THE EEO COMPLAINT PROCESS IN TREASURY INTRODUCTION Discrimination can also occur when an employer makes an employment decision As a Federal employee, or appli - that is based on neutral factors, but the effect cant for employment, you have cer- adversely impacts a protected group. This is tain protections against unlawful called disparate impact discrimination. discrimination. You are protect - ed against discrimination due to race, sex, national origin, color, DISCRIMINATION ON religion, age, and THE BASIS OF SEX, physical or men- RACE, COLOR, NATIONAL tal disability. The statutes that pro- ORIGIN, OR RELIGION tect you from dis- Title VII of the 1964 Civil Rights Act, crimination also as amended, protects employees and ap- protect you from retaliation for action taken plicants for employment from discrimi- to oppose or remedy discrimination. If you be- nation on the basis of sex, race, color, lieve that you have been discriminated against national origin, or religion. Sexual harass- on one of the bases cited here, you may file a ment and pregnancy discrimination are complaint of discrimination. considered forms of prohibited sex discrimina- Also, in keeping with certain Executive tion and are protected by Title VII. Orders, Treasury employees and applicants In addition to protection against discrimina- are protected against discrimination based tion because of religion, Title VII also estab- on sexual orientation, parental status, and lishes the agency’s duty to provide reasonable protected genetic information. Treasury has accommodation for an employee’s religious established an administrative procedure for beliefs unless doing so would impose an undue processing these complaints. hardship on the employer. For example, if you need to take a day off for a religious ob- WHAT IS ILLEGAL servance, the agency would have to grant you DISCRIMINATION? leave (or compensatory time), unless doing so would be an undue hardship. Illegal discrimination occurs when an employer intentionally treats one employee differently from another employee when the two are similarly situated and the treatment is based on protected group status (race, color, age, national origin, religion, sex, disability or EEO activity). Similarly situated means that the employees occupy the same or similar positions, report to the same supervisor, and the facts surrounding the action are similar. Discrimination of this type is termed disparate treatment. DISCRIMINATION ON The law also requires that you be qualified for THE BASIS OF AGE your position. If you cannot perform the essential functions of the job with or without reasonable The Age Discrimination in Employment Act accommodation, you are not qualified for the (ADEA) of 1967 prohibits discrimination against position. Federal employees and applicants for employment who are 40 years of age or older. The Act was The law requires that the Federal government designed to protect older employees from false be a model employer with respect to employing stereotypes or stigmas associated with age. individuals with disabilities. Reasonable ac- commodation refers to the obligation to make adjustments to your work situation or environ- ment so that you can perform your job, as long as the accommodation does not constitute an undue hardship to the agency. The agency is not required to eliminate the essential functions of your position or to create a job that does not currently exist. As the employee, you have an obligation to DISCRIMINATION ON THE notify management of the need for reasonable BASIS OF DISABILITY accommodation and to engage in an interactive process in determining what accommodations The Rehabilitation Act of 1973 prohibits are needed. employment discrimination against Federal employees, or applicants for employment, PROTECTION AGAINST who have disabilities. A disability is de- fined as a physical or mental impairment REPRISAL OR RETALIATION that substantially limits a major life func- The Civil Rights Act (Title VII), the tion. Only permanent, chronic, or long- Age Discrimination in Employment Act term conditions are considered to be (ADEA), and the Rehabilitation Act pro- disabling. Temporary or short-term illnesses are tect you from reprisal or retaliation for not considered to be disabilities under the Act. exercising your rights under those Acts. The disability must substantially limit your ma- Protected activities may include filing a jor life activities (e.g., walking, speaking, seeing, complaint of discrimination, requesting rea- hearing, breathing, learning, performing sonable accommodation, giving evidence or manual tasks). Also, you may be disabled testimony to an investigator or in a hearing, if your impairment affects your ability to or complaining about or protesting per- work a broad class of jobs (e.g., if your dis- ceived discrimination against you or another ability prohibited you from doing any type employee. of jobs involving manual labor). However, you are not disabled if you are unable to work in only one type of job, or for one particular supervisor, or in one location. WHAT IS HARASSMENT? The counselor’s job is to define the issues and Employees have the bases of the claim and attempt resolution. If you right to a workplace meet the bureau requirements, the counselor may free of harassment that also refer you to the bureau’s alternative dispute is based on a protected resolution (ADR) program. If you do not par- basis (race, color, sex, ticipate in ADR, the counselor may do a limited religion, disability, inquiry of the circumstances giving rise to national origin, age your allegations and attempt resolution of the or reprisal). Harass- complaint. ment is verbal or physical conduct that If your claims cannot be resolved at this stage has the purpose or effect of creating an or in ADR, the counselor will provide you with intimidating, hostile or offensive working a Notice of Right to File a Complaint. This No- environment. The harassment must be so tice provides you with the time frame for filing a severe or pervasive as to alter the conditions of formal complaint of discrimination and the your employment. Unless the conduct is very address of the Treasury Complaint Center severe, a single or several isolated incidents of where your complaint must be filed. Your offensive conduct or remarks generally will not complaint must be filed within 15 days from create a hostile work environment. Although receipt of the Notice. we strive for a model workplace in Treasury, If you file a complaint, the Treasury Complaint the laws prohibiting discrimination do not Center will acknowledge your complaint and protect you from harsh or even unfair treat- issue an