Tag Archive for: Dan Gephart

By Dan Gephart, February 22, 2022

What do you want first — the good news or the bad news? The Equal Employment Opportunity Commission’s recent report on older Federal workers offered a little bit of both. Let’s start with the good news. General job satisfaction, perceptions of workplace inclusion and fairness, as well as having your agency EEO Director report directly to the agency head, all lead to a decreased likelihood of having an age discrimination complaint, according to the report conducted by the EEOC’s Office of Federal Operations. Basically, the data is providing a clear path to limiting discrimination complaints at your agency. And following this path will improve your FEVS scores and make your workplace more desirable to current and future employees. Kind of a win-win-win-win.

And there’s more good news. Employees 40 years or older make up 72 percent of the Federal workforce. That’s a whopping 18 percent higher representation than 40-and-up employees in the overall civilian labor force (CLF). Also, the Federal cohort is more diverse than its private sector counterpart.

Now the bad news. The report found a a significant pay disparity between older men and older women in the Federal workforce. The EEOC also found a persistent pay gap between white and Asian Federal employees as compared to other groups of older Federal employees.

Mxolisi Siwatu, PhD, an EEOC Office of Federal Operations (OFO) social scientist research analyst, took time to answer our questions about the report.

DG: Why do you think the 40 and older cohort is better represented in the Federal workplace than the private sector? What do Federal employers do right?

MS: We argued that it is possible that the difference between the private sector and the public sector in EEO performance may be due to greater oversight. The Office of Federal Operations gained increased oversight responsibilities with the introduction of Management Directives 110 (2003), which provides guidance to federal agencies for how to process EEO complaints; and Management Directive 715 (2003), which provides guidance to agencies for how to maintain an EEO program. Also, OFO provides ongoing technical assistance to Federal agencies in support of these directives, which may also contribute. However, it must be noted that this is speculation on the part of the authors and no causal analyses were conducted in the current research.

DG: Men account for 57 percent of the Federal workforce 40 or older, while it is only 45 percent in the private sector. Is there an explanation for that wide gap, and what do you suggest that agencies do differently to narrow that gap?

MS: We did not speculate on why this gap was found. However, OFO conducts technical assistance visits regularly with each Federal agency. During these visits, their participation data are assessed in relation to the CLF. Recommendations are provided to Federal agencies to address any discrepancies observed and progress is monitored thereafter. So, if we note gender disparities, it is addressed with the specific agency.

DG: The report identifies the perception of fairness as a predictor of age discrimination complaints and shares six strategies to achieving that fairness based on research by Jennifer Lee and Ann Smith. What actions can EEO specialists and supervisors take to immediately improve the perception of fairness?

MS: Lee and Smith’s article was written primarily for private sector companies. Many of the strategies identified by Lee and Smith are already practiced in the Federal sector due to guidance derived from MD-110 and MD-715. To drill down to the office or supervisory level, agencies may engage in demonstrated commitment to EEO in a way that is visible and meaningful to their workforces as a way of improving perceptions of fairness.

[Editor’s note: The six strategies identified in the Lee and Smith research are: authorizing workers’ complaints by allowing third parties to advocate on the part of disadvantaged populations and employees; creating enhanced penalties for engaging in discrimination; mandating that employers disclose information to workers about their rights; having strong anti-retaliation laws; expanding liability by placing the burden of proof on the employer; making reporting of employer discrimination data to the public and governing bodies mandatory.]

OFO recommends activities that promote EEO awareness, anti-harassment education for staff and managers, timely complaint processing and resolutions, and having a reporting structure in which the EEO program director reports directly to the agency head. In addition, ongoing monitoring of diversity and inclusion at the agency with respect to hires, promotions, and separations is required. Ongoing commitment and proactive prevention efforts may help promote a climate of EEO among the workforce that encourages lawful treatment, but also confidence in reporting unlawful treatment when appropriate.

[Editor’s note: FELTG offers several upcoming virtual training events that can help improve your DEIA efforts including:

• Honoring Diversity: Eliminating Microaggressions and Bias in the Federal Workplace, March 9
• Nondiscriminatory Hiring in the Federal Workplace: Advancing Diversity, Equity, Inclusion and Accessibility, March 16
• Navigating the Realities of Employee Stress, Anxiety, and PTSD in the Post-pandemic Workplace, April 13
• Promoting Diversity: Enforcing Protections for LGBTQ Employees, June 9]

DG: One of the main findings of the report is the importance of having EEO high up in the reporting structure, most effectively having the EEO Director report directly to the agency head. For those agencies where that’s not the current situation nor likely to be, what advice can you provide for EEO professionals and supervisors?

