OSC 2006 NO FEAR ACT TRAINING

YOUR RIGHTS AND REMEDIES UNDER FEDERAL

ANTIDISCRIMINATION AND WHISTLEBLOWER PROTECTION

LAWS

U.S. OFFICE OF SPECIAL COUNSEL

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What is the No Fear Act?What is the No Fear Act?

On May 15, 2002, Congress enacted theOn May 15, 2002, Congress enacted the “ “Notification and Federal Employee Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002,” Antidiscrimination and Retaliation Act of 2002,” which is now known as the No FEAR Act. which is now known as the No FEAR Act.

One purpose of the Act is to “require that Federal One purpose of the Act is to “require that Federal agencies be accountable for violations of agencies be accountable for violations of antidiscrimination and whistleblower protection antidiscrimination and whistleblower protection laws.” laws.”

To this end, the No FEAR Act requires that all To this end, the No FEAR Act requires that all federal agencies train employees about the rights federal agencies train employees about the rights and remedies available to them under the and remedies available to them under the Antidiscrimination Laws and Whistleblower Antidiscrimination Laws and Whistleblower Protection Laws applicable to them. Protection Laws applicable to them.

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Federal Antidiscrimination LawsFederal Antidiscrimination Laws

““Federal Antidiscrimination Laws” refers to:Federal Antidiscrimination Laws” refers to:

5 U.S.C. 2302(b)(1)5 U.S.C. 2302(b)(1) 5 U.S.C. 2302(b)(9), as applied to conduct described in 5 5 U.S.C. 2302(b)(9), as applied to conduct described in 5

U.S.C. 2302(b)(1)U.S.C. 2302(b)(1) 29 U.S.C. 206(d)29 U.S.C. 206(d) 29 U.S.C. 63129 U.S.C. 631 29 U.S.C. 633a29 U.S.C. 633a 29 U.S.C. 791, and29 U.S.C. 791, and 42 U.S.C. 2000e–16.42 U.S.C. 2000e–16.

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““Federal Whistleblower Protection Laws”Federal Whistleblower Protection Laws”refers to:refers to:

5 U.S.C. 2302(b)(8) or 5 U.S.C. 2302(b)(9), 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. as applied to conduct described in 5 U.S.C. 2302(b)(8).2302(b)(8).

Click to begin the OSC No Fear Act Training.Click to begin the OSC No Fear Act Training.

Whistleblower Protection LawsWhistleblower Protection Laws

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The Sense of CongressThe Sense of Congress

The United States and its citizens are best served when The United States and its citizens are best served when the Federal workplace is free of discrimination and the Federal workplace is free of discrimination and retaliation. In order to maintain a productive workplace retaliation. In order to maintain a productive workplace that is fully engaged with the many important missions that is fully engaged with the many important missions before the Government, Congress noted that it is before the Government, Congress noted that it is essential that the rights of employees, former employees essential that the rights of employees, former employees and applicants for Federal employment under Federal and applicants for Federal employment under Federal antidiscrimination and whistleblower protection laws be antidiscrimination and whistleblower protection laws be steadfastly protected. Congress also stated that steadfastly protected. Congress also stated that agencies cannot be run effectively if those agencies agencies cannot be run effectively if those agencies practice or tolerate discrimination.practice or tolerate discrimination.

File

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Race DiscriminationRace Discrimination

Title VII of the Civil Rights Act of 1964 protects individuals Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the bases of race and against employment discrimination on the bases of race and color, as well as national origin, sex, and religion.color, as well as national origin, sex, and religion.

Equal employment opportunity cannot be denied any person Equal employment opportunity cannot be denied any person because of his/her racial group or perceived racial group, race-because of his/her racial group or perceived racial group, race-linked characteristics (linked characteristics (e.ge.g., hair texture, color, facial features), ., hair texture, color, facial features), or marriage to or association with someone of a particular race or marriage to or association with someone of a particular race or color. Title VII also prohibits employment decisions based on or color. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups.performance of individuals of certain racial groups.

