30.4.4  Equal Employment Opportunity

30.4.4.1  (01-22-2008)
Equal Employment Opportunity (EEO) Policy

  1. The Office of Chief Counsel is committed to achieving a workplace that is based on fairness and equity. Employees shall not discriminate against or harass any other employee, applicant for employment or person dealing with the Office of Chief Counsel on official business on the basis of race, color, religion, age, gender, national origin, political affiliation, disability, sexual orientation, genetic information, marital, or parental status. All Chief Counsel Employees will ensure their actions fully comply with the letter and the spirit of this policy as proscribed in this section.

  2. This section establishes policy for Equal Employment Opportunity and provides information on complaints of discrimination, reasonable accommodation, sexual harassment, and the EEO Advisory Committees.

30.4.4.2  (01-22-2008)
Complaints of Discrimination

  1. It is the right of Chief Counsel’s employees, former employees, and applicants for employment who believe they have been discriminated against because of race, color, religion, age, gender, national origin, disability, sexual orientation, genetic information, parental status or reprisal for prior EEO activity to seek counseling on the matter from an EEO Counselor and to file a discrimination complaint if the issue is not resolved during counseling.

  2. 29 CFR §1614 outlines the complaint process. Employees or managers with questions regarding the process may contact the Chief Counsel EEO Office at (202) 622-8779 or consult Counsel’s EEO web site http://intranet.prod.irscounsel.treas.gov/support/eeo/.

30.4.4.2.1  (10-13-2005)
Informal Stage

  1. Employees who feel they have been discriminated against on the basis of national origin, age, religion, gender, race, color, disability, sexual orientation, genetic information, parental status or reprisal for prior EEO activity should contact the Chief Counsel EEO Office as soon as possible.

  2. Initial Contact. Employees are responsible for contacting the EEO Office within 45 days of the incident giving rise to the allegation of discrimination. If an ongoing pattern of discrimination is alleged, an employee is still required to contact the EEO Office within 45 days of the most recent instance. Both an issue and a basis (race, color, religion, age, gender, national origin, disability, sexual orientation, genetic information, marital, or parental status) must be identified by the employee, as well as a showing of harm. EEO Counselors will provide a complete discussion of an employee’s rights and responsibilities in the initial interview with the employee.

  3. Election of Process. An employee may elect the EEO process, using either a counselor or mediator, to attempt a resolution of the issues raised. The unique aspects of each process will be explained during the employee’s initial contact with the EEO Office. An employee who is a member of a bargaining unit may elect to file a grievance. However, the same issue cannot be raised in more than one forum. An employee must make an election of process between the EEO process or union grievance.

  4. Counseling. An EEO Counselor will be assigned by the EEO Office to conduct an informal inquiry into the allegation and to attempt a resolution of the conflict. The Counselor is not an advocate for either the employee or the manager, but an independent and objective person trained in facilitating resolution. The primary purpose of the counseling stage of the discrimination complaint process is to clearly define the issues and basis and to facilitate a resumption of constructive work relationships.

  5. Mediation. An employee will be offered the option to work with a mediator if the head of the EEO office determines that mediation may work well with the circumstances of the case. Mediation is a voluntary process. Both the aggrieved employee and the appropriate manager must agree to participate. A mediator will facilitate discussion to encourage resolution between the parties. A mediator does not make a finding or impose a resolution of the parties involved. A written record will only be created if the two parties come to an agreement.

30.4.4.2.2  (10-13-2005)
Formal Stage

  1. If an allegation is not resolved to the satisfaction of the employee within 30 to 90 days, either through counseling or mediation, a formal complaint of discrimination can be filed with the Treasury Complaint Mega Center.

  2. If the complaint is accepted, an investigator will be assigned by the Treasury Complaint Mega Center to develop a complete factual record with sufficient information to make a final decision on the allegation.

30.4.4.2.3  (11-28-2006)
Representation

  1. An aggrieved person or an agent for a class may be accompanied by a representative of their choosing, at each stage of the complaint and counseling procedure.

  2. The Office of Chief Counsel will not recognize that the aggrieved person or class agent is represented, nor will attorney fees and costs be considered unless and until a Form TD F 62.03.2, Designation of Representative and Limited Power of Attorney, http://publish.no.irs.gov/getpdf.cgi?catnum=64992, is completed.

    1. Submission of the form is required and a general power of attorney is not acceptable.

    2. An aggrieved person may cancel a previous designation by written notice or by submitting a new Designation of Representative and Limited Power of Attorney form.

