By Dan Gephart, January 23, 2019
It’s Academy Award season. The glitz, the glamour. The flubs, the snubs. The perpetual parade of praise and the incessant asking of the one question that truly grates on me: Who are you wearing? And then it’s all followed the day after the show by column after column criticizing the show’s host. That last part may change this year only because, as of now, there is no host.
Kevin Hart was supposed to host. The Philadelphia-born comedian came under scrutiny when homophobic jokes made several years ago resurfaced. So he backed out of the hosting gig. Hart isn’t the only public figure to suddenly face fire for old tweets, comments, or jokes. The Atlanta Braves’ 25-year-old pitcher Sean Newcomb was basking in the glory of a near no-hitter last season when someone started sharing the racist, homophobic, and sexist comments he tweeted as a teenager. Kyler Murray spent the hours after winning this year’s Heisman Trophy, apologizing for anti-gay slurs he tweeted at friends when he was 15. There are many more public figures who have had to walk back prior tweets, statements, or jokes in recent months.
Hart, Newcomb, and Murray showed the expected disgust of their previous selves, saying they’ve “grown” and “changed” and that the old comments “didn’t reflect the kind of person” they are now.
This got me to thinking: How do we know that they’ve changed, and they are not just saying it because they’ve been exposed? And I wondered how this would be handled if we were talking about workplace misconduct. This, of course, got me to thinking about the Douglas Factors, specifically the tenth one — potential for rehabilitation.
Isn’t rehabilitation potential what Hart, Newcomb, and Murray are laying claim to? Look, we know we’ve said horrible things in the past, but we’re different now, and it won’t happen again. Immediate apologies and sincere remorse are two of the strongest mitigating factors for rehabilitation potential.
In Wentz v. USPS, 91 MSPR 176, the MSPB named “taking prompt responsibility for the actions” and “giving assurances that the misconduct would not occur in the future” as two indicators of positive rehabilitation. The others include:
- Having a discipline-free service of more than 10 years
- Having a good work ethic
- Immediately reporting the misconduct
- For example, reporting an accident caused by negligence
- Seeking medical assistance for medical-related misconduct
On the other hand, the MSPB has found several times that an employee’s defensiveness when confronted with a charge of misconduct reflects a poor rehabilitation potential. But even defensiveness can be overcome when the employee acknowledges wrongdoing, expresses remorse and assures that the conduct won’t be repeated. Von Muller v. DoE, 2006 MSPB; Chavez v. SBA, 2014 MSPB 37.
If only all acts of misconduct were so clear-cut. Determining a person’s authenticity, especially when it comes to remorse, is usually not that easy. It can and has been faked.
Really listen closely to the sincerity of an apology. Does the employee take blame for every piece of his or her act? Is there some shifting of blame, or any hedging taking place?
An Academy Awards gig, product endorsements, or NFL draft status might not be on the line when you’re making discipline decisions. But an employee’s job is. And so is the efficiency of the workplace. Only by thoroughly analyzing all of the Douglas Factors, including the potential for rehabilitation, can you make the right decision.
And if you get it wrong, guess what? There’s a good chance you’ll be doing it all again in the near future. Gephart@FELTG.com