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OEDCA DIGEST Powered By Docstoc
					                   OEDCA DIGEST
 Vol. III, No. 3          Department of Veterans Affairs                  Summer 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

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 the Supreme Court’s recent decision on proof in
discrimination cases, “priority consideration”, the burden on management to articulate
clear and specific reasons for an employment decision, complaints about the denial of
OWCP claims, and EEO claims alleging retaliation for “whistle-blowing”.

Also included in this issue is the third 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………....7
EEOC Orders Navy’s ADR Pilot Program Suspended……………………………….…10
Discipline of Managers and Supervisors for Inappropriate Behavior on the Rise……11
Rate of Findings of Discrimination by EEOC Administrative Judges Declines………12
                         OEDCA DIGEST

                    I                        tablish his prima facie case?

SUPREME COURT RULING MAKES                   The Supreme Court began by referring
PROVING DISCRIMINATION CLAIMS                to some of its prior decisions that set
EASIER -- SUPERVISORS TAKE                   forth the basic analysis and burdens of
NOTE!!                                       proof in EEO cases. It noted that an
                                             employee or applicant for employment
The recent U.S. Supreme Court case,          must first establish a prima facie case of
Reeves v. Sanderson Plumbing Prod-           discrimination. In the Reeves case, the
ucts, Inc., decided June 12, 2000, will      plaintiff easily met that burden under the
make it easier in some cases for em-         ADEA by simply showing that he was at
ployees to prevail on their claims of dis-   least 40 years of age; otherwise quali-
crimination.                                 fied for his position; was discharged,
                                             and the employer hired other employees
The plaintiff in the Reeves case was a       who were younger. Generally, a prima
57-year-old supervisor in the hinge de-      facie case is easily established, al-
partment of a toilet seat manufacturing      though it is by no means sufficient, in
plant. He was fired for alleged time-        itself, to prove that discrimination oc-
keeping errors and misrepresentations.       curred.
He sued, claiming age discrimination in
violation of the Age Discrimination in       The burden then shifts to the employer
Employment Act (ADEA). Two other             to show that the employee was rejected
younger employees also lost their jobs.      or someone else was preferred for a le-
                                             gitimate, non-discriminatory business
The employer countered with testimony        reason. Like the employee’s prima facie
of his substandard job performance, al-      case, the employer’s burden of articula-
leging that an audit of his records re-      tion is easily established, requiring noth-
vealed a variety of timekeeping errors       ing more than a clear and specific
that cost the company money in over-         statement of the reason or reasons for
payments to absent or tardy employees.       the action or decision complained of.
They also alleged that he falsified some
company records. Plaintiff Reeves in-        The employee then has the opportunity
troduced evidence showing that he had        to show that the employer’s reasons are
not falsified records and that there was     not true, but are instead a mere pretext
no proof that there were any timekeep-       to hide a discriminatory motive.
ing errors that had cost the company
money.                                       Prior to the Supreme Court’s decision in
                                             the Reeves case, some lower courts
The question for the court then was as       had found that, even if employees had
follows: Did the plaintiff have to intro-    proven that the employer’s reasons
duce additional direct evidence of dis-      were untrue, they could not prevail un-
crimination to prevail, or could the jury    less they were able to produce addition-
infer discrimination based on the falsity    al evidence that there was intent to dis-
of the reasons given by the company,         criminate. If they could not do so, the
coupled with the evidence used to es-        judge could dismiss the case without

