
                    II                        spoke to an EEO counselor about that
                                              matter and never filed a complaint about
SUPERVISOR’S LACK OF KNOW-                    it.
LEDGE OF COMPLAINANTS PRIOR
EEO ACTIVITY AND LENGTH OF                    OEDCA agreed with the EEOC adminis-
TIME SINCE THAT ACTIVITY DE-                  trative judge‟s conclusion that the com-
FEATS COMPLAINANTS’ REPRISAL                  plainant had failed to establish even a
CLAIM                                         prima facie case of reprisal. The reason
                                              for this conclusion was two-fold. First,
OEDCA recently accepted an EEOC               there was no evidence in the record that
administrative judge‟s decision finding       the service chief -- her third level super-
that management officials did not reta-       visor -- was even aware of her prior visit
liate against the complainant when they       to the EEO office some four years earli-
announced a “buy-out” shortly after her       er. Absent such knowledge, the com-
voluntary retirement.                         plainant‟s visit to the EEO office could
                                              not possibly have had any bearing on
The complainant, a former Food Service        the timing of the buy-out announcement.
Worker in the Dietetic Service, retired
just a few days prior to an official an-      Furthermore, even if the service chief
nouncement by upper level manage-             had such knowledge, the four-year pe-
ment in VA Central Office that buy-outs       riod between the visit and the buy-out
(i.e., a financial incentive to retire) had   announcement was far too long to raise


                                                                                       3
                          OEDCA DIGEST

an inference that retaliation may have         had been subjected to a hostile envi-
been a motive. To establish a prima fa-        ronment due to sexual harassment. The
cie case of retaliation, a complainant         complainant alleged, and the record
must generally show that he or she en-         showed, that her supervisor touched her
gaged in prior EEO activity, that the          on her side sometime in 1994. The
management official alleged to have re-        complainant reacted in such a way as to
taliated was aware of that prior EEO ac-       convey to the supervisor her disapproval
tivity, that the official subsequently took    of the non-intimate touching. The com-
some action unfavorable to the complai-        plainant did not report the incident to
nant, and that the period of time be-          another supervisor.
tween the prior EEO activity and the
matter complained of was short enough          Some 4 years later, the same supervisor
to create an inference that retaliation        placed his hand on the complainant‟s
may have been a motive. The EEOC               shoulder on one occasion. She re-
and the courts have generally held, de-        sponded by filing an EEO complaint al-
pending on the circumstances, that a           leging sexual harassment. In her com-
period of 12 months or less will create        plaint she cited the two non-intimate
such an inference.                             touching incidents, and further claimed
                                               to have witnessed the supervisor inap-
Of course, even if a complainant is able       propriately touching her coworkers.
to establish a prima facie case, such
evidence, in itself, is never sufficient to    In response to her complaint, manage-
prove that retaliation actually occurred.      ment officials undertook an immediate
The complainant will have to offer other       investigation and instructed the supervi-
convincing evidence, direct or indirect,       sor to refrain from touching employees.
that retaliation was, in fact, a motivation.   None of the complainant‟s coworkers
In other words, the mere fact that an un-      corroborated her claim that the supervi-
favorable action takes place after an          sor had inappropriately touched them.
employee engages in EEO protected
activity that management is aware of           One of the elements of proof in a sexual
does not, by itself, prove that manage-        harassment claim is that the conduct
ment took the action because of the            complained of, when viewed from both
prior EEO activity.                            an objective and subjective standpoint,
                                               was severe or pervasive enough to af-
                                               fect a term or condition of employment;
                    III                        or interfere with work performance; or
                                               create a hostile, intimidating, or offen-
TWO INSTANCES OF NON-INTIMATE                  sive work environment. Although the
TOUCHING OF AN EMPLOYEE BY A                   harassing conduct must be severe or
SUPERVISOR NOT SUFFICIENT TO                   pervasive, one isolated instance of an
ESTABLISH SEXUAL HARASSMENT                    intimate touching, by itself, has general-
                                               ly been held to be sufficient to meet this
OEDCA recently accepted an EEOC                test. In this case, however, the two iso-
administrative judge‟s finding that an         lated incidents, which occurred some
employee had failed to prove that she          four years apart, and neither of which


                                                                                       4
                         OEDCA DIGEST

involved the touching of an intimate area    “appeal” the judge‟s decision to EEOC‟s
of the complainant‟s body, were not so       Office of Federal Operations -- a lengthy
severe or pervasive as to constitute         and clearly unnecessary exercise that
sexual harassment.                           accomplishes nothing other than delay-
                                             ing final resolution of the complaint.

                   IV                        This case also demonstrates the fact
                                             that OEDCA -- an independent EEO ad-
EEOC UPHOLDS OEDCA’S FINAL                   judication body within the Department of
ACTION REJECTING AN EEOC                     Veterans Affairs -- does not simply “rub-
JUDGE’S FINDING OF NO DISCRIMI-              ber-stamp” decisions from EEOC ad-
NATION                                       ministrative judges, even when such de-
                                             cisions favor the Department. The deci-
In a previous edition of the OEDCA Di-       sion and record in each such case are
gest (Winter 2000, Vol. III, No. 1), we      carefully reviewed to ensure that the
reported that OEDCA had disagreed            EEOC judge‟s findings and conclusions
with and rejected an EEOC administra-        are factually and legally correct.
tive judge‟s decision, wherein the judge
had found in favor of the VA. This was
one of the first cases decided by OED-
CA under EEOC‟s new regulations giv-                             V
ing EEOC‟s judges “decision” authority.
Strangely enough, although OEDCA             DEPARTMENT’S FAILURE TO PRO-
took final action favoring the complai-      VIDE CLEAR, SPECIFIC REASON(S)
nant, the new regulations nevertheless       FOR NOT SELECTING COMPLAI-
required the VA to “appeal” the judge‟s      NANT RESULTS IN AUTOMATIC
decision to the Commission.                  FINDING OF DISCRIMINATION

