EEO COMPLIANCE FOR MANAGERS AND SUPERVISORS

MONTGOMERY COUNTY EEO COMPLIANCE AND DIVERSITY

MANAGEMENT DIVISION

EEO Team

EEO Officer Angela Washington

InvestigatorPatricia Miller

InvestigatorAlicia Valentin

EEO Compliance and DiversityManagement Division

Angela J. Washington, EEO Officer 240-777-5015 angela.washington@montgomerycountymd.gov

Patricia Y. Miller, Investigator 240-777-5052 patricia.miller@montgomerycountymd.gov

Alicia Valentin, Investigator 240-777-5087 Alicia.valentin2@montgomerycountymd.gov 3

TRENDS WHAT DO YOU SEE WHAT IMPACTS TRENDS WHAT IS YOUR ROLE NOW HOW DOES YOUR ROLE IMPACT TRENDS

AND WORK CULTURE

TRENDS

EMPLOYEES ARE FILING MORE INTERNAL COMPLAINTS EMPLOYEES ARE FILING MORE (PARALLEL) EXTERNAL COMPLAINTS EMPLOYEES ARE FILING EXTERNAL COMPLAINTS FASTER (AND

MULTIPLE CLAIMS) EMPLOYEES ARE KEEPING MORE DETAILED RECORDS OF

MANAGEMENT CONDUCT, REPORTING AND COMPARABLES EMPLOYEES ARE FILING MORE RETAILATION COMPLAINTS (WITH

ASSOCIATED DEMAND FOR DAMAGES OR REINSTATEMENT) EMPLOYEES ARE ALLEGING DAMAGES FOR PSYCHOLOGICAL

CONDITIONS ASSOCIATED WITH CLAIM EMPLOYEES ARE SEEKING LEGAL REPRESENTATION FASTER EMPLOYEES ARE SEEKING LEGAL REPRESENTAION IN LIEU OF USING

THE UNION OR FILING LABOR RELATED CLAIMS ON THE SAME ISSUE

TRENDS*INCREASE IN DISCRIMINATION COMPLAINTS ON THE BASIS OF

RACE (termination, failure to promote, disciplinary action, derogatory racial names)

DISABILITY (regarded as, denial of ADAA accommodation, unequal treatment) and

AGE (RIP, RIF, promotional opportunity)

*FMLA-Increase in requests, denials, claims, inconsistent application

*Claim of psychological issues of employees by management or by employees (stress, depression)

*INCREASE OF RETALIATION COMPLAINTSPost EEO complaint or complaint and including EEO component

Trends in management MANAGING A HYBRID OF SWORN AND CIVIILIAN, UNION/

NON-UNION, PERMANENT, CONTRACTORS GREATER INTERACTION WITH CIVILIANS AND THE

GENERAL PUBLIC MANAGING MORE DIVERSE WORKFORCE….OR NOT

CHANGE BACK TO A LACK OF DIVERSITY MANAGING NEW AND MULTIPLE GENERATION OF

EMPLOYEES COMMUNITY ACCOUNTABILITY EMPLOYEES “BREAKING RANKS” BY FILING COMPLAINTS

(IAD AND EXTERNAL) MANAGERS/SUPERVISOR WEARING MANY “HATS” INCREASED ROLE AS FIRST POINT OF CONTACT WITH

COMPLAINT, INCREASED INVESTIGATORY ROLE

Jurisdiction of EEO Division ONLY ADDRESSES INTERNAL COMPLAINTS

COMPLAINTS FILED BY EMPLOYEES AGAINST EMPLOYEES

COMPLAINTS FILED BY THE PUBLIC, THE SERVICE POPULATIONS, VENDORS OR CONTRACTORS AGAINST EMPLOYEES

COMPLAINTS FILED BY COUNTY EMPLOYEES AGAINST THE PUBLIC, VENDOR, SERVICE POPULATION , AND CONTRACTORS

COMPLAINTS MUST HAVE AN EEO ALLEGATION, EVEN IF THERE ARE LABOR OR EMPLOYEE RELATIONS ISSUE

Scope of Authority *ONLY ADDRESSES INTERNAL COMPLAINTS

*COMPLAINTS FILED BY EMPLOYEES AGAINST EMPLOYEES

*COMPLAINTS FILED BY THE PUBLIC AGAINST EMPLOYEES

*COMPLAINTS FILED AGAINST COUNTY EMPLOYEES

DISCRIMINATION LAWS Title VII of the Civil Rights Act of 1964

Prohibits discrimination based on race, color, religion, national origin, sex.

