Overview
Equal employment opportunity (EEO) is a principle that has become accepted throughout our country. This principle was codified into law in Title VII of the Civil Rights Act of 1964, which bans employment discrimination based on race, color, religion, sex, or national origin. Other acts that followed along the same lines include the Age Discrimination in Employment Act of 1967, Title I and Title V of the Americans with Disabilities Act of 1990, and the Civil Rights Act of 1991. Simply put, EEO is the law of the land, and allegations of discimination should be treated very seriously.
That being said, anyone who has ever been charged with discrimination knows how frustrating, emotional, and personal such complaints can be. Once you’ve been charged with discrimination, it is extremely difficult to deal with the complainant on a personal basis. Your natural tendency is to want to strike back, because in your heart you probably believe that you have been unfairly charged as an alleged discriminating official. Of course, the worst thing you can possibly do in this situation is to retaliate against an EEO complainant. If you do, the case will quickly spiral out of control, and you will surely pay a much heavier price for the retaliation than you would for the alleged act of discrimination. That is why the first thing you need to do in these cases is to take a deep breath, sit down with a knowledgeable advisor, and look at the facts in a dispassionate manner.
You need to be able to distinguish between those who legitimately feel they are victims of discrimination and those who simply seek to abuse the system. It is likely that you will come across both types of individuals in your career, and the better you are able to distinguish between the two, the better you will be able to respond to each complaint.
The person who sincerely feels he is a victim of discrimination is trying to get management’s attention and advise it that he believes he has been wronged. This individual is less interested in winning his case than he is in ensuring that the alleged act(s) of discrimination will be addressed and not repeated. He is motivated by core values; his primary interest is in doing the right thing, and he is relatively easy to deal with. If you sit down with him at the informal stage, listen carefully to his concerns, and treat him with respect and dignity, in most cases you can probably resolve his complaint with relatively little pain.
EEO Claim—Model Scenario. A solid, successful employee felt that his supervisor was giving him a hard time. From his perspective, the supervisor was constantly interfering in his work and making it difficult for him to succeed. He eventually concluded that he needed to get management’s attention, so he filed an informal complaint of discrimination, based on age, sex, and handicap (he was a 55-year-old white male with a variety of physical problems).
After the complaint was filed, the supervisor sat down with him in an informal setting, listened to his concerns, and explained the reasons behind her actions. They discussed the issues as professionals, eventually arrived at a meeting of the minds, and the complaint was withdrawn.
In this situation, the employee was not looking to take advantage of the EEO system. He was simply trying to address a situation where he believed that he had been wronged, and his supervisor’s quick intervention resolved the complaint rather quickly.
By contrast, the person who tries to use the EEO complaint system as a tool to get what she wants is an entirely different breed of animal. This person is less interested in doing the right thing than she is in getting a promotion, getting a financial settlement, or getting back at a particular supervisor. She is a dangerous person because she is prepared to make you jump through all sorts of hoops in order to achieve her goals. Most likely, she has learned throughout her career that the EEO system is so costly and time consuming that many management officials are willing to settle with EEO complainants in order to make their complaints go away.
EEO Claim—Problem Scenario. A nurse filed 47 discrimination complaints against a VA medical center’s chief nurse over a wide variety of issues. It was clear to us that she was more interested in pursuing her case, seeing the chief nurse fired, and receiving a large monetary settlement than she was in helping patients. Under the circumstances, we decided to aggressively defend ourselves against her complaints.
The 47 complaints eventually went before an EEO administrative law judge (ALJ), who supported our organization on every charge. Shortly thereafter, the employee filed a new series of EEO complaints, in part to continue to pressure the organization into giving her a large monetary settlement, and in part to insulate herself from her poor performance and misconduct (she had been insubordinate on a number of occasions).
Eventually, we fired her for her unacceptable performance/misconduct, and, as you might expect, she alleged that her removal was retaliation for her prior and current EEO complaints. Before the next EEO hearing began, we settled her case by allowing her to resign and by paying her attorney fees (by this point, it would have been much more expensive for us to continue fighting the first 47 complaints, which were still moving through the system, and the new set of complaints, than it would have been to settle). However, I insisted that the agreement contain a clause wherein she agreed never to apply to another VA medical center for the rest of her life. My fear was that if I settled that day, tomorrow she would simply apply to a different VA medical center, not be selected, and begin a new round of discrimination complaints. While she was not happy with this clause, she reluctantly agreed to it.
Within a few months, I learned that she had, in fact, applied to another VA medical center, had not been selected, and had filed a new discrimination complaint. She alleged that she had been coerced into signing the agreement, and therefore it was not binding. Her complaint was administratively dismissed based on the clause I discussed earlier. However, it eventually worked its way through the courts, where, years later, the Court of Appeals finally dismissed it, based on the terms of the settlement agreement.
Obviously the strategy in dealing with these two types of individual complainants is going to be very different. The better you become at distinguishing between these two types, the more successful you will be at handling discrimination complaints.
Philosophy
Be Honest
The best way to deal with discrimination complaints is to try to prevent them from being filed in the first place. Although you cannot prevent all complaints from being filed, you can foster a culture where people at least feel that you are fair and are trying to do the right thing. If you do that, most people will give you the benefit of the doubt, and that alone will prevent at least some complaints from being filed.
Many times, when people feel angry or frustrated about a particular action, they file EEO complaints. They do so because management has not been open and up front with them, which causes them to suspect that there must be a hidden reason for the action. When management gives employees the unvarnished truth, they almost invariably appreciate hearing it, even if it is not what they really wanted to hear. This is because people are so accustomed to hearing obfuscations, half-truths, or outright lies that when someone tells them the truth, they find it refreshing and are much more willing to work with that person, rather than using the EEO system to seek relief.
