What is the No Fear Act?

OSC 2013 NO FEAR ACT TRAINING
YOUR RIGHTS AND REMEDIES UNDER
FEDERAL ANTIDISCRIMINATION AND
WHISTLEBLOWER PROTECTION LAWS
U.S. OFFICE OF SPECIAL COUNSEL
June 19, 2013
What is the No Fear Act?
On May 15, 2002, Congress enacted the
“Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2002,” which is now known as the No FEAR
Act.
One purpose of the Act is to “require that Federal agencies be
accountable for violations of antidiscrimination and
whistleblower protection laws.”
To this end, the No FEAR Act requires that all federal agencies
train employees about the rights and remedies available to them
under the Antidiscrimination Laws and Whistleblower
Protection Laws applicable to them.
2
Federal Antidiscrimination and Whistleblower
Protection Laws
“Federal Antidiscrimination Laws” refers to:








5 U.S.C. 2302(b)(1)
5 U.S.C. 2302(b)(9), as applied to conduct described in 5 U.S.C. 2302(b)(1)
5 U.S.C. 2302(b)(10)
29 U.S.C. 206(d) Equal Pay Act
29 U.S.C. 621 Age Discrimination in Employment Act
29 U.S.C. 791 Rehabilitation Act
42 U.S.C. 2000e–16 Civil Rights Act of 1964
42 U.S.C. 2000ff-11 Genetic Information Nondiscrimination Act
“Federal Whistleblower Protection Laws” refers to:

5 U.S.C. 2302(b)(8) or 5 U.S.C. 2302(b)(9), as applied to conduct described in
5 U.S.C. 2302(b)(8).
3
Race Discrimination

Under Title VII of the Civil Rights Act of 1964, equal employment
opportunity cannot be denied any person because of his/her racial group or
perceived racial group, race-linked characteristics (e.g., hair texture, color,
facial features), or marriage to or association with someone of a particular
race or color.

Title VII also prohibits employment decisions based on stereotypes and
assumptions about abilities, traits, or the performance of individuals of certain
racial groups.
4
Race Discrimination (continued)

It is unlawful to discriminate against any individual in regard to recruiting,
hiring and promotion, transfer, work assignments, performance
measurements, the work environment, job training, discipline and discharge,
wages and benefits, or any other term, condition, or privilege of employment.

Title VII prohibits not only intentional discrimination, but also neutral job
policies that disproportionately affect persons of a certain race or color and
that are not related to the job and the needs of the business.

Title VII also prohibits harassment based on race.
5
National Origin Discrimination

Title VII prohibits employers from discriminating against individuals because of
their national origin. National origin discrimination means treating someone less
favorably because he or she comes from a particular place, because of his or her
ethnicity or accent, or because it is believed that he or she has a particular ethnic
background. National origin discrimination also means treating someone less
favorably at work because of marriage or other association with someone of a
particular nationality.

Violations include: discrimination in employment decisions (recruitment, hiring,
firing, layoffs, etc.) and harassment based on national origin.

Discrimination against individuals employed in the United States is prohibited,
regardless of citizenship. However, relief may be limited if an individual does not
have work authorization.
6
National Origin Discrimination
(Language)

Accent discrimination
An employer may not base a decision on an employee’s foreign accent
unless the accent materially interferes with job performance.

English fluency
A fluency requirement is only permissible if required for the effective
performance of the position for which it is imposed.

English-only rules
English-only rules must be adopted for nondiscriminatory reasons. An
English-only rule may be used if it is needed to promote the safe or
efficient operation of the employer’s business.
7
Religious Discrimination

Title VII prohibits employers from discriminating against individuals because
of their religion in hiring, firing, and other terms and conditions of
employment.

Employees cannot be forced to participate – or not participate – in a
religious activity as a condition of employment.

Employers must take steps to prevent religious harassment of their
employees.
8
Religious Discrimination
Reasonable Accommodation

Employers must reasonably accommodate employees’ sincerely held religious
practices unless doing so would impose an undue hardship on the employer.

A reasonable religious accommodation is any adjustment to the work
environment that will allow the employee to practice his religion. An
employer might accommodate an employee’s religious beliefs or practices by
allowing: flexible scheduling, voluntary substitutions or swaps, job
reassignments and lateral transfers, modification of grooming requirements
and other workplace practices, policies and/or procedures.
9
Sex Discrimination

It is unlawful to discriminate against any employee or applicant because of
his/her sex in regard to hiring, termination, promotion, compensation, job
training, or any other term, condition, or privilege of employment.

Title VII also prohibits employment decisions based on stereotypes and
assumptions about abilities, traits, or the performance of individuals on the
basis of sex.

