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Diversity and EEO Frequently Asked Questions

Diversity and Inclusion

What is CBP’s goal for diversity and inclusion in the agency?

CBP’s goal is to provide all employees with opportunities to realize their full potential and have successful careers in an inclusive work environment that embraces diversity.

Why is diversity and inclusion valued at CBP and how does this impact CBP’s workforce?

Our diversity and inclusion management principles value not only having a workforce that includes individuals of varied races, religions, ages, national origins, genders, parental status, sexual orientations, and gender identities and expresses, but also having a workforce that embraces differences in approaches, insights, ability, and experience.

What is diversity?

Simply put, diversity means difference – individuality – unique – and it means variety. Diversity is also that set of characteristics, experiences, and values that cannot be changed which define an individual such as national origin, age, language, race, color, and ethnicity. Diversity also includes characteristics that define an individual which may change or that occur naturally such as religion, gender identity, socioeconomic level, veteran status, education level and family structure.

What is inclusion?

Inclusion is best exemplified in a work culture that encourages collaboration, learning from differences, flexibility, fairness and equal opportunity which collectively enhance organizational effectiveness. Inclusion leverages diversity throughout an organization so that all individuals are able to participate and contribute to their fullest potential.

What are the benefits of diversity and inclusion management?

  • Get beyond individual bias or misconceptions about others.
  • Make better use of the individual talent and experiences of coworkers and subordinates.
  • Access a variety of viewpoints and experiences.
  • Feeling of inclusion results in higher employee engagement and productivity.
  • Enhances working relationships.

What is the purpose of Diversity and Inclusion Program Committees?

Diversity and Inclusion Program Committees are utilized to achieve CBP’s organizational goal to improve diversity awareness and inclusion within our workforce. The committees exist at most CBP locations and engage in planning events and activities to enhance culture awareness, appreciation, and community outreach.

How can my Port/Station celebrate diversity and inclusion programs without funding?

The key is to be creative. An effective and educational diversity and inclusion program does not have to be expensive. Examples include displays, showing of relevant videos, local speakers at lunch ‘n learns, and cultural food sampling provided by employees.

If a Diversity and Inclusion Program Committee (DIPC) member is approached by a person who wants to present an Equal Employment Opportunity (EEO) complaint matter, what is the responsibility of the Committee member?

DIPC members do not have the authority to handle EEO complaint matters. Therefore, the person who wants to present an EEO complaint matter should be referred to the servicing DCR Officer.

What is the supervisors’ role regarding Diversity and Inclusion Program Committees?

Supervisors’ support of DIPCs may include:

  • Volunteering to serve on local DIPC. All CBP employees, regardless of grade or title are encouraged to be active on local committees.
  • Encourage subordinates to become members of the DIPC, and support their interest in doing so.
  • Participate in and/or contribute to local diversity and inclusion events and observance programs. This goes beyond just attending the events. Perhaps you have ethnic artifacts that you would like to loan for a display, or you are willing to serve as a guest speaker for a program, or know someone who would be interested in doing so.
Resasonable Accommodation Based on a Disability

What is reasonable accommodation?

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.

Is CBP required to provide reasonable accommodation for qualified employees and applicants 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.

What is my first step if I would like to request a reasonable accommodation?

CBP Employee: Employees with disabilities who desire accommodations shall: 1) Request an accommodation either orally or in writing to his or her immediate supervisor, another supervisor or manager in his/her chain of command, or to a PDO staff member; 2) Provide an interactive evaluation and accommodation recommendation from their treating health care provider, if requested; and 3) Provide a description of the accommodation requested, if known, and the explanation of how it would enable him or her to perform the job. Employee requests for personal assistance services are processed under CBP’s current reasonable accommodation procedures.

CBP Prospective Employee: An applicant for employment with CBP who has received a final selection letter and requires an accommodation to perform job duties or to access a benefit of employment (e.g., training, office-sponsored events, emergency evacuation), shall email a Request for Reasonable Accommodation to PDOTaskings@cbp.dhs.gov.

CBP Applicant: The reasonable accommodation process begins for an applicant, when the applicant, or someone acting on his/her behalf, presents a request for accommodation either orally or in writing to the Indianapolis or Minneapolis Hiring Center or to the Office of Personnel Management (OPM) when OPM is the agency that is administering assessments to applicants.

For additional information, employees should contact their servicing DCR Officer.

