84.

Sexual Orientation Complaints—Remedies and Relief

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 appropriate. 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]