RaceIncrease of complaintsComplaints “reverse” discrimination, label of racistMulti-racial groups

Workforce representing the community we serveNational Origin

English onlyAccentsFood, dress, culture in the workplaceParamilitary organization, chain of command

ColorReligion

Accommodation issuesChanging obligation related to religion in the workplace

S

DISCRIMINATION LAWS Cont….Color

ReligionAccommodation issues

Changing obligation related to religion in the workplace

SexSame SexTransgenderSexual OrientationGender IdentitySexual HarassmentPregnancy Discrimination ActionLactation policies and rights

State and local laws Article 49B Annotated Maryland Code

prohibits discrimination on the basis of marital status, sexual orientation gender identity, genetics and age (any age).

Chapter 27 Montgomery County Code prohibits discrimination on the same bases as title VII , ADA, ADEA, Article 49B, marital status, sexual orientation, genetic status, gender identity, family responsibilities and age.

SCENARIOA Muslim employee request to pray during his/her shift.

Do you approve the request? What are other issues? Can I limit time, location of prayer? What if there is an emergency?

Religious accommodation Requests

Scheduling (always, never); observance, grooming, attire (Hijab/turban).

Increase in the denial of claims, ignore requests Reasonable Accommodation

Voluntary shift swap Finding replacement Interaction process Does not require

Mandatory shift swap/switch Overtime for replacement Violation of CBA Allowing employees to work 10/4Is there a policy/directive? Who approves such requests?

SCENARIO Employees in a daily meeting always banter and

joke about each other. Sometimes the jokes are about race, religion or sex. John has been in roll call and heard the jokes and never complained. Now, he comes to you and complains about it…but he never even bothers to tell the offending employees to stop.

How do you handle this complaint when they never told them to stop?

What if John also told a joke once or twice, too?

Workplace Harassment-How to define it intimidating’ ‘Hostile’ ‘offensive’ Define by victim-reasonable person, not police culture, agency culture

Factors you should think about Rank, grade, longevity Victim’s protected class for example- age, national origin, sex,

orientation Perceived authority Are they commonly understood terms (culture, age, gender, work

history, background? Nature of conduct

Physical, not appropriate, humiliating, in presence of peers, in open forum, “private” conversations, off duty, repeated, egregious, authority of harasser, impact on victim, work culture, culture not to complain, team culture, snitch label, who has dominated workplace, workplace history

Issue of on-duty versus off-duty conduct, department sponsored event, informal or casual gatherings, failure to report

What culture do you set? Who do you allow in the workplace?

‘

Workplace Harassment-How to define it cont…..

Physical, not appropriate, humiliating, in presence of peers, in open forum, “private” conversations, off duty, repeated, egregious, authority of harasser, impact on victim, work culture, culture not to complain, team culture, snitch label, who has dominated workplace, workplace history

Issue of on-duty versus off-duty conduct, department sponsored event, informal or casual gatherings, failure to report

What culture do you set? Who do you allow in the workplace?

Examples of Harassing Behaviors

Verbal Visual Physical Written

*Unwelcome or offensive comments*racial jokes*sexually oriented teasing *offensive comments about a particular gender, race, or group

*Offensive Pictures/photos, cartoons, posters, calendars,magazines, objects, screen savers,*inappropriate internet use*obscene videos, gestures

*Unwelcome touching, hugging, kissing, patting, stroking, standing too close, ogling

*Unwelcome personal *suggestive letters,*notes,*offensive e-mails, emailed photos or jokes or links to offensive sites

NEW AREAS TEXTUAL HARASSMENT INTERNET, FACEBOOK, TWEETING OFF DUTY CONDUCT-ON DUTY VIOLATIONS “WORK CULTURE” ISSUES Use of agency email system Use of agency phones to text Use of phone both on and off duty Social media

Different forums What you say or do Pictures Social Media Off duty; nexus to work Can we discipline employees for derogatory posts?