Title VII prohibits both intentional discrimination and neutral job policies
that disproportionately exclude individuals on the basis of sex and that are not
job-related.
10
Sex Discrimination
Pregnancy Discrimination

The Pregnancy Discrimination Act is an amendment to Title VII
of the Civil Rights Act of 1964. Discrimination on the basis of
pregnancy, childbirth, or related medical conditions constitutes
unlawful sex discrimination under Title VII.

Women who are pregnant or affected by related conditions must
be treated in the same manner as other applicants or employees
with similar disabilities or limitations.
11
Sex Discrimination
Pregnancy Discrimination (continued)

An employer cannot refuse to hire a pregnant woman because of her
pregnancy, because of a pregnancy-related condition or because of the
prejudices of co-workers, clients, or customers.

Pregnant employees must be permitted to work as long as they are able to
perform their jobs.

Employers must hold open a job for a pregnancy-related absence the same
length of time jobs are held open for employees on sick or disability leave.
12
Sex Discrimination
Sexual Harassment

Title VII’s prohibitions against sex-based discrimination also covers:

Sexual Harassment
This includes practices ranging from direct requests for sexual favors to
workplace conditions that create a hostile environment for persons of either
gender, including same sex harassment.
13
Sex Discrimination
Gender Identity and Sex-Stereotyping

The EEOC has held that discrimination against an individual because
that person is transgender (also known as gender identity
discrimination) is discrimination because of sex and therefore is
covered under Title VII of the Civil Rights Act of 1964. See Macy v.
Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012)

The Commission has also found that claims by lesbian, gay, bisexual,
and straight individuals alleging sex-stereotyping state a sex
discrimination claim under Title VII. See Veretto v. U.S. Postal Service,
EEOC Appeal No. 0120110873 (July 1, 2011); Castello v. U.S. Postal
Service, EEOC Request No. 0520110649 (Dec. 20, 2011)
14
Equal Pay

The Equal Pay Act of 1963 requires that men and women be given equal pay
for equal work in the same establishment. The jobs need not be identical, but
they must be substantially equal.

Title VII also prohibits compensation discrimination on the basis of sex.
Unlike the Equal Pay Act, however, Title VII does not require that the
claimant’s job be substantially equal to that of a higher paid person of the
opposite sex or require the claimant to work in the same establishment.
15
Disability Discrimination

Title I of the Americans with Disabilities Act of 1990 (ADA) prohibits private
employers, state and local governments, employment agencies and labor
unions from discriminating against qualified individuals with disabilities in job
application procedures, hiring, firing, advancement, compensation, job
training, and other terms, conditions, and privileges of employment.

The ADA’s nondiscrimination standards apply to federal sector employees
under section 501 of the Rehabilitation Act, as amended, and its
implementing rules and regulations.
16
What is a Disability?
An individual with a disability is a person who:

Has a physical or mental impairment that substantially limits one or more
major life activities (such as walking, talking, seeing, hearing, or learning).

Has a record of such an impairment; or

Is regarded as having such an impairment.
17
Reasonable Accommodation


A qualified employee or applicant with a disability is an individual who, with or
without reasonable accommodation, can perform the essential functions of the
job in question. Reasonable accommodation may include, but is not limited to:

Making existing facilities used by employees readily accessible to and usable
by persons with disabilities;

Job restructuring, modifying work schedules, reassignment to a vacant
position;

Acquiring or modifying equipment or devices, adjusting or modifying
examinations, training materials, or policies, and providing qualified readers
or interpreters.
An employer is required to make a reasonable accommodation to the known
disability of a qualified employee or applicant if it would not impose an “undue
hardship” on the operation of the employer’s business.
18
Age Discrimination

The Age Discrimination in Employment Act of 1967
(ADEA) protects individuals who are 40 years of age or
older from employment discrimination based on age.

Under the ADEA, it is unlawful to discriminate against a
person because of his/her age with respect to any term,
condition, or privilege of employment, including hiring,
firing, promotion, layoff, compensation, benefits, job
assignments, and training.
19
Genetic Information Discrimination

It is unlawful to discriminate against employees or applicants because of
genetic information. Title II of the Genetic Information Nondiscrimination
Act (GINA) prohibits the use of genetic information in making employment
decisions and restricts employers and other entities covered by Title II from
requesting, requiring, or purchasing genetic information, and strictly limits the
disclosure of genetic information.

The law forbids discrimination on the basis of genetic information when it
comes to any aspect of employment, including hiring, firing, pay, job
assignments, promotions, layoffs, training, fringe benefits, or any other term
or condition of employment.

It is also unlawful to harass a person because of his or her genetic
information.
20
Retaliation Prohibited

It is unlawful to retaliate against an individual for opposing
employment practices that discriminate based on race, color,
religion, sex, age, national origin, pregnancy, disability, or genetic
information.

