Managing Employees With Narcissistic Personality Traits

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By Shana Palmieri, August 4, 2020

Do you have an employee who refuses to accept feedback, is always right, monopolizes the conversation and feels entitled to special treatment within your agency? Are these traits creating a challenge for leadership to engage this employee to collaborate with the team to achieve the mission, purpose and goals?

Individuals with these traits often create a struggle for supervisors and leadership within organizations, the struggle can be even more severe if the individual within the leadership position embodies narcissistic personality traits.

Let’s first review: What exactly is Narcissistic Personality Disorder and how prevalent is it in our society?

Narcissistic Personality Disorder

Narcissistic Personality Disorder is noted to be the least studied of the psychiatric disorders. Patients with Narcissistic Personality Disorder are often known for coming to therapeutic treatment ‘by force’ or as a last resort and often do poorly in therapeutic treatment.

The research indicates that the underlying roots of narcissism are often due to negative developmental experiences such as being rejected in childhood, or, in contrast, excessive praise during childhood leading the individual to believe he has exceptional traits.1 A 2009 study found narcissistic personality disorder was a fairly prevalent personality disorder in the United States, occurring at an estimated rate of 6.7%, with rates in men at 7.7% and in women at 4.8%.2

An individual may have traits of the disorder or meet full diagnostic criteria for the disorder. The typical presentation of Narcissistic Personality Disorder includes:3

  • An exaggerated sense of self-importance.
  • A sense of entitlement and a consistent need for excessive admiration.
  • Expectation to be recognized as superior without achievements that indicate the need for recognition.
  • The individual exaggerates his or her achievements, abilities and talents.
  • The individual has a preoccupation and obsession with success, power, beauty, brilliance or being the perfect mate.
  • The individual believes he or she is superior and only desires or agrees to associate with people he or she views as equally special people.
  • The individual tends to monopolize conversations and belittle others who they perceive as inferior.
  • The individual expects to receive special favors for his or her expectations to consistently be met, and for unquestioning compliance in his or her demands and requests.
  • The individual is unable and unwilling to recognize the feelings and needs of others.
  • The individual is both envious of others and also believes others envy them.
  • The individual behaves with arrogance.
  • The individual insists on having and deserving the best of everything.

Likely the most challenging aspect for employers is that individuals with narcissistic traits or narcissistic personality disorder have an incredibly difficult time accepting feedback or criticism. They often have the following reactions:

  • Become irritated, angry or emotionally distressed when they do not get their way or view themselves as not getting special treatment.
  • Are unable to regulate their emotions and struggle to tolerate stressful situations.
  • May react with rage and then direct their anger toward criticizing others and demonstrating their own superiority.
  • Have frequent interpersonal conflict, especially with the individuals who provide the feedback (perceived as criticism).
  • Significant difficulty adapting to change or adjusting their mindset.

Managing and Setting Boundaries

Employees with these traits can be challenging at best to manage within an organization and ultimately may be toxic to the overall success of the organization. Some of the tips below may help minimize the impact these individuals have on your organization.

1. Check yourself. Prior to assuming the individual you are seeking to manage is narcissistic, take a look at yourself and your approach to ensure your management style is not creating a defensive reaction in your employees. Key tip: If you struggle to manage all your employees and think they all have significant pathological personality problems, it may be an appropriate time for self-reflection.

2. Clearly identify your objectives. What are the goals and objectives you need to accomplish to meet the mission of your agency? In which areas is the employee demonstrating an inability to perform? What needs to change in order for the employee to be successful? Attempt to be objective and separate your own emotional reaction to the employee. What specifically do you need the employee to do/change in order for the organization to be successful?

3. Be concrete and clear with expectations. Engage in all conversations with respect and empathy, but stay focused on what needs to change in order for the employee to meet the goals and expectations of the organization.

4. Align with the leadership team on expectations and boundaries. If the employee is able to go above the supervisor’s head and get an exception or special treatment, the situation will be exacerbated and create further toxicity within the organization. The rules and boundaries must be clear, consistent and aligned with the leadership team.

5. Be consistent. The expectations need to be consistent not only for the employee causing the challenging dynamic, but for all employees. Attempt to keep rules, boundaries and expectations consistent across the board with employees to minimize special treatment and favoritism.

6. Follow through on consequences for not meeting expectations. Ensure goals and expectations are being met. If the expectations are not met, follow up promptly.

7. Stay focused. Do not let yourself be swayed by emotion or manipulation. Stay focused on the facts and the key tasks, objections and goals of the organization. Refer back to the facts and make the decision off the facts, not the emotional persuasion of the employee.

8. Remember your role. As a supervisor or leader, your role is to support the mission, purpose and goals to be accomplished. Stay focused on supporting your employees with the key objective being to meet the goals and objectives of the agency, not the personal goals of individual employees.

9. Be willing to part ways. If the employee is unable to collaborate with the team to successfully perform the functions of the job, be willing to part ways. Excellent leaders and supervisors will provide empathetic, respectful and considerate support to their employees to ensure their success. However, they must also understand the appropriate time when an employee has personality traits that are interfering with success of the organization and may need to make the decision to part ways.