SCENARIO A female employee advises you that she is

pregnant. She is currently out in the field, in a physically demanding job.

Can you modify her job duties? What if she works as a corrections officer, firefighter or has to move large

boxes of alcohol at DLC? Can you automatically place her on light duty? What are other issues?

Scenario The female employee returns to work, post

childbirth. She advised you, as the supervisor, that she needs to pump breast milk.

What are your obligations? Can you just advise her to do so in the

bathroom. What are other issues?

PREGNANCY DISCRIMINATION ACT

May not discriminate on the basis of pregnancy, childbirth or related conditions Cannot exclude from hazardous jobs “Fetal protection policies” Adopting pregnancy policies Lactation policies and rights Light duty

Denial (Suffolk County NY) Automatic light duty (Bryan County, OK, Mass State

Troopers) FLSA-EXPRESSING MILK AND REASONABLE BREAKS

Federal Laws

Age Discrimination in Employment Act of 1967 (ADEA) Prohibits employment discrimination against individuals age 40

and over. Examples: RIFs, diminished responsibility, lack of opportunity

for advancement, specialized training, specialized units, forced retirement, “parking employees” and unfavorable assignment

Can you propose retirement to your older employees? What if you want to protect them from the COVID-19 virus,

because they are identified as “at-risk” based on their age. Can you mandate leave? Can you ask who is over 60?

How do you prepare for succession planning?

Generational Issue TRADITIONAL 1925-1945 BABY BOOMERS 1946-1964 GENERATION X 1965-1980 MILLENIAL/GENERATION Y 1981-2022

WORK HABITS COMMUNICATION PROBLEM SOLVING CHAIN OF COMMAND WORK LIFE ISSUE

Generational groupings TRADITIONALS Respect authority, duty before pleasure, value honor and integrity, avoid

challenging system, career employees BABY BOOMERS Supervisors, executives, live to work, team/process oriented, preserve youth,

nostalgia, overachievers GENERATION X Loners, work to live, contract in job, clear, consistent expectation, technology,

money tied to employment. GENERATION Y Live in moment, tech-savvy, need it now, change, diverse, clear expectations,

contractual relationship, challenge and change system

Americans With Disabilities Act of 1990

Prohibits discrimination against qualified individuals with disabilities. A qualified individual with a disability is one who:

Has a physical or mental impairment that substantially limits one or more major life activities;

Has a record of such an impairment; or Is regarded as having such an impairment.

What is a qualified person with a disability? Has a physical or mental impairment that

substantially limits one or more major life activities;

Has a record of such impairment; or Is regarded as having such an impairment Employees are required to perform the

essential functions of the position

ADAWhat is an impairment?

Includes physical, physiological as well as mental or psychological conditions. A physiological impairment is a disorder or condition, a cosmetic disfigurement or an anatomical loss affecting any of the major body systems.

A psychological or mental impairment includes most disorders, such as mental retardation, organic brain syndrome, emotional or mental illness and special learning disabilities. Under this inclusive definition of "impairment" a broad range of conditions have been protected under the ADA, including:

Depression, back problems, AIDS, epilepsy, diabetes, blindness schizophrenia, mobility impairments , cognitive, concentrate and interact with others

ADADuty to reasonably accommodate unless doing so creates an undue hardship.

Undue hardship is any change, deletion, or addition of circumstances that would cause significant difficulty to the employer; as determined by:

the nature or cost of the accommodation needed; the impact of the accommodation on the

operation of the facility;

Failure to accommodate or delay is a form of discrimination.