                           OEDCA DIGEST

sending it to a jury for a decision.          and EEO counselors. Officials should
                                              never succumb to the natural temptation
In Reeves, the Supreme Court held that        to “spare the employee’s feelings” by
no further additional evidence is needed      offering an explanation that is not true.
to prove discrimination. A jury (or other     Otherwise, they may find themselves, at
fact-finder such as OEDCA or the              a later stage, having to change their ex-
EEOC) can infer discrimination from the       planation when called upon to justify the
falsity of the employer’s defense and the     decision. Unfortunately, their lack of
evidence used by the employee in es-          candor at the outset, though unders-
tablishing his or her prima facie case. In    tandable, could result in a finding of pre-
other words, there can be a finding of        text, even if discrimination were not the
discrimination as the most likely expla-      actual motive.
nation for an action or decision, once
there is a finding of pretext, i.e., when
the employer’s explanation has been                               II
                                              SUPERVISORS TAKE NOTE, AGAIN!!
Although this was a claim involving age       FAILURE OF SELECTING OFFICIAL
discrimination, the Court’s rationale will    TO PROVIDE CLEAR, SPECIFIC
likely be applied to claims alleging dis-     REASON(S) FOR NOT PROMOTING
crimination due to race, color, gender,       COMPLAINANT RESULTS IN FINDING
national origin, religion, retaliation, or    OF DISCRIMINATION
disability. Moreover, although this case
involved a private sector employer, the       The complainant was one of nine indi-
Court’s holding is equally applicable to      viduals who applied and were referred
complaints filed by Federal employees         to the selecting official (SO) for promo-
or applicants for Federal employment.         tion to the position of Motor Vehicle Op-
                                              erator. The SO had three vacancies to
The important lesson here for supervi-        fill and chose two applicants who were
sors and other management officials is        of a different race than the employee
that it is now more critical than ever that   and a third who was the same race.
the rationale they offer to justify adverse   The complainant later filed an EEO
employment actions or other manage-           complaint alleging that his nonselection
ment decisions is clear, specific, consis-    was due to his race.
tent, well documented, and supported
by the proof.                                 After carefully reviewing the record,
                                              OEDCA agreed with and accepted an
Even where there is no discriminatory         EEOC administrative judge’s decision
motive involved, a finding of pretext can     finding that the complainant’s nonselec-
result from a lack of candor and consis-      tion was due to his race. The record in-
tency by management officials when            dicated that the SO had passed over the
explaining the reason or reasons for a        highest-ranking applicant, whose race
decision. Thus, it is imperative that offi-   was the same as the complainant, while
cials be honest at the early stages when      at the same time picking a much lower-
explaining their reasons to employees         ranking applicant of a different race.

                          OEDCA DIGEST

While these facts might not have been         ficient articulation. In this case, because
sufficient, by themselves, to prove that      management failed to satisfy its burden
discrimination occurred, they were suffi-     of articulation, the complainant was en-
cient to satisfy the complainant’s initial    titled to a finding in his favor, without
burden of establishing a prima facie          having to offer any additional evidence
case.                                         of discrimination beyond that required
                                              for his prima facie case.
The burden then shifted to the SO to ar-
ticulate legitimate, nondiscriminatory        This case illustrates two important les-
reasons for his selection choices. Un-        sons for supervisors and management
fortunately for management, the SO re-        officials. First, be sure to offer clear and
tired shortly after these selections and      specific reasons for personnel decisions
failed to reduce the rationale for his de-    and other actions, otherwise a finding of
cisions to writing. When the EEO inves-       discrimination is likely. While there is no
tigation was conducted, the SO was un-        legal burden on management to prove
available to provide an affidavit and the     that it made the right decision -- it need
only agency witness was the SO’s su-          only articulate a reason -- it certainly
pervisor. Unfortunately, he was unable        behooves management to ensure that
to provide a specific rationale for the se-   such evidence is available and offered if
lections made by his subordinate, stat-       the Department is later called upon to
ing only that he was sure that race was       respond to a complaint.
not a factor.
                                              Second, because of turnover due to re-
The EEOC judge and OEDCA con-                 tirements, resignations, etc., and/or the
cluded that this explanation was insuffi-     length of time it sometimes takes an
cient to satisfy management’s burden of       agency or the EEOC to investigate a
articulating legitimate, nondiscriminatory    complaint or hold a hearing, it is abso-
reasons for its decisions.        Manage-     lutely imperative that management offi-
ment’s burden of articulation is not          cials ensure that there is a documented
onerous – management does not have            record available that clearly explains the
to prove that it did not discriminate. In-    rationale for employment decisions or
stead, it need only articulate the rea-       actions.
son(s) for its actions. However, that ar-
ticulation must be clear and specific
enough to provide a complainant with                              III
the opportunity to challenge it, or else
the complainant will automatically pre-       NO DISCRIMINATION FOUND WHERE
vail.                                         COMPLAINANT’S    NONSELECTION
                                              WAS DUE TO “PRIORITY CONSID-
Merely stating that the “best applicant”      ERATION” GIVEN TO ANOTHER AP-
was chosen is not a sufficient articula-      PLICANT BECAUSE OF AN EEO
tion -- the reason(s) for that conclusion     SETTLEMENT AGREEMENT
must be clearly and specifically ex-
plained. Likewise, merely claiming that       The complainant and several other em-
discrimination did not occur is not a suf-    ployees applied for the position of Su-

