EEO and Reasonable Accommodation Frequently Asked Questions

Reasonable accommodation is any change or adjustment to a job or work environment to enable a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. For example, reasonable accommodation may include:

• acquiring or modifying equipment or devices,
• job restructuring,
• part-time or modified work schedules,
• reassignment to a vacant position,
• adjusting or modifying examinations, training materials or policies,
• providing readers and interpreters, and
• making the workplace readily accessible to and usable by people with disabilities.

Yes. It is a violation of the Rehabilitation Act of 1973, as amended, to fail to provide reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability, unless to do so would impose an undue hardship on the operation of CBP’s programs. Undue hardship means that the accommodation would require significant difficulty or expense. Note: Employee requests for personal assistance services are processed under CBP’s current reasonable accommodation procedures.

The reasonable accommodation process begins when an applicant, an employee, or someone acting on the applicant or employee’s behalf requests an accommodation from a CBP Receiving Official. Employees or job applicants (or their representatives) can initiate a request for reasonable accommodation orally or in writing at any time to a supervisor, another management official in the employee’s chain of command or by sending an email to the CBPreasonableaccommodation@cbp.dhs.gov mailbox.

The individual and agency should engage in an "interactive process" to determine whether and what type of accommodation is appropriate. The interactive dialogue is a dialogue between CBP and employee/applicant about the request for an accommodation. It is designed to clarify the scope of the accommodation that the employee/applicant is requesting, as well as the essential functions of the employee’s position, and to discuss the process for determining whether the requested accommodation can be provided, as well as a time to explore alternative accommodation solutions. The employee shares responsibility for making the interactive process work by providing information that the agency reasonably needs to evaluate the accommodation request. For example, the agency may ask the employee for suggested accommodation solutions or for supporting medical documentation for a number of reasons—for example, to verify the existence of a disability, if it is not obvious, and/or to understand the employee’s limitations so that an accommodation can be identified that addresses the specific limitations.

The requirement generally will be triggered by a request from an employee with a disability, who may suggest a change to how work is performed or to access a benefit or privilege of employment. Accommodations are decided on a case-by-case basis, because the nature and extent of a disabling condition and the requirements of the position will vary. The principal test in selecting a particular type of accommodation is that of effectiveness, i.e., whether the accommodation will enable the person with a disability to perform the essential functions of the job. It need not be the best accommodation or the accommodation the individual with a disability would prefer, although consideration is given to the preference of the individual involved. However, the local senior management official serving as the Decision-Maker will have final discretion to choose between effective accommodations, and s/he may select one that is least expensive or easier to provide.

No. CBP’s obligation to provide reasonable accommodation applies only to known physical or mental limitations that substantially limit one or more major life activities or there is a record of impairment. Management does not assume that an employee with even an obvious disability cannot perform the functions of his/her job. Thus, an employee needs to inform the employer if any limitations associated with an employee’s disability require an accommodation.

When a qualified employee with a disability is unable to perform his/her present job even with the provision of a reasonable accommodation, CBP must offer reassignment as a last resort to the employee to an existing position that s/he can perform with or without a reasonable accommodation. The requirement to consider reassignment applies only to employees and not to applicants. In attempting to reassign an employee as an accommodation, CBP will seek vacant funded positions for positions that the employee is qualified to perform based on their functional limitations. CBP is not required to create a position or to bump another employee in order to create a vacancy. Nor is CBP required to promote an employee with a disability to a higher-level position.

Yes, such a person is protected. The determination as to whether a person has a disability under the Rehabilitation Act is made without regard to mitigating measures, such as medications, auxiliary aids and reasonable accommodations. If an individual has an impairment that substantially limits a major life activity, s/he is protected under the Rehabilitation Act, regardless of the fact that the disease or condition or its effects may be corrected or controlled. However, a person with such a disability may not need accommodating if the disability is not currently interfering with the employee’s ability to perform his/her job duties.

No. Recreational or social users of alcohol or drugs are not protected under the Rehabilitation Act. The Act does, however, protect rehabilitated alcoholics and rehabilitated drug abusers as well as those who are undergoing rehabilitation, provided that such individuals can still perform the functions of their job. However, the fact that a recovering alcoholic or drug addict is covered by the Rehabilitation Act will not protect that employee from the consequences of his or her misconduct, even if the misconduct is associated with the alcoholism or other addiction.