Note: Shana will cover personality disorders and several other topics during Managing Employees With Mental Health Challenges During the COVID-19 Pandemic on August 26, 1-4:30 pm ET. [email protected]

1 Mitra, P. (2020, April 15). Narcissistic Personality Disorder. Retrieved July 20, 2020, from https://www.statpearls.com/kb/viewarticle/27055

2 Stinson, F., Dawson, D., Goldstein, R., Chou, S., Huang, B., Smith, S., . . . Grant, B. (2008, July). Prevalence, correlates, disability, and comorbidity of DSM-IV narcissistic personality disorder: Results from the wave 2 national epidemiologic survey on alcohol and related conditions. Retrieved July 20, 2020, from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2669224/

3 Narcissistic personality disorder. (2017, November 18). Retrieved July 20, 2020, from https://www.mayoclinic.org/diseases-conditions/narcissistic-personality-disorder/symptoms-causes/syc-20366662

Workers’ Comp Rules for COVID-19 Depend on Job Type

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By Frank Ferreri, Special Guest Author, July 28, 2020

If anything in recent history has proven to be the ultimate “disruptor,”  COVID-19 certainly makes a strong case for top billing. Among the many changes the pandemic has brought are new approaches to workers’ compensation across the country, including within the federal government.

So, what’s changed? For some federal employees who contract COVID-19, the nature of their employment will cause the Office of Workers’ Compensation Programs to accept that their exposure was work-related without the usual showing of evidence.

High-risk Employees

As OWCP explained in guidance, federal workers who must have in-person and close proximity interactions with the public on a frequent basis, such as members of law enforcement, first responders, and front-line medical and public health personnel, will be considered to be in “high-risk employment” and have a more direct path to compensation.

As a result, and as the U.S. Department of Labor spelled out in FECA Bulletin No. 20-05 (DOL 03/31/20), if: 1) a COVID-19 claim is filed by a high-risk employee; 2) the employing agency supports the claim; and 3) Form CA-1, Notice of Traumatic Injury, is filed within 30 days, the employee is eligible to receive continuation of pay for up to 45 days.

Under the “old normal,” workers generally weren’t entitled to benefits for exposure to infectious agents without the occurrence of a work-related injury. COVID-19 has shifted OWCP’s focus, particularly for high-risk employees.

“The new procedures … call the adjudicator’s attention to the type of employment held by the employee, rather than burdening the employee with identifying the exact day or time they contracted the novel coronavirus,” OWCP’s guidance explained.

What’s needed for a “high risk” COVID-19 claim under the Federal Employees’ Compensation Act? OWCP requires the following evidence:

  • Exposure. If an employee meets the “high risk” criterion, OWCP will confirm the nature of employment based on the position title and confirm with the agency that the position is considered high risk. With this confirmation, the employee’s COVID-19 infection will be presumed to have come from work-related exposure.
  • Medical. The employee must provide medical evidence establishing a COVID-19 diagnosis. The factual and medical background must include the physician’s recognition that the employee is engaged in high-risk employment that included exposure to COVID-19 while in federal employment.

Other Federal Employees

Acknowledging that not all federal positions are at heightened risk of COVID-19 exposure, OWCP also spelled out what happens for claims from non-high-risk employees. In short, it’s not unlike other workers’ compensation claims.

The employee must provide a factual statement and available evidence concerning exposure. The employing agency is expected to provide OWCP with information regarding the alleged exposure and indicate whether it is supporting or controverting the claim. As with high-risk employees, if the agency supports the claim and a CA-1 is filed within 30 days, the employee is eligible for COP for up to 45 days.

In non-high-risk positions, the employee must provide evidence of the duration and length of occupational COVID-19 exposure. This evidence may include information such as a description of job duties, which agency the employee worked for, and the location of the work. OWCP advises employees to provide a “detailed statement” on:

  • The nature of employment.
  • How long they were exposed to the virus.
  • When the exposure most likely occurred,
  • How long and often they were exposed.
  • Where and how the exposure occurred.
  • From the agency, OWCP will seek information about occupational exposure including relevant agency records. This may include:
  • Comments from a knowledgeable supervisor on the accuracy of the employee’s statements.
  • Whether the agency concurs.
  • Confirmation of an actual positive COVID-19 test result.

Additionally, regarding medical evidence, a non-high-risk employee must show that the diagnosed COVID-19 was aggravated, accelerated, precipitated, or directly caused by work-related activities. This requires a qualified physician’s opinion, based on a “reasonable degree” of medical certainty, that the employee’s COVID-19 was causally related to employment conditions.

“Employment conditions” may include employment-related travel. In such a case, OWCP noted that the employee and agency would have to “describe in detail” the travel and potential exposure.

What’s Not Covered?

Outside of work-related travel, OWCP explained that COVID-19 exposure that occurs while going to or coming from work — such as might happen on public transit — is not compensable, as it does not arise out of and in the course of employment.

Similarly, an employee who’s exposed to COVID-19 while on vacation or leave has not experienced a compensable injury because the exposure must occur in the performance of duty.

[email protected]

When Cleaning Desks and Wearing Masks is Required: Life With COVID-19

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By Barbara Haga, July 15, 2020

We’ve previously talked about issues related to employees who report to work with symptoms and what to do about taking temperatures when employees are reporting to the worksite. What other issues could present once more and more employees are returning to work? This month, we look at wearing masks and cleaning workspaces.

Wearing Masks

Masks are a hot button issue. I do not understand it, but I have seen enough to accept it is real.  Forbes published an interesting article in May on the top reasons why people don’t want to wear them. The article explains it covers everything from claiming individual rights are being abridged to it’s not cool or for those who worry about it, not masculine.

Regardless, the OSHA guidance recommends that employers encourage workers to wear face coverings at work. The CDC guidance updated in May 2020 advises employers to encourage employees to wear cloth face coverings in the workplace, if appropriate.