After reviewing the case on appeal, the      In last quarter‟s edition of the OEDCA
Commission agreed fully with OEDCA‟s         Digest, we discussed the consequences
conclusion that the EEOC judge„s deci-       that may ensue -- i.e., a finding of dis-
sion favoring the agency was erroneous       crimination -- when management offi-
both as a matter of law and as to the        cials fail to carefully document the spe-
facts, and further agreed with the relief    cific reasons for their actions. The fol-
that OEDCA had granted to the com-           lowing case provides yet another exam-
plainant.                                    ple of this common -- yet easily avoida-
                                             ble -- problem.
This case highlights a significant flaw in
EEOC‟s new regulation – namely – that        The complainant applied, along with
an agency is not allowed to issue its        numerous other applicants, for one of
own separate decision in cases where a       several claims examiner vacancies. Al-
judge has issued an erroneous decision       though very highly qualified, both in
against a complainant. Instead of being      terms of education (law degree) and ex-
allowed to issue a decision finding dis-     perience, he was not one of the 15 indi-
crimination, agencies are required to        viduals ultimately selected to fill the va-


                                                                                      5
                          OEDCA DIGEST

cancies. He later filed a complaint alleg-     lenge it, or else the complainant will au-
ing that his nonselection was due, in          tomatically prevail.
part, to his age.
                                               In this case, management was unable to
The complainant had no difficulty prov-        provide a clear and specific explanation
ing a prima facie case, as he was over         for its decision not to select the com-
40 years old, was qualified and applied        plainant for one of the 15 vacancies.
for a vacant position that the Depart-         Hence, the complainant was automati-
ment was seeking to fill, and was              cally entitled to a decision in his favor.
passed over in favor of other applicants,
all of whom were younger than the              This case illustrates two important les-
complainant.     While these facts, by         sons for supervisors and management
themselves, are not sufficient to prove        officials. First, be sure to offer clear and
discrimination, they do suffice to shift       specific reasons for personnel decisions
the burden to management to articulate         and other actions, otherwise a finding of
legitimate, nondiscriminatory reasons for      discrimination is likely. While there is no
not selecting the complainant.                 legal burden on management to prove
                                               that it made the right decision -- it need
Unfortunately for management, it was           only articulate a reason -- it certainly
unable to do so in this case. According        behooves management to ensure that
to the record, the selecting official had      such evidence is available and offered if
retired and was unavailable to provide         the Department is later called upon to
an affidavit to the agency EEO investi-        respond to a complaint.
gator. Moreover, he failed to document
in writing the rationale for his selection     Second, because of turnover due to re-
decisions at the time he made them.            tirements, resignations, etc., and/or the
                                               length of time it sometimes takes an
The only evidence in the record con-           agency or the EEOC to process a com-
cerning a possible reason for the nonse-       plaint or hold a hearing, it is absolutely
lection was a vague reference in the           imperative that management officials
EEO counselor‟s report concerning “pro-        ensure that there is a documented
fessional misconduct” by the complai-          record available that clearly explains the
nant. The counselor, however, was un-          rationale for employment decisions or
able to recall, due to the passage of          actions. Failure by management to re-
time, the individual who had mentioned         quire such a record may, and frequently
the alleged misconduct.                        does, result in a finding of discrimina-
                                               tion, notwithstanding the fact that dis-
Management‟s burden of articulation is         crimination may not have been a motive.
not onerous – management does not
have to prove that it did not discriminate.
Instead, it need only articulate – i.e., ex-                       VI
plain -- the reason(s) for its actions.
However, that articulation must be clear       MULTITUDE OF AILMENTS DOES
and specific enough to provide a com-          NOT NECESSARILY RESULT IN A
plainant with the opportunity to chal-         DISABILITY