No. Federal law requires agencies to provide reasonable accommodations for disability, but pregnancy is not considered a disability. However, if an employee has a pregnancy-related medical condition or temporary disability relating to pregnancy, the employer must treat the employee the same way it treats other employees who have other medical conditions and/or temporary disabilities. In addition, certain medical conditions relating to pregnancy, for example, gestational diabetes may be considered disabilities, a determination that must be made on a case-by-case basis.

No. Only qualified applicants and employees with disabilities are entitled to reasonable accommodation. For example, the Rehabilitation Act would not require an employer to modify its leave policy for an employee who needs time off to care for a child with a disability. However, an employer must avoid treating an employee differently than other employees because of his or her association with a person with a disability. Although not eligible for a reasonable accommodation, CBP employees who face difficulties because of such circumstances are encouraged to speak with the immediate supervisor to discuss available alternatives and to contact the Employee Assistance Program for support or assistance.

The employee should promptly notify his/her immediate supervisor and the EEO Officer assigned to facilitate the request for reasonable accommodation. The EEO Officer will assist in resolving the issue.

Yes. Changing the location where work is performed may fall under the – Rehabilitation Act’s reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework. However, an employer is not obligated to adopt an employee's preferred or requested accommodation and may instead offer alternate accommodations as long as they would be effective.

This determination is made through the interactive discussion. During this discussion, the manager will need to discuss the employee’s request in great detail to allow management to analyze if the disability might necessitate the individual to telework. The employee must explain what functional limitations from the disability make it difficult to do the job in the workplace, and how the job could still be performed from the employee's home. Management may request information about the individual's medical condition (including reasonable documentation) if it is unclear whether it is a "disability" as defined by the Rehab Act. The employee and manager may also discuss other types of accommodations that would allow the person to remain full-time in the workplace. However, in some situations, working from home may be the only effective accommodation for the employee.

Management will need to be able to identify and review the employee’s essential functions. Essential functions or duties are those tasks that are fundamental to performing a specific job. After determining what functions are essential, management should be able to determine whether some or all of the functions can be performed in a telework status. From there, management is equipped to determine if telework will serve as a reasonable accommodation.

Management should consider all effective accommodations, even if it is not the one preferred by the employee. Management can provide accommodations that enable the employee to remain in the workplace, as long as the accommodation is effective. If management identifies more than one accommodation is effective, the preference of the employee should be given primary consideration, but management does have the ultimate discretion to choose between effective accommodations.

1. Difficulty commuting to and from work due to a disability-related reason.
2. Limited access to accessible parking, workstations or worksite.
3. Environmental limitations (e.g., exposure to chemicals, irritants, temperature sensitivity, problematic lighting).
4. Workplace distractions that interfere with employee's ability to process information and/or concentrate. 

Employee medical information is protected under the Privacy Act and the Rehabilitation Act (Rehab Act). Employees may be required to disclose medical information to CBP, for example, in support of an absence of more than three days; in support of a request for leave under the Family and Medical Leave Act or other leave program; and in support of a request for reasonable accommodation. In addition, an employee may share medical information with a manager even when not required to—in support of an explanation for a particular incident, for example. Under the Privacy Act and the Rehab Act this information should be treated as confidential and may not be further disclosed except to individuals with a need to know.

Medical information is considered Sensitive Personally Identifiable Information and there are procedures in place for dealing with unauthorized disclosures of information protected by the Privacy Act, including an employee’s medical information. Any loss of control, compromise, unauthorized disclosure, unauthorized acquisition, unauthorized access, or similar occurrence with respect to protected information, including medical information, is termed a “Privacy Incident,” and is governed by the Department of Homeland Security (DHS) Privacy Incident Handling Guidance (PIHG), revised December, 2017. These procedures detail how DHS responds to a privacy incident, whether it occurs electronically or in paper, and informs of the obligation to protect Personally Identifiable Information (PII).

Suspected or confirmed privacy disclosure incidents should be reported to the CBP Security Operations Center via email at privacyincidents@cbp.dhs.gov. In the case of a privacy incident involving medical information, a statement should be provided regarding the nature (e.g., electronic, paper, verbal) of the suspected disclosure, what was disclosed, by whom, to whom, and any other facts regarding the disclosure.

In addition to being a potential violation of the Privacy Act, the disclosure of medical information may also be a violation under the handling of medical and disability related information under the Rehabilitation Act (Rehab Act). The Rehab Act requires federal agencies to keep employee medical information on separate forms and in a separate and secure file. The information must be treated as confidential and can only be disclosed to individuals with a “need to know."

If you believe that your medical information was subject to unauthorized disclosure, you may initiate an informal EEO complaint by sending an email to cbpeeocomplaintfiling@dhs.gov, with a brief statement on why you believe that you have been subjected to unlawful discrimination. Your email should also include your telephone number and address.