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Race Discrimination Race Discrimination (continued)(continued)

It is unlawful to discriminate against any individual in regard to It is unlawful to discriminate against any individual in regard to recruiting, hiring and promotion, transfer, work assignments, recruiting, hiring and promotion, transfer, work assignments, performance measurements, the work environment, job performance measurements, the work environment, job training, discipline and discharge, wages and benefits, or any training, discipline and discharge, wages and benefits, or any other term, condition, or privilege of employment.other term, condition, or privilege of employment.

Title VII prohibits not only intentional discrimination, but also Title VII prohibits not only intentional discrimination, but also

neutral job policies that disproportionately affect persons of a neutral job policies that disproportionately affect persons of a certain race or color and that are not related to the job and the certain race or color and that are not related to the job and the needs of the business. Employers should adopt "best practices" needs of the business. Employers should adopt "best practices" to reduce the likelihood of discrimination and to address to reduce the likelihood of discrimination and to address impediments to equal employment opportunity.impediments to equal employment opportunity.

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National Origin DiscriminationNational Origin Discrimination

National origin discrimination means treating someone less favorably National origin discrimination means treating someone less favorably because he or she comes from a particular place, because of his or her 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 ethnicity or accent, or because it is believed that he or she has a particular ethnic background. National origin discrimination also particular ethnic background. National origin discrimination also means treating someone less favorably at work because of marriage or means treating someone less favorably at work because of marriage or other association with someone of a particular nationality.other association with someone of a particular nationality.

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What is National Origin What is National Origin Discrimination?Discrimination?

Examples of violations include:Examples of violations include:

Employment DecisionsEmployment DecisionsTitle VII prohibits any employment decision, including Title VII prohibits any employment decision, including recruitment, hiring, and firing or layoffs, based on national origin. recruitment, hiring, and firing or layoffs, based on national origin.

HarassmentHarassmentTitle VII prohibits offensive conduct, such as ethnic slurs, that Title VII prohibits offensive conduct, such as ethnic slurs, that creates a hostile work environment based on national origin. creates a hostile work environment based on national origin. Employers are required to take appropriate steps to prevent and Employers are required to take appropriate steps to prevent and correct unlawful harassment. Likewise, employees are correct unlawful harassment. Likewise, employees are responsible for reporting harassment at an early stage to prevent responsible for reporting harassment at an early stage to prevent its escalation.its escalation.

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Language Discrimination Language Discrimination

Accent discriminationAccent discriminationAn employer may not base a decision on an employee's foreign An employer may not base a decision on an employee's foreign accent unless the accent materially interferes with job accent unless the accent materially interferes with job performance.performance.

English fluencyEnglish fluencyA fluency requirement is only permissible if required for the A fluency requirement is only permissible if required for the effective performance of the position for which it is imposed.effective performance of the position for which it is imposed.

English-only rulesEnglish-only rulesEnglish-only rules must be adopted for nondiscriminatory English-only rules must be adopted for nondiscriminatory reasons. An English-only rule may be used if it is needed to reasons. An English-only rule may be used if it is needed to promote the safe or efficient operation of the employer's promote the safe or efficient operation of the employer's business.business.

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Non-citizens Non-citizens

Coverage of foreign nationalsCoverage of foreign nationals

Title VII and the other antidiscrimination laws prohibit Title VII and the other antidiscrimination laws prohibit discrimination against individuals employed in the United discrimination against individuals employed in the United States, regardless of citizenship. However, relief may be States, regardless of citizenship. However, relief may be limited if an individual does not have work authorization.limited if an individual does not have work authorization.

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Religious DiscriminationReligious Discrimination

Title VII of the Civil Rights Act of l964Title VII of the Civil Rights Act of l964 prohibits employers from prohibits employers fromdiscriminating against individuals because of their religion in hiring,discriminating against individuals because of their religion in hiring,firing, and other terms and conditions of employment. Title VII covers firing, and other terms and conditions of employment. Title VII covers employers with 15 or more employees, including state and local employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.organizations, as well as to the federal government.