                                                                                         6
                          OEDCA DIGEST

                                               ments substantially limited any of her
An employee, who was terminated from           major life activities, including working.
employment during her probationary             Although she attributed most of her fre-
(trial) period for excessive absenteeism,      quent absences from work to one or
filed a discrimination complaint alleging      more of these problems, she presented
that her termination was due to her dis-       no evidence that any of her ailments
abilities. When asked to identify the          were serious enough, by themselves or
disabilities, she presented a lengthy list     in combination with others, to prevent
of ailments such as frequent colds, the        her from working.
flu, stomach bugs, workstation stress,
hives, and continual menstrual bleeding.       This case illustrates the point that the
                                               legal standard for determining whether
OEDCA accepted an EEOC administra-             an impairment amounts to a “disability”
tive judge‟s conclusion that the complai-      is a stringent one. It is a common but
nant did not prove that she had a disa-        erroneous belief that the Rehabilitation
bility, as such term is defined in the         Act and the Americans with Disabilities
Americans with Disabilities Act and            Act cover any and all medical conditions
EEOC‟s implementing regulations and            or ailments. This is not the case. Many
guidance.                                      employees have medical conditions --
                                               some even have multiple medical prob-
To demonstrate the existence of a disa-        lems. However, as this case clearly illu-
bility, an individual must show that he or     strates, not all medical problems meet
she has a physical or mental impairment        the legal definition of a disability, and
that substantially limits one or more ma-      even multiple medical problems do not
jor life activities, or has a record of such   necessarily amount to a disability.
an impairment, or is regarded as having
such an impairment. “Major life activi-
ties” include – but are not limited to –                           VII
functions such as caring for one‟s self,
performing manual tasks, walking, see-         EVIDENCE OF “PRE-SELECTION”
ing, hearing, speaking, breathing, learn-      NOT NECESSARILY PROOF OF A
ing, and working. In addition to the           DISCRIMINATORY MOTIVE
above requirements, the impairment
must generally be permanent, not tem-          In an effort to revitalize a Community
porary in nature. In some circums-             Based Outpatient Clinic (CBOC), the VA
tances, two or more impairments that           decided to transfer responsibility for its
are not substantially limiting by them-        management to a different VA medical
selves may together substantially limit        center. In conjunction with this transi-
the major life activity of an individual.      tion in ownership, officials at the facility
                                               assuming ownership of the CBOC ap-
Despite the multitude of ailments recited      pointed one of their highly respected
by the complainant, most of them were          managers to serve as the liaison for the
not of a permanent nature, and hence           transfer. Eventually, this facility an-
not disabilities. Moreover, she failed to      nounced a vacancy for the position of
present any evidence that these ail-           Operations Manager at the CBOC, and


                                                                                         7
                          OEDCA DIGEST

the individual who earlier had been ap-        uncommon for selecting officials to know
pointed as the liaison for the transfer        in advance whom they will select or hire
was selected.                                  for a particular job, even before they an-
                                               nounce a vacancy and, hence, before
One of the unsuccessful applicants filed       they even know the identity and race,
a complaint alleging that his nonselec-        gender, age, etc. of other individuals
tion was due to his gender and was an          who might apply. Such a situation does
act of reprisal because of his prior EEO       not suggest a discriminatory motive.
complaint activity. Management officials
denied the allegation and articulated          Often, “pre-selection” legitimately occurs
convincing reasons for their decision to       simply because the selecting official has
choose the selectee and for not choos-         previously recognized the high-level per-
ing the complainant. As for the selec-         formance and ability of an individual and
tee, they cited her prior demonstrated         has already made up his or her mind to
effectiveness as a manager. As for the         select the individual for a vacancy be-
complainant, they noted that he had, on        fore the vacancy is even announced. In
more than one occasion, displayed in-          some cases, the pre-selection might not
appropriate anger.                             be legitimate and could constitute a pro-
                                               hibited personnel practice under certain
The complainant offered no direct or in-       Federal laws and regulations (e.g., civil
direct evidence of a discriminatory mo-        service law prohibiting nepotism). In
tive. Instead, he simply claimed that the      both of these situations, however, a fac-
selecting officials, by having initially ap-   tor other than discrimination is the mo-
pointed the selectee to be the liaison         tive for the action or decision.
transfer manager, had essentially “pre-
selected” her by giving her an unfair ad-      While pre-selection might, and usually
vantage.                                       does, seem unfair to a disappointed ap-
                                               plicant, it does not violate civil rights
It was clear from the record that the liai-    laws unless there is convincing evi-
son appointment gave the selectee a            dence that the pre-selection occurred
competitive advantage over other appli-        because of discrimination.
cants. It is even possible, and perhaps
probable, that the selecting officials al-
ready had the selectee in mind for the                            VIII
CBOC position when they appointed her
to be the transition liaison. Such facts,      MALE EMPLOYEE SEXUALLY HA-
however, do not necessarily prove dis-         RASSED BY MALE COWORKER
criminatory intent. “Pre-selection”, by
itself, does not violate Title VII of the      The following case, in which OEDCA
Civil Rights Act. Such a violation re-         issued a decision finding sexual ha-
quires proof of discriminatory intent.         rassment, illustrates the fact that sexual
                                               harassment does not always involve
Indeed, in many cases, evidence of pre-        conduct by a male against a female, or
selection can actually prove the ab-           by a female against a male. In some
sence of a discriminatory intent. It is not    cases, sexual harassment can occur


