EEO 101: Harassment — Part I

When most folks hear about workplace harassment, it’s likley to be sexual harassment because that’s usually the most common and publicized form. The typical scenerio involves a female subordinate being sexually harassed by a male manager/supervisor, and/or co-worker(s). However, harassment is much broader than that of a purely sexual nature. In fact, harassment may take many forms.

Under the Federal laws prohibiting employment discrimination, harassment may likewise be based upon one’s race, color, religion, age, disability, national origin, or genetic information — in addition to sex. Harassment is no longer strictly a “she said, he said” sexual situation that often happens behind closed doors. A broader definition of harassment, beyond that based on sex alone, has been upheld by numerous appellate level courts over the years and decided by the U.S. Supreme Court over a decade ago — see http://www.eeoc.gov/policy/docs/harassment.html.

Harassment complaints on the rise

A recent article in FedSmith points out that the number of overall harassment complaints filed by Federal workers against their agencies has increased in recent years, according to data from the U.S. Equal Employment Opportunity Commission (EEOC).

http://www.fedsmith.com/article/3433/fewer-fed-employees-quitting-more-stuck.html

Moreover, it’s possible these figures represent the tip-of-the-iceberg because many employees are fearful of speaking out against, or reporting, unlawful behavior, according to the conventional wisdom of employment lawyers and legal analysts. Unfortunately, these harassment victims end up sufferring in silence while the harasser continues to violate the law at will and possibly target others.

Is harassment increasing because fewer Feds are leaving Government?

The issue of harassment may be further complicated these days according to a theory posited by the FedSmith author, a former Justice Dept. attorney: fewer Feds are voluntarily leaving their jobs during today’s tough economic times, which may result in even more employees being harassed by supervisors and managers. No one deserves to be stuck in a hostile workplace. That’s why it’s in the best interest of all Feds to understand their workplace rights and speak out against illegal behavior.

Have you ever been harassed or witnessed harassment at work?

As a Federal employee, have you ever been harassed and subjected to a hostile work environment? If not, have you witnessed a fellow Fed being victimized? If so, please consider a comment below on your experience. If you prefer to comment anonymously, please e-mail [email protected] for posting. If not, then please share your general thoughts on the topic, as you deem appropriate.

There’s nothing worse than a seriel harasser at work to crush morale and hinder productivity of an employee, team or entire office. To borrow from DHS: if you see something, say something!

DBG

*** NOTE: this blog has been revised and updated from an initial version posted on June 12.
*** All views and opinions expressed herein are those of the author only.

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21 Comments

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Profile Photo Megan

It pays to move quickly and to file quickly, as you will then have a strong retaliation charge for any additional adverse actions. Retaliation is the EEO Suit of choice.

Profile Photo David B. Grinberg

Excellent point, Megan! Reprisal/retaliation is also one of the most frequently filed complaints in both the Federal sector and the private sector. But here’s the kicker: even if your initial claim is deemed to have no merit, your reprisal allegation is viewed separately. Thus, some complainants may lose on the initial charge, but then win on the reprisal/retaliation claim. Also, a complainant may allege multiple bases of discrimination in the initial EEO complaint, such as race and retaliation. This is especially true for hostile workplace situations because victims may be — and often are — subjected to retaliation even before an official complaint is filed. This is very important for complainants to know. I plan to further address this issue in a future post: EEO 101: Reprisal/Retaliation. Thanks again, Megan — You Rock!

Profile Photo David B. Grinberg

Megan, your comment was so interesting that I have one more comment on your comment (lol). Seriously though, you raised another excellent point about time frames for filing EEO complaints. There is a short informal counseling period first, before a Fed is able to file an official complaint. The employee decides on anonymity. The specific deadlines for filing EEO complaints and starting the informal counseling process at your agency are noted in one of the web links contained in my post. Thanks again!

DBG

Profile Photo Megan

There are a few other things to keep in mind with retaliation charges in order to be successful.

1) Notify all managers named in the complaint shortly after filing. 2) Focus on the “smoking gun” or temporal proximity aspects 3) Focus on the “fairness” of the adverse action (were other employees treated in a similar fashion)

If you do these things, you will be in good shape for a retaliation charge or if need be a retaliation/wrongful dismissal lawsuit.