CBP’s reasonable accommodation procedures may be accessed at CBP Directive No. 51713-007A - Reasonable Accommodation Procedures for Applicants and Employees with Disabilities.

Information on personal assistance services requests may be assessed at CBP Reasonable Accommodation and Personal Assistance Services Public Notice.

What should happen after an accommodation request has been made?

The individual and agency should engage in an "interactive process" to determine whether and what type accommodation is appropriate. This involves an informal discussion with the requester, facilitated by the assigned PDO staff member, to determine a suitable accommodation. 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 and preferences or for supporting medical information 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.

How does CBP determine whether a reasonable accommodation is appropriate and the type of accommodation that should be granted?

The requirement generally will be triggered by a request from an individual with a disability, who frequently can suggest an appropriate accommodation. Accommodations must be made on a case-by-case basis, because the nature and extent of a disabling condition and the requirements of the job 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.

Is CBP obligated to provide a reasonable accommodation for an individual if management is unaware of the individual's disability?

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 the employee’s disability require an accommodation.

When must CBP consider reassigning an employee with a disability to another job as a reasonable accommodation?

When a qualified employee with a disability is unable to perform his or her present job even with the provision of a reasonable accommodation, CBP must consider reassigning the employee to an existing position that she 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. 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.

Is an employee who takes insulin daily to control his diabetes, but has no significant impact on his employment, protected under the Rehabilitation Act?

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, she 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.

Are recreational and/or social alcohol and drug users protected under the Rehabilitation Act?

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.

If, for pregnancy-related reasons, an employee is unable to perform the functions of her job, does the employer have to provide reasonable accommodation?

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.

Is CBP required to provide a reasonable accommodation to a person without a disability due to that person’s association with someone with a disability?

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.

What if an accommodation is provided to an employee but is not effective?

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

Confidentiality and Disclosure of Medical Information

Can CBP disclose medical information I provide?

Employees are often 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.  However a manager obtains such information, the manager may not further disclose the medical information except to persons with a need to know.

What if medical information is disclosed?

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 January 26, 2012.  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).  

The PIHG requires DHS personnel to inform their Program Manager (i.e., a second level supervisor or higher) immediately upon discovery or detection of a Privacy Incident, regardless of the manner in which it occurred.  Appendix D, DHS Privacy Playbook: Handling Process Overview, provides an overview and checklist for the incident reporting process.  These procedures apply to both suspected and confirmed incidents involving PII.  How CBP is required to respond to a Privacy Incident depends upon the seriousness of the incident.

When properly adhered to, CBP's privacy protocols for proper maintenance and sharing of PII represent the best practices for safeguarding PII and also help to protect CBP employees from criminal liability stemming from violations of the Privacy Act.

How should a suspected or confirmed privacy disclosure incident be reported?

Suspected or confirmed privacy disclosure incidents should be reported to the CBP Security Operations Center via email at CSIRC@cbp.dhs.gov or telephone at (703) 921-6507.  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.

What redress do I have if my private medical information is disclosed to other employees who do not have a need to know?

Under the Privacy Incident Handling Guidance (PIHG), CBP must take mitigating action depending on the nature of the incident to try to reduce the risk of harm.  In an instance of a single disclosure of one employee’s medical information beyond those with a need to know, mitigation could include having extra copies of medical records destroyed and other measures designed to limit further dissemination.  Although it does not help to mitigate the disclosure, the review and/or investigation of the circumstances of disclosure may also result in counseling, discipline, or, in the instance of an intentional disclosure, referral of a criminal violation pertaining to the person who caused the disclosure.

Can I be compensated for the harm done to me because a manager provided my medical records or medical information to people who did not have a need to know?

Employees may be eligible to receive monetary damages for disclosure of private medical information.  The Rehabilitation Act (Rehab Act) requires federal managers to place employee medical information on separate forms and in separate medical files, to treat those files as “confidential medical records,” and to keep all employee medical information confidential.  Such medical information may not be disclosed unless permitted by a particular exception in the Rehab Act.

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.

How should a mangaer treat medical information in order to avoid a violation of the Rehab Act?

  • 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.” 
  • Use password protection to transmit medical information via email when sending internally or externally.
  • Guard against inadvertent disclosure.
  • If you are working on an employee’s application for family and medical leave, 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.
  • If you have a file containing medical information on your desk when you leave your office, however briefly, return the file to a locked cabinet or close or lock your door.
Pandemic Preparedness in the Workplace

What is a "pandemic"?

