GovernmentExecutive.com

Racial and ethnic slurs are all too common; just look at recent media flaps over offensive comments from radio host Don Imus, comedian Michael Richards and actor Mel Gibson. The federal workplace is no exception. This conduct is inappropriate and if left unchecked by management, it could become a liability for agencies. The question for federal managers is: Are we doing enough to ensure that the workplace is free from harassment?

Often the most publicized offenses involve sexual harassment, but federal managers should focus on other complaints as well. A 2005 study by the Equal Employment Opportunity Commission concluded that "federal agencies have issued policies that require immediate response to claims of sexual harassment in the workplace," but other harassment claims "have not received similar attention."

Harassment policies at 51 percent of federal agencies and 85 percent of agencies' subcomponents address sexual cases only, EEOC noted. They do not address racial epithets or ethnic slurs. Among agencies that did address nonsexual harassment, policies failed to establish an independent investigatory process or clear procedures for scrutinizing such incidents, EEOC found.

Against this backdrop, claims of nonsexual harassment remain high. They have been the No. 1 issue alleged against federal agencies since 1994, the study reported. Strikingly, although the total number of complaints against agencies has dropped since 2000, the percentage of nonsexual harassment claims increased. Most significant, 39 percent of cases in which EEOC finds discrimination include a claim of nonsexual harassment.

What can you do as a federal manager? First, make sure your agency has a harassment policy that includes nonsexual offenses. EEOC has model policies that can be easily adapted. Once you have a policy, publicize it and train your employees.

Second, act. You must take steps if you become aware of inappropriate comments or actions based on race, ethnicity, age, religion or disability. This includes jokes and remarks employees make about themselves. In many instances, consensual kidding quickly deteriorates into harassment.

But management can avoid a legal case if it takes prompt action to stop inappropriate comments. Such conduct constitutes illegal harassment only when it is so severe or pervasive that it creates an intimidating, hostile or abusive work environment.

Only in rare instances would a single act or remark be so offensive that it violates discrimination laws. Such was the case when a Navy employee hung a noose in an office where black employees worked. In Tootle v. Secretary of the Navy, EEOC found that this single incident was actionable because "a noose evokes an image . . . of a disgraceful past of extreme violence and racial bigotry."

EEOC made a similar ruling in Carter v. U.S. Postal Service, in which an employee's co-worker used the "n" word in a joke. The word is a "highly charged epithet, which dredges up the entire history of discrimination in this country," EEOC noted. When the employee complained, her supervisor repeated the word rather than condemning its use, making matters worse.

If management officials know about harassment by their employees or contractors and fail to take prompt and appropriate corrective action, their agency can be held liable. What is considered prompt and appropriate corrective action? A quick survey of EEOC cases provides a few guideposts. EEOC found corrective action inadequate in several cases:

• In Tootle, upon learning that a noose was hung in the workplace, Navy officials took it down and discarded it. They later explained that they did not investigate the incident or punish the perpetrators because the evidence was lost.
• In Cano v. Department of Homeland Security, officials instructed a cleaning crew to immediately erase offensive graffiti from restroom walls, but made no attempt to identify the perpetrators.
• In Boyer v. Department of Transportation, a Federal Aviation Administration employee was threatened by a co-worker in an anonymous note containing crude and sexist phrases. The agency's corrective steps included an inconclusive investigation into who sent the note and reassignment of the complainant. It is generally inappropriate to reassign the victim rather than the perpetrators of harassment.

But in another case, in which a worker addressed a group of co-workers using the "n" word, the agency was not held liable because it took appropriate action. In Nicholas v. Department of Agriculture, EEOC noted the severity of the incident and found harassment, but the agency correctly investigated the incident; immediately held a meeting to condemn the conduct; issued a letter barring the worker from making further contact with his co-workers; and disciplined him, noting that more severe action would be taken if there were additional incidents.

Agencies must have a policy addressing harassment in all forms. And when an incident occurs, supervisors and managers must take the following proactive measures to prevent further offenses:

• Investigate right away. Don't wait for the EEOC process, which was not designed to respond immediately to workplace incidents. Under EEOC guidelines, an investigation won't be complete for at least nine months after the incident.
• Separate the accused from the accusers during the investigation. This could mean temporarily reassigning the alleged perpetrators, putting someone on administrative leave, or forbidding the individuals involved to have any further contact.
• Discipline the perpetrators. Depending on the severity of the incident, this could include a letter of warning or more severe punishment such as a lengthy suspension without pay or removal from federal service.
• Remind employees of their anti-discrimination obligations by posting notices and providing training.

It's unfortunate that racial epithets and ethnic slurs still happen in the federal workplace. As a manager, you must be aggressive in your response. It's up to you to keep your employees free from harassment and your agencies out of legal trouble.

COMMENTS

• I've prevailed many times myself and nothing has changed in my agency. In fact, management encourages employees to treat people who file complaints as "troublemakers". I agree, the government cannot and should not be overseeing itself, and also until managers have to pay for their own legal defense and pay the penalties out of their own pockets, Agencies will continue to bleed the taxpayers to defend their incompetent and incapable managers ...talk about Iraq...take a look at legal fees and awards and back pays being paid out of our taxpayer dollars so managers as they are called- can stroke each other's egos. victim Posted October 3, 2007 4:21 PM
• I've been fighting harassment (bullying, mobbing, reprisal) for over 17 years with OSHA. This is just my case. I have paid over 50,000 in attorney fees and have sacrificed my health and fiances to keep my job. The government is all talk and CYA. Nothing changes. The women in my office and other offices are told to "...deal with it..."; it's a man's agency. Nothing will help as long as the government oversees the government. Anonymous Posted August 1, 2007 2:53 PM
• An employee, who has been subjected to any type of harassment, should keep a record of the incidents and notify their immediate supervisor, in writing. The employee needs to get as much evidence of the harassment as possible. This includes pictures, tape recordings, and witnesses' statements. All of this is necessary if the problem develops into an EEOC case. I was the victim of sexual harassment while employed as an Auditor by the GSA Office of Inspector General in New York during 1994 to 1997. I had begun working with this office in 1979 and expected to complete my career in that office. I never imagined that an office that expects its employees to conduct themselves in such an exemplary manner would ignore a woman's complaints about sexually explicit material in the workplace. This developed into an EEOC case and it took almost six years until it was completed. The employees, managers, and the agency denied all of the allegations. I appealed the Agency decision and the EEOC ruled in my favor twice, even after the Agency appealed the EEOC decision. The GSA attorneys spent a great deal of time trying to wiggle out this whole mess but to no avail. My evidence was overwhelming and with the help of an attorney, we prevailed. You may be wondering what happened to the three employees involved in my case. Two auditors, during the investigation, became GSA OIG investigators, which was a monetary promotion and only 20 years to be eligible for retirement. These were the two employees that the manger told me were hot-blooded and because of their heritage, needed a boost every day. The other employee was promoted while in the OIG and later took a position in another department in GSA. He couldn't stay out of trouble and has been accused of committing the crime of rape and assault of a woman last year and is awaiting trial. I left the GSA OIG and went to another department and took an early out from the Department of Homeland Security. My suggestion to any victim is to not be silent. Speak up and defend yourself. You are entitled to work in an environment that is free from any type of discrimination. The bad guys will eventually get what they deserve. It may take a while but it will come. Pat Waskiewicz Posted June 28, 2007 10:53 AM