You may also initiate an informal EEO complaint by calling (1-877) MY-EEO-HELP (1-877-693-3643), or by contacting your servicing EEO Officer.

To preserve the right to file a formal EEO complaint, individuals who believe they have been subjected to unlawful discrimination must seek informal EEO counseling within 45 calendar days of the alleged discriminatory act. The allegation will be assigned to a EEO staff member to conduct informal EEO counseling. At the initial interview, the EEO counselor will explain the EEO complaint process and the option to participate in mediation.

Employees may be eligible to receive monetary damages for disclosure of private medical information. The Rehab Act Federal agencies to maintain the confidentiality of medical information and take measures to prevent the unauthorized access to such information. Any violation of this provision is by itself a violation of the Rehab Act and entitles the employee to damages---even if the employee suffers no harm. Because the Rehab Act protects access to medical information, it is a per se violation of the Rehab Act to provide unauthorized access to an employee’s medical information---even if no one actually sees the information. The amount of damages awarded is likely to depend on how the disclosure occurred (was it inadvertent or intentional) and whether the disclosure caused any harm.

• Keep medical information in separate files marked “Confidential.” If the medical information is part of a larger issue, for example, a disciplinary decision, keep the medical information in a folder separate from the rest of the documentation and mark it “Confidential.”
• Treat all medical information as confidential and secure the files in a locked cabinet when not in use (this includes any instances in which you must step away from the files, however briefly).
• Use password protection to transmit medical information via email when sending internally or externally.
• Guard against inadvertent disclosure.
• If you are working on any documents that contain medical information, cover any medical information when others come into your office.
• If you are talking to an employee about his or her medical information, do so out of the hearing of others.

Title VII of the Civil Rights Act of 1964 protects all aspects of religious observance and practice as well as belief and defines religion very broadly for purposes of determining what the law covers. For purposes of Title VII, religion includes not only traditional, organized religions, such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it. Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.

Religious beliefs include theistic beliefs (i.e. those that include a belief in God) as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Although courts generally resolve doubts about particular beliefs in favor of finding that they are religious, beliefs are not protected merely because they are strongly held. Rather, religion typically concerns “ultimate ideas” about “life, purpose, and death.” Social, political, or economic philosophies, as well as mere personal preferences, are not “religious” beliefs protected by Title VII.

Religious observances or practices include, for example, attending worship services, praying, wearing religious garb or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, or refraining from certain activities. Whether a practice is religious depends on the employee’s motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.).

Title VII’s prohibition against disparate (different) treatment based on religion generally functions like its prohibition against disparate treatment based on race, color, sex, or national origin. Disparate treatment violates the statute whether the difference is motivated by bias against or preference toward an applicant or employee due to his religious beliefs, practices, or observances – or lack thereof. For example, except to the extent permitted by the religious organization or ministerial exceptions:

• Employers may not refuse to recruit, hire, or promote individuals of a certain religion, impose stricter promotion requirements for persons of a certain religion, or impose more or different work requirements on an employee because of that employee’s religious beliefs or practices.
• Employers may not refuse to hire an applicant simply because he/she does not share the employer’s religious beliefs and conversely, may not select one applicant over another based on a preference for employees of a particular religion.
• Employment agencies may not comply with requests from employers to engage in discriminatory recruitment or referral practices, for example by screening out applicants who have names often associated with a particular religion (e.g., Mohammed).
• Employers may not exclude an applicant from hire merely because he/she may need a reasonable accommodation that could be provided absent undue hardship.
• The prohibition against disparate treatment based on religion also applies to disparate treatment of religious expression in the workplace. For example, if an employer allowed one secretary to display a Bible on his/her desk at work while telling another secretary in the same workplace to put the Quran on his/her desk out of view because co-workers “will think you are making a political statement, and with everything going on in the world right now we don’t need that around here,” this would be differential treatment in violation of Title VII.

Religious harassment in violation of Title VII occurs when employees are: (1) required or coerced to abandon, alter, or adopt a religious practice as a condition of employment (this type of “quid pro quo” harassment may also give rise to a disparate treatment or denial of accommodation claim in some circumstances); or (2) subjected to unwelcome statements or conduct that is based on religion and is so severe or pervasive that the individual being harassed reasonably finds the work environment to be hostile or abusive, and there is a basis for holding the agency liable.