ADA

The term "major life activity" has been expansively defined. Court Decisions in various jurisdictions now include the ability to:

Provide self-care Perform manual tasks Walk, see, hear, speak reproduce, breathe learn, work, sit, stand, lift or reach, think, cognitive, concentrate and interact with others

Examples of Accommodations Equipment, assistive devices Modification of job duties Job restructuring Physical changes to workspace Leave Modified schedule

Must be qualified No permanent light duty Must be able to perform essential job functions What if they “look or seem” fine” I heard they played sports on the weekend or have another

job..what can I do? Can I just give them the accommodation without going through the

whole process in OMS? Undue hardship defense

H d Fit f Dt Eiti k ith th ADA

Examples of Accommodationscont……

Must be qualified No permanent light duty Must be able to perform essential job functions What if they “look or seem” fine” I heard they played sports on the weekend or have

another job. what can I do? Can I just give them the accommodation without going

through the whole process in OMS? Undue hardship defense How does a Fitness for Duty Examination work with the

ADA

SCENARIO Brooke Smith has advanced stages of

Parkinson disease and cannot work in the Patrol Division anymore. She has been a good employee with 24 years of service as a Police Officer.

Can we simply assign her in a unit where she does not have to use her police powers?

What are other issues?

Must be qualified Who is a "qualified employee?"

An individual with a disability must also be qualified in order to be protected from discrimination by the ADA.

A person with a disability is a qualified if he or she meets the legitimate skills, experience, education or other requirements of the position he or she seeks or holds.

Can they perform the functions of a police officer v officer in a specific unit?

Are they simply an employee in DOT or more specifically a bus operator?-does it matter?

What not to do…. Do not assume or imply that an employee has a

disability (regarding) Do not make accommodations without an

appropriate medical evaluation (too strict or liberal accommodations)

Do not disseminate medical information (broadcast, flowers)

Do not discuss medical condition with workforce Do not consider in employment decisions-

comparing restrictions not conditions Procrastinate on decision

FITNESS FOR DUTY OBJECTIVE EVIDENCE THAT THE

EMPLOYEE IS UNABLE TO SAFELY OR EFFECTIVELY PERFORM JOB

REASONABLE BASIS THAT THE CAUSE IS TIED TO A CONDITION OR IMPAIRMENT

CRITICAL ISSUE-NEXUS

Fit For Duty MAY MANIFEST

PERFORMANCE ISSUES CONDUCT (EX. EXCESSIVE FORCE, JUDGEMENT

ISSUES) EMOTIONAL/PSYCHOLGICAL OFF DUTY CONDUCT ADA V FFD DIRECT THREAT WHY NOT USED-performance, non-performance related OUTCOMES FIT, UNFIT

SCENARIO In this case, you have two employees who

have a new-born child. Can both use FMLA for the birth of the

child? If not, who can use it? If so, how much time for each employee?

FMLA Required 12 months work prior, 1250 hours Calculating 12 months 1250 hours

Actual time worked, not leave Eligible for 12 week consecutive or intermittent Medical certification and recertification FMLA qualifying leave Married employees

FMLA Agency policy Can mandate use of leave, cannot include comp

leave because of Federal tax laws Can begin after 3 days Can be on LWOP for part/all of period Birth of child, serious medical condition, impatient

care, continuing treatment Retaliation, denial, shortening leave Notification of denial

Retaliation

A form of sanction or adverse action against an individual because that individual:(1) was opposed to the discrimination/harassment; or(2) assisted another person in filing a discrimination/harassment complaint in either a formal or informal manner with the County, state, or federal agency; or(3) testified, assisted, or participated in an investigation or proceeding related to a discrimination/harassment complaint.

Example: employee files an EEO complaint, one week later, employer terminates the employee.

Retaliatory ActsLowered the previous standard of “tangible adverse

actions;”

Includes acts that dissuade a “reasonable worker” from making or supporting a charge of discrimination;

Includes actions or harms that do not occur at the workplace;

Includes reassignment of duties/responsibilities.