MS: OFO has been working to encourage all agencies to reorganize their EEO office so that the EEO Director reports directly to the agency head, as required by MD-110. As of FY2019, currently 61 percent of agencies have an EEO Director that reports directly to the agency head. OFO continues the goal of achieving 100 percent compliance among all agencies with this requirement as it remains one of the key priorities during technical assistance visits and audits.

Siwatu did not specifically say whether agencies are making progress on the hiring of a Chief Diversity Officer, as suggested in Executive Order 14035. However, he did say that the EEOC has been an “active participant in the implementation” of the EO and the goal is to have the CDO and EEO Director positions “complement one another to meet the Administration’s broad equity goals.” Gephart@FELTG.com

By Dan Gephart, January 24, 2022

The FELTG mailbag has been overfilled of late with questions from readers preparing to take adverse actions against employees who failed to comply with President Biden’s vaccine mandate. Today we can answer all those questions with just five words:

Put those actions on hold.

Last week, a Federal judge in Texas issued a nationwide injunction against the requirement that Federal employees be vaccinated against COVID-19, thus enjoining the defendants from “implementing or enforcing Executive Order 14043 until this case is resolved on the merits.”

Judge Jeffrey Brown of the Southern District of Texas wrote:

“The court notes at the outset that this case is not about whether folks should get vaccinated against COVID-19 — the court believes they should. It is not even about the federal government’s power, exercised properly, to mandate vaccination of its employees. It is instead about whether the President can, with the stroke of a pen and without the input of Congress, require millions of federal employees to undergo a medical procedure as a condition of their employment. That, under the current state of the law as just recently expressed by the Supreme Court, is a bridge too far.”

The Supreme Court struck down Biden’s similar mandate for private sector companies with more than 100 employees. The U.S. Postal Service was part of that mandate. It’s highly likely that this case – Feds for Medical Freedom v. Joseph R. Biden – will make its way to the Supreme Court, as well. Indeed, the Biden Administration has already appealed the ruling to the Fifth Circuit.

The decision came as agencies were preparing to move forward with adverse actions against Feds who, after counseling and education, still refused or failed to get vaccinated and did not request a legal exemption. The judge referred to this looming discipline in his decision as the “imminent harm” that required the injunction.

Despite this setback for the President, the vaccine mandate has already been considered a success by many. In a press briefing soon after news of the decision broke, White House Press Secretary Jen Psaki said that 98 percent of Federal workers are already vaccinated.

However, the decision leaves many of you hanging as you continue to deal with employees who outright refuse vaccination, as well as those who have requested exemptions to the mandate.

If you were in the middle of the reasonable accommodation process on mandate exceptions, you should, obviously, as we mentioned earlier, pause the process. However, make sure that you document that pause. If a higher court reinstates the mandate, it could lead to challenges on processing time, and you’ll need that documented legitimate reason for the delay.

You will also need to re-think your plans for returning employees en masse to the physical workplace to account for the return of unvaccinated employees while ensuring the safety of employees and customers.

While the Office of Personnel Management will not take action to implement or enforce the vaccine requirement, it announced that the Safer Federal Workforce Task Force guidance on protocols related to masking, distancing, travel, testing, and quarantine remains in effect. In addition, the Task Force released a four page Q & A with answers including what to do if agencies have already disciplined employees who failed to meet the vaccine mandate.

Keep an eye on FELTG’s website for updated guidance and news and join us on February 8 from 1 – 4:30 pm ET for Managing COVID-related EEO Challenges in the Federal Workplace. Gephart@FELTG.com

By Dan Gephart, January 3, 2022

Last year, the EEOC dealt with an unrelenting number of harassment claims, addressed the civil rights crisis exacerbated by the pandemic, took on a role implementing Executive Order 14035, and provided regularly updated guidance on navigating EEO challenges related to COVID-19, including the deluge of religious and disability-based requests for reasonable accommodation of exemptions to the vaccine mandate.

As 2021 drew to a close, we caught up with EEOC Chair Charlotte A. Burrows (pictured at right) to discuss the challenges of last year and look ahead to 2022.

DG: As we head into a new year, what will be your priorities for Federal Sector EEO?

CB: The Federal government is America’s largest employer. My top priority for our Federal Sector work is to help Federal agencies become models for the work environment that should exist throughout the United States – one that is fair, equitable, inclusive, and promotes equal employment opportunity for all.