It is necessary to evaluate all of the surrounding circumstances to determine whether or not particular conduct or remarks are unwelcome. For example, where an employee is upset by repeated mocking use of derogatory terms or comments about his religious beliefs or observance by a colleague, it may be evident that the conduct is unwelcome. In contrast, a consensual conversation about religious views, even if quite spirited, does not constitute harassment if it is not unwelcome.

Even unwelcome religiously motivated conduct is not unlawful unless the victim subjectively perceives the environment to be abusive and the conduct is severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive. Religious expression that is repeatedly directed at an employee can become severe or pervasive, whether or not the content is intended to be insulting or abusive. Thus, for example, persistently reiterating atheist views to a religious employee who has asked that this conduct stop can create a hostile environment.

The extent to which the expression is directed at a particular employee is relevant to determining whether or when it could reasonably be perceived to be severe or pervasive by that employee. For example, although it is conceivable that an employee may allege that he is offended by a colleague’s wearing of religious garb, expressing one’s religion by wearing religious garb is not religious harassment. It merely expresses an individual’s religious affiliation and does not demean other religious views. As such, it is not objectively hostile. Nor is it directed at any particular individual. Similarly, workplace displays of religious artifacts or posters that do not demean other religious views generally would not constitute religious harassment.

CBP is always liable for a supervisor’s harassment if it results in a tangible employment action. However, if it does not, the agency may be able to avoid liability or limit damages by showing that: (a) the agency exercised reasonable care to prevent and correct promptly any harassing behavior, and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. The agency is liable for harassment by co-workers where it knew or should have known about the harassment, and failed to take prompt and appropriate corrective action. The agency is liable for harassment by non-employees where it knew or should have known about the harassment, could control the harasser’s conduct or otherwise protect the employee, and failed to take prompt and appropriate corrective action.

Yes. Title VII prohibits retaliation by an employer, employment agency, or labor organization because an individual has engaged in protected activity. Protected activity consists of opposing a practice the employee reasonably believes is made unlawful by one of the employment discrimination statutes or of filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the statute. Requesting religious accommodation is protected activity.

You may initiate an informal EEO complaint by sending an email to cbpeeocomplaintfiling@dhs.gov, with a brief statement on why you believe that you have been subjected to unlawful discrimination. Your email should also include your telephone number and address.

You may also initiate an informal EEO complaint by calling (1-877) MY-EEO-HELP (1-877-693-3643), or by contacting your servicing EEO Officer.

To preserve the right to file a formal EEO complaint, individuals who believe they have been subjected to unlawful discrimination must seek informal EEO counseling within 45 calendar days of the alleged discriminatory act. The allegation will be assigned to a EEO staff member to conduct informal EEO counseling. At the initial interview, the EEO counselor will explain the EEO complaint process and the option to participate in mediation.

Title VII of the Civil Rights Act of 1964 protects all aspects of religious observance and practice as well as belief and defines religion very broadly for purposes of determining what the law covers. For purposes of Title VII, religion includes not only traditional, organized religions, such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it. Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.

Religious beliefs include theistic beliefs (i.e. those that include a belief in God) as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Although courts generally resolve doubts about particular beliefs in favor of finding that they are religious, beliefs are not protected merely because they are strongly held. Rather, religion typically concerns “ultimate ideas” about “life, purpose, and death.” Social, political, or economic philosophies, as well as mere personal preferences, are not “religious” beliefs protected by Title VII.

Religious observances or practices include, for example, attending worship services, praying, wearing religious garb or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, or refraining from certain activities. Whether a practice is religious depends on the employee’s motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.).

A religious accommodation is a modification or adjustment to the application process or the work environment to allow the individual to practice his/her religious beliefs without creating an undue hardship on CBP.

Yes. It is a violation of Title VII of the Civil Rights Act of 1964 to fail to provide a reasonable accommodation for the religious beliefs and/or practices of employees and applicants for employment unless providing a reasonable accommodation would result in undue hardship to CBP. Undue hardship must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business ((Groff v. DeJoy, 143 S. Ct. 2279 (2023)).

Employer-employee cooperation and flexibility are key to the search for a reasonable religious accommodation. If the accommodation solution is not immediately apparent, an appropriate management official in an interactive dialogue session, which may be facilitated by the assigned EEO staff member, will discuss the request with the employee to determine what accommodations might be effective. If CBP requests additional information reasonably needed to evaluate the request, the employee should provide it. For example, if an employee has requested a schedule change to accommodate daily prayers, CBP may need to ask for information about the religious observance, such as time and duration of the daily prayers to determine whether an accommodation can be granted without posing an undue hardship on the operation of CBP. Moreover, even if the employer does not grant the employee’s preferred accommodation, but instead provides an alternative accommodation, the employee must cooperate by attempting to meet his or her religious needs through the proposed accommodation.