When are masks not feasible? According to the CDC, it includes situations such as the following:

  • Working with people who are deaf or hard of hearing who rely on lipreading.
  • People with intellectual and developmental disabilities, mental health conditions or other sensory sensitivities.
  • Younger children older than 2 (e.g., preschool or early elementary aged).
  • People engaged in high intensity activities, like running.
  • People engaged in activities that may cause the cloth face covering to become wet, such as swimming.
  • People who work in a setting where cloth face coverings may increase the risk of heat-related illness or cause safety concerns (for instance, straps getting caught in machinery, chemicals accumulating in mask, etc.).

Clearly, these are not typical issues in many Federal workplaces. The question will be whether masks are encouraged or required, and, if required, what happens when employees refuse to comply.

As noted last month, several unions have posted information about concerns regarding reopening and what they see as requirements for a safe return to the workplace. AFGE’s “10 Principles on Return to Worksites” notes:

“Protections must be put in place by the agency: temperature taking at the door/masks and appropriate PPE/hand sanitizer/soap/tissues, proper distancing, dividers, regular disinfecting, air circulation, etc.”

The Federal Workers Alliance,  which includes a long list of unions, including NAGE, IAFF, IAMAW, PASS, POPA, SEIU and IFPTE, demands that “[A]ll individuals present in the worksite should be expected to wear masks to reduce the possible spread of COVID-19 through respiratory droplets.” NTEU’s press release discussed whether agencies were providing hand sanitizer, disinfectant wipes and masks, but noted employee should be able to bring their own masks.

As discussed in my May column on taking temperatures, if the agency sets a mandatory requirement and is faced with employees who refuse to comply, then disciplinary action should ensue. The charge would likely be failure to follow instructions or some variation of that. Since the employee won’t be allowed in the workplace without the mask, he or she would have to be sent home on admin leave just like any other situation where you have an employee who reports not ready, willing, or able to perform work. The admin leave would extend until you could get your notice of proposed action completed. At that point, the employee could be on notice leave while waiting for the reply and decision.

The local union is not in a great position to argue against wearing masks if the national union is advocating their use. I suppose it is possible that an employee might have some medical reason (which would need to be supported with medical documentation) as to why he or she cannot wear a mask. That could create a question regarding accommodation if that underlying medical condition would rise to the level of a disability.

Or, perhaps the employee will agree to wear the mask after:

  • Receiving a proposed action
  • Or after the discipline is effected.

Cleaning Workspaces

The CDC guidance on reopening addresses the need for cleaning, stating that reducing the risk of exposure to COVID-19 by cleaning and disinfection is an important part of reopening that will require careful planning. What’s in that plan? What new requirements are going to be necessary to keep workspaces as free from the virus as possible? Are there going to be issues with obtaining compliance with these reopening requirements? Could be.

The information issued by the unions may offer a clue. AFGE talked about protections that needed to be put in place by the agency, which included “regular disinfecting.”

The NTEU press release noted: “Employees remain anxious about the risks posed by taking public transportation, being in enclosed facilities with hundreds of coworkers and whether their work stations will be consistently and properly cleaned and disinfected.”

The Federal Workers Alliance post included a requirement to “assign and ensure that all shared/common areas and equipment are sanitized at regular intervals by personnel qualified and trained in disinfection of COVID-19” in their list of required agency actions. These postings seem to indicate that the expectation is that cleaning of individual workspaces is not being done by employees but by someone else.

Is it reasonable to expect there are agency personnel or contractors available with the necessary time, products, and training to do all of this? This may be within the realm of existing contracts and resources for some agencies.

It seems likely to me some agencies will need employees to take care of some of this. That means cleaning of individual keyboards, desk, phones, etc. It could extend to common areas such as counters in break areas, refrigerator doors, coffee pots, and door handles. Copiers, faxes, hole punches, and commonly used staplers might also make the list.

Encouraging voluntary compliance with these kinds of tasks is probably the easiest approach. Perhaps employees in the unit could draw up a rotational schedule for the tasks covering common areas. An employee might volunteer to do the cleaning.  But, I believe it would be naïve to think that there won’t be some who say “that’s not in my p.d.” Bottom line: If it is a requirement, not complying would be a failure to follow instructions, although perhaps not at the same level as with the masks.

These are actions that have likely not been carried out before. However, as has become painfully apparent, it’s a brand new world.

More About that Employee Who Left His Laptop Charger at Work During the Pandemic

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By Deborah Hopkins, June 23, 2020

Last week, we published an article about an employee who left his laptop charger in the office at the beginning of the COVID-19 pandemic. The employee claimed he worked 40 hours a week for eight weeks, even though he later admitted he had done no work during that time. I characterized it as an open-and-shut case. It wasn’t seen that way by a number of you in FELTG Nation.

If you haven’t read the article, or didn’t read it closely, I urge you to take a look before you continue reading this article.

Many of our readers had comments, and some strong feelings, about the matter. Most of the feedback fell into three areas:

  1. The potential existence of a backup charger or at-home computer alternative.
  2. The investigation of IT records to see if the employee was working through some other mechanism.
  3. The issue with supervisor not tracking the employee’s [lack of] work product.