EEO Claim Averted—Honesty Scenario. An employee was not selected for a promotion. He asked his first- and second-level supervisors what he needed to do to get promoted in the future, and they were either evasive or nonresponsive. He began to wonder why no one would give him a straight answer, and considered filing a discrimination complaint. However, because I had a reputation for honesty, he came to see me before filing a complaint.
Prior to the meeting, I met with his supervisor and learned why he had not been selected. As a result, at our meeting, I was able to tell him that he needed to improve his attendance and increase his output. While I could not promise him that improving in those two areas would automatically get him the next promotion, since other employees were likely to compete for the same position, I was able to tell him that improving in those two areas would definitely increase his chances. He thanked me for my honesty and stated that it would have been very helpful if someone had told him this earlier. He left the meeting satisfied and did not file a complaint.
In another example of the benefits of being “up front” with employees, the work of one of our largest divisions (over 100 people) was going to be transferred to another office as part of a national consolidation. We were one of the last offices to be affected because of our size and location. Obviously, the transfer of so much work was going to have a significant impact on the careers and lives of many of the employees in that division. Moreover, most of these employees were minorities, and they were very suspicious of the motives behind the consolidation.
I met with the entire group on a frequent basis to let them know what was going on. I told them the rationale for the consolidation, why we were losing the work (the cost of living in our area was a major factor), and why the work was being transferred to a specific office (the cost of doing business there was much lower and that office had a strong record of high performance). Although the employees were not happy with the decision, they at least felt that I was being up front with them. From their perspective, if they were being told the truth, they would at least be able to make important career decisions based on solid information.
Moreover, I did not sugarcoat anything for them, nor did I blame anyone for decisions that I made. For example, at my insistence, the effective date of the transfer was moved up by about six months, because I knew that a long delay in the workload transfer would only prolong the agony and would result in increasingly poor service to our customers. I told the employees that it was my decision to push up the effective date, and explained to them my rationale. Again, while they were not happy with the decision, they at least knew who was making the decisions and why they were being made.
I also told them that no one would lose a job as a result of the workload transfer. While I could not promise that everyone would retain their pay grade, I was least able to assure them that no one would be out on the street. Since I was honest with them about the bad news, they were more likely to believe me when it came to good news. We completed the workload transfer much more quickly than most people anticipated, and not one discrimination complaint was filed.
Look at Things from the Other Person’s Perspective
When you become a supervisor, you tend to view things from a management perspective, which can quickly make you out of touch with the way your employees see things. Suddenly, you start looking at the bigger picture and begin to focus on achieving your organization’s goals. Before you know it, you no longer see things the way the troops do.
Oftentimes, whenever a selection is to be made, the employees engage in seemingly endless speculation as to who will get the job and why. They review the pool of potential candidates and try and anticipate management’s decision, while frequently coming up with insidious reasons as to why certain people might get selected (everyone knows he is one of management’s favorites, she is probably sleeping with the boss, etc.).
From management’s perspective, it is simply trying to select the best person for the job, while keeping its collective head above water. Many of the issues that the employees are looking at and are sensitive to, management may not be aware of. This means that when a selection is finally made, management may not anticipate the fallout from its decision, and a complaint could be filed.
Obviously, whenever you make a selection decision, the selectee is going to be happy while the nonselectees will be unhappy. However, their reaction will be muted if they perceive the decision as being fair. If you are sensitive to the way people perceive things, and address these issues before they ferment, people will give you the benefit of the doubt. Ultimately, employees will make their assessments based on the way everyone is being treated before, during, and after the process, and not based on the selection alone. Here’s an example from my own experience.
One of our long-term clerks was usually asked to train newly hired claims examiners, which was a higher position than hers. She became increasingly frustrated that she was being asked to train people who were destined to rise higher in the organization than she. She wanted to know why she was good enough to train these new people, who brought no experience to the table, but was not good enough to be selected for their position.
From management’s perspective, she was training the new employees on one narrow aspect of claims examining. Management believed that while she was a good clerk, she lacked the education and ability to be a good claims examiner, so they continually nonselected her whenever a vacancy arose.
This frustrated the employee, and she started telling everyone how unfair management was. Eventually, she got fed up and filed a discrimination complaint. Had management been more sensitive to this good employee’s growing frustration, it could have (1) given her opportunities to boost her skills in order to become a stronger candidate for future claims examiner vacancies or to demonstrate that she was incapable of performing the duties of that position; or (2) allowed other clerks to train future classes of claims examiners. Either approach (or perhaps both) would have been perceived as being fairer, would have reduced her frustration level, and most likely would have prevented a complaint from being filed.
In this second example, an assistant division chief went to lunch every day with a subordinate female employee. This raised many eyebrows, as it gave everyone the impression that she was his favorite employee and triggered a fair amount of gossip that they may also have been sleeping together.
When we confronted the assistant division chief about this, he argued that it was his right to go to lunch with anyone of his choosing. From a narrow point of view, he was correct. However, we pointed out that on the one hand, if this woman were to apply for a promotion and get selected, others would perceive it as outright favoritism and were likely to file discrimination complaints. Moreover, they could easily allege that the assistant division chief had created a hostile atmosphere by creating the impression that you had to grant him sexual favors in order to get promoted.
On the other hand, if she applied for a promotion and was not selected, she could infer that she was not selected because of her relationship with the assistant division chief. In other words, she might conclude that she was not selected in order to insulate management from potential complaints from other female employees. Under these circumstances, she might be inclined to file a complaint.
The assistant division chief finally got the message and stopped going to lunch with her. Other employees immediately noticed this and were pleased to see that management dealt with this situation. Shortly thereafter, the issue disappeared.