What if they are just complaining because of performance issues?

They were a “bad employee” anyway! I don’t believe it!

Supervisors/managers and training mandates Prevention workplace harassment training required for all

employees, including supervisors and managers, on 3-year cycle

EEO Compliance training required for all supervisors and managers on a 4-year cycle

New employees are required to take the Preventing workplace harassment training within 90 days.

Make sure your employee are in compliance. Your failure to require training may impact an EEO

investigation and raise a failure to train issue.

Supervisory issue, with EEO implications… SUCCESSION PLANNING ON-BOARDING/MENTORING RECRUITMENT DIVERSITY “REVERSE” DISCRIMINATION NO COMMITTED RESOURCES IMPACT OF BUDGET ON WORKFORCE ATTRITION RECRUITMENT COMPENSATION/BENEFITS TRAINING SUPPLIES OVERTIME/PARTTIME

Hiring,recruitment and promotion You must use proactive measures to increase your

workforce, increase diversity Cannot use demographic data illegally with quotas, or

“affirmative action” measures You should evaluate the workforce and look at needs. You must look at entire recruitment and selection process

for inclusion, equity, diversity and artificial barriers to hiring Re-define “diversity” Constantly self assess and review the process and

outcomes…what worked and what can we do differently or better?

Background checks “hot button” issue with EEOC 92% have some kind of background check 50 % final disposition Public records inaccurate Why Adverse impact Adverse treatment Must be job specific How to consider a criminal background Blanks exclusions

Arrests The fact of an arrest does not establish that

criminal conduct has occurred. Arrests are not proof of criminal conduct. Many arrests do not result in criminal

charges, or the charges are dismissed. Even if an individual is charged and

subsequently prosecuted, he is presumed innocent unless proven guilty.

Convictions Determining whether a Criminal Conduct Exclusion Is Job Related and

Consistent with Business Necessity To establish that a criminal conduct exclusion that has a disparate

impact is job related and consistent with business necessity under Title VII, the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.

Two circumstances in which the Commission believes employers will consistently meet the “job related and consistent with business necessity” defense are as follows:

The employer validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines) standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); or

Convictions cont…. The employer develops a targeted screen

considering at least the nature of the crime, the time elapsed, and the nature of the job (the three Green factors), and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.

Green factors The nature and gravity of the offense or

conduct; The time that has passed since the offense

or conduct and/or completion of the sentence; and

The nature of the job held or sought.

Individualized assessment

Individualized assessment generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.

The individual’s showing may include information that he was not correctly identified in the criminal record, or that the record is otherwise inaccurate. Other relevant individualized evidence includes, for example:

The facts or circumstances surrounding the offense or conduct; The number of offenses for which the individual was convicted;

Individualized assessment cont…. Older age at the time of conviction, or release from prison; Evidence that the individual performed the same type of

work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;

The length and consistency of employment history before and after the offense or conduct;

Rehabilitation efforts, e.g., education/training; Employment or character references and any other

information regarding fitness for the particular position; and

Whether the individual is bonded under a federal, state, or local bonding program.

Scenario The agency has a blanket policy that all

arrests and convictions are automatic disqualifiers for jobs with the agency. This includes both sworn and civilian.

Is this a good policy? Are there any issues?

Mis-use of record Example: Exclusion Is Not Job Related and

Consistent with Business Necessity. Leo, an African American man, has worked successfully at PR Agency as an account executive for three years. After a change of ownership, the new owners adopt a policy under which it will not employ anyone with a conviction. The policy does not allow for any individualized assessment before exclusion.

Supervisor’s Responsibilities:

Recognizing a Complaint

Through casual conversation with the employee or others (co-workers, other supervisors), such as lunchroom conversations.

