NAPA: USMMA Students Facing Discrimination or Harassment from USMMA Employees May File Complaint Directly to U.S. DOT Equal Employment Opportunity Director & Receive Recourse Through EEO System
New York, NY
By: MLAA
The recently released “Comprehensive Assessment of the U.S. Merchant Marine Academy,” authored by the National Academy of Public Administration (NAPA), contains a legal conclusion that offers powerful new remedies for Academy midshipmen facing harassment, discrimination, and retaliation from USMMA employees.
NAPA’s important legal conclusion is that “Executive Order 13160,” issued by President Bill Clinton on June 23, 2000, applies to USMMA students. The title of Executive Order 13160 is “Nondiscrimination on the Basis of Race, Sex, Color, National Origin, Disability, Religion, Age, Sexual Orientation, and Status as a Parent in Federally Conducted Education and Training Programs.” The title is self-explanatory.
Neither the USMMA, MARAD, or the U.S. DOT have ever recognized their legal duty to comply with Executive Order 13160 with respect to the U.S. Merchant Marine Academy, but that now seems likely to change. MLAA has closely read Executive Order 13160 and we agree with NAPA that the protections of the executive order extend to USMMA students. There are exemptions within 13160 for members of the armed forces on active duty, service academies that are part of the U.S. Department of Defense, and an exemption for the U.S. Coast Guard Academy. But none of the executive order’s military exemptions apply to the U.S. Merchant Marine Academy or its students or employees.
Executive Order 13160 states:
“The Federal Government must hold itself to at least the same principles of nondiscrimination in educational opportunities as it applies to the education programs and activities of State and local governments, and to private institutions receiving Federal financial assistance...
“No individual, on the basis of race, sex, color, national origin, disability, religion, age, sexual orientation, or status as a parent, shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination in, a Federally conducted education or training program or activity...
“Any person who believes himself or herself to be aggrieved by a violation of this order or its implementing regulations, rules, policies, or guidance may, personally or through a representative, file a written complaint with the agency that such person believes is in violation of this order or its implementing regulations, rules, policies, or guidance. Pursuant to procedures to be established by the Attorney General, each executive department or agency shall conduct an investigation of any complaint by one of its employees alleging a violation of this Executive Order.”
USMMA students may now challenge a wide range of discriminatory, retaliatory, or harassing conduct committed by any USMMA employee, including discriminatory or retaliatory disciplinary actions, through the U.S. Department of Transportation’s Equal Employment Opportunity system. According to the DOT, in order to initiate a complaint under Executive Order 13160, a USMMA student must first contact the director of the U.S. DOT’s EEO program. The DOT’s EEO complaint procedure can be found on the DOT website.
EEO complaints should be directed to:
Office of the Secretary
Patricia Sterling
DOT Headquarter1200 New Jersey Ave., S.E.
Washington, DC 20590
(202) 366-4754
Under current DOT procedures, the Office of Civil Rights will process the initial complaint in what is known as the “pre-complaint stage.” Next, the aggrieved USMMA student will be directed to meet with an EEO counselor for counseling sessions. At the initial counseling session the EEO counselor will provide information to the aggrieved student concerning how the Federal sector EEO complaint process works, including time frames, and the counselor must advise the student in writing of their rights and responsibilities within the EEO complaint process, including the right to request a hearing before an EEOC Administrative Judge (AJ), or an immediate final decision from the agency following its investigation of the complaint.
The EEO counselors will also explain to the USMMA student how their Alternative Dispute Resolution (ADR) program works, advise the student of the opportunity to participate in ADR, and advise the USMMA student of their right to file a formal complaint if ADR does not result in a resolution. The complete EEO complaint process can be found on the DOT’s website.
Following the NAPA Report, the DOT and MARAD have significant work ahead of them to implement Executive Order 13160. Section 5 of the executive order discusses agency implementation and requires DOT and MARAD to establish formal procedures to receive and address complaints regarding its Federally conducted education and training programs and activities. This implementation of 13160 should result in posters being prominently placed around the Academy campus and in the Academy barracks alerting USMMA students to their newly discovered legal rights. According to the executive order, each executive department and agency was required to “take all necessary steps to effectuate any subsequent rules, regulations, policies, or guidance issued by the Attorney General within 90 days of issuance.”
The executive order was issued in 2001— about 20 years ago. DOT did not meet the 90 day deadline, but some things are better late than never.