Know Your Statistics
If you know your EEO statistics, you will be in a much better position to manage your EEO program. Knowledge is power, and in the field of EEO that is certainly true. At a minimum, you need to know the following statistics for your team, division, or organization as applicable to be successful in this area:
• The current distribution of employees by race, sex, and national origin relative to the standard metropolitan statistical area (SMSA)1
• The current distribution of supervisors using the same criteria relative to the SMSA (assuming the entity contains multiple supervisors)
• The distribution of both new hires and promotions using the same criteria relative to the SMSA
• The distribution of disciplinary/adverse actions relative to the SMSA
You need to know this information for two primary reasons: (1) so you can identify and address any conscious or unconscious biases within your organization that may be contributing to acts of discrimination; and (2) so you can defend yourself in the event that you are charged with discrimination.
When people consider filing EEO complaints, they first look at the organization’s statistics to see if they will buttress their cases. If the statistics are consistent with their perceptions, people are more likely to file complaints. By the same token, once a complaint is filed, the first place that an EEO counselor, investigator, and ALJ will turn to is the organization’s statistics, since they will paint a broad picture of the organization’s success at EEO. Although statistics in and of themselves are usually not enough to sustain a discrimination charge, they often go a long way toward painting the picture of the local EEO climate for a neutral third party.
For instance, for years, our local union believed that we discriminated against African-Americans. Part of that perception was fostered by the fact that almost every union official was African-American. Knowing that perception, I periodically reviewed our statistics in all of the SMSA categories in order to make sure that we were handling everyone in an even-handed manner. I made sure to bring these statistics to the attention of our division chiefs so they were on the same page as I was. Whenever we took an action against an employee(s) or hired en masse, I first reviewed our statistics before allowing the process to go forward.
By keeping abreast of such actions that I knew could be emotional for some, I was able to defend our practices whenever challenged. In fact, on several occasions, our union wrote to me contending that it believed our practices were discriminatory and requested several of the described statistics. I was always happy to provide this information because I knew that it would undercut the union’s argument. Despite receiving several inflammatory letters, the union never took the issue further because the statistics were inconsistent with these beliefs.
Let’s look at another similar case. Early in my career, I worked for a government organization that was heavily represented with minority employees. Despite this distribution, we had no minorities represented in our most important and highest-paying unit. A newly hired director recognized this disparity and changed the way we normally recruited for these positions in order to increase the pool of minority candidates.
This action caused several white employees to protest vehemently, arguing that this was just a form of reverse discrimination. The director responded by stating that it was hard to see how whites were being discriminated against, since this elite unit was composed entirely of white people, and stuck to his guns. Eventually, other white people came forward and stated how ashamed they were of the actions of the people who were protesting the change in the recruitment pool.
A potential EEO problem was averted, and today, that elite unit is well represented with minorities.
The Most Common EEO Issues
People generally seem to be sensitive to, and file complaints about, two primary issues: (1) disparate treatment, which involves allegations of favoritism; and (2) in response to a management-initiated action. Complaints regarding the second issue are more difficult to avoid, especially if you are taking action when appropriate. To some extent, they are the cost of doing business. The best way to handle these types of complaints is to make sure that you have a solid rationale for your actions, and that you apply your systems reliably and have good documentation, in the manner described earlier in this book.
Complaints involving disparate treatment/favoritism are more far-reaching, as they are not as individualized as complaints involving management-initiated actions. They tend to involve more employees and to be more destructive, since they go to the very heart of the way management conducts itself. When employees believe that management is treating one or more people differently from others, their antennas immediately go up, and they tend to view future management actions through the prisms of race, sex, national origin, and so on.
That is why it is so important to treat people in a fair and consistent manner. If you don’t, people will not trust you, and they will conclude that there are ulterior motives for your actions. At that point, they will believe you are discriminating against them and will simply go underground with their complaints, or, in some cases, formally file EEO complaints against you. Either way, you lose, as these instances illustrate.
1. A newly hired white male division chief convinced a young, attractive white female from his former office to come and work for him at his new office. Roughly two-thirds of the employees at the new office were minorities. Upon her arrival, the division chief treated her differently from the other employees by frequently conferring with her and by giving her a series of special assignments. As time went by, she began spending more and more time with him in his office.
Everyone noticed their relationship, and people clearly resented it. His supervisors noticed it, too, and warned him to be careful. Although no one filed a formal complaint, it was a frequent topic of the gossip mill, and their relationship became well known across the country. By treating this employee so differently, the division chief lost some credibility with his employees, his supervisors, and within the entire organization. Moreover, every time that female employee was up for a promotion, the organization was in a precarious position, because it would have been difficult to defend a discrimination complaint had she been selected and a minority and/or a male been nonselected.
2. Someone I knew was out of work and was looking for a job. Since we were recruiting for more than 40 people, I told him about our vacancies and encouraged him to apply through the normal channels. Eventually he was selected and began working for our organization.
Quickly, word got out that we knew each other. People assumed that because I knew him and he was a white male like me, I would push him ahead of others. The fact that we both took the same vanpool, along with two other employees, probably contributed to that perception.
I advised him that for both of our sakes, as well as for the sake of the office, I was not going to talk to him unless I had a legitimate business reason to do so. Even on the van pool, I did not talk to him. (I rarely talked to the other employees van pool, either.) Although he was upset that I seemed to cut him off, I knew that it was extremely important that there be no appearance of favoritism or impropriety. He needed to stand on his own two feet, and I wanted everyone to see that I would treat each employee in the same manner, whether I had a personal relationship with him or not.
Very quickly, employees could see that this individual was not receiving special treatment. In fact, sometimes he actually complained to his co-workers that I was not speaking to him enough. The point was made, our relationship ceased being a topic of interest, and I had defused a potentially difficult issue that could have ultimately led to one or more EEO complaints being filed.