A “pandemic” is a global “epidemic” of an infectious disease.  The most recent pandemics have been influenza pandemics such as the H1N1 outbreak in 2009.  The U.S. Department of Health and Human Services (HHS), Centers for Disease Control and Prevention (CDC), and the World Health Organization (WHO) are the definitive sources of information about influenza and other pandemics.

How is the Americans with Disabilities Act (ADA) relevant to pandemic preparation?

The ADA is relevant to pandemic preparation in three ways.  First, the ADA regulates CBP’s disability-related inquiries and medical examinations for all applicants and employees, including those who do not have ADA disabilities. Second, the ADA prohibits CBP from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat.” Third, the ADA requires reasonable accommodations for individuals with disabilities (absent undue hardship) during a pandemic.

What is a direct threat?

A direct threat is a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. If an individual with a disability poses a direct threat despite reasonable accommodation, he or she is not protected by the nondiscrimination provisions of the ADA.

Before a pandemic is declared, can CBP ask an employee to disclose if he or she has a compromised immune system or chronic health condition that the CDC says could make him or her more susceptible to complications of the infectious disease?

No. An inquiry asking an employee to disclose a compromised immune system or a chronic health condition is disability-related because the response is likely to disclose the existence of a disability. The ADA does not permit such an inquiry in the absence of objective evidence that pandemic symptoms will cause a direct threat. Such evidence is completely absent before a pandemic occurs.

Can CBP require new entering employees to have a post-offer medical examination to determine their general health status?

Yes, if all entering employees in the same job category are required to undergo the medical examination and if the information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record.

Can CBP rescind a job offer made to an applicant based on the results of a post-offer medical examination if it reveals that the applicant has a medical condition that puts her at increased risk of complications from a pandemic disease?

No, unless the applicant would pose a direct threat within the meaning of the ADA. A finding of “direct threat” must be based on reasonable medical judgment that relies on the most current medical knowledge and/or the best available evidence such as objective information from the CDC or state or local health authorities. The finding must be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job, after considering, among other things, the imminence of the risk; the severity of the harm; and the availability of reasonable accommodations to reduce the risk. Before concluding that an individual poses a direct threat, the employer must determine whether a reasonable accommodation could reduce the risk below the direct threat level, absent any medical condition that would preclude their use of medical countermeasures or immunizations.

Can CBP send employees home if they display pandemic disease-like symptoms during a pandemic?

Yes. The CDC states that employees who become ill with symptoms of pandemic disease-like illness at work during a pandemic should leave the workplace.  Advising such workers to go home is not a disability-related action if the illness is akin to the pandemic in question.  Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat.

During a pandemic, how much information can CBP request from employees who report feeling ill at work or who call in sick?

CBP can ask employees if they are experiencing relevant symptoms, such as fever or chills. CBP must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

During a pandemic, can CBP take its employees’ temperatures to determine whether they have a fever?

Yes. If an employees’ symptoms become more severe than the seasonal flu or if a pandemic disease becomes widespread in the community as assessed by state or local health authorities or the CDC, then CBP may measure employees’ body temperature.

When an employee returns from travel during a pandemic, does CBP have to wait until the employee develops specific symptoms to ask questions about exposure to a pandemic disease during the trip?

No. These would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic disease symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.

During a pandemic, can CBP ask employees who do not have the identified symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable?

No. If the identified pandemic is like the seasonal influenza, making disability-related inquiries or requiring medical examinations of employees without symptoms is prohibited by the ADA.

  • If an employee voluntarily discloses (without a disability-related inquiry) that he has a specific medical condition or disability that puts him or her at increased risk of pandemic disease related complications, the employer must keep this information confidential. The employer may ask him to describe the type of assistance he thinks will be needed (e.g. telework or leave for a medical appointment). Employers should not assume that all disabilities increase the risk of pandemic disease complications. Many disabilities do not increase this risk (e.g., vision or mobility disabilities).
  • If a designated pandemic condition becomes more severe or serious according to the assessment of local, state or federal public health officials, CBP may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract the pandemic designated condition. Only in this circumstance can CBP make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of pandemic related complications.

Can CBP encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy during a pandemic?

Yes. Telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation.