Below are some of the comments we received in each category, followed by an official FELTG response:

The Forgotten Charger

FELTG reader comments:

  • Some years back I was sent out of state on a business trip and forgot my charger. I…drove over to a Best Buy, and got a new power cord. Problem solved in about one hour. In today’s COVID world, I’d probably buy one from Amazon. But just because the employee forgot his power cord isn’t evidence the employee wasn’t working. How about checking on his output??
  • Perhaps the employee simply opted to buy another charger or had a reasonable substitute already at their home – they are readily available.
  • In reply, the employee will obviously claim he had another charger cable at home (and he could’ve purchased on Amazon).
  • I have a docking station, monitor, and mouse of my own for my home office.
  • Does the agency allow the employee to work on his own personal device from home?
  • Most likely there was a back-up charger. I have been telecommuting for 4 months and my charger burnt out twice. I was out of commission for a week.
  • Admittedly I did this and worked on my desktop for all of quarantine.

Official FELTG response: All excellent points, and details you would absolutely want to find out during your management inquiry or misconduct investigation. If the employee was allowed to use a personal device, or bought a backup charger, or had a docking station for his laptop at home, then as long as he was working the 40 hours a week he claimed, we don’t have misconduct.

The employee’s misconduct was lying on his time card – not leaving his charger at work. If you look closely at the article’s application of the five elements of discipline, you’ll see the employee was charged with the time and attendance violation, not leaving the charger in the office. A disciplinary charge of “leaving your laptop charger at the agency” may not rise to the level of misconduct, especially if it was accidental.

IT Records

FELTG reader comments:

  • Most agencies can see if the network was accessed or logged into.
  • The one thing I may do is have IT perform an evaluation of his computer usage as further confirmation that he hasn’t logged on and worked.
  • The IT people should be able to audit access to the [employee’s work] files, if nothing else.

Official FELTG response: In some cases, you would want to pull IT records to verify if the employee was working at all. Let’s modify the hypothetical a bit and say the employee was working on a personal device through the agency’s VPN, and claimed 40 hours of work a week, but the supervisor suspects he was working less. A search of IT records could show the amount of time the employee was on the VPN to give the agency a better idea of how much potential time theft was involved. Other considerations, such as whether the employee does work that does not require computer or VPN use, would also be relevant.

But in the original hypothetical, the employee admitted he did not work at all. Yet, he claimed 40 hours a week. That admission is preponderant evidence, so the agency could propose discipline based on that evidence alone. Yes, the IT records would provide additional evidence, but they wouldn’t be required because the burden of proof in discipline cases is only preponderant evidence – or substantial evidence, at the VA.

Supervisor Oversight

FELTG reader comments:

  • The burning question in my mind is how could the supervisor not know there was a problem; when you send people home to work, it doesn’t mean you don’t keep tabs on what they’re doing daily. Why wasn’t the supervisor communicating on at least a weekly basis and asking for accountability, not just of this employee but every employee?
  • Simplest way to check up is to ask to see work product if you doubt. Why are they having to use “inference” of a power cord sitting at the office rather than checking with IT for emails, and checking other systems for evidence of work? Seems to me the supervisor needs at least a counseling for failing to do his job as well!
  • Should we also address the supervisor who failed to see no work from this employee for months?
  • There should have been ways for management to create check points/milestones or activity goals to ensure this person was working.
  • If I was the said employee’s supervisor, I would be a little concerned about my own “failure to supervise” allegation.

Official FELTG response: Right on! This hypothetical supervisor failed to monitor the employee’s work, because no work product in eight weeks is unacceptable in any government job. As the previous article alluded, we could write another article entirely on the supervisor’s potential performance and misconduct issues.

Thanks, as always, for your responses. We loving hear from you, and enjoy the conversations. For a more in-depth discussion on related topics, be sure to join us July 1 (that’s next week!) for the 75-minute webinar Performance and Conduct Problems During the COVID-19 Pandemic: Holding Remote Employees Accountable. [email protected]

Breaking News: SCOTUS Says Federal Law Protects LGBTQ Workers From Employment Discrimination

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By Deborah Hopkins, June 15, 2020

This morning, the Supreme Court issued a decision in Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC, 590 U.S. ______ (Jun. 15, 2020). The 6-3 decision was written by Justice Gorsuch. He was joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, and Kagan.

The question before the Court was whether an individual’s sexual orientation or transgender status was covered under Title VII’s prohibition against sex discrimination. The Court ruled that “The answer is clear. An employer who fires an individual for being ho­mosexual or transgender fires that person for traits or ac­tions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” (p. 2).

AT FELTG, we’ve reviewed the decision and will be re-reading it to be sure we glean all the relevant information. After the initial read, we’ve pulled out couple of interesting points the Supreme Court discussed:

  • If sex was one but-for cause for discrimination – not the motivating factor or the only cause – then Title VII applies. (p. 6)
  • Employers who seek to avoid liability because they discriminate against men and women who are LGBTQ do not avoid liability – they double their exposure to liability because the language of Title VII talks about discrimination against individuals. (p. 9)

A few takeaways directly from the language of the case include:

  • [A]n employer who intentionally treats a person worse because of sex— such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discrimi­nates against that person in violation of Title VII. (p. 7)
  • From the ordinary public meaning of the statute’s lan­guage at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it inten­tionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the em­ployer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to dis­charge the employee — put differently, if changing the em­ployee’s sex would have yielded a different choice by the em­ployer — a statutory violation has occurred. (p.9)
  • The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s be­cause it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. (p. 9)
  • [H]omosexuality and transgender status are inex­tricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some dispar­ate impact on one sex or another, but because to discrimi­nate on these grounds requires an employer to intentionally treat individual employees differently because of their sex. (p. 10)
  • When an employer fires an employee because she is homo­sexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individ­ual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that in­dividual’s sex, the statute’s causation standard is met, and liability may attach. (p. 11)
  • We agree that homosex­uality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosex­uality or transgender status necessarily entails discrimina­tion based on sex; the first cannot happen without the sec­ond. (p. 19)
  • In Title VII, Congress adopted broad language mak­ing it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for be­ing gay or transgender defies the law. (p.33)

We’ll be going over this case in much more detail in future training events including an upcoming EEO Refresher webinar entitled The Latest on Sexual Orientation and Gender Discrimination in the Federal Workplace on July 9, and a virtual training session as part of FELTG’s special event Federal Workplace 2020: Accountability, Challenges, and Trends on July 29.