EEO Issues Involving the Disabled
Another somewhat more narrow EEO issue that often develops involves reasonable accommodation of the handicapped. In general, the Americans with Disabilities Act requires employers to provide reasonable accommodation to qualified individuals with disabilities so that they can enjoy the benefits and privileges of employment equal to those enjoyed by similarly situated employees without disabilities.
Organizations are required to provide reasonable accommodation for known physical or mental limitations of qualified employees and applicants, unless to do so would cause undue hardship. Since government organizations usually have extensive affirmative action plans, which include the handicapped, they usually have quite a few handicapped individuals on the rolls, and this can cause some interesting challenges.
I have worked with blind employees, the hearing impaired, people in wheelchairs, and people with serious diseases such as AIDS or multiple sclerosis. We worked closely with these individuals, identified their needs, and usually came up with a solution that was satisfactory to all. To illustrate some of the issues, here are some occurrences from my own experience.
1. Our organization was employing two blind people: One served as a customer contact representative, while the other one was a typist. We gave the contact representative a voice-activated computer that provided him with enough oral information to answer telephonic questions from the public. The typist simply transcribed dictated information using a customized word processor. Both of them have been productive employees for many years.
2. Due to the cost of living in southern California, one of my predecessors hired about 20 hearing-impaired clerks. The rationale was that these individuals were more likely to be satisfied with clerical positions and would stay with the organization for the long term.
However, communicating with these individuals is not easy, because they seem to process information and instructions differently from other employees. Accordingly, the organization hired a full-time translator to address this issue. Moreover, a number of individuals received extensive training in sign language, which helped foster communication with this group. Although communication will always be a challenge, most of these individuals remained with the organization for at least 10 years and were considered to be at least fully satisfactory.
3. An experienced and highly skilled employee developed a disease that made it impossible for her to come to work. We were able to reengineer her job and allow her to work at home on a full-time basis. As part of the arrangement, we had an employee who lived nearby both deliver and pick up her work on a weekly basis. This arrangement has worked well for many years.
Dealing with people who have employment handicaps has not been particularly difficult, especially when they bring it to your attention when they are first employed or at the onset of their condition. Under these circumstances, the employee is usually up front with you, and you know exactly what you are dealing with. At that point, the best thing to do is to (1) ask for medical information that documents the employee’s condition, including a statement of the employee’s limitations, if any; and (2) determine if the employee is requesting reasonable accommodation. Once you have this information, in most cases you can reach a meeting of the minds and accommodate the employee’s condition.
Problems usually develop in this area when people try to use reasonable accommodation as a crutch, in order to insulate themselves from a prospective personnel action. It’s amazing how often people suddenly claim that they have an employment handicap after management initiates action in response to misconduct or poor performance. At that point, it seems that almost every employee is handicapped.
In these situations, you still need to take the same approach described earlier (ask for written medical evidence articulating the condition, the employee’s limitations, and the request for reasonable accommodation). However, under these circumstances, you need to examine the request with a more jaundiced eye.
The first thing you need to determine is if the employee is truly handicapped. Under the law,2 an individual with a disability has (1) a physical or mental impairment that substantially limits one or more of the person’s major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. A major life activity is a function that the average person in the general population can perform with little or no difficulty. Major life activities include activities such as caring for oneself, seeing, hearing, walking, breathing, speaking, learning, sitting, standing, lifting, reaching, and working.
In many cases, I have found that an individual claiming to be handicapped does not meet this definition. If she does not, you have no legal obligation to accommodate her. However, I would urge you to consider what the person is requesting, since it may still be reasonable and appropriate to grant the request. Moreover, if it makes sense and you do grant the request, if you have to take action against that individual at a later date, a third party is more likely to conclude that you are a fair person and sustain your action.
If you conclude that the person is indeed handicapped, you should next consider the person’s limitations, along with any requests for reasonable accommodation. However, understand that being handicapped is no excuse for misconduct. Moreover, being handicapped does not require you to lower the performance standards of an employee’s position, since an individual with a disability must be able to perform the essential functions of a position with or without reasonable accommodation.
By asking the employee to submit written medical evidence and to place her request for reasonable accommodation in writing, you will pin down the issues and prevent the ground from constantly shifting under your feet. Moreover, you will know what you are dealing with and will be able to react accordingly. In many cases, you will find that while the employee may technically have a handicap, she will not be able to articulate any reasonable accommodation. For example, we once disciplined a high-level supervisor for misconduct. Basically, he had been negligent in dealing with certain key issues, and we needed to send him a strong message. He reacted very emotionally to the disciplinary action, and for the first time in his career, he took several weeks of sick leave.
When he returned from leave, he produced a doctor’s statement that indicated he was under a great deal of stress as a result of management’s alleged harassment. His doctor indicated that he needed to work in a less stressful environment, and he requested as a reasonable accommodation that we withdraw the disciplinary action.
The first thing I noticed was that the doctor’s statement was signed by the same doctor that other employees went to whenever they wanted a sick leave note to help their work situation. Unfortunately, it is a fact of life that you can always find a doctor willing to help you out at work.
Anyway, it did not appear that the doctor’s statement demonstrated that this individual was indeed handicapped. Moreover, even if he were handicapped, it would not be reasonable to guarantee a high-level supervisor a low-stress environment. Finally, since the disciplinary action apparently created the stress, and since the Disabilities Act and the Rehabilitation Act did not insulate him from management action due to misconduct, I concluded that it would not be reasonable to withdraw the disciplinary action. Eventually, we assigned this individual to a nonsupervisory position, which he held until his retirement.
In another instance, we discovered that one of our employees had been engaging in misconduct both with our employees and with outside individuals. We therefore suspended him for two weeks.
As a result of these actions, he became seriously depressed, and he provided a doctor’s statement to support his contention. He also filed an EEO complaint against management, alleging, in part, that he was being discriminated against based on several handicaps, one of which was depression.