                                                                                       8
                          OEDCA DIGEST

when the victim and the perpetrator are        dress three questions: (1) did the al-
the same gender.                               leged conduct occur? (2) if so, did the
                                               conduct constitute sexual harassment?
The complainant alleged that a male            and 3) if sexual harassment did occur, is
coworker repeatedly subjected him to           management liable (i.e., legally respon-
unwelcome physical and verbal conduct          sible) for the sexual harassment?
of a sexual nature between 1994 and
1998. The alleged conduct included             As for the first question, the preponder-
touching the complainant‟s crotch,             ance of the evidence supported the
thighs, buttocks, and chest; kissing,          complainant‟s claim that the conduct oc-
hugging, and approaching the complai-          curred as alleged. Although the harass-
nant from behind and simulating a sex-         er denied engaging in the alleged con-
ual act. The alleged conduct also in-          duct, his testimony was unpersuasive
cluded numerous verbal comments re-            and inconsistent during the agency in-
ferring to oral sex, soliciting oral sex       vestigation. The complainant‟s testimo-
from the complainant, frequent refer-          ny, on the other hand, was consistent,
ences to long objects being the size of a      credible, and supported in some in-
penis, and using pastry to illustrate an       stances by eyewitnesses. In addition,
orgasm.                                        another male employee testified that he
                                               had complained of similar conduct by
The complainant further alleged that he        the harasser during the same time
reported these incidents to his supervi-       frame. Moreover, a medical center pa-
sor on several occasions; beginning as         tient had complained that the harasser
early as a few months after the first inci-    had propositioned his son, who was vi-
dent in 1994, but the supervisor did           siting him in the hospital.
nothing other than question his credibili-
ty by suggesting that he may have mi-          As for the second question – whether
sinterpreted the coworker‟s comments           the conduct constituted sexual harass-
and actions, and that he may not have          ment -- a complainant must prove that
been wearing his hearing aid. At one           the conduct was (1) sexual in nature, (2)
point the complainant had approached           unwelcome, (3) based on sex, and (4)
an EEO counselor about the matter, but         when viewed from both an objective and
did not follow through with a formal           subjective standpoint, severe or perva-
complaint. Eventually, some four years         sive enough to affect a term or condition
after the first incident occurred, and after   of employment; or interfere with work
repeated attempts to obtain assistance         performance; or create a hostile, intimi-
from his supervisor, he reported the           dating, or offensive work environment.
matter to the Chief of Human Resources
Management Service (HRMS). That                The complaint presented persuasive
official promptly investigated the matter      evidence on all four of these elements.
and took appropriate corrective action.        First, the conduct in question was clear-
                                               ly sexual in nature. Second, there was
When examining a sexual harassment             eyewitness testimony that the complai-
claim, fact-finders such as OEDCA, the         nant was visibly angered by the harass-
EEOC, or a U.S. district court must ad-        er‟s conduct and had pushed the ha-


                                                                                      9
                          OEDCA DIGEST

rasser away. Witnesses also testified         correct and prevent the problem until the
that the complainant had told them at         complainant eventually brought it to the
the time that the harasser‟s conduct was      attention of higher-level management in
unwelcome.       Third, the conduct oc-       HRMS. Accordingly, OEDCA found that
curred because of the complainant‟s           management failed to exercise reason-
sex, as there was evidence that the ha-       able care to promptly prevent and cor-
rasser had displayed similar conduct          rect the sexually harassing behavior
toward other males in the workplace;          and, hence, was liable for the hostile
and there was no evidence to suggest          environment resulting from the harass-
that the harasser had ever displayed          ment. OEDCA ordered the facility to
such conduct toward female employees.         provide the complainant with appropri-
Fourth, from a subjective standpoint, the     ate, make-whole relief.
complainant demonstrated, through his
complaints and comments to his super-
visor and other employees, that he con-                          IX
sidered his work environment to be hos-
tile and intimidating. In addition, from an   EMPLOYEE NOT DISCRIMINATED
objective standpoint, the conduct in          AGAINST BECAUSE OF HIS RELI-
question was clearly severe and suffi-        GIOUS BELIEFS WHEN REQUIRED
ciently frequent – occurring over the         TO ATTEND CULTURAL DIVERSITY
course of several years – that a reason-      TRAINING
able person would have considered the
work environment to be intimidating and       The VA recently accepted an EEOC
offensive.                                    administrative judge‟s decision finding
                                              that the Department did not discriminate
As for the third question – whether           against an employee because of his re-
management is liable – the record             ligious beliefs.
shows that, almost from the very begin-
ning, the complainant‟s supervisor was        The VA, like other Federal agencies,
aware of the harassment, but took no          mandates periodic training for its em-
corrective action. Although the supervi-      ployees regarding cultural diversity. In
sor denied any knowledge of the ha-           this case, a VA employee refused a di-
rassment, several witnesses recalled          rective to attend a four-hour training
the complainant telling them that he had      program on managing and recognizing
notified his supervisor about the ha-         cultural diversity.       The employee
rassment, but that nothing had been           claimed that certain aspects of the train-
done. One witness specifically recalled       ing violated his religious beliefs. Al-
the complainant telling her of the super-     though management took no action
visor‟s doubts as to whether the com-         against the employee because of his
plainant had correctly perceived the sit-     refusal to attend, he filed an EEO com-
uation.                                       plaint alleging that the training require-
                                              ment itself discriminated against him
Management in this case knew of the           because of his religious beliefs.
sexually harassing behavior for approx-
imately four years, yet did nothing to        According to the employee, the course