The Commission’s Federal Sector priorities will focus on preventing and remedying harassment on all grounds and all bases, addressing retaliation in Federal workplaces, and expanding opportunities for employees with disabilities. EEOC also has a key role to play in implementing Executive Order 14035 – Diversity, Equity, Inclusion and Accessibility (DEIA) in the Federal Workforce. We are partnering with the White House, the Office of Management and Budget, the Office of Personnel Management, and other interagency partners to advance this important and ambitious whole-of-government equity agenda that will take a systematic approach to embedding DEIA in Federal hiring and employment practices.

DG: Can we expect any changes to the Federal EEO process in coming years? 

CB: Yes, the Elijah E. Cummings Federal Antidiscrimination Act of 2020 makes some key changes to the EEO process. Most importantly, it will ensure more transparency around findings of discrimination.

Specifically, the law requires each agency to:

1. Publish a notice of any final agency action or Equal Employment Opportunity Commission (EEOC) appellate decision involving a finding of discrimination or retaliation on the agency’s website for at least one year.

2. In those cases involving findings of discrimination, inform the EEOC whether disciplinary action has been proposed and why.

3. And publish data regarding each class action complaint that alleges discrimination, including retaliation.

Also, the Act requires that by (this month), all agencies establish a system to track complaints of discrimination and note adverse actions taken due to findings of discrimination or retaliation in employee personnel records.

In addition, the law provides the EEOC with enhanced tools to promote a discrimination-free workplace by allowing the EEOC to refer instances where federal agencies did not take appropriate disciplinary action in response to a finding of discrimination to the Office of Special Counsel. The Office of Special Counsel will review these referrals for purposes of seeking disciplinary action.

DG: Last spring, you spoke at a hearing about the civil rights crisis exacerbated by the pandemic.

CB: It’s been clear for some time now that the pandemic is not only a public health and economic crisis, but truly a civil rights crisis. While every single one of us has experienced challenges during this pandemic, it’s important to recognize that the pandemic hasn’t impacted everyone in the same way. The pandemic’s health and economic fallout has disproportionately impacted people of color, women, older workers, immigrant and migrant workers, people with disabilities, and other vulnerable workers. And that impact has serious implications in the workplace.

The transcript of the public hearing and the witness testimony is available on the EEOC’s website and provides an excellent resource for agency leadership, human resource professionals, and EEO managers who are grappling with these issues.

DG: What should those in the Federal EEO arena be doing to address this crisis?

CB: Agency managers should review their policies to determine whether they are having an adverse impact on particular categories of workers and be mindful of overlapping and intersectional effects.

This is particularly important as Federal agencies plan their reentry to the physical workplace after expanded telework and remote work during the pandemic. EEOC has a wealth of resources to assist agencies and Federal workers with understanding the application of the EEO laws in the unique and difficult context of this pandemic. Agencies can find the latest information on this topic and answers to dozens of frequently asked questions in our COVID-19 technical assistance document, What You Should Know About COVID-19.

DG: Should agency practitioners approach requests for vaccination exemptions as they would any other accommodation request?

CB: Absolutely. Although the context of a global pandemic is certainly novel, the legal principles that apply have not changed. Title VII and the Rehabilitation Act require agencies to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated against COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the agency. The undue hardship analysis depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) or for religion.

Agency practitioners should review our What You Should Know About COVID-19 publication for practical guidance on how to handle requests for disability and religious accommodations to vaccine requirements. See (Section K – Vaccinations – Overview, ADA, Title VII, and GINA) (Section L – Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates).

Each agency will need to ensure that it has procedures in place to accept, evaluate, and process requests for religious and disability accommodations. EEOC will continue to assist agencies in navigating emerging issues. EEOC has also made available our agency’s own internal religious accommodation request form as a resource for public and private sector employers.

DG: Speaking of reasonable accommodation, will the EEOC be releasing any guidance on “long COVID?”

CB: The EEOC recognizes that “long COVID” may be a disability under the Americans with Disabilities Act (ADA) and Section 501 of the Rehabilitation Act in certain circumstances. The EEOC agrees with the analysis of “long COVID” by the Departments of Health and Human Services and Justice in their “Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557.” EEOC technical assistance about COVID-19 and ADA “disability” in the employment context will be released in the near future.

[Editor’s note: Shortly after our discussion with Chair Burrows, the EEOC released updated guidance on when COVID may rise to the level of a disability in Section K of the What You Should Know About COVID-19 guidance.]

DG: It’s been a few years since the #MeToo movement caught national attention. It was expected that there would be an increase in harassment and hostile work environment complaints. Were there? And has that trend continued in the last year or two?