There was no doubt that he had become depressed, so I detailed him to another job in our organization. That did not work, as he remained depressed and was unable to concentrate on his job. I then decided that the right thing to do was to detail him to another agency that needed the help. This would give him a change of scenery and place him in a low-grade, low-stress job, giving him the chance to recover. He remained on the rolls of my agency at his previous grade pay.
After several months, we instructed him to return to duty with our organization, as we needed someone to do the work of his regular position. He refused, and submitted a doctor’s note stating that the only way he could work was if he remained in the job to which he was detailed in a stress-free environment. Obviously, I could not in good conscience allow him to continue on my rolls for an indefinite period, working for another agency at a much lower grade, while receiving the same pay. Therefore, I denied his request and again ordered him to return to duty. At that point, I was confident that I could withstand an EEO complaint because I could clearly demonstrate that I had treated him in a fair and reasonable manner, and he was unable to perform the duties of his position with or without accommodation. Eventually, this individual retired and his complaint was dismissed.
Sexual Harassment
Sexual harassment is one of the ugliest and most destructive forms of discrimination, both to the victim and to the organization. It needs to be dealt with promptly and firmly, in order to let everyone know that sexual harassment will not be tolerated.
The most effective approach, of course, is avoidance, and this is best accomplished through training and a strong policy of zero tolerance. However, if a complaint is filed, you need to deal with it quickly by gathering the facts and taking appropriate action. If the facts are unclear, which is often the case, you are always better off erring on the side of caution and protecting the complainant, rather than simply preserving the status quo until more information becomes available. This may entail a detail, reassignment, leave, or other action.
As in all personnel decisions, the key is to do the right thing for the right reasons, as the facts dictate. Although each situation is different, if you follow this approach, you will generally resolve the situation in a satisfactory manner. Let’s look at a few real-life cases in point.
1. A counselor was supposed to be assisting a female client who had been sexually abused by others. However, he took advantage of the situation and sent her a sexually offensive photograph, which greatly upset her.
Management immediately transferred her to another counselor, gathered the facts, and then proposed the employee’s removal. He eventually resigned.
2. A supervisor was charged with sexual harassment by one of his employees. She alleged that he had made some inappropriate remarks to her, while he denied making them. Since there were no witnesses to the incident, it was a classic “he said, she said” situation.
However, because two other women later came forward and verified that this supervisor had previously made inappropriate comments, we had no choice but to take appropriate action. We assigned the female employee to another supervisor, gave the original supervisor a written counseling, and provided him with remedial training on avoiding sexual harassment. We later decided that the organization would be better served if he were assigned to a nonsupervisory position.
3. We had another “he said, she said” situation. A female employee accused a male employee of an inappropriate action. It seemed out of character for the male employee to do this, but since he admitted to briefly doing it (he said it was to express his sympathy for her personal problems), I reluctantly disciplined him. Others pressured me to take stronger action, but I believed that this was the right thing to do under the circumstances.
Shortly thereafter, a different male employee presented evidence that the same female employee had sexually harassed him. We disciplined her for harassing him. Since that placed the earlier incident in a different light, I agreed to withdraw the disciplinary action from the male employee’s permanent record if there were no more incidents of inappropriate action for the next year.
Rally the Workforce Around the Mission and the Metrics
In my experience, the more employees are focused on achieving the organization’s goals and objectives, the less focused they will be on EEO issues. When people feel that the organization cares about its mission, and that its leaders are trying to do the right thing, the employees will tend to fall in line. They will give the organization the benefit of the doubt on many EEO issues, because they see that the organization is trying to accomplish something important, and that it is serious about living up to its core values. In short, when they feel they are part of a team, they will frequently place the team ahead of their own complaints and grievances.
That is why I try to rally the employees around the mission and the metrics. After all, government employees have a mission that is inherently noble. As long as we can leverage that mission by reminding the employees how important it is, and by providing them with real-life examples of how their efforts have made a difference, the vast majority of them will stay focused on what is important. That is not to say that we don’t need to address any EEO issues that develop; we still have to. However, if the employees feel that you are doing the right thing, most of them will reciprocate in kind.
Besides reminding employees of the mission, we need to also let them know how the organization is actually doing. That is where the metrics come in. If the employees see tangible proof of how the organization is doing, and are told what is going well and what needs to improve, they will be in a good position to know where to direct their efforts. More importantly, they will be able to understand what the organization is doing and why, and will be less suspicious of acts that may harm them. Here’s a story to illustrate the point.
I inherited an organization that many people believed was full of EEO problems. This perception was fostered in part by the fact that there were many discrimination complaints pending. My view was that the organization was not focused on its mission, resulting in terrible customer satisfaction. Moreover, it was unwilling to deal with personnel issues, leaving almost everyone frustrated on some level. The net result was that many discrimination complaints were being filed to express that frustration.
We adopted a strategy of plastering the walls with pictures, posters, flat-screen TVs with videos, and other media that celebrated our mission. We also posted information that tracked all of our key performance metrics, and trained our supervisors on how to deal with poor performers. Over time, people once again became proud of the mission, and our performance improved significantly. Visitors came to learn from us instead of to beat us up. As employee pride increased, employee dissatisfaction decreased, and our pending EEO complaints declined by 80 percent.
By contrast, if employees see that management is acting in its own best interests, instead of doing what is best for the government, people will conclude that it is every man for himself. They will quickly see that what counts is self-interest, and not the organization’s interests. They will realize that personal agendas are valued more highly than the organization’s agenda. When this happens, people do not trust management, and they look to protect themselves, with EEO complaints being one of the first tools that they turn to.