                          OEDCA DIGEST

pervisory Medical Clerk. However, none         out priority consideration status were
of the applicants, save one, was re-           referred). Moreover, she presented no
ferred to the selecting official for consid-   evidence to refute management’s asser-
eration, even though they were all quali-      tion that the selectee was entitled to
fied. The one applicant whose name             priority consideration; nor did she offer
was forwarded for consideration, and           any other evidence that her race was a
who was later selected, was referred           factor in her nonreferral and nonselec-
under the facility’s Priority Placement        tion.
Program. Under the Priority Placement
Program, the applicant was entitled to
“priority consideration” for the position                         IV
pursuant to the terms of a written
agreement settling an EEO complaint            EMPLOYEE’S ALLEGATION THAT
previously filed by the applicant.             MANAGEMENT CONTROVERTED HIS
                                               OWCP CLAIM FOR DISCRIMINATORY
Priority consideration essentially means       REASONS DISMISSED FOR FAILURE
that the name of a qualified applicant         TO STATE A CLAIM
entitled to priority consideration may be
referred to and considered by a select-        An employee filed a race discrimination
ing official before the names of other         and reprisal complaint when his super-
applicants are forwarded. The selecting        visor controverted his workers’ compen-
official then has the option of choosing       sation (OWCP) claim. The employee
that applicant, or requesting that addi-       alleged that the supervisor’s statements
tional applicants be referred.                 submitted to the Department of Labor
                                               (DOL) refuting his claim were false and
The complainant subsequently filed a           resulted in the DOL denying the claim
discrimination complaint alleging that         and thereby forcing him to use sick
her failure to be referred for considera-      leave. According to the record, the su-
tion was due to her race. She claimed          pervisor told the DOL that the complai-
that she was better qualified than the         nant had falsified his on-the-job injury
selectee and had more time-in-grade.           report because of dissatisfaction with his
Management countered by stating that           work assignments.
the selectee was entitled to priority con-
sideration, was fully qualified for the po-    After carefully reviewing the record,
sition and, hence, was properly selected       OEDCA accepted an EEOC administra-
under priority consideration guidelines        tive judge’s decision dismissing the
without having to compete against the          complaint for failure to state a claim.
other applicants.                              Even assuming for the sake of argument
                                               that the supervisor’s submission to the
OEDCA accepted an EEOC administra-             DOL was false and caused the denial of
tive judge’s decision finding no discrimi-     the employee’s OWCP claim, the com-
nation. The complainant presented no           plainant’s allegation does not state a
evidence that she was treated differently      claim against the VA. The reason, of
than other similarly situated applicants       course, is that only the DOL has authori-
(i.e., none of the other applicants with-      ty to make the final decision on OWCP