Profile Photo David B. Grinberg

GovLoopers, where are you on this??? Have you ever observed harassment in your workplace? If so, how has it affected morale and productivity? Is a hostile work environment condoned or “swept under the rug” at your agency due to management abuse or fear of retaliation? Is Megan the only one brave enough to comment on this sensitive topic? If you don’t want your name used, please send your comments for anonymous posting to [email protected]. Don’t be ashamed or afraid to speak out!

Profile Photo Leland L. "Ted" Cogdell, Jr.

Thanks for posting this, David. I’ll try not to stay on my soapbox too long. 😉

Your more experienced and sophisticated tortfeasors out there in the trenches know the difference between harassment and what the EEOC calls “trials and tribulations of the workplace.” They know how to push things right to the edge, just before they become illegal, or would not look very good for the agency if the behavior got before that oh-so-dreaded third party.

Unless there is a change in the U.S. Code, the data will always be flawed concerning federal employees. Not only is there a great deal of fear out there, but they do not enjoy the same help from the EEOC that private-sector employees do. Most federal employees simply can’t afford to formally come forward and file a complaint and retain competent counsel to help them. The federal employee must come up with any funds needed to retain competent counsel and go through perhaps years of litigation. That quickly gets into the six figures, especially in your major cities, like DC and its suburbs. If the EEOC feels like it has a winner on its hands (and it can send a wider message to companies and agencies across the land) it will take the case without charge to the client, as I understand it. Not a bad deal–if you can get it. Isn’t that right?

The EEOC needs to take another look at hostile work environment (HWE) and the disabled employee. When the RMO denies the installation of what a Board Certified Physician has ordered to maintain good health–your average person in the general population (your reasonable-person analysis) would say that is an extremely hostile thing to do and does indeed create a HWE until what the doctor ordered is delivered, usually called a reasonable accommodation. It is time to end the tip-toeing around this issue.

But, who am I? You don’t have to listen to me. But I would listen to the Dean of Law at Pitt, Dr. Mary Crossley. She said the same thing, just a lot more eloquently and with lots of legalese in her paper, “Reasonable Accommodations as Part and Parcel to the Anti-discrimination Project. You can find it here. Please post your thoughts.

http://www.law.ufl.edu/faculty/pdf/9-4-03crossl.pdf

Profile Photo David B. Grinberg

Thanks for the comments, Ted. I will respond to each point in a separate comment. First, I agree with you that the Federal Sector EEO process is not a perfect system. However, I believe that the EEO processfor Feds is more perfect than the internal company-wide policies and procedures in place within Corporate America — which vary widely in the degree of effectivess anf fairness. Keep in mind that Feds file about 20,000 or fewer EEO complaints annually, whereas private sector employees (including State and Local Government folks) have filed nearly 100,000 discrimination charges against their employers in each of the past few years (historically high numbers). Every Federal agency, as you know, has an EEO office to handle discrimination complaints, and most cases are resolved informally through mediation or voluntary settlement prior to any formal complaint being filed. While Feds have the option of mediation, many private sector employees have mandatory arbitration clauses in their contracts — like the fine print in credit card agreements. Some corporations actually make employees waive their rights altogether (again, read the fine print).

Profile Photo David B. Grinberg

Ted, regarding Feds with disabilities, I’ve found that the accommodation factor varies based on an office’s management, the type of accommodation requested, and the agency where one works. The recently enacted ADA Amendments Act (ADAAA) makes it easier for both public and private sector workers to request and obtain reasonable accommodations. The ADAAA reverses several Supreme Court decisions over the years which made it more difficult to request and receive a disability accommodation — so at least that’s very good news. Yet, you’re correct that the accommodation process can be frustratingly slow at times and require a lot of medical documentation. Nevertheless, I’ve found that the process usually works out for the disabled employee in the end — unless the request is unreasonable or seriously hinders office functionality. And, as the saying goes, all’s well that ends well. Does your agency have a Disability Program Manager within HR? That can help a lot.

DBG

Profile Photo Leland L. "Ted" Cogdell, Jr.

Thanks, Dave. That’s good stuff. We seem to be seeing the same things. I can’t stress enough for government employees the three keys, in my opinion, to success (and yes there are more, but I want to keep this short): 1) the case must have merit, 2) the record must be well developed, 3) you can go pro se, but I’d advice against that and get competent, experienced counsel.