Under Title VII:Under Title VII:

Employers may not treat employees or applicants more or less Employers may not treat employees or applicants more or less favorably because of their religious beliefs or practices (except to the favorably because of their religious beliefs or practices (except to the extent a religious accommodation is warranted). For example, an extent a religious accommodation is warranted). For example, an employer may not refuse to hire individuals of a certain religion, may employer may not refuse to hire individuals of a certain religion, may not impose stricter promotion requirements for persons of a certain not impose stricter promotion requirements for persons of a certain religion, and may not impose more or different work requirements on religion, and may not impose more or different work requirements on an employee because of that employee's religious beliefs or practices.an employee because of that employee's religious beliefs or practices.

Employees cannot be forced to participate – or not participate – in a Employees cannot be forced to participate – or not participate – in a religious activity as a condition of employment. religious activity as a condition of employment.

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Reasonable AccommodationReasonable Accommodation

Employers must reasonably accommodate employees' sincerely Employers must reasonably accommodate employees' sincerely held religious practices unless doing so would impose an undue held religious practices unless doing so would impose an undue hardship on the employer. A reasonable religious accommodation hardship on the employer. A reasonable religious accommodation is any adjustment to the work environment that will allow the is any adjustment to the work environment that will allow the employee to practice his religion. An employer might employee to practice his religion. An employer might accommodate an employee's religious beliefs or practices by accommodate an employee's religious beliefs or practices by allowing: flexible scheduling, voluntary substitutions or swaps, job allowing: flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers, modification of grooming reassignments and lateral transfers, modification of grooming requirements and other workplace practices, policies and/or requirements and other workplace practices, policies and/or procedures. procedures.

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Undue HardshipUndue Hardship

An employer is An employer is not required to accommodate an employee's religious not required to accommodate an employee's religious beliefs and practices if doing so would impose an undue hardship on the beliefs and practices if doing so would impose an undue hardship on the employer’s legitimate business interests. An employer can show undue employer’s legitimate business interests. An employer can show undue hardship if accommodating an employee's religious practices requires hardship if accommodating an employee's religious practices requires more than ordinary administrative costs, diminishes efficiency in other more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees' job rights or benefits, impairs jobs, infringes on other employees' job rights or benefits, impairs workplace safety, causes co-workers to carry the accommodated workplace safety, causes co-workers to carry the accommodated employee's share of potentially hazardous or burdensome work, or if the employee's share of potentially hazardous or burdensome work, or if the proposed accommodation conflicts with another law or regulation.proposed accommodation conflicts with another law or regulation.

Employers must permit employees to engage in religious expression, Employers must permit employees to engage in religious expression, unless the religious expression would impose an undue hardship on the unless the religious expression would impose an undue hardship on the employer. Generally, an employer may not place more restrictions on employer. Generally, an employer may not place more restrictions on religious expression than on other forms of expression that have a religious expression than on other forms of expression that have a comparable effect on workplace efficiency.comparable effect on workplace efficiency.

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Religious HarassmentReligious Harassment

Employers must take steps to prevent religious harassment Employers must take steps to prevent religious harassment of their employees. An employer can reduce the chance that of their employees. An employer can reduce the chance that employees will engage unlawful religious harassment by employees will engage unlawful religious harassment by implementing an anti-harassment policy and having an implementing an anti-harassment policy and having an effective procedure for reporting, investigating and effective procedure for reporting, investigating and correcting harassing conduct.correcting harassing conduct.

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Pregnancy DiscriminationPregnancy Discrimination

The Pregnancy Discrimination Act is an amendment The Pregnancy Discrimination Act is an amendment to to Title VII of the Civil Rights Act of 1964Title VII of the Civil Rights Act of 1964. . Discrimination on the basis of pregnancy, childbirth, Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex or related medical conditions constitutes unlawful sex discrimination under Title VII. Title VII also applies discrimination under Title VII. Title VII also applies to employment agencies and to labor organizations, to employment agencies and to labor organizations, as well as to the federal government. Women who as well as to the federal government. Women who are pregnant or affected by related conditions must are pregnant or affected by related conditions must be treated in the same manner as other applicants or be treated in the same manner as other applicants or employees with similar disabilities or limitations.employees with similar disabilities or limitations.