  3. Where an employee of the Office of Chief Counsel serves as the representative, the complainant and the representative, if otherwise in official duty status, will be permitted a reasonable amount of official time to present the complaint during the informal and formal stages.

    1. A conflict of position arises when there is an incompatibility between the representative’s function and the complainant’s official duties. Employees and witnesses cannot have representation that involves a conflict of interest.

    2. No official time or administrative time for either the complainant employee or the representative will be granted in connection with a discrimination complaint filed in U.S. District Court.

  4. Any witnesses, including persons who have been identified as possibly being directly responsible for the action or matter complained of, have a right to representation. Representatives do not have the right to examine and cross examine witnesses.

    1. The presence of witnesses and their representatives at a hearing will be limited to time involved in giving testimony. An Office of Chief Counsel employee who serves as a witness’s representative is not entitled to official time for such purposes.

30.4.4.3  (10-13-2005)
Reasonable Accommodation

  1. Employees of the Office of Chief Counsel are protected from discrimination based on disability and have the right to reasonable accommodation under the Rehabilitation Act of 1973.

  2. The Office of Chief Counsel shall take positive actions to recruit, hire, develop and advance persons with disabilities. Chief Counsel managers shall make reasonable accommodations for all qualified applicants or employees with physical or mental disabilities in accordance with the law.

30.4.4.3.1  (10-13-2005)
Providing Reasonable Accommodation

  1. Managers are encouraged to contact the Chief Counsel EEO Office for assistance in evaluating requests for reasonable accommodation. Each situation is evaluated individually based on the nature of the disability and the essential elements of the job.

  2. Employees who have a disability when they are initially hired and those who develop a disability during the course of their employment are both covered by the provisions of the Rehabilitation Act. Generally, it is incumbent upon the person in need of an accommodation to make the agency or manager aware of the nature of the disability and the extent of accommodation required.

  3. The first step in reaching an accommodation is to determine if the employee/applicant is covered by the Rehabilitation Act. An individual with a disability is defined as a person with a physical or mental impairment that substantially limits a major life function, or has a record of such impairment, or is regarded as having such impairment. Each case is handled individually, taking into account the severity and duration of the disability, and the impact the impairment has on the individual’s ability to perform the essential functions of the job.

  4. The next step in reaching an accommodation is to specifically define the essential functions of the job, focusing on the tasks to be accomplished rather than on the method to be used. A person with a disability is considered qualified for a position if they can perform the essential functions of the job with or without an accommodation.

  5. The final step in reaching an accommodation is determining what accommodation is required and if that accommodation is reasonable. This may or may not be the accommodation of the employee’s choice. A reasonable accommodation is effective, reliable, easy to use, and readily available for the employee needing the accommodation. It directly addresses the work place barriers related to an employee’s disability.

  6. Managers are not required to provide accommodations that are primarily for the convenience or personal use (such as eyeglasses or hearing aids) of the employee. An employer is also not required to provide an accommodation that would cause an undue hardship.

30.4.4.3.1.1  (10-13-2005)
Methods of Reasonable Accommodation

  1. Reasonable accommodation may be provided by the methods listed below or by other methods.

  2. Job Restructuring: A job may be required to be modified by eliminating non-essential functions, redesigning procedures for specific tasks, or reassigning specific tasks amongst the staff. A manager is not required to reallocate essential functions of the position.

  3. Schedule Flexibility: An employee may be allowed flexibility in their arrival and departure time, length of workday, or time during mid-day in addition to the normal lunch break.

  4. Liberal Use of Leave: Approval of sick, annual or administrative leave, or leave without pay may be an effective accommodation in some cases. However, use of extended sick leave without an expected date to return to work is not a reasonable accommodation since there is no expectation that the employee will be able to resume their job duties.

  5. Workplace Modifications: The placement of furniture, carpets and equipment should be analyzed to insure that the worksite is accessible to all employees. Managers should also assess whether a disabled employee has equal access to facilities available within a building for common use, such as the restroom, cafeteria, snack bar, library, health unit, or credit union.

  6. Specialized Equipment or Assistive Devices: There are many devices and specialized equipment that enable employees with a disability to conduct official duties which they may not be able to accomplish without the assistance of this technology.

  7. Interpreters, Readers, and Personal Care Assistance: Employees who are blind, have a severe hearing loss or a physical disability that limits their mobility may require the personal assistance of an interpreter, reader, or personal care assistant. The Chief Counsel EEO Office will help managers identify and provide these resources when necessary.