In the meantime, read the full decision yourself here [PDF, 23.25 MB]. [email protected]

The Employee Who Refuses to Report to Work

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By Deborah Hopkins, June 9, 2020

Back in the day – before COVID-19 – there was a term we used for employees who refused to report to work: AWOL. Or, as our friends in the Navy call it, Unauthorized Absence. The pandemic has created a new scenario though, where a refusal to report to an agency work station might not be considered misconduct, depending on the circumstances.

As agencies start to bring employees back to the workplace, some are understandably wary about leaving the safety (and perhaps comfort) of their own homes and being put back in contact with the public once again. Some employees have more reason to be leery than others, particularly those in high-risk categories.

So, what should an agency consider when an employee expresses concern about returning back to the workplace while the virus is still killing 1,000 Americans each day?

According to OPM, agencies should work with employees and, if applicable, unions, to address return to work concerns even after agency management has determined that it is safe for employees to return. Once an agency has determined that sufficient conditions allow for employees to safely work in a given environment, employees can be expected to report to their worksite unless they are in an approved leave status.

Before issuing an order requiring employees to report to duty onsite, and when considering discipline based on non-compliance with a reporting requirement, agencies are encouraged to consider all facts and circumstances in each case. Among these considerations:

  • An employee’s vulnerability to serious complications if infected with the virus,
  • The presence of an individual in a CDC-identified high-risk category in the home, and
  • Child care or other dependent care responsibilities resulting from daycare, camp, or school closures.

Agencies should determine if other options are appropriate, such as allowing employees to continue to telework or asking them to request personal leave.

If the worksite is in a jurisdiction still subject to restrictions related to COVID-19, agencies should also consider the terms of any such restrictions as well as employee concerns about their safety in the workplace or during commuting, and determine if steps can be taken to mitigate those concerns.

FELTG readers know that federal employees are required to follow supervisory orders, including orders to report for duty, but they may legally refuse orders that would cause “irreparable harm.” These categories, found in MSPB case law, include orders that:

  • Are Illegal, whether the order itself is illegal, or obeying the order would be an illegal act.
  • Are immoral.
  • Require an unwarranted psychiatric examination.
  • Require an employee to forego a Constitutional right.
  • Are unsafe.

We know the first four are not at issue here; safety is the key. The question becomes: What is the balance between working to fulfill an agency’s mission while guaranteeing employee safety and protecting against irreparable harm?

For most employees, contracting COVID-19 would probably not cause irreparable harm. Recent data suggests a large group of the people infected – perhaps even 80% – are asymptomatic. But for a subset of employees in high-risk categories, contracting the virus could very well cause irreparable harm in the form of long-term or permanent health issues. Adding to the complication is that this virus is new, and we don’t have any information about its long-term effects.

So, where does that leave us? If an agency has determined that it is safe to return to the workplace, an employee’s subjective belief that it is not safe – especially if that employee is not in a high-risk category – will probably not be enough to have a disciplinary action for AWOL overturned.

Only time, and cases when we get them, will tell.

I think that agencies should try to be as flexible as possible, as employees are dealing with unprecedented challenges. But at the end of the day, your agency needs to fulfill its mission, and if an employee must be at work in order to do so, and work is a safe place, then the employee should be held accountable to report for duty. For more on this – and other virus-related workplace challenges – join FELTG tomorrow for the virtual training event Federal Workplace Challenges in a COVID-19 World: Returning to Work During a Pandemic. A few spots still remain. [email protected]

And Now a Word With … Chai Feldblum

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By Dan Gephart, June 2, 2020

I’ve attended the EEOC’s EXCEL Conference for several years as a member of the press, which included a pre-arranged sit-down interview with one of the EEOC commissioners. Sometimes I interviewed the Chair, but usually I interviewed whoever was newest to the commission. (Guess they drew the short straw.)

The interviews didn’t usually delve too deeply into federal sector EEO issues, which is understandable. Many of the commissioners came from a non-Federal background and they were still learning the ropes. Most of their attention was on the private sector.

Chai Feldblum (pictured above to the right), however, showed no reticence in talking about nitty-gritty federal sector issues. Despite being on the job for just a few months, she was not only enthusiastic, she was informed, curious, and engaging – the kind of traits that made her a popular professor at Georgetown University’s Law School. And Feldblum was very approachable, which is almost as impressive as her bio.

Feldblum graduated from Harvard Law School and clerked for Supreme Court Justice Harry Blackmun. She was legislative counsel for the ACLU’s AIDS project, where she played a key role in drafting the Americans with Disabilities Act. She provided legal counsel on the Employment Non-Discrimination Act and other efforts to prohibit discrimination on the basis of sexual orientation and gender identity. She founded Georgetown’s Workplace Flexibility 2010 campaign. And she was the first open lesbian to serve as EEOC commissioner.

She served on the commission from 2010 to 2019 and was even nominated for a third time by President Trump before conservative Utah Senator Mike Lee, a longtime opponent of LGBTQ rights, blocked the nomination.

Feldblum is a partner at Morgan Lewis and director of the firm’s Workplace Culture Consulting & Training, which helps employers implement preventive strategies to eliminate harassment and enhance workplace productivity.