No. Title VII requires the agency to accommodate only those religious beliefs that are religious and “sincerely held,” and that can be accommodated without an undue hardship. Although there is usually no reason to question whether the practice at issue is religious or sincerely held, if CBP has a bona fide doubt about the basis for the accommodation request, it is entitled to make a limited inquiry into the facts and circumstances of the employee’s claim that the belief or practice at issue is religious and sincerely held, and gives rise to the need for the accommodation.

Factors that – either alone or in combination – might undermine an employee’s assertion that he or she sincerely holds the religious belief at issue include: whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the agency otherwise has reason to believe the accommodation is not sought for religious reasons.

However, none of these factors is dispositive. For example, although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence – may change over time, and therefore an employee’s newly adopted or inconsistently observed religious practice may nevertheless be sincerely held. The agency also should not assume that an employee is insincere simply because some of his or her practices deviate from the commonly followed tenets of his or her religion.

It depends. Federal law requires agencies to provide reasonable accommodation for an employees’ religious beliefs and practices. Thus, you may be entitled to a religious accommodation to attend your weekly religious service, but the accommodation you are entitled to will not necessarily be a permanent shift assignment. The accommodation will depend on the needs of the agency. An Agency must also take into consideration collective bargaining agreements where Title VII specifies that actions taken “pursuant to a bona fide seniority or merit system” are legal so long as the employer did not adopt or design the system with a discriminatory motive. Additionally, the U.S. Supreme Court held that, generally, an undue hardship may be shown where an accommodation conflicts with a valid collective bargaining agreement. (Groff v. Dejoy, 143 S.Ct. 2279, 2290-92 (2023)).

An accommodation would pose an undue hardship if it – would cause substantial increased burden on the operation of CBP. Factors relevant to undue hardship may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the agency, the number of employees who will in fact need a particular accommodation and a bona fide seniority or merit system based on a collective bargaining agreement.

Costs to be considered include not only direct monetary costs but also the burden on the conduct of CBP’s business. For example, courts have found undue hardship where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work. Whether the proposed accommodation conflicts with another law will also be considered.

Costs to be considered include not only direct monetary costs but also the burden on the conduct of CBP’s business. For example, courts have found undue hardship where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work. Whether the proposed accommodation conflicts with another law will also be considered.

No. A proposed religious accommodation poses an undue hardship if it would deprive another employee of a job preference or other benefit guaranteed by a bona fide seniority system or collective bargaining agreement (CBA). Of course, the mere existence of a seniority system or CBA does not relieve CBP of the duty to attempt reasonable accommodation of its employees’ religious practices; the question is whether an accommodation can be provided without violating the seniority system or CBA. Often the agency can allow co-workers to volunteer to substitute or swap shifts as an accommodation to address a scheduling need without violating a seniority system or CBA.

Although religious accommodations that infringe on co-workers’ ability to perform their duties or subject co-workers to a hostile work environment will generally constitute undue hardship, general disgruntlement, resentment, or jealousy of co-workers will not. Undue hardship requires more than proof that some co-workers complained; a showing of undue hardship based on co-worker interests generally requires evidence that the accommodation would actually infringe on the rights of co-workers or cause disruption of work.

Although religious accommodations that infringe on co-workers’ ability to perform their duties or subject co-workers to a hostile work environment will generally constitute undue hardship, general disgruntlement, resentment, or jealousy of co-workers will not. Undue hardship requires more than proof that some co-workers complained; a showing of undue hardship based on co-worker interests generally requires evidence that the accommodation would actually infringe on the rights of co-workers or cause disruption of work.

Under Title VII, CBP may use a variety of methods to provide reasonable accommodations to its employees. Some of the most common methods are:

• Scheduling changes, voluntary substitutes, and shift swaps;
• Changing an employee’s job tasks or providing a lateral transfer;
• Making an exception to dress and grooming rules;
• Use of the work facility for a religious observance;
• Accommodations relating to payment of union dues or agency fees; and
• Accommodating prayer, proselytizing, and other forms of religious expression.

The First Amendment religion and speech clauses (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech”) protect individuals against restrictions imposed by the government. Government employees’ religious expression is protected by both the First Amendment and Title VII. See Guidelines on Religious Exercise and Religious Expression in the Federal Workplace (Aug. 14, 1997). For example, a government employer may contend that granting a requested religious accommodation would pose an undue hardship because it would constitute government endorsement of religion in violation of the Establishment Clause of the First Amendment.

