Sexual Orientation ComplaintsRemedies and
In cases where there is a finding of discrimination, the
individual shall be provided with all non-monetary equitable remedies and
back pay. Mitigation of damages may be taken into account where
- With respect to applicants, if there is a finding of discrimination, the
Department shall offer the applicant, in writing, the position the applicant
would have occupied absent discrimination or, if justified by the
circumstances, a substantially equivalent position. No such offer shall be
made, however, if the record demonstrates by a preponderance of the evidence
that the applicant would not have been selected even absent the
discrimination. Once an offer is made, the applicant has 30 days to accept
the offer, and failure to do so within the specified time period will be
considered a declination of the offer unless the individual can show that
circumstances beyond his or her control prevented a timely response.
- If the offer is accepted, appointment is retroactive to the date the
applicant would have been hired. Back pay shall be awarded from the date
the individual would have entered on duty until the date the individual
enters on duty. Back pay shall not be awarded if the record demonstrates by
a preponderance of the evidence that the individual would not have been
selected even absent discrimination.
- If the offer is declined, the individual is entitled to back pay, to
the extent and under the conditions specified above.
- With respect to employees, the Department shall provide all appropriate
non-monetary relief, including placement into new position, cancellation of
unwarranted personnel action, expungement of adverse materials from
Department records, and full restoration of employee benefits the individual
would have received absent discrimination. The Department shall also
provide the employee with back pay, where applicable, from the date the
employee would have received higher pay but for the discrimination to the
date that the employee actually began receiving higher pay. Provision of
back pay and restoration of employee benefits need not be awarded if the
investigative record demonstrates, by a preponderance of the evidence, that
the employee would not have been in a position to receive higher pay and
benefits even absent the discrimination.
- There is no entitlement to front pay, interest on back pay, attorney
fees, compensatory damages, or any monetary relief other than back pay.
- In appropriate cases, CAO may recommend that the discriminating
official or employee be reprimanded or otherwise disciplined.
[cited in USAM 3-5.211]