At the EEOC, Feldblum forged successful working relationships with her fellow commissioners, especially then-Chair Victoria Lipnic. This led to some ground-breaking actions, such as a wide-ranging report on workplace harassment and the Commission’s ruling that sexual orientation and transgender discrimination are forms of sex discrimination under Title VII.

With many of us waiting for the Supreme Court’s decision on Zarda, Bostock, R.G. & G.R. Harris Funeral Homes — which will either affirm or reject the EEOC’s approach to sex discrimination — we thought it was an ideal time to catch up with Feldblum. She opted not to share her gut feeling about how the Supreme Court would rule, but, as always, she was thoughtful and informative in her responses.

DG: You spent nine years at the Commission. What do you think is your legacy there?

CF: I feel my legacy falls into two broad categories, substantive and procedural. On the substantive side, I feel the Commission made huge strides in protecting LGBT people under Title VII by ruling that sexual orientation and gender identity discrimination are forms of sex discrimination; in advancing employment rights for people with disabilities by reinvigorating the affirmative action requirements for federal agencies under Section 501 of the Rehabilitation Act; and in protecting pregnant women by issuing guidance that ensured they could receive light duty work when needed, which was adopted in part by the Supreme Court. I feel grateful that I was able to play a leadership role in those substantive areas.

On the procedural side, I enjoyed digging into the logistics of the EEOC and helping with strategic planning for the agency. The digital charge system, as well as the respondent and charging party portals, have enabled the EEOC to continue working well during this COVID-19 pandemic. I will always be proud of the contribution I made towards those advancements in technology for the agency.

DG: What is the biggest difference you see between the private and federal organizations when it comes to EEO issues?

CF: I have been struck more by the similarities than by the differences. In both private and federal organizations, I have met incredibly committed people who care deeply about EEO issues. In both types of organizations, I have met people who are interested in going beyond EEO compliance to broader workplace culture change. And in both private and federal organizations, I have seen people struggle with similar challenges, whether it is a limited amount of resources or skepticism from some quarters as to the utility of investing in workplace culture change. This is probably why it is good that I’m an optimist. I believe that the utility of robust EEO compliance and workplace culture change, in both private and federal organizations, will carry the day.

DG: It’s been almost four years since the Select Task Force on the Study of Harassment in the Workplace was released. Is there anything you would add, take out, or clarify if you were in charge of updating it now?

CF: I believe the Report of the Co-Chairs of the Select Task Force on the Study of Harassment has stood the test of time. It remains a very useful document for anyone wishing to understand the prevalence and scope of workplace harassment, the reasons for under-reporting of harassment, and new ideas for “rebooting harassment prevention.” I do not think there is anything I would take out of the Report. But together with my colleague Sharon Masling [former Chief of Staff for Feldblum at the EEOC], who joined me at Morgan Lewis as a Co-Director of Workplace Culture Consulting, we have built on and expanded the work and the ideas of the Report. Over the course of a year here at Morgan Lewis, we have created a quantitative survey on assessing culture, developed a system for a qualitative assessment of workplace culture, and refined a Respectful Workplaces training. All of this work builds on the research and insights of the Report.

DG: Are you seeing an increase in discrimination and harassment in the workplace and/or in the public space as COVID-19 has taken over the globe?

CF: The evidence is pretty clear that Asian-Americans have been the victims of increased harassment and hate crimes during the COVID-19 pandemic. The Asian Pacific Policy and Planning Council has collected data of over 1,700 incidents of verbal harassment, shunning and physical assaults against Asian Americans since March 2020. These reports come from 45 states and Washington DC and over a third of the incidents happened in public venues. I am sure workplaces are not immune from the possibility of discrimination and harassment against Asian Americans. I feel that the employers I have been able to work with over the past year are well-positioned to stop this form of discrimination and harassment from permeating their workplaces. But we need this to stop everywhere.

DG: What should the EEOC’s approach be to cases involving sexual orientation and gender identity in the federal workplace as we await the Supreme Court ruling?

CF: Keep going until the Supreme Court rules. The EEOC has continued to accept charges from LGBT employees and applicants who allege employment discrimination on the basis of sexual orientation and gender identity. That is precisely what the agency should do, since it has not voted to change its position on this issue. The question is whether the Supreme Court will read the law as the EEOC did. That is what we are all waiting to see.

[Editor’s Note: The Supreme Court decision in Zarda, Bostock, R.G. & G.R. Harris Funeral Homes will be discussed in the session The Latest on Sexual Orientation and Transgender Discrimination during FELTG’s weeklong conference-like virtual training event Federal Workplace 2020: Accountability, Challenges, and Trends July 27-31, 2020. Register for one, several or all sessions. And EEO counselors and investigators can learn more about the topic and earn refresher hours during the July 9 webinar The Latest on Sexual Orientation and Gender Discrimination in the Federal Workplace.]

[email protected]

FELTG is Going Virtual – for the Summer, Anyway

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By Deborah J. Hopkins, May 14, 2020

These past several weeks have been challenging for all of us. Many of you in the FELTG Nation, and some of us in the FELTG family, have lost loved ones to COVID-19. There’s a lot of uncertainty about what the future holds, as some states begin to re-open while others remain on lockdown. Will things ever return to some semblance of normal? And if so, when?

We don’t have answers to those difficult questions, but we’ve been working hard to adapt as developments have changed almost daily. So out of an abundance of caution – and to allow you time to plan and prepare for the training you still need – we’ll be holding our open enrollment classes virtually through August. Since a number of your agencies aren’t allowing travel until who knows when, we want to make sure you have an opportunity to attend the full spectrum of live, instructor-led FELTG classes.