                          OEDCA DIGEST

claims. The VA is without power or au-         rect or indirect evidence that those rea-
thority to offer any relief in such a claim.   sons were a pretext (i.e., not the true
The complainant’s allegation in this
claim constituted, in essence, evidence        Rather than offer evidence of national
bearing on the merits of his OWCP              origin discrimination, the complainant
claim – i.e., whether DOL should have          instead suggested that the “root” cause
approved his claim for benefits. Such          of the treatment she received was, in
evidence should have been presented            her opinion, due to retaliation because
to the DOL for consideration. Numerous         of her whistle-blowing activities in con-
EEOC decisions have held that a com-           nection with an alleged fraudulent budg-
plainant cannot use the EEO complaint          et report. She claimed that she reported
process to attack a DOL decision deny-         this matter to the IG and also raised it in
ing an OWCP claim.                             a union grievance proceeding and that,
                                               thereafter, her supervisor, who was
                     V                         aware of both her IG complaint and her
                                               union grievance, began harassing her.
RETALIATION   FOR    “WHISTLE-                 The EEOC judge noted in her decision
BLOWING” ACTIVITIES UNDERCUTS                  that the complainant’s allegation of retal-
HER CLAIM OF NATIONAL ORIGIN                   iation for whistle-blowing and her union
DICRIMINATION                                  grievance was not only irrelevant to her
                                               claim of national origin discrimination, it
The complainant accused her supervi-           significantly, if not completely, undercut
sor of harassing her because of her na-        her claim that the actions complained of
tional origin (Hispanic) by giving her a       occurred because she is Hispanic.
written counseling, charging her with
AWOL for tardiness, criticizing her work,      Moreover, the judge correctly pointed
recommending disapproval of her leave          out to the complainant that the EEO
requests, and taking other unfavorable         complaint system is not the proper fo-
actions against her. Her supervisor is of      rum to challenge non-EEO claims such
Mexican origin; hence he is also Hispan-       as retaliation for whistle-blowing and
ic. Moreover, all of the other employees       that the complainant should have used
under his supervision are Hispanic.            the appropriate administrative process
                                               to raise such a claim.
After reviewing the complaint record in
its entirety, OEDCA agreed with and ac-        This case illustrates the not uncommon
cepted an EEOC administrative judge’s          problem that EEO complainants en-
decision finding that the VA did not dis-      counter when they utilize the EEO com-
criminate against the complainant as           plaint process to complain about a non-
alleged. The EEOC judge correctly              EEO matter. Not only are they unlikely
noted that the supervisor provided legi-       to prevail on the EEO complaint, they
timate, nondiscriminatory reasons for          also risk forfeiting their right to challenge
the actions or incidents complained of         the non-EEO matter in the appropriate
and that the complainant offered no di-        forum.

                          OEDCA DIGEST

                                              accommodation for this process.
Although the complainant was entitled to
no relief because she failed to prove na-     During the hiring process and before
tional origin discrimination, OEDCA did       a conditional offer is made, an
provide her with information concerning       employer generally may not ask an
various procedures available for pur-         applicant whether s/he needs a
suing a whistle-blowing retaliation claim.    reasonable accommodation for the job,
                                              except when the employer knows that an
                                              applicant has a disability -- either
                    VI                        because it is obvious or the applicant has
                                              voluntarily disclosed the information --
FREQUENTLY ASKED QUESTIONS                    and could reasonably believe that the
AND ANSWERS CONCERNING AN                     applicant will need a reasonable
EMPLOYER’S DUTY TO ACCOMMO-                   accommodation to perform specific
DATE AN EMPLOYEE’S DISABILITY                 job functions. If the applicant replies
                                              that    s/he    needs     a    reasonable
(Complaints concerning an employer’s          accommodation, the employer may
failure to accommodate an employee’s          inquire as to what type.
disability account for a significant num-
ber of discrimination complaints filed        After      a     conditional      offer    of
against private and Federal sector em-        employment is extended, an employer
ployers. Unfortunately, this is one of the    may inquire whether applicants will need
most difficult and least understood areas     reasonable accommodations related
of civil rights law. This is the third in a   to anything connected with the job
series of articles addressing some fre-       (i.e., job performance or access to
quently asked questions and answers           benefits/privileges of the job) as long as
concerning the reasonable accommoda-          all entering employees in the same job
tion requirement. The Q&As below cov-         category are asked this question.
er accommodation issues relating to job       Alternatively, an employer may ask a
applicants and the benefits and privileg-     specific applicant if s/he needs a
es of employment.                             reasonable accommodation if the
                                              employer knows that this applicant has a
REASONABLE    ACCOMMODATION                   disability -- either because it is obvious or
AND JOB APPLICANTS                            the applicant has voluntarily disclosed
                                              the information -- and could reasonably
Q. 1. May an employer ask whether a           believe that the applicant will need a
reasonable accommodation is needed            reasonable accommodation. If the
when an applicant has not asked               applicant replies that s/he needs a
for one?                                      reasonable         accommodation,         the
                                              employer may inquire as to what type.
A. 1. An employer may tell applicants
what the hiring process involves (e.g., an    Q. 2. Does an    employer have to provide
interview, timed written test, or job         a reasonable      accommodation to an
demonstration), and may ask applicants        applicant with    a disability even if it
whether they will need a reasonable           believes that     it will be unable to

