ML14008A003
| ML14008A003 | |
| Person / Time | |
|---|---|
| Issue date: | 01/24/2014 |
| From: | Vonna Ordaz NRC/SBCR |
| To: | |
| Kravetz, Joel | |
| References | |
| FOIA-2024-000079 CR-400 | |
| Download: ML14008A003 (5) | |
Text
U.S. Nuclear Regulatory Commission Office of Small Business and Civil Rights SBCR OFFICE INSTRUCTION Office Instruction No.:
CR-400 Office Instruction
Title:
Policy for Prohibiting Discrimination Based on Sexual Orientation and Procedures for Filing a Sexual Orientation Discrimination Complaint Effective Date:
January 15, 2014 Approved By:
Vonna L. Ordaz, Director, SBCR /RA/
Date Approved:
January 15, 2014 Primary
Contact:
Joel Kravetz, Civil Rights Program Manager, SBCR 301-415-0503 Joel.Kravetz@nrc.gov Responsible Organization:
SBCR Training:
Equal Employment Opportunity and Diversity Training for Managers and Supervisors ADAMS Accession No.:
SBCR OFFICE INSTRUCTION CR-400 Policy for Prohibiting Discrimination Based on Sexual Orientation and Procedures for Filing a Sexual Orientation Discrimination Complaint
- 1.
POLICY The U. S. Nuclear Regulatory Commission (NRC) is committed to maintaining a professional workplace that is free from discrimination and foster a climate in which all employees are treated equally. It is the policy and intent of the NRC to ensure that all employees and applicants for employment receive equal employment opportunities on the basis of merit and qualifications regardless of their sexual orientation. The NRC prohibits discrimination on the basis of sexual orientation. Further, no employee shall be subjected to retaliation, intimidation, or coercion for raising a claim of discrimination or harassment based on sexual orientation; nor, for participating in procedures addressing sexual orientation issues. Appropriate action, including disciplinary action, shall be taken by the agency when conduct or behavior occurs that results in discrimination, including harassment of employees because of their sexual orientation.
Executive Order 13087 prohibits discrimination based on sexual orientation within Executive Branch civilian employment. Based on this authority, the NRC recognizes sexual orientation as a basis upon which an individual may file an administrative Equal Employment Opportunity (EEO) complaint. The NRC will apply a modified administrative EEO process to a complaint in which an individual alleges discrimination or harassment based on sexual orientation, including retaliation for opposing sexual orientation discrimination and/or filing or participating in the investigation of a complaint.
The Executive Order does not expand the coverage of civil rights statutes enforced by the Equal Employment Opportunity Commission (EEOC) because the statutes do not include sexual orientation as one of the covered bases of discrimination. However, the EEOC has concluded that discrimination or harassment for failing to conform to gender-based expectations is sex discrimination and has also concluded that this principle applies with equal force in cases involving employees who are gay, bisexual, heterosexual, or transgender. Macy v. Dep't of Justice, EEOC Appeal No. 0120120821 (April 20, 2012). In Macy, the EEOC explained that Title VII of the Civil Rights Act of 1964 prohibits sex stereotyping and gender discrimination, and not just discrimination on the basis of biological sex. The term gender encompasses the cultural and social aspects associated with masculinity and femininity. Accordingly, heterosexual, homosexual, bisexual and transgender individuals may bring claims of discrimination under Title VII in certain circumstances, including sex stereotyping.
For circumstances in which an individual brings a claim of sexual orientation discrimination that does not constitute sex stereotyping or gender discrimination under Macy, the NRC will extend a modified administrative EEO complaint process, which is delineated herein.
- 2.
OBJECTIVES The objective of this policy is to identify and define the necessary terms and steps that individuals shall follow to file a complaint alleging sexual orientation discrimination.
- 3.
BASIC REQUIREMENTS Definitions:
Sexual orientation is defined as homosexuality, bisexuality, transgender, or heterosexuality, whether such orientation is actual or perceived.
Employment discrimination based on sexual orientation occurs when an individual treats an employee or applicant for employment unfavorably in any aspect of employment because of:
A. Their actual or perceived sexual orientation; B. Their association with an individual(s) of a particular orientation; or C. Their affiliation with a group that is associated with sexual orientation issues or whose membership is composed mainly of people of a particular sexual orientation(s), including an employee organization.
Procedures:
- 1. An employee or applicant (aggrieved person) who believes that he or she has been discriminated against because of sexual orientation and wishes to obtain information about and/or use NRCs modified process, must contact an EEO Counselor or the Office of Small Business and Civil Rights (SBCR) within 45 calendar days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 calendar days of the effective date of the personnel action, consistent with 29 CFR § 1614.105. For allegations of harassment, such contact must occur within 45 days of the last incident of harassment.
Otherwise, the complaint may be dismissed as untimely.
- 2. The aggrieved person will initially be advised of his or her right to representation and to anonymity in the informal process. The EEO Counselor will then explain to the aggrieved person that the civil rights statutes do not prohibit discrimination on the basis of sexual orientation. Consistent with the Macy decision summarized above, the EEO Counselor will discuss the allegations with the aggrieved person in order to help him or her understand what avenues of redress are available depending on the nature of the claims. See paragraph 3(A) through (E) below. Ultimately, if the aggrieved person files a formal EEO complaint with SBCR, SBCR will determine whether or not it involves claims alleging or related to sexual orientation discrimination or harassment that are actionable under any of the laws enforced by the EEOC.