  • Telework (i.e., working from an alternative location) is an example of “social distancing,” which public health authorities may require in the event of a pandemic. “Social distancing” reduces physical contact between people to minimize disease transmission by, for example, avoiding hand-shakes and keeping a distance from others in public places. Other social distancing practices that may be implemented during a pandemic include: “closing schools; canceling public gatherings; planning for liberal work leave policies; . . . voluntary isolation of [pandemic infection] cases; and voluntary quarantine of household contacts.” See Centers for Disease Control & Prevention, Interim Pre-pandemic Planning Guidance: Community Strategy for Pandemic Influenza Mitigation.
  • Employees with disabilities may request telework as a reasonable accommodation, even if the employer does not have a policy allowing it. See Equal Employment Opportunity Commission, Work at Home/Telework as a Reasonable Accommodation (Oct 27, 2005).
  • In addition, employees with disabilities that put them at high risk for complications of a pandemic condition may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.

During a pandemic, can CBP require employees to adopt infection-control practices, such as regular hand washing, at the workplace?

Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA.

During a pandemic, can CBP require employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of pandemic infection?

Yes. CBP may require employees to wear personal protective equipment during a pandemic. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), CBP must provide these, absent undue hardship.

Can CBP compel all of its employees to take the influenza or other infectious disease vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza or other infectious disease vaccine rather than requiring them to take it.

During a pandemic, does CBP have to provide reasonable accommodations for employees with known disabilities that are unrelated to the pandemic, barring undue hardship?

Yes. An employer’s ADA responsibilities to individuals with disabilities continue during a pandemic. Only when an employer can demonstrate that a person with a disability poses a direct threat, even after reasonable accommodation, can it lawfully exclude him from employment or employment-related activities.

  • If an employee with a disability needs the same reasonable accommodation at a telework site that he had at the workplace, in most instances, CBP will continue to provide the existing accommodation, absent undue hardship. In the event of undue hardship, CBP will collaborate with the employee to identify an alternative reasonable accommodation.
  • All employees with disabilities whose responsibilities include management during a pandemic must receive reasonable accommodations necessitated by pandemic conditions, unless undue hardship is established.

During a pandemic, can CBP ask an employee why he or she has been absent from work?

Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.

Can CBP require employees who have been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to return to work?

Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.

  • As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic disease.
Preventing Religious Discrimination in the Workplace

What is "religion" under Title VII?

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.).

What is the scope of the Title VII prohibition on disparate treatment based on religion?

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 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 or 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 her desk at work while telling another secretary in the same workplace to put the Quran on his 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.

What constitutes religious harassment under 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.

When is CBP liable for 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.

Do national origin, race, color, and religious discrimination intersect in some cases?

Yes.  Title VII’s prohibition against religious discrimination may overlap with Title VII’s prohibitions against discrimination based on national origin, race, and color.  Where a given religion is strongly associated – or perceived to be associated – with a certain national origin, the same facts may state a claim of both religious and national origin discrimination.  All four bases might be implicated where, for example, co-workers target a dark-skinned Muslim employee from Saudi Arabia for harassment because of his religion, national origin, race, and/or color.

Does Title VII prohibit retaliation?

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.

What should an applicant or employee do if they believe they have experienced religious discrimination?

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 DCR 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 PDO 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.

Reasonable Accommodation for Religious Beliefs or Practices

What is "religion" under Title VII?

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.).

What is a religious accommodation?

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

Is CBP required to provide reasonable accommodation for religious beliefs or practices?

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 means more than de minimis cost or burden on the operation of CBP. Note that this is a lower standard to meet than undue hardship under the Rehabilitation Act, which is defined in that statute as "significant difficulty or expense."

How does CBP determine whether a religious accommodation is appropriate and the type of accommodation that should be granted?

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 a session facilitated by the assigned PDO 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, in order to determine whether 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.

Does CBP have to grant every request for accommodation of a religious belief or practice?

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 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.

If I want to ask for Wednesdays off in order to attend a weekly religious service, am I entitled to a schedule where I never have to work on Wednesdays?

Federal law requires agencies to provide employees reasonable accommodation for employees’ religious beliefs and practices. Thus, you are 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. If you need a change in schedule or other change to accommodate your religion, you should make a reasonable accommodation request to your immediate supervisor.

When does an accommodation pose an "undue hardship?"

An accommodation would pose an undue hardship if it –would cause more than de minimis cost on the operation of CPB.  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, and the number of employees who will in fact need a particular accommodation.

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.