                                                                                     10
                         OEDCA DIGEST

workbook made reference to “women‟s          no punitive action against the employee
issues” and “sexual orientation.” He in-     for his refusal to attend the training, the
terpreted the term “women‟s issues” to       employee was unable to establish even
mean abortion, and stated that his reli-     a prima facie case of religious discrimi-
gion views both abortion and homosex-        nation. However, even if management
uality as “abominations.” Thus, he ar-       had taken such action, the EEOC deci-
gued that requiring his attendance at        sion noted that there was no evidence of
such training was tantamount to requir-      a violation of the employee‟s religious
ing him to “accept” matters that violated    beliefs. The employee was unable to
his religious beliefs.                       offer any evidence that the actual pur-
                                             pose of the training program, -- i.e., fos-
According to the course workbook, the        tering respect and cooperation in the
stated purpose of the training program is    workplace -- conflicts with any actual
“to provide information and sensitivity      religious belief held by the employee.
training needed to assist all VA em-
ployees in recognizing, valuing, and         Moreover, the EEOC decision agreed
managing diversity, and in reducing pre-     with the Department‟s position that the
judice. This program will expand each        accommodation requested by the com-
participant‟s vision and understanding       plainant, -- i.e., requiring the Department
about the culture of others and provide a    to excuse any employee who does not
foundation for resolving conflicts among     wish to attend such training – would se-
employees.”                                  riously compromise the goals of the
                                             training program and, hence, constitute
Management officials testified that the      an undue hardship on the Department‟s
training workbook does not mention the       operation.
word “abortion,” and the topic was never
discussed during the training. Moreo-
ver, they testified that the message of                           X
the training is simple -- respect other
people, their cultures and their beliefs.    FREQUENTLY ASKED QUESTIONS
They noted that there is no attempt in       AND ANSWERS CONCERNING THE
the training to compromise religious be-     DUTY TO ACCOMMODATE AN EM-
liefs or to control thought or speech.       PLOYEE’S DISABILITY
Moreover, employees are not being
asked to “accept” anything in the sense      (Complaints concerning an employer’s
of having to modify their own personal       failure to accommodate an employee’s
beliefs -- religious or otherwise. Rather,   disability account for a significant num-
they are merely being asked to foster an     ber of discrimination complaints filed
atmosphere of cooperative, sensitive,        against private and Federal sector em-
and respectful behavior in a diverse         ployers. Unfortunately, this is one of the
workforce so as to achieve a work envi-      most difficult and least understood areas
ronment conducive to efficient opera-        of civil rights law. This is the fourth in a
tion.                                        series of articles addressing some fre-
                                             quently asked questions and answers
In this case, because management took        concerning the reasonable accommoda-


                                                                                      11
                           OEDCA DIGEST

tion requirement. The Q&As below cov-             prosthetic leg which enables
er accommodation issues relating to the           him to walk very well, but
types of reasonable accommodations                climbing steps is painful and
related to job performance.                       difficult. Although he can
                                                  perform his essential functions
The following discussion illustrates              without problems, he cannot
several common types of reasonable                perform the marginal function
accommodations   related   to    job              of sweeping the steps located
performance.                                      throughout the building. The
                                                  marginal functions of a second
Job Restructuring                                 crew member include cleaning
                                                  the small kitchen in the
Job        restructuring      includes            employee's lounge, which is
modifications such as:                            something the first crew
                                                  member can perform. The
      reallocating or redistributing
                                                  employer can switch the
       marginal job functions that an
                                                  marginal functions performed
       employee is unable to perform
                                                  by these two employees.
       because of a disability; and
                                          Leave
      altering when and/or how a
       function, essential or marginal,   Permitting the use of accrued paid
       is performed.                      leave, or unpaid leave, is a form of
                                          reasonable accommodation when
An employer never has to reallocate
                                          necessitated by an employee's
essential functions as a reasonable
                                          disability. An employer does not
accommodation, but can do so if it
                                          have to provide paid leave beyond
wishes.
                                          that which is provided to similarly-
Q. 1.        If, as a reasonable          situated employees.         Employers
accommodation,       an      employer     should allow an employee with a
restructures an employee's job to         disability to exhaust accrued paid
eliminate some marginal functions,        leave first and then provide unpaid
may the employer require the              leave. For example, if employees get
employee to take on other marginal        10 days of paid leave, and an
functions that s/he can perform?          employee with a disability needs 15
                                          days of leave, the employer should
A. 1. Yes. An employer may switch         allow the individual to use 10 days of
the marginal functions of two (or         paid leave and 5 days of unpaid
more) employees in order to               leave.
restructure a job as a reasonable
accommodation.                            An employee with a disability may
                                          need leave for a number of reasons
       Example: A cleaning crew           related to the disability, including, but
       works in an office building. One   not limited to:
       member of the crew wears a
                                                 obtaining   medical   treatment


                                                                                    12
                      OEDCA DIGEST

    (e.g., surgery, psychotherapy,         can show that: (1) there is another
    substance abuse treatment, or          effective    accommodation      that
    dialysis);         rehabilitation      would enable the person to
    services;   or    physical     or      perform the essential functions of
    occupational therapy;                  his/her position, or (2) granting
                                           additional leave would cause an
   recuperating from an illness or        undue       hardship.     Modifying
    an episodic manifestation of           workplace policies, including leave
    the disability;                        policies, is a form of reasonable
                                           accommodation.
   obtaining    repairs   on    a
    wheelchair, accessible van, or      Q. 3. Does an employer have to hold
    prosthetic device;                  open an employee's job as a
                                        reasonable accommodation?
   avoiding temporary adverse
    conditions     in    the    work    A. 3.     Yes. An employee with a
    environment (for example, an        disability who is granted leave as a
    air-conditioning      breakdown     reasonable accommodation is entitled
    causing      unusually     warm     to return to his/her same position
    temperatures       that    could    unless the employer demonstrates
    seriously harm an employee          that holding open the position would
    with multiple sclerosis);           impose an undue hardship.
   training a service animal (e.g.,    If an employer cannot hold a position
    a guide dog); or                    open during the entire leave period
                                        without incurring undue hardship, the
   receiving training in the use of
                                        employer must consider whether it
    braille or to learn sign
                                        has a vacant, equivalent position for
    language.
                                        which the employee is qualified and to
Q. 2. May an employer apply a           which the employee can be
“no-fault” leave policy, under          reassigned to continue his/her leave
which        employees          are     for a specific period of time and then,
automatically terminated after they     at the conclusion of the leave, can be
have been on leave for a certain        returned to this new position.
period of time, to an employee
                                           Example:     An employee needs
with a disability who needs leave
                                           eight months of leave for treatment
beyond the set period?
                                           and recuperation related to a
A. 2. No. If an employee with a            disability. The employer grants
disability needs additional unpaid         the request, but after four months
leave      as     a     reasonable         the employer determines that it
accommodation, the employer                can no longer hold open the
must modify its "no-fault" leave           position for the remaining four
policy to provide the employee             months without incurring undue
with the additional leave, unless it       hardship.    The employer must
                                           consider whether it has a vacant,