CB: The year after the #MeToo movement went viral, the EEOC saw a significant rise in the number of sex-based harassment charges, including sexual harassment charges, filed with the Commission. While the number of charges alleging sex-based or sexual harassment has declined since the post-#MeToo high of 13,055 charges in fiscal year 2018, the percentage of EEOC’s charge inventory that includes a claim of sex-based and/or sexual harassment has remained elevated — comprising over 17% of charges filed with the EEOC in every year since 2018. The high-profile dismissals of CEOs and senior managers after the #MeToo movement that gained international attention may have prompted more survivors of harassment to believe that filing a charge could make a difference.

Over the past few years, approximately one third of all charges filed with the Commission against private sector and state and local government employers annually alleged harassment on at least one unlawful basis, i.e., race, national origin, religion, color, disability, age, or genetic information, in addition to sex (including pregnancy, sexual orientation, and gender identity). Moreover, the percentage of complaints filed by Federal employees alleging harassment on any basis has consistently been higher than the percentage of charges filed against private and state and local government employers.

Anecdotal evidence and news reports suggest that harassment is pervasive in all types of work settings. The Report of the Co-Chairs of EEOC’s Select Task Force on the Study of Harassment in the Workplace found that up to 85% of women report having experienced sexual harassment in the workplace. It is important to remember that a lot of workplace harassment goes unreported for a number of reasons, including because they fear disbelief or inaction of/on their claim, blame, or social or professional retaliation. Therefore, the number of EEOC charges is likely to be only the “tip of the iceberg,” because many people fear retaliation or are unsure of their rights in the workplace.

It’s clear that workplace harassment remains a significant problem in all sectors. This is not a problem that can be remedied quickly, and we must all work together to reduce harassment and create safe, respectful workplaces.

DG: Federal supervisors have told us that when trying to hold employees accountable for poor performance or misconduct, the employee will cite a hostile work environment. What advice would you give supervisors or their advisors in this situation?

CB: As an initial matter, it is not harassing conduct for a supervisor to tell an employee he or she is not performing adequately. That said, managers should continually assess how they interact with employees and ensure that accountability for poor performance or misconduct is being handled fairly. Supervisors should also document instances of poor performance or misconduct and notify employees when there is a performance or conduct issue. It’s important to remember, however, employees who have similar work performance may not be treated differently because of a protected characteristic. We have seen many studies showing that certain populations receive more severe punishment for similar conduct. Agencies should examine whether, in addressing poor performance or misconduct, a manager issues harsher punishment for performance or conduct issues to a particular group. If so, there could be bias or discrimination. This is an area we expect Federal supervisors to pay close attention to and to modify practices where inequity appears. If there is no indication of harsher treatment, then managers should provide timely and specific feedback when an employee is not meeting performance expectations and be consistent with the objective practices for discipline for the conduct or performance.

DG: Where do agencies need to improve most in the EEO process?

CB: Managers should be focused on preventing retaliation and harassment and Federal agencies should ensure that EEO programs have the independence, resources and leadership support needed to effectively manage their programs. In addition, agencies need to improve on the timeliness of their final agency decisions. Agencies also need to focus on improving accessibility to technology for members of its workforce.

I wrapped up the interview by asking Chair Burrows: If there was one message you could make sure every Federal manager would heed, what would it be?

“Equal employment opportunity strengthens your organization by unlocking the full talents of the workforce, improving employee morale, and reducing financial burdens on the federal government,” Burrows said. “You have a tremendous opportunity to make a difference in creating a model workplace – seize that opportunity and think of the EEOC as a partner in trying to help you achieve that goal.” Gephart@FELTG.com

[Editor’s note: Join FELTG Instructor Katherine Atkinson for the 75-minute webinar Stop the Spread of COVID-related Retaliation in the Federal Workplace on January 19 and Managing COVID-related EEO Challenges in the Federal Workplace, a half-day virtual training, on February 8.]

By Dan Gephart, November 8, 2022

After she entered the Senior Executive Service, Tinisha Agramonte became a sought-after speaker. She was often asked to serve on panels to discuss the obstacles she faced in climbing the career ladder. As she prepared for those conference panels, something occurred to her.

“Most of the challenges I had to navigate were connected to my low social capital (networks), lack of financial resources, and non-existent acumen on how to navigate and charter a career path when I didn’t understand the unwritten rules, social norms, and how to succeed in a professional environment, which was new territory for me,” she said.

Agramonte started talking about challenges of first-generation professionals. Despite initial reluctance from some people, many others connected with her message. As the Department of Commerce’s Office of Civil Rights Director, Agramonte created the FGP Initiative and was the force behind the First Generation Professionals Summit as well as some of the initial research on first-generation professionals.