“Just between you and me” and “off the record” conversations. Office gossip and rumors. “Informal” notes, emails, or other correspondence. Internal reports, incident reports, IAD, or formal complaints. Any other written documentation implying or stating

allegations of discrimination. Notification You are picked because of your title/rank

Reporting EEO Complaint Consult with department HR staff/manager Consult with EEO Division-is it an EEO issue? Must report to County EEO Division Jurisdictional issues

Departmental IAD or HR EEO Division Departmental IAD/HR & EEO External Compliance

Employees have other options to file EEO Complaint externally

Do not retaliate against employees for filing with FEPA agencies. You may be required to work with the Office of the County Attorney on

responses Information on compliance agencies can be located at: The United States Equal Employment Opportunity Commission

https://www.eeoc.gov/employees/charge.cfm Maryland Commission on Civil Rights

https://mccr.maryland.gov/Pages/Intake.aspx Montgomery County Office of Human Rights http://www.montgomerycountymd.gov/humanrights/Resources/Files/I

NTAKE_FORM_2018.pdf

NON-EEO MATTERS MAY BE ADDRESSED BY YOUR SUPERVISOR/MANAGER, YOUR UNION, OR THE MONTGOMERY COUNTY OFFICE OF LABOR RELATIONS

Basis to file an EEO Complaint DISCRIMINATION (PRIMA FACIA CASE) 1.The employee is in a protected class 2.The employee was qualified for the position. For example, an

applicant who wasn't hired would have to show that he met the requirements for the job; an employee who was fired would have to show that she was performing the job adequately and meeting the employer's expectations.

3.The employee was rejected for the position -- in other words, the applicants was not hired, or the employee was not promoted or was fired.

4.An employee outside of the protected class was selected for the position, or the employer continued to look for candidates. For example, an employee who claims she was not promoted because she was a women could show that a man was promoted instead, or that the company continued to look for internal candidates after rejecting her.

Basis to file an EEO Complaint cont….. Burden shift to Respondent The employer must present some evidence of a legitimate,

nondiscriminatory motive for the challenged action or decision. Complainant The employee has an opportunity to prove that it's a pretext -- in other

words, that the employer's explanation is inaccurate, and is masking the employer's true discriminatory motive. For instance, if an employer claims that an employee was fired for misconduct, the employee might come forward with evidence that other employees who committed the same offense were not fired, that the employee did not actually commit misconduct, or that the employee's personnel file was altered during the lawsuit to make it look as if the employee had a long history of misconduct.

Respondent unsuccessful Direct evidence of discrimination comments, actions, written evidence Indirect Inconsistent application of standards discipline, performance evaluations, promotional standard, assignment of duties, leave, Exceptions to policy, procedure Lack of documentation regarding negative or poor performance Evidence of retaliation New management standards More difficult standards Scrutinizing employee Marked increase of disciplinary action “Freeze” employee out of operations, functions, Minimize job duties

Disparate treatment

in the employment context, refers to when a person is treated

differently from others. The different treatment is based on one or more of the protected factors and the different treatment is intentional.

This is distinguished from the concept of "adverse impact", which may

be unintentional and applies to a protected group rather than an

individual.

Disparate Impact

Adverse effect of a practice or standard that is neutral and non-discriminatory in its intention but, nonetheless,

Disproportionately affects individuals having a disability or belonging to a particular group based on their age,

ethnicity, race, sex or any other protected class. Hiring standards/test or Promotional opportunities

Standard for Investigation *MORE LIKELY THAN NOT PREPONDERANCE OF EVIDENCE

*NOT BEYOND A REASONABLE DOUBT

USE DIRECT EVIDENCE INDIRECT EVIDENCE CIRCUMSTANTIAL EVIDENCE CONTEMPORANEOUS CONVERSATIONS

Supervisors/Managers role Set example; “walk the talk” INVESTIGATE OR PROMPT REFERRAL TO IAD Move from out of trenches into supervisor/management role CULTURE of organization Require training for supervisors and workforce Monitor workplace behaviors Be accessible; “open door policy” Regular communication (staff meetings) Enforce respect in the workplace and avoid borderline behaviors Reiterate and reinforce EEO policies Include and consider “diversity and EEO” in all aspects of your business

practices Avoid illegal practices in the “furtherance of diversity”

Questions

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