                                                                                  13
                     OEDCA DIGEST

equivalent position to which the         not consider that the reason for
employee can be reassigned for           her lower sales performance
the remaining four months of             was her five-month leave of
leave, at the end of which time the      absence; nor did it assess her
employee would return to work in         productivity during the period
that new position. If an equivalent      she did work (i.e., prorate her
position is not available, the           productivity).
employer must look for a vacant
position at a lower level.            Penalizing the salesperson in this
Continued leave is not required as    manner constitutes retaliation and
a reasonable accommodation if a       a     denial    of     reasonable
vacant position at a lower level is   accommodation.
also unavailable.
                                         Example B: Company X is
Q. 4. Can an employer penalize           having a reduction-in-force.
an employee for work missed              The company decides that any
during leave taken as a                  employee who has missed
reasonable accommodation?                more than four weeks in the
                                         past year will be terminated. An
A. 4. No. To do so would be              employee took five weeks of
retaliation for the employee's use       leave for treatment of his
of a reasonable accommodation to         disability. The company cannot
which s/he is entitled under the         count those five weeks in
law. Moreover, such punishment           determining       whether      to
would make the leave an                  terminate this employee.
ineffective accommodation, thus
making an employer liable for         Q. 5. When an employee requests
failing to provide a reasonable       leave     as     a   reasonable
accommodation.                        accommodation, may an employer
                                      provide an accommodation that
   Example A:       A salesperson     requires him/her to remain on
   took five months of leave as a     the job instead?
   reasonable      accommodation.
   The company compares the           A. 5.      Yes, if the employer's
   sales records of all salespeople   reasonable accommodation would
   over a one-year period, and        be effective and eliminate the
   any employee whose sales fall      need for leave. An employer need
   more than 25% below the            not     provide   an   employee's
   median sales performance of        preferred accommodation as long
   all employees is automatically     as the employer provides an
   terminated.      The employer      effective          accommodation.
   terminates the salesperson         Accordingly, in lieu of providing
   because she had fallen below       leave, an employer may provide a
   the     required    performance    reasonable accommodation that
   standard. The company did          requires an employee to remain on
                                      the job (e.g., reallocation of


                                                                             14
                     OEDCA DIGEST

marginal functions or temporary           employee's ability        to    get
transfer) as long as it does not          medical treatment.
interfere with the employee's
ability to address his/her medical     Q. 6. How should an employer
needs. The employer is obligated,      handle leave for an employee
however,       to   restore     the    covered by both the ADA and the
employee's full duties or to return    Family and Medical Leave Act
the employee to his/her original       (FMLA)?
position once s/he no longer
                                       A. 6.      An employer should
needs         the       reasonable
                                       determine an employee's rights
accommodation.
                                       under each statute separately, and
   Example A: An employee with         then consider whether the two
   emphysema        requests    ten    statutes overlap regarding the
   weeks of leave for surgery and      appropriate actions to take.
   recuperation related to his
                                           Under the ADA, an employee
   disability. In discussing this
                                       who needs leave related to his/her
   request with the employer, the
                                       disability is entitled to such leave if
   employee states that he could
                                       there is no other effective
   return to work after seven
                                       accommodation and the leave will
   weeks if, during his first three
                                       not cause undue hardship. An
   weeks back, he could work
                                       employer must allow the individual
   part-time and eliminate two
                                       to use any accrued paid leave first,
   marginal functions that require
                                       but, if that is insufficient to cover
   lots of walking. If the employer
                                       the entire period, then the
   provides                   these
                                       employer should grant unpaid
   accommodations, then it can
                                       leave. An employer must continue
   require the employee to return
                                       an employee's health insurance
   to work after seven weeks.
                                       benefits during his/her leave
   Example B: An employee's            period only if it does so for other
   disability is getting more severe   employees in a similar leave
   and her doctor recommends           status.     As for the employee's
   surgery to counteract some of       position, the ADA requires that the
   the effects. After receiving the    employer hold it open while the
   employee's request for leave        employee is on leave unless it can
   for the surgery, the employer       show that doing so causes undue
   proposes that it provide certain    hardship. When the employee is
   equipment which it believes will    ready to return to work, the
   mitigate the effects of the         employer must allow the individual
   disability and delay the need       to return to the same position
   for leave to get surgery. The       (assuming that there was no
   employer's              proposed    undue hardship in holding it open)
   accommodation is not effective      if the employee is still qualified
   because it interferes with the      (i.e., the employee can perform