One question, you stated, “seriously hinders office functionality.” I thought the undue-hardship analysis was agency-wide based, not just on the specific office and its resources and functions. Please develop that for us a little.

No, my agency does not have a DPM. It has a “National Selective Placement Program Manager/National AEP Manager.” One 13/14 FTE to take care of most of what MD-715 calls for. There is also a “Veterans Employment Program Officer.” I’m trying to coach and lead them out of that approach and get a dedicated DPM, but in this budget climate, it is an uphill battle. I’ll keep pushing that rock, though. I have been since October 2006.

I think your model programs have a Chief Diversity Officer. That way, the DPM does not get caught up in the red tape that can hamstring programs in HR. I wish OPM would have told the agencies that it wanted to see plans for a CDO in their diversity plans, which were due last March. Without OPM making it a requirement, I think many agencies will be slow to make the change.

Profile Photo David B. Grinberg

Excellent advice, Ted. Your are correct that the “undue hardship” analysis applies agency-wide on a macro level — but it starts with one’s supervisor/manager at the micro level. As you noted, to deny a request for reasonable accommodation(s), the employee’s supervisor/manager must assert that the requested accommodation would create an “undue hardship” on the agency (and office). I’ll pass along your good recommendation about all agencies being mandated by OPM to have a CDO. I believe all agencies without a CDO have an equivalent position, like EEO Director, or Director for Civil Rights and Civil Liberties, etc. — which is separate and distinct from HR. Thanks again, Ted, for the AWESOME input and feedback. It’s good to know that at least some Feds care about EEO and related issues.

DBG

Profile Photo David B. Grinberg

Hey GovLoopers: while we’re on the subject of EEO, do you know about EEOC’s 15th Annual EXCEL premier training event?

EXCEL stands for Examining Conflicts in Employment Laws. This year’s theme: Knowledge is Power! EXCEL 2012 runs from July 31 – Aug. 2, in DALLAS. Why attend: for career advancement; to work toward creating a model workplace at your agency and Government-wide; to gain expertise in EEO laws, issues and procedures; to master basics of Alternative Dispute Resolution (ADR), including voluntary mediation; and, to network with fellow Feds, high-ranking EEOC officials, and other attendees. For further info, check out: http://eeotraining.eeoc.gov/viewpage.aspx?ID=df38df67-1b6b-4297-bf43-7ad46a27b84d and https://www.govloop.com/profile/EEOCEXCEL and https://twitter.com/EEOC_EXCEL

Profile Photo Leland L. "Ted" Cogdell, Jr.

Thanks, Dave!

My thinking for the CDO, whether it be its own office or just a division, preferably the former, would, at least, have a CDO, ACDO, and all the various program managers for all basis covered under MD-715. That way, they would not be in HR or Civil Rights. Let HR do HR. Let Civil Rights educate (be proactive and avoid complaints in the first place) and process the complaints that do come in if ADR does not work out for the parties involved. Let General Counsel litigate and write settlement instruments.

With a stand-alone CDO, they will have the time, resources, and the clout to get done what MD-715 lays out. Hopefully, they would be left alone to do what they need to do. When your mission is to only recruit, hire, retain, and advance, then you increase your propensity for success and do your part to move the anti-discrimination project forward for the agency and the country.

I’m sorry it took so long to find my passion in life–society’s anti-discrimination project–but I’m glad that I did. The path to this realization was painful and hurtful, but I am a better person for going through the process. Whatever doesn’t kill ya makes ya stronger, right? I try to take the high road and see the silver lining in everything I do.

Thank you for your kind compliments on my comments. I’ll try to effect change where ever I work and do the best I can. I learned a long time ago that your only sure reward in public service is a clear conscience.

I’ll be off the grid for a few days, trying to strengthen family bonds at a reunion on my wife’s side.

Is the EEOC Fellow Program still going? I’d like to apply for that again. I got an interview five years ago, but I was not accepted. My program was going to be to produce a DVD on the RA process. Now, five years later, I hear that it is something that could really be used at my agency (and most agencies, for that matter). I saw the need, but no one else did. Funny how that works sometimes. I was going to ask the award-winner Peter Glaws to produce it, but he later retired and past away soon after being retired.

I’ll be in touch after I return.

Best,

Ted