Manual for Processing Discrimination Complaints
Part II, Section A, Chapter 1
LAWS AND POLICIES RELATED TO THE EEO COMPLAINT PROCESS

The federal EEO complaint process is a legal process designed to enforce civil rights laws prohibiting discrimination in federal employment.

Laws Enforced Through the EEO Complaint Process

Four federal civil rights laws are enforced through the EEO complaint process: Title VII of the Civil Rights Act of 1964, as amended; the Equal Pay Act of 1963; the Rehabilitation Act of 1973, as amended; and the Age Discrimination in Employment Act of 1967, as amended.

Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C.Section 2000e-16, protects employees and applicants for employment from employment discrimination based on race, color, sex, religion, and national origin. Some of these bases of discrimination are self-explanatory; others require some explanation:

Sex discrimination is discrimination based on gender. It also includes discrimination based on pregnancy, childbirth, or related medical conditions.

Color discrimination is distinct from race discrimination. It is treating employees or applicants differently because they have different skin colors even if they are of the same race. For example treating African Americans with darker skin differently than those with lighter skin would be color discrimination.

Religion refers to a person's religious background, religious beliefs or lack of such beliefs, or membership in a religious group. In addition to prohibiting discrimination based on religion, Title VII also requires employers to provide reasonable accommodation for the religious practices of an employee or prospective employee, unless doing so would cause an undue hardship for the employer. For example, a person who is Muslim may ask to take breaks at the required times for prayer. An employer is excused from accommodating religious practices if the accommodation is an undue hardship. An accommodation requiring more than ordinary administrative costs would be an undue hardship in the context of a religious accommodation.

National origin may refer to country of birth, nationality, ancestry, or cultural or ethnic origin. A person may have more than one national origin.

The Equal Pay Act of 1963 (EPA), 29 U.S.C. Section 206, amended the Fair Labor Standards Act of 1938, 29 U.S.C. Section 201 et seq., to protect employees from employment discrimination in wages based on sex. A violation of the EPA occurs when a person is paid less than an individual of the opposite sex for equal work on jobs requiring equal skill, effort and responsibility, performed under similar working conditions and within the same establishment. An employer does not have to intend to discriminate to violate the EPA. Violations of the EPA are also violations of Title VII. The EEOC's regulations on the Equal Pay Act are at 29 C.F.R. Part 1620.

The Rehabilitation Act of 1973, as amended, 29 U.S.C. Sections 791, 793, 794(a), protects qualified employees and applicants for employment from employment discrimination based on disability. It also protects employees from discrimination based on their association with persons with disabilities. The Rehabilitation Act requires federal agencies to provide reasonable accommodation for the known disabilities of qualified employees and job applicants unless such accommodation would impose an undue hardship on the agency's operation of its program.

When bringing a claim under the Rehabilitation Act, a complainant must prove that s/he is a qualified individual with a disability. This generally involves the presentation of medical documentation.

An individual with a disability is a person 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.

A major life activity is a function that the average person in the general population can perform with little or no difficulty. Major life activities include caring for oneself, seeing, hearing, walking, breathing, speaking, learning, sitting, standing, lifting, reaching, and working.

An impairment substantially limits a major life activity if it prevents a person from performing an activity or significantly restricts their ability to perform the activity. The effects of measures to correct or mitigate an impairment must be taken into account when judging whether a person is Asubstantially limited in a major life activity and, has a disability. Thus, whether an individual has a disability is an individualized inquiry.

A qualified individual with a disability is a person who:

• has the skills, experience, education, and other requirements of the job the individual holds or is seeking, and
• can perform the essential functions of the position with or without reasonable accommodation.

The standards used to determine violations of the Rehabilitation Act are the standards applied under Title I of the Americans with Disabilities Act (ADA). See 29 U.S.C. ' 791(g). However, the ADA itself does not apply to Federal employment. EEOC regulations interpreting the employment provisions of the ADA are at 29 C.F.R. Part 1630.

The Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. Sections 621-634, protects employees and applicants for employment who are 40 years of age or older from employment discrimination based on age. EEOC regulations on the ADEA are at 29 C.F.R. Part 1625.

Types of Action Prohibited

Title VII, the ADEA, and the Rehabilitation Act prohibit:

• disparate treatment;
• disparate impact; and
• retaliation

Disparate treatment is intentionally treating employees or applicants differently than others who are similarly situated. With respect to all bases of discrimination except age, this means treating people in a protected group differently than people in similar employment positions who are outside of the protected group. For example, treating an employee differently than coworkers of a different race or sex would be disparate treatment. With respect to age discrimination, disparate treatment means treating an employee differently than similarly situated employees because of the employee's age regardless of whether the similarly situated employees are within the employee's protected age group or are outside of the employee's protected age group. For example, treating a 60-year-old employee differently than employees who are 40 may be age discrimination.