                                                                                 15
                      OEDCA DIGEST

the essential functions of the          thirteenth week of leave. But,
position with or without reasonable     because the employee is also
accommodation).                         covered under the ADA, the
                                        employer cannot deny the
If it is an undue hardship under the    request for the thirteenth week
ADA to hold open an employee's          of leave unless it can show
position during a period of leave,      undue hardship. The employer
or an employee is no longer             may consider the impact on its
qualified to return to his/her          operations caused by the initial
original      position,  then    the    12-week absence, along with
employer must reassign the              other undue hardship factors.
employee (absent undue hardship)
to a vacant position for which s/he         Example B: An employee
is qualified.                           with an ADA disability has
                                        taken 10 weeks of FMLA leave
    Under the FMLA, an eligible         and is preparing to return to
employee is entitled to a maximum       work. The employer wants to
of 12 weeks of leave per 12 month       put her in an equivalent
period. The FMLA guarantees the         position rather than her original
right of the employee to return to      one.        Although this is
the same position or to an              permissible under the FMLA,
equivalent one. An employer must        the ADA requires that the
allow the individual to use any         employer return the employee
accrued paid leave first, but if that   to her original position. Unless
is insufficient to cover the entire     the employer can show that
period, then the employer should        this would cause an undue
grant unpaid leave. The FMLA            hardship, or that the employee
requires an employer to continue        is no longer qualified for her
the employee's health insurance         original position (with or without
coverage during the leave period,       reasonable accommodation),
provided the employee pays              the employer must reinstate
his/her share of the premiums.          the employee to her original
                                        position.
       Example A: An employee
   with an ADA disability needs            Example C: An employee
   13 weeks of leave for treatment      with an ADA disability has
   related to the disability. The       taken 12 weeks of FMLA leave.
   employee is eligible under the       He notifies his employer that
   FMLA for 12 weeks of leave           he is ready to return to work,
   (the maximum available), so          but he no longer is able to
   this period of leave constitutes     perform the essential functions
   both FMLA leave and a                of his position or an equivalent
   reasonable      accommodation.       position. Under the FMLA, the
   Under the FMLA, the employer         employer could terminate his
   could deny the employee the          employment, but under the


                                                                             16
                        OEDCA DIGEST

      ADA the employer must                  to take a daily 45-minute break
      consider whether the employee          when the nausea occurs. The
      could perform the essential            employer must grant this request
      functions    with    reasonable        absent undue hardship.
      accommodation              (e.g.,
      additional   leave,    part-time    For certain positions, the time during
      schedule, job restructuring, or     which an essential function is
      use of specialized equipment).      performed may be critical. This
      If not, the ADA requires the        could affect whether an employer can
      employer to reassign the            grant a request to modify an
      employee if there is a vacant       employee's schedule.         Employers
      position available for which he     should carefully assess whether
      is qualified, with or without       modifying       the     hours    could
      reasonable     accommodation,       significantly disrupt their operations
      and there is no undue               -- that is, cause undue hardship -- or
      hardship.                           whether the essential functions may
                                          be performed at different times with
Modified or Part-Time Schedules           little or no impact on the operations
Q. 7. Must an employer allow an           or the ability of other employees to
employee with a disability to work        perform their jobs.
a modified or part-time schedule as
a reasonable accommodation, absent        If modifying an employee's schedule
undue hardship?                           poses an undue hardship, an
                                          employer must consider reassignment
A. 7. Yes. A modified schedule may        to a vacant position that would enable
involve adjusting arrival or departure    the employee to work during the
times, providing periodic breaks,         hours requested.
altering when certain functions are
performed, allowing an employee to           Example B: A day care worker
use accrued paid leave, or providing         requests that she be allowed to
additional unpaid leave. An employer         change her hours from 7:00 a.m. -
must provide a modified or part-time         3:00 p.m. to 10:00 a.m. - 6:00 p.m.
schedule when required as a                  because of her disability. The day
reasonable accommodation, absent             care center is open from 7:00 a.m.
undue hardship, even if it does not          - 7:00 p.m. and it will still have
provide such schedules for other             sufficient   coverage      at   the
employees.                                   beginning of the morning if it
                                             grants the change in hours. In this
   Example A: An employee with HIV           situation, the employer must
   infection must take medication on         provide       the       reasonable
   a strict schedule. The medication         accommodation.
   causes extreme nausea about one
   hour after ingestion, and generally       Example C: An employee works
   lasts about 45 minutes.       The         for   a   morning    newspaper,
   employee asks that he be allowed          operating the printing presses
                                             which run between 10 p.m. and 3