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HiringHiring

An employer cannot refuse to hire a pregnant woman An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related because of her pregnancy, because of a pregnancy-related condition or because of the prejudices of co-workers, condition or because of the prejudices of co-workers, clients, or customers.clients, or customers.

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Maternity LeaveMaternity Leave

An employer may not single out pregnancy-related conditions An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to for special procedures to determine an employee's ability to work. However, if an employer requires its employees to work. However, if an employer requires its employees to submit a doctor's statement concerning their inability to work submit a doctor's statement concerning their inability to work before granting leave or paying sick benefits, the employer may before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to require employees affected by pregnancy-related conditions to submit such statements.submit such statements.

If an employee is temporarily unable to perform her job due to If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform allows temporarily disabled employees to modify tasks, perform alternative assignments or take disability leave or leave without alternative assignments or take disability leave or leave without pay, the employer also must allow an employee who is pay, the employer also must allow an employee who is temporarily disabled due to pregnancy to do the same.temporarily disabled due to pregnancy to do the same.

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Pregnancy Discrimination Pregnancy Discrimination (continued)(continued)

Pregnant employees must be permitted to work as long as Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on and recovers, her employer may not require her to remain on leave until the baby's birth. An employer also may not have a leave until the baby's birth. An employer also may not have a rule that prohibits an employee from returning to work for a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.predetermined length of time after childbirth.

Employers must hold open a job for a pregnancy-related Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for absence the same length of time jobs are held open for employees on sick or disability leave.employees on sick or disability leave.

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Health InsuranceHealth Insurance

Any health insurance provided by an employer must cover Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as expenses for pregnancy-related conditions on the same basis as costs for other medical conditions. Health insurance for expenses costs for other medical conditions. Health insurance for expenses arising from abortion is not required, except where the life of the arising from abortion is not required, except where the life of the mother is endangered.mother is endangered.

Pregnancy-related expenses should be reimbursed exactly as those Pregnancy-related expenses should be reimbursed exactly as those incurred for other medical conditions, whether payment is on a incurred for other medical conditions, whether payment is on a fixed basis or a percentage of reasonable-and-customary-charge fixed basis or a percentage of reasonable-and-customary-charge basis.basis.

The amounts payable by the insurance provider can be limited only The amounts payable by the insurance provider can be limited only to the same extent as amounts payable for other conditions. No to the same extent as amounts payable for other conditions. No additional, increased, or larger deductible can be imposed.additional, increased, or larger deductible can be imposed.

Employers must provide the same level of health benefits for Employers must provide the same level of health benefits for spouses of male employees as they do for spouses of female spouses of male employees as they do for spouses of female employees.employees.

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Fringe BenefitsFringe Benefits

Pregnancy-related benefits cannot be limited to married Pregnancy-related benefits cannot be limited to married employees. In an all-female workforce or job classification, employees. In an all-female workforce or job classification, benefits must be provided for pregnancy-related conditions benefits must be provided for pregnancy-related conditions if benefits are provided for other medical conditions.if benefits are provided for other medical conditions.

If an employer provides any benefits to workers on leave, If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on the employer must provide the same benefits for those on leave for pregnancy-related conditions.leave for pregnancy-related conditions.

Employees with pregnancy-related disabilities must be Employees with pregnancy-related disabilities must be treated the same as other temporarily disabled employees treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.pay increases, and temporary disability benefits.

