By Deborah Hopkins, December 11, 2019

Last month, FELTG published an article about federal employees with hygiene issues, and whether agencies could justify taking disciplinary action against employees who do things like intentionally defecate themselves, urinate in closets, and bring in unwelcome critters on their clothing or hair, thus infesting the office.

As you can imagine, a lot of people clicked on that article. One of the cases cited dealt with a food inspector in a chicken processing plant who intentionally passed gas on and around his coworkers (Douglas v. USDA, AT-0752-06-0373-I-1 (2006)(ID)). I know a lot of people had a chuckle about that one, probably because it sounds horrid. (And it was horrid, among other things.) We used the case to illustrate the principle that employees can be disciplined for intentionally doing gross things in the workplace.

Some cases can teach us multiple lessons, and thanks to a FELTG reader who urged us to look deeper, I re-read the entire case – something I hadn’t done in a long time. I suggest you do the same and if you do, you will see this is not a case involving an employee playing the class clown, but it’s a case involving something much darker.

Yes, there is a lot about farting in the case – including multiple instances of the appellant passing gas and then asking coworkers and others if they could smell it. But the more serious issues in the case were incidents of unwelcome sexual conduct over an extended time period, against females he worked with and around. Some of the sexual references, suggestions, gestures, and requests are so egregious that I can’t print them here for fear of your agency firewalls blocking this email – not to mention the things he did with the chicken parts in an attempt to make his coworkers uncomfortable. In addition, the unwelcome sexual conduct was also directed at the private employees in the establishment that the appellant was charged with helping regulate, so it went beyond an internal agency issue. Despite multiple requests to stop, the appellant continued to subject his victims to this conduct. In the end, the AJ sustained the appellant’s 30-day suspension. This was 2006, and if you read the facts I think you’d agree that the agency could probably have justified a removal, even in a pre-#MeToo world.

Why do we bother spending so much time discussing an initial decision that doesn’t carry any precedential value? Because the principles are important, and the victims in this case are just as important as the victims in cases that carry precedential value. Our reader put it better than I ever could:

Often people laugh at those who say crude things to strangers on the street – dismissing them as silly because they won’t likely result in romance. I routinely cite this case to explain – saying overtly sexual things to someone is not meant to try and get them on a date. It’s meant to degrade the female with the overall purpose of elevating the male at her expense.

Why fart? Because it’s about POWER. Why would the same person who said explicit sexual things and ask for dates also raise his hip, [fart], ask “Didja smell that?” and laugh? Because he was engaged in multiple forms of bullying behavior. See the ID page 6 in particular…it’s just stunning (a great summation of a horrible thing).

This case is a perfect illustration that sexual harassment cases are not always about sexual desire. There are multiple motivators for unwelcome behavior in the workplace, and your agency should not put up with it. Hopkins@FELTG.com

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