By Michael Rhoads, January 11, 2022

No one is perfect, and mistakes are bound to happen over the course of a career.  So, what happens when a manager is found to have made a mistake related to an EEO complaint?  Occasionally, the EEOC will order training for the supervisor in question or, if the behavior is pervasive throughout agency, for all supervisors.  The goal is to make sure everyone is in compliance with the law. Some recent EEOC cases are a good reminder that no matter how many times you say something, it’s best to mind your Ps and Qs to avoid getting yourself and your agency in trouble.  Below are some recent cases from the EEOC which serve as a good reminder of what you can and can’t say, and what should be avoided at all costs.

No Substitute

In Foster B. v. Department of Health and Human Services, EEOC Appeal No. 2019005682 (April 12, 2021) the Complainant, a supervisory health system specialist, filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of sex (male, sexual orientation) and disability.  An employee working under him used sex-based epithets against gay men several times over the course of two years.

The complainant’s supervisors encouraged him to file an EEO complaint but did nothing to stop the employee’s discriminatory behavior. The EEOC found that the agency’s lack of discipline emboldened the employee to continue with the epithets. The employee used the epithets in the presence of the complainant’s supervisor and other employees on several occasions.

The EEOC found the agency did not provide a clear complaint procedure. The most important lesson to learn from this case is, “… the EEO process is not a substitute for the Agency’s internal process.” The law is the foundation, but the agency still needs to come up with an actionable plan to assist employees with processing EEO complaints.

The EEOC also ordered the supervisors to attend eight hours for training related to eliminating harassment in the workplace.  FELTG is holding a session on Wednesday, March 9, 2022, from 1:00-3:00 ET, Honoring Diversity: Eliminating Microaggressions and Bias in the Federal Workplace.

Thrown Under the Bus

In Jane H. v. Dept. of the Air Force, EEOC Appeal No. 2020003198, (May 19, 2021), an employee filed 19 complaints, which the Agency investigated. The complaints alleged that the agency subjected her to a hostile work environment over a five-year period on the bases of sex (female), and reprisal for prior protected EEO activity.

The hostile work environment complaints are related to the behavior of two co-workers and the complainant’s supervisor.  Some of the behavior included:

  • The complainant’s computer software folder was intentionally deleted
  • The complainant was taken off overtime shifts
  • Items were stolen from the complainant’s desk
  • A large trash can and dead bugs were left on her desk
  • A co-worker repeatedly made loud noises “causing complainant to have a panic attack and seek medical attention.”

However, the both the AJ and the EEOC found the hostile work environment claims by the complainant to be unpersuasive. “Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor.”

However, due to one errant comment by the supervisor, the EEOC remanded the AJ’s finding of no discrimination on the bases of reprisal back to the agency for further processing. The EEOC also ordered the supervisor to attend eight hours of EEO training.  The comment from the supervisor was in response to a request from the complainant for union time. “[The Chief] and I were both thrown under the bus due to your EEO complaint. If I don’t give you time, you’re just going to file a grievance.”

But for this one comment, the Agency’s case would stand.  We’re all human, however, supervisors are held to a higher standard when it comes to the words chosen when addressing an employee. Don’t let hurt feelings hurt an EEO case by using chilling language toward a complainant.   Understanding how to avoid retaliatory situations like this is where FELTG shines.  We will offer Stop the Spread of COVID-related Retaliation in the Federal Workplace on January 19 from 1-2:15 pm ET. (Note: the training recording is now available.)

As we begin 2022, let this be a year of increased understanding and thoughtfulness between all employees. We at FELTG are here to offer the right training and guidance to help you avoid common EEO pitfalls and mistakes.  Stay safe, and remember, we’re all in this together. Rhoads@feltg.com

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