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Sex DiscriminationSex Discrimination

It is unlawful to discriminate against any employee or It is unlawful to discriminate against any employee or applicant for employment because of his/her sex in regard applicant for employment because of his/her sex in regard to hiring, termination, promotion, compensation, job to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of training, or any other term, condition, or privilege of employment. Title VII also prohibits employment decisions employment. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, based on stereotypes and assumptions about abilities, traits, or the performance of individuals on the basis of traits, or the performance of individuals on the basis of sex. Title VII prohibits both intentional discrimination and sex. Title VII prohibits both intentional discrimination and neutral job policies that disproportionately exclude neutral job policies that disproportionately exclude individuals on the basis of sex and that are not job-related.individuals on the basis of sex and that are not job-related.

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Sexual HarassmentSexual Harassment

Title VII's prohibitions against sex-based discrimination also Title VII's prohibitions against sex-based discrimination also covers:covers:

Sexual HarassmentSexual HarassmentThis includes practices ranging from direct requests for sexual This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment.for persons of either gender, including same sex harassment.

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Equal PayEqual Pay

The The Equal Pay Act of 1963Equal Pay Act of 1963 requires that men and women be requires that men and women be given equal pay for equal work in the same establishment. The given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal. jobs need not be identical, but they must be substantially equal. Title VII also prohibits compensation discrimination on the Title VII also prohibits compensation discrimination on the basis of sex. Unlike the Equal Pay Act, however, Title VII does basis of sex. Unlike the Equal Pay Act, however, Title VII does not require that the claimant's job be substantially equal to that not require that the claimant's job be substantially equal to that of a higher paid person of the opposite sex or require the of a higher paid person of the opposite sex or require the claimant to work in the same establishment.claimant to work in the same establishment.

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Disability DiscriminationDisability Discrimination

Title I of the Americans with Disabilities Act of 1990 (ADA) Title I of the Americans with Disabilities Act of 1990 (ADA) prohibits private employers, state and local governments, prohibits private employers, state and local governments, employment agencies and labor unions from discriminating employment agencies and labor unions from discriminating against qualified individuals with disabilities in job against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and compensation, job training, and other terms, conditions, and privileges of employment.privileges of employment.

The ADA's nondiscrimination standards apply to federal The ADA's nondiscrimination standards apply to federal sector employees under section 501 of the Rehabilitation sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules and regulations.Act, as amended, and its implementing rules and regulations.

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What is a Disability?What is a Disability?

An individual with a disability is a person who:An individual with a disability is a person who:

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

Has a record of such an impairment; orHas a record of such an impairment; or

Is regarded as having such an impairment. Is regarded as having such an impairment.

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Reasonable AccommodationReasonable Accommodation

A qualified employee or applicant with a disability is an A qualified employee or applicant with a disability is an individual who, with or without reasonable individual who, with or without reasonable accommodation, can perform the essential functions of the accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, job in question. Reasonable accommodation may include, but is not limited to:but is not limited to:

Making existing facilities used by employees readily Making existing facilities used by employees readily accessible to and usable by persons with disabilities;accessible to and usable by persons with disabilities;

Job restructuring, modifying work schedules, Job restructuring, modifying work schedules, reassignment to a vacant position; reassignment to a vacant position;

Acquiring or modifying equipment or devices, adjusting Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or or modifying examinations, training materials, or policies, and providing qualified readers or interpreters. policies, and providing qualified readers or interpreters.

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Reasonable AccommodationReasonable Accommodation(continued)(continued)

An employer is required to make a reasonable accommodation An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the would not impose an "undue hardship" on the operation of the employer's business. Undue hardship is defined as an action employer's business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources, light of factors such as an employer's size, financial resources, and the nature and structure of its operation.and the nature and structure of its operation.

An employer is not required to lower quality or production An employer is not required to lower quality or production standards to make an accommodation; nor is an employer standards to make an accommodation; nor is an employer obligated to provide personal use items such as glasses or obligated to provide personal use items such as glasses or hearing aids.hearing aids.

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Medical Examinations and InquiriesMedical Examinations and Inquiries

Employers may not ask job applicants about the existence, Employers may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. A job offer about their ability to perform specific job functions. A job offer may be conditioned on the results of a medical examination, but may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in only if the examination is required for all entering employees in similar jobs. Medical examinations of employees must be job-similar jobs. Medical examinations of employees must be job-related and consistent with the employer's business needs. related and consistent with the employer's business needs.