                          OEDCA DIGEST

provide this individual with a                 have to hire a full-time interpreter. The
reasonable accommodation on the                employer has violated the ADA. The
job?                                           employer should have proceeded with
                                               the interview, using a sign language
A. 2. Yes. An employer must provide a          interpreter (absent undue hardship), and
reasonable       accommodation       to    a   at the interview inquired to what extent
qualified applicant with a disability          the individual would need a sign
that will enable the individual to have an     language interpreter to perform any
equal opportunity to participate in the        essential        functions       requiring
application process and to be considered       communication with other people.
for a job (unless it can show undue
hardship).      Thus,    individuals    with       Example B: An individual who has
disabilities who meet initial requirements     paraplegia applies for a secretarial
to be considered for a job should not be       position. Because the office has two
excluded from the application process          steps at the entrance, the employer
because the employer speculates, based         arranges for the applicant to take a
on     a      request     for    reasonable    typing test, a requirement of the
accommodation for the application              application process, at a different
process, that it will be unable to provide     location. The applicant fails the test. The
the      individual    with      reasonable    employer does not have to provide any
accommodation to perform the job. In           further reasonable accommodations for
many instances, employers will be              this individual because she is no longer
unable to determine whether an                 qualified to continue with the application
individual         needs         reasonable    process.
accommodation to perform a job based
solely on a request for accommodation          REASONABLE      ACCOMMODATION
during the application process. And even       RELATED TO THE BENEFITS AND
if an individual will need reasonable          PRIVILEGES OF EMPLOYMENT
accommodation to perform the job, it
may not be the same type or degree of          The Americans with Disabilities Act
accommodation that is needed for the           (ADA) and the Rehabilitation Act require
application process. Thus, an employer         employers      to     provide  reasonable
should       assess     the     need     for   accommodations so that employees with
accommodations for the application             disabilities can enjoy the "benefits and
process separately from those that may         privileges of employment" equal to those
be needed to perform the job.                  enjoyed by similarly-situated employees
                                               without     disabilities.   Benefits and
    Example A: An employer is impressed        privileges of employment include, but are
with an applicant's resume and contacts        not limited to, employer-sponsored: (1)
the individual to come in for an interview.    training, (2) services (e.g., employee
The applicant, who is deaf, requests a         assistance programs (EAP's), credit
sign language interpreter for the              unions, cafeterias, lounges, gymnasiums,
interview. The employer cancels the            auditoriums, transportation), and (3)
interview and refuses to consider further      parties or other social functions (e.g.,
this applicant because it believes it would    parties to celebrate retirements and

                         OEDCA DIGEST

birthdays, and company outings). If an      electronic mail is used by every
employee with a disability needs a          employee and there is no effective way
reasonable accommodation in order to        to ensure that each one will always use
gain access to, and have an equal           alternative measures to ensure that the
opportunity to participate in, these        blind employee receives the same
benefits and privileges, then the           information that is being transmitted via
employer      must     provide     the      computer.
accommodation unless it can show
undue hardship.                                 Example B: An employer authorizes
                                            the Human Resources Director to use a
Q. 3. Does an employer have to provide      public address system to remind
reasonable accommodation to enable          employees about special meetings and
an employee with a disability to have       to make certain announcements. In order
equal    access    to    information        to make this information accessible to a
communicated in the workplace to            deaf employee, the Human Resources
non-disabled employees?                     Director arranges to send in advance an
                                            electronic mail message to the deaf
A.3.         Yes.   Employers    provide    employee conveying the information that
information to employees through            will be broadcast. The Human Resources
different means, including computers,       Director is the only person who uses the
bulletin boards, mailboxes, posters, and    public address system; therefore, the
public address systems. Employers           employer can ensure that all public
must ensure that employees with             address messages are sent, via
disabilities have access to information     electronic mail, to the deaf employee.
that is provided to other similarly-        Thus, the employer is providing this
situated employees without disabilities,    employee with equal access to office
regardless of whether they need it to       communications.
perform their jobs.
                                            Q. 4.     Must an employer provide
    Example A: An employee who is           reasonable accommodation so that an
blind has adaptive equipment for his        employee    may   attend    training
computer that integrates him into the       programs?
network with other employees, thus
allowing communication via electronic       A. 4. Yes. Employers must provide
mail and access to the computer bulletin    reasonable accommodation (e.g., sign
board. When the employer installs           language interpreters; written materials
upgraded computer equipment, it must        produced in alternative formats, such as
provide new adaptive equipment in           braille, large print, or on audio-cassette)
order for the employee to be integrated     that will provide employees with
into the new networks, absent undue         disabilities with an equal opportunity to
hardship.     Alternative   methods of      participate     in     employer-sponsored
communication (e.g., sending written or     training, absent undue hardship. This
telephone messages to the employee          obligation extends to in-house training,
instead of electronic mail) are likely to   as well as to training provided by an
be     ineffective    substitutes   since   outside entity. Similarly, the employer