When I was a management trainee, for example, I was detailed to an organization that was having all sorts of problems. The organization was rudderless, and people were focused neither on the mission nor on the results. Headquarters was clearly unhappy with the way this organization was being managed, and the employees were miserable. Quickly, it became clear to me that the leader of this organization was more interested in his own well-being than in the welfare of the organization. More importantly, the employees saw things the same way.
For example, everyone believed that this individual was having an affair with his very attractive special assistant. They would spend hours together behind closed doors, after which she would leave his office with her clothes rumpled and her face flushed. The employees concluded that management was not serious about accomplishing its very important mission. Several people left, while others started complaining, and the situation continued to deteriorate until the leader was finally replaced.
Be Careful What You Say
When you are in management, every word you say takes on added meaning. You are in a position of power and have the ability to influence the lives of many people. Moreover, the very nature of your position will require you to make certain decisions that will cause some people to be unhappy (nonselections, disciplinary actions, denying incentive awards, etc.).
Given your responsibility, people will listen carefully to everything you have to say and will remember anything you say that could be interpreted as being discriminatory. That is why you have to take your time before speaking and must watch everything you say. After all, as a supervisor, you are representing the government. Everything you say can and will be used against you.
You can spend your entire career having one triumph after another, and it can all be forgotten after one slip of the tongue. The experience of Al Campanis may be familiar to many readers.
Al Campanis, an executive for the Los Angeles Dodgers baseball team, was appearing on the ABC News program Nightline, in a show coinciding with the 40th anniversary of Jackie Robinson’s Major League Baseball debut. Nightline anchorman Ted Koppel asked him why, at the time, there had been few black managers and no black general managers in Major League Baseball. Campanis replied that blacks “may not have some of the necessities to be, let’s say, a field manager, or, perhaps, a general manager” for these positions; later in the interview, he said that blacks are often poor swimmers “because they don’t have the buoyancy.” Two days later, he was fired.
The best advice I can give you is to learn to think before you speak. Although most government managers will not be fired for one slip of the tongue like Al Campanis was, an ill-considered or poorly phrased remark can come back to haunt you in many different ways. That is why you have to be extremely cautious in what you say. Avoid metaphors that could be interpreted in more than one way, and be extremely cautious before you tell any jokes that could be deemed offensive by someone else.
An Unfortunate Miscommunication. A recently hired division chief selected a new section chief. It was a difficult decision, as there were many candidates to choose from. He knew that the selection would probably be controversial, since several of the applicants had previously filed discrimination complaints and were likely to complain again if they were not selected.
After he made his selection, one of the people who were not selected asked to speak with him. This individual was about 60 years old and an African-American female. She wanted to know why she had not been selected, since she had more experience than the person who was selected. The division chief, knowing that this individual had a relatively poor record as a first-level supervisor, replied that he did not select her in part, “because of (her) old baggage.” In his mind he was referring to her poor work history, but she interpreted his remark to mean that he did not select her because of her age.
She immediately filed a discrimination complaint, alleging that her nonselection was due to age discrimination. The complaint worked its way through the system, and she eventually prevailed. The primary justification for the decision was the division chief’s use of the phrase “old baggage.”
Walking in an EEO minefield can be very lonely. You feel like you are under attack by both people who work for you and people from outside your immediate organization (EEO counselors, EEO investigators, etc.). That is why it is essential that whenever you take action that could lead to an EEO complaint, you first discuss it with an HR expert and upper management. While no one can anticipate which actions will lead to complaints and which ones will not, you should get into the habit of always bringing these key players into the mix.
First of all, you will get an unemotional perspective on the action you are planning to take, so you will have a better sense as to how the case will be viewed in the event that it goes to a third party. More importantly, if these people support your approach and a complaint is later filed, it no longer becomes your problem alone; it becomes their problem, too.
Developing political support in the EEO arena is extremely important, because the more support you have up front, the more the organization is likely to support you along the way. Conversely, if upper management feels blindsided by a complaint, it is more likely to feel slighted. If that happens, they may quickly undercut you, reverse the action you’ve taken, and settle the case. Once that happens, the employee will feel emboldened, other employees will feel that you do not have the support of upper management, and your position will be substantially weaker. Consider the following:
We suspended a female employee for insubordination. She filed an EEO complaint alleging that her supervisor took this action because she was an Asian American. She also turned up the political heat by writing letters of complaint to the highest officials in our organization as well as to several congressmen.
Since I was well aware of this case before the employee had been disciplined, and supported the action, I told her supervisor that she had my full support, she should stay the course, and she should let me handle the outside world. Naturally, this made her feel a lot better.
I kept my boss in the loop at every step and carefully responded to inquiries from the officials the employee had written to, and shortly thereafter, the hullabaloo died down. The employee continued to be a problem. We proposed her removal and eventually settled her EEO complaint by allowing her to resign.
To illustrate further, over a period of several years, many people complained about a fellow director, alleging that he was abusing his power, but he always denied everything. Over time, the people in Washington began to lose confidence in him, because they felt that he was not being honest with them.
Eventually, a female employee filed a sexual harassment complaint against him, alleging that he had made inappropriate remarks to her. Since the powers that be no longer trusted this individual, they immediately placed him on administrative leave. I was detailed to his position as acting director and quickly concluded that (1) he had been abusing his power for quite some time; and (2) the sexual harassment charge was somewhat questionable, since it involved a “he said, she said” situation, and his version seemed plausible. However, because this individual had lost political support within the organization, a decision was made that he had to go. His supervisor proposed his removal, and he eventually retired.
Make Sure Your Supervisors Are Sensitive to Their EEO Responsibilities
Although you may occasionally deal with an EEO complaint involving two nonsupervisors, especially when it comes to allegations of sexual harassment, most complaints are filed against management. This is because they are generally filed in response to a management action (e.g., disciplinary action) or nonaction (e.g., nonselection).