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Drug and Alcohol AbuseDrug and Alcohol Abuse

Employees and applicants currently engaging in the illegal Employees and applicants currently engaging in the illegal use of drugs are not covered by the ADA when an use of drugs are not covered by the ADA when an employer acts on the basis of such use. Tests for illegal employer acts on the basis of such use. Tests for illegal drugs are not subject to the ADA's restrictions on medical drugs are not subject to the ADA's restrictions on medical examinations. Employers may hold illegal drug users and examinations. Employers may hold illegal drug users and alcoholics to the same performance standards as other alcoholics to the same performance standards as other employees. employees.

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Retaliation ProhibitedRetaliation Prohibited

It is unlawful to retaliate against an individual for opposing It is unlawful to retaliate against an individual for opposing employment practices that discriminate based on race, color, employment practices that discriminate based on race, color, religion, sex, age, national origin, pregnancy, or disability. It is religion, sex, age, national origin, pregnancy, or disability. It is also unlawful to retaliate against an individual for filing a also unlawful to retaliate against an individual for filing a discrimination charge, testifying, or participating in any way in discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation.an investigation, proceeding, or litigation.

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Age DiscriminationAge Discrimination

The Age Discrimination in Employment Act of The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 1967 (ADEA) protects individuals who are 40 years of age or older from employment years of age or older from employment discrimination based on age. The ADEA's discrimination based on age. The ADEA's protections apply to both employees and job protections apply to both employees and job applicants. Under the ADEA, it is unlawful to applicants. Under the ADEA, it is unlawful to discriminate against a person because of discriminate against a person because of his/her age with respect to any term, his/her age with respect to any term, condition, or privilege of employment, condition, or privilege of employment, including hiring, firing, promotion, layoff, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and compensation, benefits, job assignments, and training.training.

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Whistleblower ProtectionWhistleblower Protection5 U.S.C. 5 U.S.C. § § 2302 (b)(8)2302 (b)(8)

A federal employee authorized to take, direct others to A federal employee authorized to take, direct others to take, recommend or approve any personnel action may take, recommend or approve any personnel action may notnot engage in reprisal for whistleblowing – engage in reprisal for whistleblowing – i.ei.e., take, fail to ., take, fail to take, or threaten to take or fail to take a personnel action take, or threaten to take or fail to take a personnel action with respect to any employee or applicant because of:with respect to any employee or applicant because of:

Any disclosure of information by the employee or applicant Any disclosure of information by the employee or applicant that he or she reasonably believes evidences:that he or she reasonably believes evidences:

* A violation of a law, rule or regulation, * A violation of a law, rule or regulation, * Gross mismanagement,* Gross mismanagement,* Gross waste of funds,* Gross waste of funds,* Abuse of authority, or * Abuse of authority, or * A substantial and specific danger to public health * A substantial and specific danger to public health

or safety.or safety.

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Elements of Proof: Elements of Proof: Reprisal for WhistleblowingReprisal for Whistleblowing

5 U.S.C. §§ 1214(b)(4)(A)-(B), 1221(e)5 U.S.C. §§ 1214(b)(4)(A)-(B), 1221(e)

Must show –

Protected Disclosure of information under 5 U.S.C. § 2302(b)(8);

Personnel Action taken, not taken, or threatened;

Actual or constructive Knowledge of the protected disclosure; and

Protected disclosure was a Contributing Factor in the personnel action.

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Protected Whistleblower DisclosuresProtected Whistleblower Disclosures5 U.S.C. § 2302 (b)(8)5 U.S.C. § 2302 (b)(8)

Violation of any law, rule, or regulationViolation of any law, rule, or regulation

Substantial and specific danger to public health or safetySubstantial and specific danger to public health or safety

Gross waste of fundsGross waste of fundsMore than a debatable expenditure.More than a debatable expenditure.

