With the right policies, managers can keep their agencies out of legal trouble.
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: n 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.
Robin S. Wink recently retired after 26 years of military and civilian service. She is a practicing attorney in the Washington area and teaches seminars about the federal discipline process.