By Jim CunninghamFebruary 3, 2009
USAG-RED CLOUD - Supervisors and nonsupervisors gained extra knowledge of prevention of sexual harassment during training held Jan. 16 by the USAG-Red Cloud Equal Employment Opportunity office. The training began with an understanding of the principle of equal employment opportunity being one, which asserts all people should have the right to work and advance based
on merit and ability, regardless of race, color, religion, sex, age, national origin, disability status, and without reprisal. These notions of equal employment do not come without regulatory guidance. The 29 Code of Federal Regulations 1614, Army Regulation 690-600, and EEOC Management Directive 110 map the guidance for managing EEO complaints.
Legal statutes range from the years 1964 to as late as 2002. Title VII of the Civil Rights Act of 1964, which was amended by the EEO Act of 1972 dealing with race, color, religion, sex or national origin, extended coverage to all state and local governments, governmental agencies, and political subdivisions, except for elected officials, their personal assistants and immediate advisors.
The Equal Pay Act of 1963, which dealt with sex-based wage, makes it illegal to base wages differently according to the sex of the employee.
The Age Discrimination in Employment Act of 1967 makes it illegal to discriminate by age if the employee is 40 plus years of age, said Rose Aguigui, USAGRC Equal Employment Opportunity
officer and conductor of the briefing.
The Rehabilitation Act of 1973, Sections 501, 502, 504, and 508 regard federal government employees.
Americans with Disabilities Act of 1990 Titles I and V deal with private sector employees, state and local government employees.
The Civil Rights Act of 1991 amends the Civil Rights Act of 1964 to strengthen and improve Federal civil rights laws, to provide for damages in cases of intentional employment discrimination,
to clarify provisions regarding disparate impact actions, and for other purposes.
The Notification and Federal Employee Anti-discrimination and Retaliation Act of 2002, popularly known as the NoFEAR Act, requires federal agencies be accountable for violations of anti-discrimination and whistle-blower protection laws and post quarterly on its public web site certain
statistical data relating to federal sector equal employment opportunity complaints filed with such agency.
All U.S. applicants, current and former employees, certain contract employees may take advantage of the EEO complaint process, Aguigui said.
There are eight basis for filing an EEO complaint:
Aca,!Ac Sex (gender)
Aca,!Ac Age (40+)
Aca,!Ac National Origin
Aca,!Ac Disability (physical or mental)
Aca,!Ac Reprisal for Title VII Activity
Persons aggrieved must identify an issue relating to one of the above terms, condition or benefit of employment, Aguigui said.
When an individual initiates an EEO complaint they should identify an issue relating to a term, condition, or benefit of employment along with the reason or basis for discrimination. The complainant must file within 45 calendar days, then after processing procedures the average
processing time is from two to three years. The cost to the government for complaints can be as much as $80 thousand dollars. The legal maximum for damages awarded a complainant is $300 thousand.
Unresolved informal complaints will have a final interview; the complainant will receive a notice of right to file a formal complaint with which he or she will have 15 calendar days to file a formal complaint.
The EEO officer has 15 calendar days to accept or dismiss the complaint, Aguigui said. The common causes for dismissal of a claim are:
Aca,!Ac Failure to state a claim
Aca,!Ac Untimely contact with EEO official
Aca,!Ac Untimely filing of formal complaint
Aca,!Ac Filing civil action for the same claim
Aca,!Ac Appealed to the Merit Systems Protection Board
Aca,!Ac Complainant alleges a preliminary step (proposed adverse action)
There is an alternative to this procedure; however, it is the alternative dispute resolution option. At any phase of the complaint process, ADR can be offered as an alternative to traditional EEO administrative process. For the Army, mediation is preferred because the primary goal is to resolve complaints at the lowest possible level, Aguigui said.
If a complaint is appropriate for mediation, the offer is first presented to management. If it is accepted by management, the offer of mediation is made to the complainant. Mediation is focused on issues, not people or personalities or faults, current employment issues, not issues from the past, Aguigui said. If mutual interests are understood and all other factors are met, then an early resolution may occur.
Negotiated settlement agreements are binding, enforceable contracts. They define terms agreed upon by disputing parties and the terms are confidential. There is no fault pointed out and the agreement closes the complaint unless the aggrieved party articulates noncompliance, Aguigui said.
The Prevention of Sexual Harassment briefing had three objectives: to understand what constitutes sexual harassment, to identify the costs of sexual harassment or a hostile work environment, and to recognize and accept one's role and responsibilities in regard to sexual harassment, Aguigui said.
"Supervisors are held to a higher standard," Aguigui said. "They have that responsibility." Army policy says sexual harassment is unacceptable conduct and it will not be tolerated.
"Sexual harassment destroys teamwork and negatively affects organizational readiness," Aguigui said. "Sexual harassment is when unwelcome sexual advances, requests for sexual favors, or conduct of a sexual nature creates a hostile work environment or interferes with an individual's ability to perform his or her job."
Quid pro-quo or this-for-that types of advances of a sexual nature, which are made a term or condition of continued employment are also a form of sexual harassment, Aguigui said.
Ingredients for a hostile work environment include: verbal, nonverbal or physical gestures that are sexual in nature, which are unwanted and unwelcome and unreasonably interferes with an individual's work performance, and creates an intimidating, hostile, or offensive working environment.
"The harassment does not necessarily have to be sexual in nature," Aguigui said. "Also,
we consider actions threatening in nature, which cause a hostile work environment."
Sex discrimination is any practice or policy, which results in differential treatment of an individual because of his or her gender, Aguigui said. The exception to this is when the job calls for an occupational qualification when gender is necessary for authenticity or normal operation of the job. Most of these jobs have to do with transportation, security and law enforcement when females and males are required to perform duties requiring search of persons.
Other benchmarks of sexual harassment are sex role static, stereotypes, and sex role stereotypes. Sex role static is unthinking, undirected, everyday taken-for-granted remarks and actions based on gender stereotypes.
The danger of stereotyping is instead of reacting naturally in a situation, the individual reacts or behaves according to the stereotype, Aguigui said.
Sex role stereotypes: men are traditionally thought to be aggressive, independent, and unemotional simply because they are men. Women are thought to be non aggressive, dependent, and emotional simply because they are women, Aguigui said.
"We find there are more reprisal issues when it deals with an employee and their first or second line supervisor," Aguigui said. "They know the employee has come to our office for advice. When they return to their office they find they are being treated differently, i.e. their work space moved or some other action. We tell supervisors they cannot take any action against an employee
The EEO office is motivated by Code 29 of Federal Regulations 1614, Army Regulation 690-600, and Management Directive 110.
"These are the principles behind EEO," Aguigui said. "These are bibles for EEO; the Management Directive 110 comes from the Equal Employment Opportunity Commission. They are the watchdogs for the Federal and Civilian sectors."
All of this comes together in teamwork to support the commander of the installation, Aguigui said."My office along with whoever the agency representative will be and a representative from Human Resources are the team who serves the commander in this capacity," Aguigui said. "In our case it is the manager of employee relations, at the Civilian Personnel Advisory Center.
"All EEO complaints are filed against the secretary of the Army, not against anyone else. The Army will always send their best most accomplished lawyer to defend against EEO complaints."