To prove undue hardship, CBP will need to demonstrate how much cost or disruption a proposed accommodation would involve.  The agency cannot rely on potential or hypothetical hardship when faced with a religious obligation that conflicts with scheduled work, but rather should rely on objective information.  A mere assumption that many more people with the same religious practices as the individual being accommodated may also seek accommodation is not evidence of undue hardship.  If the agency’s proposed accommodation would pose an undue hardship, the agency should explore alternative accommodations.

Does CBP have to provide an accommodation that would violate a seniority system or collective bargaining agreement?

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.

What if co-workers complain about an employee being granted an accommodation?

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.

Can a requested accommodation be denied due to security considerations?

If a religious practice actually conflicts with a legally mandated security requirement, CBP does not have to accommodate the practice because doing so would create an undue hardship.  If a security requirement has been unilaterally imposed by CBP and is not required by law or regulation, the agency will need to decide whether it would be an undue hardship to modify or eliminate the requirement to accommodate an employee who has a religious conflict.

What are common methods of religious accommodation in the workplace?

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.

How might First Amendment constitutional issues arise in title VII religious cases?

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.

Discriminatory Harassment

Can an office rule be established requiring employees to speak only English at all times?

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.

What is the difference between sexual harassment and discriminatory harassment?

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: race, sex, age, disability, religion, national origin, color, reprisal, genetic information, sexual orientation, and status as a parent.)

If my intentions are good, could my behavior be seen as discriminatory harassment?

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., race, color, sex, national origin, religion, disability, age, sexual orientation, status as a parent, genetic information, and/or reprisal). 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.

Can swearing, foul language, dirty jokes, and racy stories or pictures be considered discriminatory harassment?

Yes. This type of behavior is inappropriate in the work place 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.

Do ethnic slurs constitute harassment on the basis of race and/or national origin?

Yes. Ethnic slurs may constitute harassment if they create an offensive work environment or interfere with an individual's work performance or equal employment opportunities. Discrimination based on national origin and race is in violation of Title VII of the Civil Rights Act of 1964, as amended. Racial or ethnic slurs directed to or in the presence of a person will almost always be considered harassment.

What are my obligations if I observe discriminatory or harassing behavior?

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.

Informal EEO Complaint Process

What is Equal Employment Opportunity (EEO) in employment?

Equal Employment Opportunity is fair treatment in employment, promotion, training, and other personnel actions without regard to race, color, religion, sex (which includes gender, sexual harassment, and pregnancy), age, national origin, reprisal (for prior EEO activity), physical or mental disability, genetic information, status as a parent, and sexual orientation. 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.

What is an EEO complaint?

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.

Can I still file a complaint if my issue is not discriminatory or harassing, just unfair?

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.

What do I do if I have a complaint?

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 DCR 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 PDO 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.

Do I need a representative?

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.

What information should I present to the EEO Counselor?

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.

When is official time appropriate?

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

What is mediation?

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

What are the benefits of mediation?

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.

Who facilitates the mediation session?

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.

Who should attend the mediation session?

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.

How does mediation work?

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.

What happens after the parties reach resolution?

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. PDO will monitor the implementation of the terms of agreement.

What happens if the issues presented are not resolved through mediation?

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.

Formal EEO Complaint Process

When does the complaint become formal?

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 Privacy and Diversity Office, 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.

What happens when the Complaints Management and Investigations Group receives the formal complaint?

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.

What is 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.

What if another issue arises during the investigation?

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.

What is the difference between filing an EEO grievance and an EEO complaint?

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 race, color, religion, sex, national origin, age, disability, 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: race, sex, religion, color, national origin, reprisal (for prior EEO activity), disability, age, genetic information, status as a parent, and sexual orientation.

What if the complaint is dismissed?

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.

Who conducts the formal complaint investigation?

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 Privacy and Diversity Office, Complaints Management and Investigations Group.

What is the role of an EEO Investigator?

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.

What are the investigation timelines?

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.

What happens during the investigation process?

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.

What happens when the investigation is completed?

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.

Do managers and supervisors automatically receive copies of statutory Investigative Files on discrimination complaints?

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.

What happens after I elect an EEOC Hearing before an Administrative Judge?

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.

What is a Final Agency Decision (FAD)?

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.

Class Action Complaint Process

What is a Class Complaint?

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 common race, color, religion, sex, national origin, 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 following the alleged discriminatory act. More detailed information is available on this process through the local EEO Office.

Last modified: 
Tuesday, November 6, 2018 - 10:44