And then the FPG Initiative’s credibility was cemented when “first-generation professionals” were included among the list of underserved communities in President Biden’s Executive Order Advancing Diversity, Equity, Inclusion, and Accessibility in the Federal Government.

“I literally cried. Several colleagues forwarded the EO to me along with congratulatory notes. Then, I learned that some of my closest allies and colleagues at the Equal Employment Opportunity Commission and the Office of Personnel Management, who were all early supporters of the FGP Initiative, made sure that FGPs were included in the EO as part of ‘underserved and underrepresented communities.’”

Agramonte left the Department of Commerce last year to become the Chief Diversity Officer at Motorola Solutions. We caught up with Agramonte recently to discuss diversity, inclusion, and her FPG initiative.

DG: Congratulations on your new job. What are the biggest differences between developing a diversity & inclusion plan in the private sector and the public sector?

TA: There’s no real difference. Both require a comprehensive assessment of the systems (policies, practices and procedures) and employee sentiments around DEI to understand what is working well and the areas of opportunities; then a holistic DEI strategy that establishes clear, meaningful, and measurable objectives and metrics aligned with business goals that address deficiencies, along with accountabilities, a communication plan, and strategy to evaluate, monitor, and report progress that will lead to long-term, sustainable outcomes.

DG: Per the Executive Order, Federal agencies are now looking closely (or at least, they should be looking closely) at their diversity, equity, inclusion, and accessibility practices. Where should they start in terms of addressing equity and inclusion for first-generation professionals?

TA: First, understand the practices that serve as barriers and may hinder First Gens from successfully accessing and thriving in our federal workplaces. A good place to start is to review Qualitative Research on Barriers to Workplace Inclusion for First Generation, which is the study I commissioned through the U.S. Census Bureau, to help inform the Department of Commerce’s efforts to better understand and address diversity, equity and inclusion issues for FGPs.

In terms of immediate impact, we should start with addressing potential bias in recruitment and development practices. For example, in recruitment, increase awareness of biases that seep into our recruitment, especially when people are making determinations on who and what constitutes the best and the brightest, (such as) hiring managers who feel like top talent looks like ONLY hiring students or graduates from Ivy league institutions; graduates who completed their education in four years or less; and those who have highly coveted or unpaid internships. Research has shown that first-gen students, in particular those from low-income families may not have had exposure to experiences (traveling, sporting activities, tutoring, prep programs, etc.), the financial resources, or social capital that afforded them equitable access and opportunities to be competitive for entrance to out-of-state or high tuition academic institutions; the luxury to take unpaid internships; or ability to complete school in four years while working their way through school.

Additionally, once they figure out how to access and gain entry to the workforce, the “like me” bias may work against them if leaders focus on mentoring people “like them,” who have similar lived experiences as themselves i.e., same economic status background, same schools/organizations, etc. Without those relationships, they may not have the mentoring, advocacy, and sponsorship to be developed and advanced.

DG: What was the biggest misconception you faced when creating the First-Generation Professionals Group?

TA: The biggest misconception was that there are not many people in the population, when actually about 56% of undergraduate students nationally were first generation college students. [Other misconceptions were that] there are no real barriers faced by this population; I was pitting blue collar against white collar work and low income against high income; and that this would be about giving this population a handout versus recognizing we should extend a hand by identifying and eradicating barriers like we do for other under-represented, underserved communities.

The reality is that this population represents trailblazers who have demonstrated grit, resiliency, resourcefulness, strong work ethic, and determination, which are all valuable traits for our workplaces. This is about their strengths; not deficits caused by inequitable circumstances.

“Humble beginning should not limit how far one’s talents and drive will take them.” That’s my mantra and quote.

DG: What would you say was your biggest success or most satisfying success story that came out of your First-Generation Professionals Group efforts at Commerce?

TA: The first-ever research that I’m aware of for First Generation Professionals; the Summit; the sense of community and awareness created by the Initiative; the inclusion of this population in the Executive Order. Uncovering how many leaders are First Generation Professionals who told me that they worked hard to suppress their “real story” to cover and fit in, but how this initiative made them proud of those lived experiences and gave them an identity to be proud of.

[ FELTG has created numerous training opportunities to help you meet your DEIA needs, including the following upcoming classes Managing Employee Mental Health Challenges During and After the COVID-19 Pandemic (December 9) and Honoring Diversity: Eliminating Microaggressions and Bias in the Federal Workplace (March 9, 2022). Also, DEIA topics will be discussed during Calling All Counselors: Initial 32-Hour Plus EEO Refresher Training (January 24-27, 2022). If you want to bring one of FELTG’s DEIA classes to your agency, contact Training Director Dan Gephart at Gephart@FELTG.com.]