No. Prohibiting employees from speaking in a language other than English could be considered discrimination based on national origin. However, an office policy may be established that requires employees to speak only English at certain times when not doing so would adversely impact work duties, tasks, and communication.

Sexual harassment is the unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that tends to create a hostile or offensive work environment. Discriminatory harassment is any unwelcome, typically repeated offensive conduct that is directed at an individual because of his/her membership in a legally protected class. (Protected classes are based on federal law or Executive Order, including sex, age, disability, religion, reprisal, genetic information, status as a parent, etc.).

Yes. In some cases, behavior intended as a joke can be considered unlawful discriminatory harassment. Harassment is unwanted, unsolicited, unwelcome, repeated, and/or offensive, comments, materials, and/or behavior that demeans, belittles, intimidates, or humiliates another person because of their protected status under the law or Executive Order (i.e. sex, age, disability, religion, reprisal, genetic information, status as a parent, etc.). Unlawful discriminatory harassment can be verbal, physical, or non-verbal, and it violates federal law if it is sufficiently severe or pervasive to alter the conditions of employment and creates a hostile work environment. The test for determining whether conduct is harassing is not on what the person who engages in the conduct intended but on how such conduct would be perceived by a reasonable employee.

Yes. This type of behavior is inappropriate in the workplace and in some instances may be considered as discriminatory if directed toward an individual or group because of their protected status under the law. Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people and is sufficiently severe to alter the conditions of employment. Racial or ethnic slurs directed to or in the presence of a person will almost always be considered harassment. See EEOC’s definition of Harassment.

CBP employees have an obligation to report misconduct, including discriminatory or harassing behavior, to the Joint Intake Center at 1-877-2INTAKE or Joint.Intake@dhs.gov; the Immigration and Customs Enforcement, Office of Professional Responsibility; or the Office of Inspector General at 1-800-323-8603 or DHSOIGHOTLINE@dhs.gov.

Equal Employment Opportunity is fair treatment in employment, promotion, training, and other personnel actions without regard to religion, sex (which includes sexual harassment and pregnancy), age, reprisal (for prior EEO activity), physical or mental disability, genetic information, status as a parent, etc. To make sure that all Federal employees and applicants for employment with the Federal Government are provided this opportunity, certain laws and regulations were issued containing the legal basis for EEO programs in Federal agencies.

An EEO complaint is an allegation of discrimination because of membership in a protected class covered under the Federal anti-discrimination laws or Executive Orders.

Yes. During the Pre-Complaint process, a complaint can be filed even if your issue does not allege unlawful discrimination; however, to move to the next stage in the process, this type of complaint would be dismissed for failing to state a valid claim of discrimination. Therefore, first consider discussing the matter with your supervisor to work through a resolution to your issue. Additionally, there are other avenues to consider if the issue bringing you concern is not based on unlawful discrimination. Some of these avenues may include:

• An appeal to the Merit Systems Protection Board (MSPB) where an action is otherwise appealable to the Board and the employee alleges that the basis for the action was discrimination prohibited by Federal law;
• A complaint of possible prohibited personnel practice with the Office of Special Counsel; and/or
• A negotiated or administrative grievance.

You may initiate an informal EEO complaint by sending an email to cbpeeocomplaintfiling@dhs.gov, with a brief statement on why you believe that you have been subjected to unlawful discrimination. Your email should also include your telephone number and address.

You may also initiate an informal EEO complaint by calling (1-877) MY-EEO-HELP (1-877-693-3643), or by contacting your servicing EEO Officer.

To preserve the right to file a formal EEO complaint, individuals who believe they have been subjected to unlawful discrimination must seek informal EEO counseling within 45 calendar days of the alleged discriminatory act. The allegation will be assigned to an EEO staff member to conduct informal EEO counseling. At the initial interview, the EEO counselor will explain the EEO complaint process and the option to participate in mediation.

While you have the right to be accompanied and advised by a representative at every stage of the EEO process, as long as there is no conflict of interest or position, you do not need to have a representative. If you choose to be represented during the informal EEO counseling process, you must complete a Designation of Representative Form and submit it to the appropriate EEO official.

You should be prepared to provide information and describe the what, when and how you were discriminated against. Be prepared to provide the full names of the involved persons, dates of the incidents, and to discuss what remedies could resolve the issues.

Official time (administrative leave) is appropriate when CBP employees who participate in the equal employment opportunity complaint process as complainants, witnesses, and/or representatives are requested or required to participate during an official administrative (informal and formal) EEO complaint process. Official time must be requested and approved in advance. It is not authorized for participation in federal court EEO proceedings.