It is also unlawful to retaliate against an individual for filing a
discrimination charge, testifying, or participating in any way in an
investigation, proceeding, or litigation.
21
Political Affiliation, Marital Status,
Sexual Orientation, and Status as a Parent

The Civil Service Reform Act of 1978 makes it illegal to
discriminate in personnel actions against Federal employees
because of their marital status, political affiliation, or based on
conduct which does not adversely affect the performance of the
applicant or employee -- which can include sexual orientation
discrimination, or to retaliate against employees for exercising
their rights. 5 U.S.C. 2302(b)(1), (b)(9) & (b)(10).

Executive Order 11478, section 1 (as amended by Executive
Orders 13087 and 13152) prohibits discrimination on the basis
of sexual orientation and status as a parent.
22
Whistleblower Protection
5 U.S.C. § 2302 (b)(8)
A federal employee authorized to take, direct others to take, recommend or
approve any personnel action may not engage in reprisal for whistleblowing –
i.e., take, fail to take, or threaten to take or fail to take a personnel action with
respect to any employee or applicant because of:
Any disclosure of information by the employee or applicant that he or she
reasonably believes evidences:
* A violation of a law, rule or regulation,
* Gross mismanagement,
* Gross waste of funds,
* Abuse of authority, or
* A substantial and specific danger to public health or safety.
23
Protected Whistleblower Disclosures
(continued)
5 U.S.C. § 2302 (b)(8)

Disclosure not protected (unless made to the Special Counsel or Inspectors
General), when disclosure is –

Prohibited by law,
or

Required by Executive Order to be secret for national security or
foreign affairs reasons.
24
Corrective Action:
Whistleblower Reprisal Matters
5 U.S.C. §§ 1214(b)(4)(B), 1221(e)(1)
Can be obtained if 
Disclosure of information was a Contributing Factor in a personnel
action,
Unless

Agency shows by Clear and Convincing Evidence that it would have
taken the same personnel action in the absence of the disclosure.
25
Other Protected Activities:
5 U.S.C. § 2302 (b)(9)

Any employee who has authority to take, direct others to take, recommend,
or approve any personnel action, shall not, with respect to such authority :

Take or fail to take, or threaten to take or fail to take, any personnel
action against any employee or applicant for employment because of –
(A) the exercise of any appeal, complaint, or grievance right granted by
any law, rule, or regulation;
(B) testifying for or otherwise lawfully assisting any individual in the
exercise of any right referred to in (A);
(C) cooperating with or disclosing information to the Inspector
General of an agency, or the Special Counsel, in accordance with
applicable provisions of law; or
(D) for refusing to obey an order that would require the individual to
violate a law.
26
Filing a Complaint

If you think you have been subjected to retaliation, contact the
Complaints Examining Unit at the U.S. Office of Special
Counsel at 1-800-872-9855 or visit www.osc.gov to file a written
complaint

If you feel you have been discriminated against in violation of
antidiscrimination laws, contact your OSC EEO counselors,
listed on OSC’s Intranet and slide 29. You may also contact the
Equal Employment Opportunity Commission if you have
questions about filing a complaint (1-800-669-4000) or visit
www.eeoc.gov to learn more.
27
OSC EEO Directives

The following EEO directives are accessible on OSC’s intranet:
“EEO, Non-Discrimination,
and Anti-Harassment Policy”
OSC Directive 1400-51
“Procedures for Accommodation
of Persons with Disabilities”
OSC Directive 1400-52
* OSC is currently in the process of updating the EEO Directive and creating a
separate Anti-Harassment Policy
28
OSC EEO Counselors
HEADQUARTERS
James Booker (202) 254-3675
Mariama Liverpool (202) 254-3609
1730 M. St., N.W. (Suite 300)
Washington, D.C. 20036-4505
DETROIT FIELD OFFICE
Lovie Jones
211 West Fort Street, Room 521
Detroit, MI 48226
Telephone: (313) 226-4441, ext. 6221
DALLAS FIELD OFFICE
Anne Edgette
525 Griffin Street (Room 824, Box #103)
Dallas, TX 75202
Telephone: (214) 747-1519, ext. 4233
SAN FRANCISCO BAY AREA FIELD OFFICE
Kristi van Greunen
Oakland Federal Building
1301 Clay Street (Suite 1220N)
Oakland, CA 94612-5217
Telephone (510) 637-3464, ext. 5227
29
Acting OSC EEO Director
Shirine Moazed
1730 M. St, N.W., Suite 300
Washington, DC 20036-4505
Telephone (202) 254-3600
30
Congratulations!
You have now completed the No FEAR Act training of 2013. Please
complete your certification statement and email it to Osborne Mack.
31