                                                                                   17
                      OEDCA DIGEST

a.m. Due to her disability, she           employees receive. Thus, if non-
needs to work in the daytime. The         disabled part-time workers are not
essential function of her position,       provided with health insurance,
operating the printing presses,           then the employer does not have
requires that she work at night           to provide such coverage to an
because the newspaper cannot be           employee with a disability who is
printed during the daytime hours.         given a part-time schedule as a
Since the employer cannot modify          reasonable accommodation.
her hours, it must consider
whether it can reassign her to a           Under the FMLA, an eligible
different position.                    employee is entitled to take leave
                                       intermittently or on a part-time basis,
Q. 8. How should an employer           when medically necessary, until s/he
handle requests for modified or        has used up the equivalent of 12
part-time  schedules  for    an        workweeks in a 12-month period.
employee covered by both the           When such leave is foreseeable
ADA and the Family and Medical         based on planned medical treatment,
Leave Act (FMLA)?                      an employer may require the
                                       employee to temporarily transfer (for
A. 8.      An employer should          the duration of the leave) to an
determine an employee's rights         available alternative position, with
under each statute separately, and     equivalent pay and benefits, for which
then consider whether the two          the employee is qualified and which
statutes overlap regarding the         better suits his/her reduced hours. An
appropriate actions to take.           employer always must maintain the
                                       employee's existing level of coverage
    Under the ADA, an employee
                                       under a group health plan during the
who needs a modified or part-time
                                       period of FMLA leave, provided the
schedule because of his/her
                                       employee pays his/her share of the
disability is entitled to such a
                                       premium.
schedule if there is no other
effective accommodation and it will       Example: An employee with an
not cause undue hardship. If there        ADA disability requests that she
is undue hardship, the employer           be excused from work one day a
must reassign the employee if             week for the next six months
there is a vacant position for which      because of her disability. If this
s/he is qualified and which would         employee is eligible for a modified
allow the employer to grant the           schedule under the FMLA, the
modified or part-time schedule            employer      must     provide   the
(absent undue hardship).         An       requested leave under that statute
employee receiving a part-time            if it is medically necessary, even if
schedule     as     a    reasonable       the leave would be an undue
accommodation is entitled only to         hardship under the ADA.
the benefits, including health
insurance, that other part-time


                                                                                  18
                         OEDCA DIGEST

Modified Workplace Policies               work or an adjusted work schedule as
                                          a reasonable accommodation may
Q. 9.      Is it a reasonable             involve modifying leave or attendance
accommodation     to modify a             procedures or policies. For example,
workplace policy?                         it    would    be     a    reasonable
                                          accommodation to modify a policy
A. 9.      Yes. It is a reasonable        requiring employees to schedule
accommodation       to   modify     a     vacation time in advance if an
workplace policy when necessitated        otherwise qualified individual with a
by an individual's disability-related     disability needed to use accrued
limitations, absent undue hardship.       vacation time on an unscheduled
But, reasonable accommodation only        basis because of disability-related
requires that the employer modify the     medical problems, barring undue
policy for an employee who requires       hardship. Furthermore, an employer
such action because of a disability;      may be required to provide additional
therefore, the employer may continue      leave to an employee with a disability
to apply the policy to all other          as a reasonable accommodation in
employees.                                spite of a "no-fault" leave policy,
                                          unless the provision of such leave
   Example: An employer has a             would impose an undue hardship.
   policy prohibiting employees from
   eating or drinking at their            In some instances, an employer's
   workstations. An employee with         refusal to modify a workplace policy,
   insulin-dependent           diabetes   such as a leave or attendance policy,
   explains to her employer that she      could constitute disparate treatment
   may occasionally take too much         as well as a failure to provide a
   insulin and, in order to avoid going   reasonable accommodation.        For
   into insulin shock, she must           example, an employer may have a
   immediately eat a candy bar or         policy requiring employees to notify
   drink fruit juice. The employee        supervisors before 9:00 a.m. if they
   requests permission to keep such       are unable to report to work. If an
   food at her workstation and to eat     employer would excuse an employee
   or drink when her insulin level        from complying with this policy
   necessitates. The employer must        because of emergency hospitalization
   modify its policy to grant this        due to a car accident, then the
   request, absent undue hardship.        employer must do the same thing
   Similarly, an employer might have      when the emergency hospitalization is
   to modify a policy to allow an         due to a disability.
   employee with a disability to bring
   in a small refrigerator, or to use     Reassignment
   the employer's refrigerator, to
   store medication that must be          Although the Americans with Disabilities
   taken during working hours.            Act specifically lists “reassignment” as a
                                          form of reasonable accommodation, it is
Granting an employee time off from


                                                                                  19
                         OEDCA DIGEST

one that is frequently overlooked by         tendance that the offensive conduct was
employers. Because of the complex            okay. The agency felt that the manag-
rules regarding management‟s duty to         er's hesitation was inconsistent with its
consider reassignment during the ac-         policy of zero tolerance of discrimina-
commodation process, the next issue of       tion. We therefore recommend that su-
the OEDCA Digest will discuss this topic     pervisors and managers immediately
in considerable detail.                      address derogatory or discriminatory
                                             statements or conduct by their subordi-
                                             nates.
                   XI

MANAGER’S FAILURE TO CORRECT
IMMEDIATELY A DISCRIMINATORY
REMARK MADE DURING A MEETING
RESULTS IN DISCIPLINE

(The following article is reproduced with
permission of “Fedmanager”. The inci-
dent discussed occurred at another
Federal agency. For other articles of
interest to Federal managers, supervi-
sors, and employees, visit the “Fedma-
nager”      website        located     at
www.fedmanager.com.)

Managers should remember that when
they witness an employee make a pos-
sibly discriminatory remark, they should
act immediately to correct it. In a recent
case, a manager was presiding over an
informal meeting of his subordinates
when one of the subordinates made an
derogatory slur about another em-
ployee, who was known to be homosex-
ual. The employee who was the subject
of the offensive epithet was not in the
room. The manager did not say or do
anything to the offending employee until
several hours after the meeting. The
manager was disciplined for his delayed
reaction. The agency's position was
that by not addressing the employee on
the spot, the manager was effectively
acquiescing in the discrimination by
sending a message to the others in at-


                                                                                   20