                          OEDCA DIGEST

has an obligation to provide reasonable         training. This three-hour program is
accommodation whether the training              optional. A deaf employee wishes to
occurs on the employer's premises or            take the training and requests a sign
elsewhere.                                      language interpreter. XYZ must provide
                                                the interpreter because the CPR training
    Example A: XYZ Corp. has signed a           is a benefit that XYZ offers all
contract with Super Trainers, Inc., to          employees, even though it is optional.
provide mediation training at its facility to
all of XYZ's Human Resources staff. One
staff member is blind and requests that                            VII
materials be provided in braille. Super
Trainers refuses to provide the materials       EEOC ORDERS NAVY TO SUSPEND
in braille. XYZ maintains that it is the        ITS PILOT EEO DISPUTE RESOLU-
responsibility of Super Trainers and sees       TION PROGRAM
no reason why it should have to arrange
and pay for the braille copy.                   The EEOC recently ordered the De-
                                                partment of the Navy to suspend its al-
Both XYZ (as an employer covered                ternative dispute resolution (ADR) pro-
under Title I of the ADA) and Super             gram. The pilot program was designed
Trainers (as a public accommodation             as an alternative means of processing
covered under Title III of the ADA have         EEO complaints.
obligations to provide materials in
alternative formats. This fact, however,        Two Navy employees elected to utilize
does not excuse either one from their           the pilot program during the pre-
respective obligations. If Super Trainers       complaint counseling stage. As a condi-
refuses to provide the braille version,         tion of the program, they had to waive
despite its Title III obligations, XYZ still    their right to “opt out” of the program --
retains its obligation to provide it as a       i.e., waive their right to abandon the
reasonable accommodation, absent                ADR program and return to the standard
undue hardship.                                 EEO complaint process, where they
                                                would be entitled to an investigation into
Employers arranging with an outside             their claims and the right to request a
entity to provide training may wish to          hearing and decision from an EEOC
avoid such problems by specifying in the        administrative judge. When efforts to
contract who has the responsibility to          resolve their complaints in the ADR
provide        appropriate  reasonable          process failed, the Navy simply issued a
accommodations. Similarly, employers            final agency decision on their complaints
should ensure that any offsite training         based solely on information obtained
will be held in an accessible facility if       during the ADR process.
they have an employee who, because of
a     disability,  requires such      an        The EEOC ordered suspension of the
accommodation.                                  Navy’s ADR program because it violated
                                                one of the Commission’s core principles
   Example B: XYZ Corp. arranges for            for a successful alternative dispute reso-
one of its employees to provide CPR             lution process – the right of an EEO