  8. Reassignment: A current non-probationary employee who can no longer perform the essential functions of their position may be reassigned to another position as a form of accommodation. The agency is not required to create a position or displace another employee to create a vacancy. The first option is to identify any available vacant positions for which the disabled employee is qualified at the same grade level and within the same commuting area. If no such position is available, a vacant lower-graded position can be utilized.

30.4.4.3.2  (10-13-2005)
Accessibility

  1. All federal facilities, whether they are owned or leased, must be accessible to all employees. Facility modifications to accommodate disabled employees should be coordinated with your local Facilities Management Office of Agency-Wide Shared Services (AWSS).

  2. Accessibility also means that disabled employees have the right to equally participate in all agency functions and activities.

  3. It is also the manager’s responsibility to ensure each employee (including employees with physical disabilities) have a safe way to exit from the building in the case of emergency.

30.4.4.4  (10-13-2005)
Sexual Harassment

  1. It is the policy of the Office of Chief Counsel that the work environment must be free from all forms of prohibited discrimination, including sexual harassment. The Office does not intend to regulate the social interactions or relationships voluntarily entered into by its employees. However, no employee should be subjected to unwelcome sexual advances, requests for sexual favors, verbal, or other physical contact of a sexual nature in the work environment.

  2. All employees are responsible for reporting allegations of sexual harassment, and supervisors are particularly responsible for taking immediate and effective action regarding those allegations. First-line supervisors, in particular, are expected to correct situations which have a potential for improper sexual activity. Supervisors must be aware of their responsibilities and sensitive to attitudes or practices in the workplace which might encourage or condone sexual harassment.

  3. To create an awareness of inappropriate office conduct, awareness training on sexual harassment will be included as appropriate in managerial, supervisory, EEO, and employee orientation programs.

  4. As stated in 29 CFR § 1604.11(a), unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when any of the following are present:

    1. Submission to such conduct is made, either explicitly or implicitly, a term or condition of an individual’s employment

    2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual

    3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment

  5. Sexual harassment is a prohibited personnel practice when it results in discrimination for or against an employee on the basis of conduct not related to work performance, such as:

    • Taking or refusing to take a personnel action

    • Promoting employees who submit to sexual advances

    • Refusing to promote employees who resist or protest sexual overtures

30.4.4.4.1  (10-13-2005)
Definition of Sexual Harassment

  1. Sexual harassment can occur without any touching. Such circumstances are unwelcome sexual advances or behavior which is personally offensive, debilitates morale, or interferes with employee work effectiveness. Sexual harassment may include actions such as:

    • Sexually-oriented jokes or verbal "kidding"

    • Subtle pressure for dates or sexual activity

    • Physical contact such as patting, pinching, grabbing, rubbing, or deliberate brushing against another’s body

    • Demands for sexual favors

    • Offensive sexual flirtations, advances, or propositions

    • Graphic or degrading verbal comments about an individual and/or their appearance

    • Display of sexually suggestive objects or pictures

    • Obscene notes, gestures, or remarks

  2. Sexual harassment can occur between peers and/or co-workers as well as between supervisors and subordinates.

  3. Employees who participate in actions such as, but not limited to those enumerated in CCDM 30.4.4.4(5), may be engaging in sexual harassment which may create a hostile or offensive work environment.

  4. Sexual harassment may occur when a supervisor offers or threatens to use the power of their office or position to control, influence, or affect the career, salary, or job of another employee (or prospective employee) in exchange for sexual favors.

30.4.4.4.2  (10-13-2005)
Procedures

  1. Individuals who believe they are experiencing sexual harassment from co-workers or supervisors should make it clear that such behavior is offensive to them.

  2. Individuals who believe they are experiencing sexual harassment from co-workers should bring the matter to the attention of the appropriate supervisor, or the EEO Office, so that corrective action can be taken.

  3. Complaints of sexual harassment by a supervisor should be made to a higher-level supervisor, to anyone authorized to deal with discrimination complaints (e.g., EEO Office), or to an appropriate personnel official.

  4. Supervisory personnel involved in sexual harassment are subject to discipline.

30.4.4.5  (10-13-2005)
EEO Advisory Committees

  1. Pursuant to Article 42 of the 2005 collective bargaining agreement between Counsel and NTEU, two committees have been established to discuss EEO issues:

    • National Office Diversity and Equal Opportunity Advisory Committee

    • Field Diversity and Equal Opportunity Advisory Committee

  2. The committees consist of an equal number of bargaining unit representatives and management representatives.

  3. The purposes and functions of the committees are explained in Article 42 of the collective bargaining agreement.


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