acceptance or dismissal letter on your ment unless it is shown to be based on your claims. Accepted claims will be investigated protected group status. within 180 days from the date the claim is WHAT DO I DO IF I filed, although this time frame may be ex- tended. Investigations may be conducted by BELIEVE I HAVE BEEN telephone, by interrogatory, or by an inves- DISCRIMINATED tigator doing an on-site investigation. The Complaint Center determines the best method AGAINST? for conducting the investigation based on a If you believe you have been number of factors, including the type of discriminated against, and claim filed. you decide you want to file a The Center will also try to resolve your com- complaint, you must contact plaint. The Center may ask you if you want an EEO counselor within to participate in a resolution conference with 45 days from when you first management to reach resolution on the issues. become aware of the alleged This will normally occur after the complaint discriminatory action. You has been investigated so that both parties have should contact an EEO counselor in the Trea- the benefit of the information gathered during sury bureau where your complaint arose. If you the investigation. don’t know the name of a counselor, you should contact the EEO Officer. After the investigation, you will be provided Once EEOC issues a decision on appeal, ei- with your rights to a hearing, unless you have ther you or the agency has the right to request a mixed case complaint (one based on an reconsideration. action appealable to the Merit Systems Pro- tection Board (MSPB) such as demotion or WHAT IS MY BURDEN OF removal), or to a final agency decision based PROOF? on the record. In order to prevail on If you elect a hearing, an Administra- your claim, you must tive Judge (AJ) from the Equal Employ- prove, by a prepon- ment Opportunity Commission (EEOC) derance of the evi- will schedule your complaint for a hear- dence, that discrimi- ing. Either you or the agency may nation occurred. Evi- request that discovery be done if information is dence can be direct or missing from the Investigative File. During the circumstantial. Direct hearing, questions will be asked under oath, evidence would be statements by managers and the proceedings will be recorded by a court or supervisors that directly tie the action reporter who will prepare a transcript for both against you to your protected class status. For parties. The decision whether to hold a hear- example, if a manager said a female appli- ing will be the AJ’s. If there are no material cant did not get a law enforcement position facts in dispute, the AJ may notify you that a because women should not carry weapons, hearing is not necessary. If that is the case, the that would be direct evidence of discrimi- AJ will issue a summary judgement. nation. Direct evidence can be in the form After the hearing, the AJ will issue a decision of verbal comments or written statements. and the Department has 40 days from receipt Evidence of racist, sexist or ethnic epithets or of the decision and hearing record to issue a remarks would also con- final order either implementing or appealing stitute direct evidence. the decision. Most cases, however, do not involve direct evidence of WHAT ARE MY RIGHTS TO discrimi-nation. APPEAL THE DECISION? You can establish Whether the agency issues a final agency de- discrimination through circumstantial cision on the record or a final order after an evidence. In these cases, the courts have AJ decision, you have the right to appeal the established a three-part framework for estab- decision. The agency decision will give you lishing discrimination. First, you must show appeal rights and the appropriate appeal form. that you were treated differently from other You will have 30 days to appeal the decision similarly situated individuals. For example, if to the EEOC or 90 days to file in Federal you were over age 40 and on the best-qualified district court. list for a position, and a younger applicant was selected, you would establish an inference, or prima facie case, of discrimination. If you meet this test, the agency must advance Reasonable attorney’s fees are A legitimate, non-discrimintory reason also available when an attorney repre- for its actions. Fo r e x a m p l e , i n sents you. However, neither attorney’s a nonselection claim, the agency must fees nor compensatory damages are explain why the selectee was chosen available in the administrative process for age over you. discrimination cases. You then have the op- Punitive damages are not available to Federal portunity to rebut this employees. reason or to show it is not the true reason for WHERE DO I GO FOR the agency’s decision. MORE INFORMATION? The law requires that Each Treasury bureau has an EEO you show not only that Officer who will provide you with the agency’s reason or articulation is false, but information on the complaint process that your protected status was the real reason for and your options. EEO Officers should the agency’s action. The burden of proof is on also provide you with information on you to convince the fact-finder, by a prepon- alternative dispute processes. It is incum- derance of the evidence, that a discriminatory bent on Treasury managers and supervisors reason motivated the agency. to ensure that employees and applicants are treated fairly so these types of disputes will not arise. However, if they do oc- WHAT HAPPENS IF cur, early resolution of the complaint will allow all parties to focus on the agency’s DISCRIMINATION IS mission. FOUND? You should also be aware that EEO Officers, If discrimination is found, you are entitled to EEO counselors, and EEO investigators are make-whole relief, including back pay with interest, neutrals. They do not serve as your representative benefits, and correction of personnel records when in the process. Their role is to help ensure fair applicable. The objective is to make you “whole” as and equitable treatment for all individuals. if the discriminatory action did not occur. You are entitled to have your own representa- Compensatory damages may be available. tive in all stages of the EEO process. Compensatory damages may be for pecuniary damages (actual expenses you incurred for medical bills, moving expenses, etc.) and non-pecuniary damages (pain and suffering). If you claim compensa- tory damages, additional information relating to your claim will be gathered. You must show how you were harmed and establish a nexus to the discriminatory conduct. THE EEO COMPLAINT PROCESS IN TREASURY

For further information, contact the Office of Equal Opportunity and Diversity at: 202-622-1160 202-622-0367 (Fax)