One of the keys to establishing a good EEO climate and to avoiding discrimination complaints is to ensure that your supervisors are well trained in EEO and are sensitive to their responsibilities. Training doesn’t simply mean one EEO class for each supervisor. That simply won’t cut it. The supervisors need periodic training from a variety of sources in order to ensure that they can successfully deal with the wide variety of issues that they are likely to encounter.
In my experience, this means classes, videos, and reading materials, as well as periodic one-on-one mentoring from an expert in the field. While this may seem like a painfully expensive investment, in urban areas of the country and in other locations where people are more likely to file complaints, this investment will clearly pay off through complaint avoidance and resolution.
Given my background, I also personally gave a wide variety of training classes to my subordinate supervisors. I wanted them to understand the underlying HRM strategies for dealing with EEO issues, and to have the opportunity to apply these strategies in the classroom using down-to-earth, real-world examples. I also wanted them to discuss these issues with their fellow supervisors so they could not only learn from me, but also learn from each other’s experiences. I would then supplement this training by periodically walking around and trying to address their day-to-day questions, so they would have a good understanding as to how everything fit together. Lastly, I spent a lot of time developing my HRM staff so they would provide a consistent message to the supervisors.
However, sometimes all of the training in the world is not enough. Sometimes, you simply don’t have the right supervisor in the position. If that happens, you need to replace that supervisor.
An African-American female once came up to my office and complained to me that she was “sick and tired of seeing an African-American accused of stealing every time something is missing.” I asked her what she was talking about, and she told me that her assistant division chief told her that someone had seen her stealing some old carpet tiles from the work area.
This seemed like an odd accusation to me, since I couldn’t imagine why someone would want to steal a few old carpet tiles. Anyway, when the assistant division chief arrived, he told me that another employee had told the African-American female’s supervisor that he had seen her steal the carpet tiles. When I asked for the name of the witness, the assistant division chief was unable to provide it to me, since the witness had allegedly shared this information with the supervisor under a strict pledge of confidence. I then asked why the supervisor, who was white, had not confronted the African-American female with the allegation of theft. She replied that she felt uncomfortable because the employee had previously charged her with discrimination.
At this point, I became highly suspicious and instructed the assistant division chief to bring the supervisor up to see me. She repeated the same story to me and refused to give me the name of the alleged witness, arguing that she had given him a pledge of confidentiality. I advised her that she had placed the organization in a bad position by having her supervisor accuse a former EEO complainant of theft without supplying the witness’s name to upper management. Accordingly, I told her that she had 24 hours to give me the name of the witness, or I would personally propose her removal for failure to cooperate in an official investigation.
The next day she came up to see me and confessed that there was no eyewitness and no theft. She had grown increasingly frustrated with the complaints of the African-American female, and she saw this as an opportunity to get back at her. Needless to say, we immediately removed her from her supervisory position.
How to Handle Filed Complaints
Stay Calm
When someone files a complaint against you, you need to remain calm. That is easier said than done, because an EEO complaint tends to be very personal. No one likes being accused of discrimination, and the natural tendency is to get mad and get even. However, that is a formula for disaster, because if you start acting from your heart instead of your head, you are bound to dig yourself a hole that you may not be able to climb out of. Simply relax, take a deep breath, and then plan your next move.
If it is any comfort to you, the vast majority of seasoned managers have probably had one or more complaints filed against them. Again, when you are willing to make the difficult decisions, the odds are that some people are going to respond with EEO complaints. You simply have to treat such complaints as the cost of doing business.
After you have collected yourself, consult with your HR advisor and senior management and analyze the complaint. Make sure you gather all of your records so they can give you a sense of how your case looks on paper. Also, make sure you never destroy any records, even if they could hurt your case. It’s much better to lose a case than it is to be caught destroying records. In my experience, you are much more likely to lose your job for destroying records than you will be if you do not win an EEO case.
An employee filed an EEO complaint alleging that he was removed from his position with our medical center because he used to be enrolled in its drug rehabilitation program, and that we held this against him. He argued that since no else who had gone through that program had ever been hired by the medical center, it proved that we were biased against people who had gone through the program.
We felt that his removal was for good cause, but we also felt that we should look into his allegation. Since we learned that another participant had been hired by our organization, we confidently went forward, defended our actions, and ultimately prevailed.
By staying calm, gathering the facts, and dispassionately analyzing his arguments, we were able to make the right choice regarding this case.
Settle Cases Where Appropriate
You may be surprised to learn that sometimes the complainant is right. If you come to this conclusion, sit down with the complainant, discuss the issues, and try to resolve them right then and there. There is no shame in granting relief where relief should be granted. That is simply the right thing to do. Moreover, you’ll save the government a heck of a lot of time, energy, and money by resolving the inevitable at this stage of the game.
One complaint I encountered involved an Asian-American female who threatened to file a discrimination complaint about a display we had regarding the history of America’s wars. Specifically, it involved an identification card that had been recovered from the Vietnam War. The card showed a picture of a young Vietnamese female and was accompanied by a placard which indicated, “She may have been a prostitute.”
The employee was offended because she felt the placard stereotyped all Asian females as being prostitutes. I did not see it that way, nor did others, but I decided that this was not a battle worth fighting. After all, the person who wrote the placard had no firsthand knowledge that the Vietnamese woman portrayed in the picture had been a prostitute; it was mere speculation on his part. Accordingly, we changed the placard to indicate that she was simply a young Vietnamese female, and this resolved the complaint. The government saved a lot of money by not having to process the complaint, and the revised placard was actually more accurate than the original.
When a complaint is first filed, that may also be a good time to try alternate dispute resolution (ADR). ADR is a group of processes that provide alternative ways for resolving disputes.