Gross mismanagementGross mismanagementMore than More than de minimusde minimus wrongdoing or negligence – an wrongdoing or negligence – an action that creates a risk of significant adverse impact action that creates a risk of significant adverse impact on the accomplishment of an agency’s mission.on the accomplishment of an agency’s mission.

Abuse of authorityAbuse of authorityAn arbitrary or capricious exercise of power that An arbitrary or capricious exercise of power that injures another, or benefits the abuser or others.injures another, or benefits the abuser or others.

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Protected Whistleblower DisclosuresProtected Whistleblower Disclosures((continuedcontinued))

5 U.S.C. § 2302 (b)(8)5 U.S.C. § 2302 (b)(8)

Generally prohibited when made to Generally prohibited when made to any personany person (except the (except the wrongdoer).wrongdoer).

Need not be accurateNeed not be accurate to be protected. to be protected.

Protected if employee has a Protected if employee has a reasonable beliefreasonable belief that it is true – that it is true – test is both objective and subjective.test is both objective and subjective.

No requirementNo requirement that employee go through chain of command. that employee go through chain of command.

Whistleblower’s Whistleblower’s personal motivation does not affectpersonal motivation does not affect reasonableness of a disclosure.reasonableness of a disclosure.

Employee or applicant is Employee or applicant is protected if employer mistakenly protected if employer mistakenly believesbelieves he or she is a whistleblower. he or she is a whistleblower.

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Disclosure not protected (unless made to the Special Disclosure not protected (unless made to the Special Counsel or Inspectors General), when disclosure is –Counsel or Inspectors General), when disclosure is –

Prohibited by law,Prohibited by law,

oror

Required by Executive Order to be secret for Required by Executive Order to be secret for national security or foreign affairs reasons.national security or foreign affairs reasons.

Protected Whistleblower DisclosuresProtected Whistleblower Disclosures((continuedcontinued))

5 U.S.C. § 2302 (b)(8)5 U.S.C. § 2302 (b)(8)

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Corrective Action:Corrective Action:Whistleblower Reprisal MattersWhistleblower Reprisal Matters

5 U.S.C. §§ 1214(b)(4)(B), 1221(e)(1)5 U.S.C. §§ 1214(b)(4)(B), 1221(e)(1)

Can be obtained Can be obtained ifif - -

Disclosure of information was a Disclosure of information was a Contributing FactorContributing Factor in in a personnel action,a personnel action,

UnlessUnless

Agency shows by Agency shows by Clear and Convincing EvidenceClear and Convincing Evidence that it that it would have taken the same personnel action in the would have taken the same personnel action in the absence of the disclosure.absence of the disclosure.

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Contributing FactorContributing Factor

Any factor which alone or in connection with others tends Any factor which alone or in connection with others tends to affect in any way the outcome of the personnel action at to affect in any way the outcome of the personnel action at issue.issue.

Can be established by Can be established by Knowledge/TimingKnowledge/Timing alone. alone.

Often established by Often established by Circumstantial EvidenceCircumstantial Evidence..

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Other Protected Activities:Other Protected Activities:5 U.S.C. § 2302 (b)(9)5 U.S.C. § 2302 (b)(9)

Any employee who has authority to take, direct others to take, Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with recommend, or approve any personnel action, shall not, with respect to such authority :respect to such authority :

Take or fail to take, or threaten to take or fail to take, any Take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for personnel action against any employee or applicant for employment because of – employment because of –

(A) the exercise of any appeal, complaint, or grievance right (A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;granted by any law, rule, or regulation;

(B) testifying for or otherwise lawfully assisting any (B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in (A);individual in the exercise of any right referred to in (A);

(C) cooperating with or disclosing information to the (C) cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; oraccordance with applicable provisions of law; or

(D) for refusing to obey an order that would require the (D) for refusing to obey an order that would require the individual to violate a law. individual to violate a law.