                          OEDCA DIGEST

complainant to have his or her complaint
processed in the EEO complaint system         It's time again to offer a reminder to
if ADR efforts fail. Thus, instead of pro-    managers and supervisors that in to-
ceeding to issue a final agency decision      day's work place, they should not touch
on the informal complaints without an         fellow employees or subordinates, or
investigation, the Navy should have           comment on personal appearance. We
conducted a final interview and given         say this knowing that there is no law that
the complainants a notice of right to file    says you cannot hug your subordinates
a formal complaint. The Commission            or colleagues in the work place, or tell
noted that the Navy’s ADR program was         them you like their haircut, outfit, or tan.
an obvious attempt to avoid the most          But in today's work place, given the de-
significant regulatory change in the          velopments in the law of sexual ha-
Commission’s recently revised com-            rassment, there is a heightened aware-
plaint processing regulations – i.e., the     ness about these matters. This means
right to a hearing and binding decision       that except on rare occasions, such
from an EEOC administrative judge.            touching and comments are no longer
                                              acceptable in today's work place, no
In addition, by not conducting a formal       matter how well intentioned or innocent
agency investigation, as is required un-      they may be. The exception may be
der the standard EEO complaint                hugging a subordinate or co-worker dur-
process, the Navy would not be devel-         ing his or her retirement party. Giving
oping an adequate factual record for de-      subordinates a hug or a neck massage
cision and appeal purposes. Finally, the      because they "look sad" or have had a
Commission criticized the fact that the       "bad day" simply is not acceptable in to-
EEO counselor for one of the complai-         day's work place, and can only be fertile
nants was also the dispute resolution         ground for a complaint against you.
specialist in that case, thus raising se-
rious questions as to the neutrality of the   Because of the recent decisions issued
Navy’s ADR procedures.                        by the U.S. Supreme Court in the area
                                              of sexual harassment law, the surest
                                              way for any employer, including a feder-
                   VIII                       al agency, to avoid liability is to take
                                              quick and effective remedial action to
DISCIPLINE OF       MANAGERS AND              end improper conduct of its supervisors
SUPERVISORS         FOR    BEHAVIOR           and managers. This may mean discip-
THAT DOES NOT       RISE TO THE LEV-          lining managers and supervisors who
EL OF SEXUAL        HARASSMENT ON             are engaging in arguably "harassing"
THE INCREASE                                  behavior, even if the behavior does not
                                              rise to the level of a Title VII sexual ha-
(The following article is reproduced with     rassment claim. More and more em-
permission of “Fedmanager”. For other         ployers are disciplining managers and
articles of interest to Federal managers,     supervisors for touching employees,
supervisors, and employees, visit the         discussing inappropriate topics (such as
“FEDmanager” website located at               Viagra), and making comments about
www.fedmanager.com.)                          personal appearance in the work place.

                          OEDCA DIGEST

Employers do not need to prove that            crimination by EEOC’s judges in VA
these managers and supervisors actual-         cases has actually declined substantial-
ly engaged in sexual harassment to dis-        ly. In FY 1995, the finding rate by
cipline them; they merely have to prove        EEOC judges in VA cases was approx-
that the actions of the manager or su-         imately 15%. In FY 1999, it had de-
pervisor were inappropriate for the work       clined to approximately 10%. Since the
place.                                         beginning of FY 2000, their finding rate
                                               in VA cases has further declined to ap-
That standard has changed drastically          proximately 3.5%.
since Anita Hill testified at Clarence
Thomas' confirmation hearing. While            In fact, data provided by EEOC to the
managers and supervisors may not               General Accounting Office (GAO) indi-
agree with the new standard being ap-          cate that the government-wide finding
plied to the work place, the fact remains      rate by EEOC administrative judges has
that they will be held to it. So, our ad-      been declining steadily. In FY 1991,
vice is this: do not touch your subordi-       when compensatory damage awards
nates or co-workers; do not comment on         first became available to Federal sector
their appearance; and do not discuss           employees who prevailed on their com-
topics related to sex. Managers and            plaints, the finding rate was approx-
supervisors set the tone for the entire        imately 15%. For FY 1998 (the most
office. It is their responsibility to ensure   recent data available from EEOC) the
that the office environment is profes-         rate declined to approximately 7%.



With the adoption of EEOC’s recent re-
visions to its Federal sector complaint
processing regulation that give EEOC
administrative judges binding decision
authority, most Federal agencies were
expecting a significant increase in the
rate at which the EEOC judges would be
finding discrimination.

While it is still too early to discern a
trend – EEOC judges have only had this
authority since November 9, 1999 --
VA’s experience thus far has been to
the contrary. The rate of findings of dis-


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