Understanding Complaints of Discrimination

THE BASIC ELEMENTS OF AN EEO CLAIM

An EEO claim must identify an issue, i.e., a specific employment practice or policy being challenged as discriminatory. The issue must involve an adverse employment action causing the individual an injury, i.e., a present harm or loss with respect to a term, condition, or privilege of employment, for which there is a remedy. An EEO claim must also tie the issue to an illegal discriminatory basis; i.e., discrimination based on race, color, national origin, sex, religion, age (40+), disability or retaliation. These bases also define the "protected groups."

• TYPES OF UNLAWFUL DISCRIMINATION
• DISPARATE TREATMENT
• ADVERSE/DISPARATE IMPACT
• FAILURE TO ACCOMMODATE
• RETALIATION/REPRISAL

DISPARATE TREATMENT occurs when the agency treats another similarly-situated individual differently than it treats the complainant because of the complainant's membership in a protected group.

The complainant must establish that the agency's actions were based on a discriminatory motive.

This can be proven by direct, comparative, or statistical evidence. Absent direct evidence, discrimination can be inferred from comparative or statistical evidence.

Disparate treatment is examined under a three-part analysis:

• The complainant establishes a prima facie case by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. In disparate treatment cases this is established if the complainant is:
• A member of a protected group;
• Subjected to an adverse employment action; and
• Treated less favorably than similarly situated individuals outside of his/her protected group.
• The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions.
• Then the complainant must prove, by a preponderance of evidence, that the agency's explanation is a pretext for discrimination (i.e., not the true reasons for the agency's actions).

HARASSMENT is a form of disparate treatment based on race, color, national origin, sex, religion, age, disability or retaliation. Sexual harassment is sex-based discrimination that is sexual in nature.

To establish a prima facie case of harassment:

• The complainant must be a member of a protected group;
• The complainant must be subjected to unwelcome verbal or physical conduct;
• The verbal or physical conduct was based on his/her membership in a protected group;
• The conduct had the purpose or effect of unreasonably interfering with his/her work performance and/or creating an intimidating, hostile or offensive work environment; and
• There is a basis for imputing liability to the agency.

ADVERSE OR DISPARATE IMPACT occurs when an employment practice, even if it is applied equally to all applicants or employees, has the effect of excluding or otherwise affecting members of a protected group. A discriminatory motive does not have to be shown. Typically, adverse impact is established by statistical evidence.

Once an adverse impact is established, the burden of proof shifts to the agency to show that the practice in question is a business necessity. The complainant must rebut the agency's explanation by showing that there are other means available to achieve the same objective with less or no discriminatory impact.

ACCOMMODATIONS may be requested based on religion or disability. A prima facie case is established if the complainant shows that though the agency was aware of the need for an accommodation, it did not provide one. An agency is required to accommodate the religious practices of an employee or applicant, unless doing so would cause an undue hardship. "Religion" is defined fairly broadly, encompassing any moral or ethical beliefs as to right and wrong that are sincerely held by the individual, including atheism.

An agency is required to provide reasonable accommodation for any known mental or physical limitations of an otherwise qualified individual, unless doing so would cause an undue hardship.

The terms of "undue hardship" must be assessed on a case-by-case basis. Generally, undue hardship means significant difficulty or expense.

RETALIATION OR REPRISAL occurs if there is any act of restraint, interference, coercion, or discrimination that is reasonably likely to deter protected EEO activity. Protected EEO activities are:

• PARTICIPATION - Filing a complaint, testifying, assisting and/or in any way participating in the EEO process, investigation, proceeding or hearing. Protection does not depend on whether the underlying EEO complaint is valid.
• OPPOSITION - Opposing an unlawful employment practice, as long as the individual has a reasonable and good faith belief that the agency's conduct was illegal, and the opposition was expressed in a reasonable and non-malicious manner. The individual does not have to prove that the opposed agency conduct was, in fact, illegal.

To establish a prima facie case of reprisal:

• The complainant must have been engaged in a protected EEO activity;
• The agency was aware of his/her involvement in said protected activity;
• After participating in said activity, the complainant was subjected to adverse treatment by the agency; and
• There is a nexus between the protected activity and the adverse treatment.