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The following scenario is an example of a violation of The following scenario is an example of a violation of

5 U.S.C. § 2302 (b)(9):5 U.S.C. § 2302 (b)(9):

Supervisor Jane proposes suspending employee Supervisor Jane proposes suspending employee Jack because employee Jack filed a whistleblower Jack because employee Jack filed a whistleblower reprisal complaint alleging that his performance reprisal complaint alleging that his performance rating was lowered because of his prior protected rating was lowered because of his prior protected whistleblowing.whistleblowing.

Other Protected Activities:Other Protected Activities:5 U.S.C. § 2302 (b)(9) (5 U.S.C. § 2302 (b)(9) (continued)continued)

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OSC EEO DirectivesOSC EEO Directives

The following EEO directives are accessible on OSC’s intranet:The following EEO directives are accessible on OSC’s intranet:

““Anti-Harassment Policy” Anti-Harassment Policy” OSC Directive OSC Directive 1400-351400-35

““EEO, Non-Discrimination, and EEO, Non-Discrimination, and Anti-Harassment Policies”Anti-Harassment Policies” OSC Directive OSC Directive

1400-261400-26

““Equal Employment Opportunity Program”Equal Employment Opportunity Program” OSC OSC Directive 1400-42Directive 1400-42

““Procedures for AccommodationProcedures for Accommodationof Persons with Disabilities”of Persons with Disabilities”OSC Directive 1400-38.1OSC Directive 1400-38.1

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OSC Whistleblower Protection OSC Whistleblower Protection InformationInformation

More information about whistleblower rights and More information about whistleblower rights and remedies is available on OSC’s web site (remedies is available on OSC’s web site (www.osc.govwww.osc.gov).).

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Filing a ComplaintFiling a Complaint

If you think you have been subjected to retaliation, If you think you have been subjected to retaliation, contact the Complaints Examining Unit at the U.S. contact the Complaints Examining Unit at the U.S. Office of Special Counsel at 1-800-872-9855 to file a Office of Special Counsel at 1-800-872-9855 to file a written complaint, or visit written complaint, or visit www.osc.govwww.osc.gov to learn to learn more. more.

If you feel you have been discriminated against in If you feel you have been discriminated against in violation of antidiscrimination laws, contact your EEO violation of antidiscrimination laws, contact your EEO counselor (on the following page). You may also counselor (on the following page). You may also contact the Equal Employment Opportunity contact the Equal Employment Opportunity Commission about filing a complaint at 1-800-669-Commission about filing a complaint at 1-800-669-4000 or visit 4000 or visit www.eeoc.govwww.eeoc.gov to learn more. to learn more.

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OSC EEO CounselorsOSC EEO Counselors

HEADQUARTERS James Booker (202) 254-3675

Mariama Liverpool (202) 254-3609Jason Weidenfield (202) 254-3615

1730 M. St., N.W. (Suite 300)Washington, D.C. 20036-4505

DETROIT FIELD OFFICELovie Jones

477 Michigan Avenue, Suite 495Detroit, MI 48226

Telephone: (313) 226-4441, ext. 6221

DALLAS FIELD OFFICEWilliam Miller

525 Griffin Street (Room 824, Box #103)Dallas, TX 75202

Telephone: (214) 747-1519, ext. 4224

SAN FRANCISCO BAY AREA FIELD OFFICEKristi van Greunan

Oakland Federal Building1301 Clay Street (Suite 1220N)

Oakland, CA 94612-5217Telephone (510) 637-3464, ext. 5227

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OSC EEO DirectorOSC EEO Director

William ReukaufWilliam Reukauf

1730 M. St, N.W., Suite 3001730 M. St, N.W., Suite 300

Washington, DC 20036-4505Washington, DC 20036-4505

Telephone (202) 254-3600Telephone (202) 254-3600

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Congratulations!Congratulations!

You have now completed the No Fear Act training of 2006. You have now completed the No Fear Act training of 2006. Please complete your certification statement and email it Please complete your certification statement and email it to to your agency Human Resources or Training Office.”your agency Human Resources or Training Office.”