- 3. In order to avoid multiple investigations of the same allegation(s), if the aggrieved person elects to use one or more of the avenues outlined in 3(A) through (D) below, the modified EEO complaint process will not be available. To the extent some or all of the allegations raise claims based on sexual orientation that are not covered by the civil rights statutes enforced by the EEOC, the EEO Counselor will inform an aggrieved person of other possible avenues of redress, e.g., that he or she may:
A.
File a grievance under the negotiated grievance procedure in the Agencys collective bargaining agreement; B.
File a complaint with the Office of Special Counsel (OSC);
C.
File an appeal with the Merit Systems Protection Board (MSPB);
D.
File an administrative grievance;
E.
File a complaint under the Agencys Policy and Procedure for Preventing and Eliminating Harassing Conduct in the Workplace; and/or file a complaint under the Agencys modified EEO complaint process described herein.
- 4. If the aggrieved person decides to use the Agencys modified process, the EEO Counselor will attempt to resolve the matter within the same time frames set forth in 29 CFR § 1614.
The EEO Counselor will also inform the aggrieved person of the option of using the Agencys Alternative Dispute Resolution (ADR) process.
- 5. If the matter cannot be resolved through ADR, the EEO Counselor will issue a Notice of Right to File a Discrimination Complaint and the aggrieved person may file a complaint with SBCR within 15 calendar days of receipt of the notice.
- 6. SBCR will accept or dismiss the complaint based on 29 CFR § 1614.107(a)(1-9). If the complaint is accepted in part or in whole, SBCR will arrange for an investigation of the allegations of discrimination to be completed within 180 calendar days, consistent with 29 CFR § 1614.108. Investigators are authorized to obtain statements from individuals and documents related to the claim. A copy of the investigative report will be issued to the aggrieved person and his/her representative.
- 7. The aggrieved person may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint, consistent with 29 CFR § 1614.106(d).
- 8. The aggrieved person may use official time for complaint activities, pursuant to NRCs Official Time Policy.
- 9. If a complaint is received and contains an allegation of discrimination based on sexual orientation as well as additional bases covered by civil rights statutes enforced by the EEOC, all allegations will be investigated concurrently. Following the investigation, those allegations not based on sexual orientation will be processed according to existing procedures for covered bases, outlined in 29 CFR § 1614, and the aggrieved person will be informed of his or her right to elect a hearing before an EEOC administrative judge or to have a final Agency decision issued by SBCR.
- 10. An aggrieved person raising allegations of sexual orientation discrimination may not request a hearing before the EEOC or appeal the final Agency decision (see # 11 below) to EEOC as to the merits of the claim. EEOC has no jurisdiction over sexual orientation complaints because sexual orientation is not a basis of prohibited discrimination in the civil rights statutes enforced by EEOC. The aggrieved person may, however, appeal the Agencys decision to categorize the claim as one of sexual orientation discrimination.
- 11. In order to adjudicate any claims of sexual orientation discrimination, the Director of SBCR shall issue a written final Agency decision within 60 calendar days, consistent with 29 CFR § 1614.110(b). If the aggrieved person elects a final Agency decision in cases involving claims also covered by civil rights statutes enforced by the EEOC, then the final Agency decision shall address all claims concurrently. The decision of SBCR is final with respect to all claims based on sexual orientation discrimination, and there is no further administrative review of the complaint as to such claims. The aggrieved person will receive appeal rights to EEOC for any claims adjudicated under the civil rights statutes enforced by the EEOC.
- 12. If SBCR finds discrimination based on sexual orientation discrimination, an appropriate remedy may be afforded, consistent with the remedies provided in 29 CFR § 1614.501. The Agency lacks authority to pay compensatory damages to an aggrieved employee based on his/her sexual orientation, as compensatory damages are authorized under the Civil Rights Act of 1991, which does not cover sexual orientation discrimination. The Agency shall provide permissible relief (e.g., placement into a new position, cancellation of unwarranted personnel action, expungement of adverse materials from Agency records, full restoration of back pay and employee benefits the individual would have received absent discrimination),
where appropriate.
If you have any questions regarding the procedures for filing a complaint of sexual orientation discrimination, please contact SBCR at (301) 415-7380.
- 4.
PRIMARY CONTACT Joel Kravetz Civil Rights Program Manager, SBCR 301-415-0503 Joel.Kravetz@nrc.gov
- 5.
RESPONSIBLE ORGANIZATION SBCR
- 6.
EFFECTIVE DATE January 15, 2014
- 7.
REFERENCES Yellow Announcement: POLICY PROHIBITING DISCRIMINATION BASED ON SEXUAL ORIENTATION AND PROCEDURES FOR FILING A SEXUAL ORIENTATION COMPLAINT EEO Discrimination Complaint Process NRC Policy for Preventing and Eliminating Harassing Conduct in the Workplace