Here’s the breakdown:

Virtual Training

From half-day spotlight sessions to week-long seminars, and everything in between, the FELTG Virtual Training Institute has classes on topics including reasonable accommodation, performance, discipline and misconduct, leadership, dealing with union issues, leave abuse, understanding employees with PTSD, conducting harassment investigations, and more. Check out the upcoming schedule, which includes favorites such as Advanced Employee Relations, Developing and Defending Discipline, EEOC Law Week, Absence, Leave Abuse & Medical Issues Week, FLRA Law Week, and more.

Webinars

Some of FELTG’s most popular webinar series – including supervisory tools, EEO refresher training and Reasonable Accommodation in the Federal Workplace – are open for registration now. Plus, we have group discounts for employees who are teleworking due to the pandemic.

Onsite Training

When it comes to onsite training, we can bring you any of our classes virtually – or we’ll be happy to have an instructor come to you, if your agency has the space to provide enough social distance for the students and the instructors to gather while following CDC guidelines.

SPECIAL EVENT: FELTG Forum

Federal Workplace 2020: Accountability, Challenges, and Trends

The pandemic is making the possibility of attending summer federal conferences less likely each day. That’s why we’re launching the virtual training event Federal Workplace 2020: Accountability, Challenges, and Trends with 14 different live instructor-led sessions, July 27-31. You can attend as many sessions as you want, from one to all, or anything in between. Earn 8 EEO refresher hours. Earn CLE and Ethics credits. Learn the latest about how to handle the challenges facing federal agencies in 2020.

Because this is a virtual forum, you can attend from wherever you’re working – home or agency office, with no need to get on a plane. Check out the agenda below.

See below for the upcoming schedule of events, or visit www.feltg.com/events to see all the options on the calendar, by date.

We’ll continue to adjust our plans and approach as necessary, until this disease is under control, until it’s eradicated, or until there’s a vaccine. In the meantime, we hope you and your loved ones stay safe and healthy.

Take care,

Deb

Deborah J. Hopkins, FELTG President

Once Again, EEOC Discusses the Role of Agency Defense Counsel – But This Time, No Sanctions Involved

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By Deborah Hopkins, May 5, 2020

One of the most intensely debated topics in the EEO realm for years, has been the proper role of agency defense counsel in agency EEO investigations. Indeed, we’ve written articles in this newsletter about the topic. One of the more recent, hotly discussed cases was the July 2018 issuance of Josefina L. v. SSA, EEOC Appeal No. 0120161760. In this case, the Commission determined “… that Agency counsel impermissibly interfered with the investigation … We determine that OGC’s actions undermined the integrity of the EEO process by eroding the necessary separation of the investigative process from the Agency’s defensive functions.”

Despite all the discussion about Josefina L., we didn’t really learn anything new or significant from the case. The Commission has previously held that an agency representative “should not have a role in shaping the testimony of the witnesses or the evidence gathered by the EEO Investigator.” See Tammy S. v. Dep’t of Defense, EEOC Appeal No. 0120084008 (June 6, 2014), recon. denied, EEOC Request No. 0520140438 (June 4, 2015). Josefina L. brought the debate to the front burner, yet again, and the SSA was slapped with a mild sanction, despite EEOC’s chiding in the case.

One of the problems we’ve had with understanding the EEOC’s position over the years is the weak sanctions they’ve issued when they found agency defense counsel to have crossed the line. Time and again, they issued decisions where the words seemed to say “I’m really mad,” and the actions seemed to say “But I’m not really that mad.”

Interference in the EEO process is one thing – and it’s a problem. But there is no law or regulation that specifically prohibits every single agency attorney from providing advice to supervisors during EEO proceedings, so long as the involvement does not impact the “impartial processing” of the case. Management Directive 110, Chapter 1, Section IV.

So where is the line between permissible and impermissible involvement? Practitioners for years have begged the Commission: PLEASE let us know, definitively, where the bright line can be located.

While the EEOC still hasn’t given us a bright line, the answer to the level of involvement permissible recently got a little bit closer to definitive in a recent case:

[W]e expressly hold that MD-110 permits agency defense counsel to participate in the pre-complaint and investigative stages under clearly defined and controlled conditions that will carry out the Agency Head’s obligation to defend the Agency against legal challenges while avoiding inappropriate interference with the activities of the EEO Office. This means that agency defense counsel may assist agency management officials and witnesses in the preparation of their affidavits during the investigative stage. However, agency defense counsel may not instruct officials to make statements that are untrue or make changes to any affidavit without the affiant’s approval of such changes. [bold added]

Annalee D. v. GSA, EEOC Request No. 2019000778; App. No. 0120170991 (November 27, 2019).

This is yuuuuuuuge. For the past several years, the Commission has sanctioned agencies whose counsel were involved in almost any way. You’d find the occasional case that went the other way, but again the problem was no bright line. Sometimes interference was okay, as long as it wasn’t too much interference; other times, it wasn’t okay.

In the Annalee D. case, the EEOC had originally sanctioned the agency simply because the agency defense counsel was involved – without ever looking at the merits of the involvement. But to its credit, EEOC reversed itself, after the agency requested reconsideration: “In the underlying appellate decision, we found impermissible interference solely on the grounds that agency defense counsel provided assistance to management officials during the investigative stage and not because the provided assistance actually interfered with the EEO Office’s investigative process.”