Perhaps the most popular approach is to use a mediator. A mediator is a trained neutral third party that assists the disputing parties to find an acceptable solution. Mediation focuses on the future, not on the past, and does not assess any blame. It tries to get the parties to talk to each other in a constructive manner and to uncover any hidden agendas. If there is a meeting of the minds, a settlement agreement is usually crafted.
In my experience, ADR is far less painful than the normal complaints process, and is certainly cheaper for the government, as long as it is not abused.3 If used wisely, it is an excellent approach to resolving complaints.
Here’s an actual ADR scenario. We employed a rehabilitation counselor who spent a great deal of time in the field. He was a talented individual whose actions came under increasing scrutiny. Over time, questions began to arise about his relationship with a contractor. As we looked into the matter, we felt there was at least an appearance of impropriety in his actions. Moreover, this was not the first time we had had concerns about this individual.
From our perspective, his documentation was poor, and he didn’t follow the procedures that had been set up to govern the payment of contracts. While we didn’t believe he was stealing any money, his division chief decided to propose the counselor’s removal because (1) there was an appearance of impropriety; (2) he had failed to follow the proper procedures; and (3) a substantial amount of money was involved. Even though the division chief knew he did not have a strong case on paper, he issued the proposed removal because he thought it was the right thing to do and he wanted to bring the case to a head.
The employee immediately filed a complaint, and the parties agreed to try ADR. The employee, his representative, and several members of management sat down with a mediator to discuss the case. All the players were forced to lay their cards on the table, and the counselor admitted that he had made some serious mistakes. We eventually resolved the complaint by assigning him to a different position where he would be under much tighter supervision.
Pick Your Battles
Although settling is a good thing, you don’t want to settle too much, or you will encourage more discrimination complaints. You need to weigh each case on its own merits, conduct a cost-benefit analysis, and make your decision accordingly. However, you also need to periodically take a step back and ask yourself, “What message am I sending to everyone else?”
If you never resolve a case, you may be too inflexible, which could mean that others will conclude that you are not interested in listening to their concerns. Under this scenario, people will use the discrimination complaints system as a means to get your attention, while recognizing that they may have to go through the entire process before you actually listen to them. This approach generally costs the government a lot of time and money, since each case involves many different steps before it is finally adjudicated.
Conversely, if you always resolve complaints, people may take the message that if they want something, all they need to do is file a complaint. That is because you have taught them that they will eventually get what they want because you do not have the strength to stand by your convictions.
I believe the best approach is a balanced one, whereby you settle cases that should be settled, but resist cases that should not be. Under this approach, people will see you as being fair but principled: willing to stand up for what you believe in, but also willing to admit when the organization is wrong. This approach will, at least to some extent, discourage the fence sitters from filing complaints, while at the same token encourage the people who have legitimate complaints to come forward and give you the opportunity to resolve their complaints before they become formalized. Since I’ve already discussed several cases that were settled, let’s look at a couple of cases that I did not settle.
1. I took over an office where EEO complaints were a part of the culture. In fact, several people were frequent filers, but as time went by, others started to file, too. For example, a male employee was not selected for a promotion, so he filed a discrimination complaint, alleging that he was not selected because of his age and race. As relief, he asked for a promotion and back pay.
From my perspective, he had competed with other people for this position and was not selected for legitimate, nondiscriminatory reasons. I could see that he was looking to make a fast buck based on the way that other complainants had been treated before I arrived. I therefore decided not to settle and allowed the case to go forward.
Later on, he made it known that he would be willing to settle his complaint for $1,000, but I refused. I didn’t want to set a precedent and encourage even more complaints. Eventually, the case was dismissed, and this employee did not file any more complaints.
2. We removed an employee for multiple acts of misconduct, including insubordination. He was a strange individual who, before working for the government, had been convicted of a felony. Apparently, the selecting official at the time was aware of this information, but, for some unknown reason, had hired him anyway.
He apparently started off as a good employee, but as time went by, his behavior deteriorated, and we were forced to remove him. He responded with a lengthy discrimination complaint, alleging in part that we discriminated against him because of a mental condition that influenced his behavior, and demanding that he be reinstated to his former job. However, having a mental impairment is no excuse for bad behavior, since an organization cannot tolerate misconduct on the part of its employees. Moreover, we were extremely leery of rehiring him, given his criminal history.
We decided to resist his determined efforts to get his job back. The case went through the normal EEO process, and then went to court, where it was eventually dismissed.
Final Thoughts
Discrimination complaints can be painful to deal with, but they can also be managed effectively. The more you apply the principles, strategies, and tactics described earlier in this book, the fewer complaints you are likely to receive.
That being said, if you are doing your job properly, you will probably receive an EEO complaint from time to time. When that happens, take your time, don’t overreact, gather your records, and consult with both your supervisor(s) and your HR advisor. However, don’t be afraid of a complaint. The complainant is exercising the right to file a complaint, and your job at that point is to participate in the complaint process and try and resolve the complaint, if possible and appropriate.
On the one hand, if you treat a complaint as simply another part of the job—do not take it personally or react emotionally—you will be fine. Simply follow the process, try to do the right thing, and the outcome will take care of itself.
On the other hand, do not allow a complainant to intimidate you by continually filing discrimination complaints. You need to be very careful and separate any complaints that are filed from any action you plan to take. If you would have taken a specific performance or conduct-based action had a complaint not been filed, then take it. If you would not have taken the action but for the fact that the employee filed an EEO complaint, then by all means resist the temptation to retaliate against the employee and do not take the action. If you remember this simple rule, you will avoid the land mines that have ruined the careers of far too many management officials.
Key Points to Remember
• Learn to distinguish between those who feel they are victims of discrimination and those who merely seek to abuse the system.
• Look at things from the other person’s perspective.
• Know your statistics.
• The best approach in discrimination, particularly sexual harassment, is prevention.