Mediation is a process for resolving conflicts in which a mediator assists the parties to discuss their issues and reach a mutually acceptable resolution.

The benefits of mediation include:

• Voluntary in nature – Participation by voluntary agreement;
• Informality – Absence of complicated procedure, documentation, witness testimony, investigation, and formal records;
• Opportunity for early dialogue – Early discussion before possible escalation of issue;
• The presence of a neutral third party to facilitate discussion– A resolution is not imposed by the neutral third party, rather the mediator is there to facilitate productive discussion between the parties;
• Opportunity to reach creative resolution – The parties, in most instances, are free to explore creative solutions to the issues presented;
• The process is confidential – Participants sign a pledge of confidentiality prior to the session, and nothing said during the mediation session will be used in future proceeding if the matter is not resolved during mediation;
• Allows the parties to take a proactive approach – Mediation allows the parties to take a hands-on approach to resolving their issues without proceeding to the formal administrative process and then possibly to federal court; and
• Fast – Mediation, in most cases, will allow the parties to resolve issues in a matter of days, and return to a productive working relationship.

The mediator, a third party trained neutral, facilitates the process. The mediator will be an impartial third party, with no personal interests in the resolution and no preconceived bias as to how the dispute should be resolved. Mediators help parties clarify the issues in the dispute, identify interests, and explore potential solutions acceptable to all. Mediators must ensure confidentiality, which includes destroying all written notes taken during the process. Mediators have no authority to make or impose a decision or judge the merits of the dispute.

The mediator, the complainant, and the management official should be present. All parties can have representatives, who may also be present for the session only with consent from all parties, in advance of the session.

This initial step of the mediation process begins with a joint session. At the beginning of the joint session, the mediator clarifies his/her role in the mediation process and those of the parties. Next, each party to the dispute tells his or her side of the story without interruption. Following the joint session, the mediator meets with each party separately- this is known as a caucus which is designed to discuss the issues in greater detail and to gain a better sense of how the parties would like the issues resolved. During the individual caucuses, the mediator attempts to help the parties identify relevant issues, dismiss possible misconceptions based on inadequate or lack of information, and try to find a meaningful way to solve their problem that benefits both parties. After the caucuses, the mediator meets again with the parties jointly and encourages the parties to discuss their issues using interest-based techniques.

After the parties agree to resolve the issues presented during mediation, the mediator will ask the parties to enter into a tentative agreement. The terms of agreement will be captured by the mediator, reviewed with the parties, and sent to the EEO Counselor to draft a binding settlement agreement. All parties shall be given an opportunity to review the agreement and after the parties sign the final agreement, the complaint is resolved and no further processing is required. The EEO Division will monitor the implementation of the terms of agreement.

If the issues are not resolved through mediation, the mediator will ask the parties to complete a mediation evaluation form. The mediator will instruct the parties that the matter will be referred back to the assigned EEO counselor. The EEO counselor will hold a final interview with the complainant. At this point, the complainant has the option of withdrawing the informal complaint or receiving a Notice of Right to File a Discrimination (NORTF) Complaint letter which affords him/her the opportunity to file a formal complaint.

An EEO complaint becomes formal when the Complainant completes the DHS Formal Complaint Form 3090, provided to them by their EEO Counselor at the conclusion of counseling, and that form is filed within 15 calendar days from receipt of the Notice of Right to File (NORTF) letter with the EEO Division, Complaints Management and Investigations Group (CMIG).

The complaint form must be signed by the aggrieved party or the party's attorney. The complaint must include the telephone number and the address of the complainant and/or the chosen representative. The complaint itself must precisely identify the complainant and agency. A general description of the alleged discriminatory action or practice must also be included.

The Complaints Management and Investigations Group will acknowledge receipt of the complaint in writing and inform the complainant of his/her rights during the formal complaint process.

Upon receipt of the Notice of Right to File (NORTF), the decision will be made to either dismiss or investigate the claim. If insufficient information is included in the formal complaint in order to determine what action to take on the allegations, the Complaints Management and Investigations Group will contact the Complainant and request additional information.

The Complainant has a duty to respond to requests for addition information made by the Complaints Management and Investigations Group. Failure to respond in the specified time limits may result in dismissal of the formal complaint.

If another issue of discrimination arises during the course of the investigation, a Complainant may request to amend the complaint at any time prior to the conclusion of the investigation. The Complainant must make this request in writing to the Complaints Management and Investigations Group (CMIG) that outlines the new issue and explain why the Complainant believes this new issue to be discriminatory. This request must be signed and dated by the Complainant. It is up to the CMIG to accept or dismiss the amendment as it must be "like or related" to the current claims accepted for investigation.