Look at some of the other language from this case:

  • “Our decision in [Annalee D.] appears to set forth an absolute rule that prohibits agency defense counsel from participating in the pre-hearing stages of equal employment opportunity matters…There is no ‘bright line’ regarding the extent to which agency defense counsel may be involved during the pre-hearing stages of the EEO process. Rather, the issue of utmost concern to the Commission is whether the actions of agency defense counsel improperly interfered with or negatively influenced the EEO process.”
  • “[N]othing contained in MD-110 explicitly prohibits agency defense counsel from representing an agency manager during the counseling stage or bans agency defense counsel during the investigative stage from assisting an agency manager in preparing his or her affidavit or acting as a representative under the appropriate circumstances.”
  • “In recognizing the disparate yet vital responsibilities of the EEO Office and agency defense counsel, MD-110 recognizes that these entities will inevitably interact with each other. MD-110 sets out the parameters for these interactions and seeks to ensure that neither entity inappropriately interferes with the functions of the other.”

This is the best guidance we’ve seen from the Commission on the topic to date – well, it’s good if you’re on the agency side, anyway. And it clarifies the extent to which an agency can support a supervisor who has been accused of discrimination, and needs help understanding the process. Come to our virtual training class Conducting Effective Harassment Investigations May 18-20, or to EEOC Law Week in Washington, DC, in August (if the country is open by then) or September if you want to learn more about this topic, plus a whole lot more. [email protected]

And Now a Word With … EEOC’s Dexter Brooks

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By Dan Gephart, April 21, 2020

For a dozen or so years, I was a regular attendee at the EXCEL Conference, put on annually by the Equal Employment Opportunity Commission. I’m an introvert, so conferences could be a challenge for me. But I always felt at ease at EXCEL once I saw Dexter Brooks and his beaming smile walking down the hallway toward registration.

You’d be hard-pressed to find a better person to fill the role that Dexter performs at EEOC, where he is associate director of the Federal Sector Programs Office within the Office of Federal Operations. The SES-er leads FSP’s efforts to help agencies develop strategies to prevent discrimination. Dexter knows EEO law top to bottom, and he has a deep insider’s understanding of how EEO plays out at federal agencies. He is also an effective and engaging presenter, able to convey his EEO knowledge in practical and understandable bites.

FELTG caught up with Dexter before the country was turned upside down by the COVID-19 pandemic. We wanted to hear what OFO’s approach was to cases involving sexual orientation and gender identity as we await the Supreme Court’s ruling on Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC. The combined cases raise the issue of whether Title VII’s protections against sex discrimination prohibit discrimination on the basis of sexual orientation and gender identity. The ruling is expected later this term.

The agency deferred on the question, not wanting to get ahead of any decision coming out of the Supreme Court. Understood. So we turned our attention to discrimination trends in the federal workplace.

DG: In what areas do agencies need the most training help?

DB: Based upon Federal Sector Programs’ complaints data collected from federal agencies, EEOC’s Appellate Review Programs’ findings of discrimination and procedural reversals, and FSP’s outreach and technical assistance to agencies, it appears that agencies are most in need of training on retaliation/reprisal, reasonable accommodation, non-sexual harassment, properly identifying and framing hostile environment harassment claims, identifying and resolving conflicts of interest issues that arise during the administrative EEO complaints process, and barrier analysis.

DG: It’s been a few years now since the agency’s report on harassment, and the sharp increase of sexual harassment complaints prompted partly by the #MeToo movement. What trends are you seeing in terms of harassment complaints? And have you noticed any considerable changes in how agencies are training their employees on harassment?

DB: Between fiscal years 2012 and 2018, federal agency sexual harassment complaints increased by about 1 percent, with a total of 3.1 percent of all complaints alleging sexual harassment in 2012 compared to about 4.4 percent of all complaints alleging sexual harassment in 2018.

After the issuance of the EEOC harassment report, EEOC developed new training classes for employees and managers on creating and maintaining a respectful workplace. These classes teach employees how to create a culture of respect using bystander intervention techniques and instruct managers how to identify and address uncivil behavior before it rises to the level of harassment. These modules are focused on proactive prevention rather than the traditional legal/compliance modules that typically had been the centerpiece of anti-harassment training. The demand for this type of training in the federal sector has been robust and has increased each year since the training’s 2017 rollout.

This is consistent with information FSP has received from agencies during outreach, which revealed agencies are not limiting their anti-harassment efforts to mandatory compliance training but are adding to their training modules on topics such as cultural awareness and civility.

DG: The workplace is as divisive as it has ever been. Is that being reflected in the number and type of claims you are seeing?

DB: Generally, the rate of counselings and complaints have seen a spike since fiscal year 2014, reaching a peak in fiscal year 2018 at 37,042 counselings — an 11 percent increase since fiscal year 2014. This is fairly consistent across all bases as of fiscal year 2018. Complaints also reached their highest level since fiscal year 2014 at 15,578 — an 8 percent increase. This increase appears to be across all bases, as the proportion of complaints filed by statute has remained consistent during this same time period, with Title VII comprising about 56 percent of all complaints, followed by ADEA at 22 percent, Rehabilitation Act at 21 percent, EPA at .48 percent and GINA at .42 percent.

DG: How is the EEOC doing on the backlog of cases over 500 days old? How long is a typical EEOC appeal from the time it’s received until the time it’s issued?

DB: Currently, [the Appellate Review Program] has 124 pending cases over 500 days old. The average processing time for an appeal is approximately 312 days. By comparison, in FY 2019, the average processing time was 399 days. [email protected]