Disparate treatment can occur in any area of employment, including hiring, discipline, performance appraisal, termination, working conditions, and benefits. Sexual harassment is a form of disparate treatment. So is harassment based on any protected category that creates a hostile work environment. Harassment creates a hostile work environment if it is sufficiently patterned or pervasive and is severe enough to alter the conditions of employment and create a hostile or abusive work environment.

Disparate impact is having employer policies or practices that appear neutral but have a significant adverse impact on a group with a common race, color, sex, national origin, religion, or disability status. The effect does not have to be intended. Note: Disparate impact based on age is not recognized by all federal circuit courts. The EEOC applies the disparate impact analysis in cases under the ADEA unless the law of the federal circuit court prohibits such application. See EEOC Notice No. 915.002 (9/18/96), Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., Question & Answer No. 10.

Retaliation can occur in any area of employment. The EEOC regulations protect employees and applicants from retaliation, also called reprisal, for:

• participating in the EEO complaint process in any way, including receiving EEO counseling, filing an EEO complaint, being a witness, serving as an EEO Counselor, or acting as another employee=s representative; and/or
• opposing agency actions believed to be unlawful under Title VII, the EPA, the ADEA, and the Rehabilitation Act.

Harassment due to prior protected EEO activity may also be a form of retaliation.

Proving a claim

This section describes how the most common types of employment discrimination claims are analyzed.

Disparate Treatment. Disparate treatment is, by far, the most common type of allegation in EE

O complaints. In some cases, disparate treatment can be proven through direct evidence that management acted because of an unlawful bias. In the vast majority of cases, however, such evidence is not available. The analysis of evidence in most cases alleging disparate treatment is a three-step process:

1. The complainant must first establish that there is some substance to the allegation by proving a prima facie case of discrimination. To do this, s/he must present evidence that, if not rebutted, would indicate unlawful discrimination. Establishing a prima facie case is not a very heavy burden; it generally means that the complainant must show that s/he is protected by the statute and was treated differently than similarly situated people outside the protected group or, in the case of age, that her/his age was the determining factor in the agency's action. In age discrimination cases, it is not necessary for the complainant to show that s/he was accorded treatment different from otherwise similarly situated employees who were not members of her/his protected group or who were considerably younger than s/he.
2. If the complainant establishes a prima facie case, the agency must present a legitimate, non-discriminatory reason for its challenged action. Again, this is not a heavy burden. The agency must present sufficient evidence to allow a conclusion that the agency's action was not based on unlawful discrimination.
3. Finally, the complainant must prove that the agency's action was based on unlawful discrimination instead of the legitimate reason(s) presented by the Agency. This is the pretext phase of the analysis.

Although the burden to produce evidence shifts, the burden of persuasion that the employer intentionally discriminated against him/her remains on the complainant. This burden must be satisfied by a preponderance of the evidence. The preponderance of the evidence is that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.

Hostile Work Environment Harassment. Hostile work environment harassment is a type of disparate treatment claim, but it is analyzed differently than other types of disparate treatment claims. Hostile work environment claims are analyzed in two steps. First, the complainant must demonstrate that s/he was subjected to a hostile work environment by showing that:

• s/he belongs to a protected groups or engaged in a protected activity;
• s/he was subjected to harassment that was sufficiently severe to alter the conditions of employment and create an abusive work environment; and
• the harassment was based on his/her sex, race, color, religion, national origin, age, or disability, or was in retaliation for prior EEO activity.

The severity of the harassment is determined from the viewpoint of a reasonable person.

If the complainant meets this initial burden, the agency has an opportunity to show that it should not be held liable for the harassment. The agency can do this by showing that:

• it was not aware of the hostile work environment and the situation was not such that it should have been aware of the harassment; or
• it took appropriate actions to remedy the hostile work environment.

Retaliation. Generally, to prove a prima facie case of retaliation, the complainant must show:

1. that s/he participated in the EEO process or opposed unlawful discrimination and the alleged retaliator knew of this protected activity;
2. an employment action or actions disadvantaged the complainant; and
3. the disadvantaging action followed the protected activity within such a period of time that a retaliatory motivation may be inferred.

The next two steps of the analysis are identical to the disparate treatment analysis.

Reasonable Accommodation. In a case alleging that the Agency failed to provide reasonable accommodation for a disability, the following analysis is used:

1. The complainant must first prove that:
   • s/he is a person with a disability and is qualified for the position in question
   • the agency knew or had reason to know of the limitations imposed by the disability,
   • the complainant requested, but did not receive, a reasonable accommodation, and
   • there is plausible reason to believe that the disability can be accommodated.
2. If the complainant meets his/her initial burden, the Agency must then prove that:
   • it accommodated the disability; or
   • it cannot provide reasonable accommodation (because it is not possible or because providing the accommodation would be an undue hardship).
3. If the agency meets its responsibility, the complainant has an opportunity to prove that the Agency's arguments are untrue.

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