Any employee who is covered by the National Treasury Employees’ Union (NTEU) Collective Bargaining Agreement (CBA) who believes that he or she has been discriminated against because of religion, sex, age, disability, status as a parent, or reprisal for filing a claim on one of these bases, except where required by statute or pursuant to bona fide occupational qualifications may file a grievance.

Any federal employee may initiate a statutory complaint of discrimination under EEOC regulation 29 C.F.R. §1614.

• The terms of this Agreement apply to all professional and nonprofessional CBP employees, excluding: Employees in the Office of Border Patrol assigned to Border Patrol Sectors; Employees of the Office of Chief Counsel; Management officials, supervisors, and other employees excluded from the bargaining unit in accordance with 5 U.S.C. § 7112(b) (2), (3), (4), (6) and (7).
• Discrimination bases under applicable Federal law and Executive Orders include: religion, sex, age, disability, status as a parent, reprisal (for prior EEO activity), etc.

If your complaint is dismissed in its entirety, the Department of Homeland Security, Office of Civil Rights and Civil Liberties will issue a final agency decision to notify you in writing of the reason your claim is being dismissed. The dismissal is appealable to the EEOC.

An EEO Investigator will be assigned to conduct the EEO investigation. You will be notified in writing of the issues accepted for investigation and the name of the investigator, who is authorized to conduct the investigation. In most instances, CBP’s EEO Investigators are full-time CBP employees assigned to the Complaints Management and Investigations Group.

The EEO investigator reviews the complaint to determine if it meets the requirements for acceptance. If the claim is accepted, the assigned EEO Investigator will conduct the investigation within 180 calendar days from the filing date of the claim. The investigator serves as an unbiased fact gatherer identifying and securing information through interviews of witnesses and review of written records. This information is compiled into an investigative file which must be thorough enough to enable an appointed decision maker to make a final decision as to whether unlawful employment discrimination occurred with regard to the claims investigated.

By regulation, CBP must complete the investigation within 180 calendar days from the date of receipt of the formal complaint. If the complaint is amended CBP is allowed to complete the investigation within the earlier of 180 days after the last amendment to the complaint, or 360 days after filing the original complaint.

An impartial and appropriate factual record will be drafted by the investigating agency. The EEO Investigator will solicit declarations from the involved parties and document evidence to compile an accurate record of the claims. From this record, a third-party will determine findings on the claims made by the aggrieved party. An appropriate factual record is defined as one that allows a reasonable fact finder to draw conclusion on whether discrimination occurred.

Once CBP completes the investigation, it will provide the Complainant with an electronic copy of the investigative file (IF) along with the election notice. Complainant will get 15 days (from receipt of the IF) to review and make a request to supplement the IF and 30 days (from receipt of the election notice) to either request a hearing and decision from an EEOC Administrative Judge, or request an immediate final decision from the agency.

No. Managers and supervisors are not provided with copies of statutory Investigative files, however, for EEO Grievance Investigative files, the head of the office does receive a copy of the Investigative file.

If a Complainant requests a hearing before an Administrative Judge, CBP will immediately transmit the Investigative File (IF) to the appropriate EEOC office. Once the file has been transmitted, CBP no longer retains jurisdiction over the complaint and all further questions should be directed to the appropriate EEOC Office. Procedures regarding the EEOC hearing process can be found at EEOC’s website.

If the complainant does not request a hearing before an EEOC AJ, the Department of Homeland Security, Office of Civil Rights and Civil Liberties (CRCL) is required by regulation to issue a decision in 60 days. CRCL will notify the Complainant in writing of its decision. CRCL will also provide the employee with appeal rights, if the employee desires to appeal the Final Agency Decision. In addition, if a complainant elects a hearing before the EEOC, and the EEOC administrative judge issues a decision, CRCL must issue a FAD on behalf of DHS within 60 calendar days.

A class action complaint of discrimination differs significantly from an individual complaint by definition, time requirements and method of processing. Specifically, class action complaints allege that the class (or group of people), is being negatively affected by an agency's personnel policy or practice which discriminates against the group on the basis of their religion, sex, age, or physical or mental disability. The class may include employees, former employees or applicants for employment.

Class action complaints have different requirements and procedures than individual complaints. Class action complaints should be made WITHIN 45 CALENDAR DAYS Class following the alleged discriminatory act. More detailed information is available on this process through the local EEO Office.