FEDERALTIMES
Published: September 29, 2003
Managers More Accountable for Bias Oct. 1: But Lack of Rules Prompts Worry About Law’s Effectiveness
By TIM KAUFFMAN
A new federal law designed to hold agencies accountable for discrimination and retaliation in the workplace could result in tough penalties, including termination, for federal managers and other employees who violate a co-worker’s civil rights.But the actual consequences of discriminating or retaliating against employees likely will vary widely among agencies, especially at first, because the law does not specify what actions agencies should take.The Notification and Federal Employee Antidiscrimination and Retaliation Act, called No Fear for short, simply says agencies should take “appropriate disciplinary actions” against employees who violate civil rights or retaliation laws.
Congress left it to the administration to sort out the details.And even as the law is about to take effect, those details have yet to be figured out.The law tasks the Office of Personnel Management with telling agencies how to implement No Fear. But the law does not direct OPM, the Equal Employment Opportunity Commission or any other oversight agency to define what constitutes appropriate sanctions.OPM General Counsel Mark Robbins said agencies can find guidance in rulings and remedies issued by EEOC, which hears employee appeals in discrimination cases, and by the Office of Special Counsel, which prosecutes whistleblower retaliation complaints.“OSC already has their historic guidance and track record out there, and the EEOC has the same,” Robbins said.Even if it wanted to, OPM does not have statutory authority to define what constitutes a covered claim or appropriate remedy under the law, Robbins said.But the lack of specifics seems to concern everyone with a stake in how the law is carried out.
Employee advocates who fought for the law say the administration should require agencies to impose harsh penalties, suggesting that nothing else will reform a culture in which managers rarely are punished for discriminatory actions and, at times, are even promoted despite such actions. Managers’ groups fear agencies will overreact and ruin the careers of supervisors and executives over a simple mistake. And agencies’ civil rights offices say ambiguity in how to carry out the law’s provisions could make their jobs tougher.“Agencies are really going to have to wrestle with the accountability piece. ‘Appropriate disciplinary action’ is subject to a lot of interpretation,” said Roslyn Brown, director of IRS’ Discrimination and Complaint Review Unit.Managers and supervisors generally will be the only ones subject to disciplinary action under the No Fear law, since whistleblower retaliation and discrimination laws apply only in situations where an employee has authority over a subordinate and uses that authority to discriminate or retaliate against a subordinate,
Robbins said.However, the No Fear law includes the more vague term harassment, which can apply in situations involving co-workers of equal stature or an employee who acts out against his boss.Robbins said OPM will not attempt to define what acts are covered under the law for either reporting or disciplinary purposes. Those decisions have been and will continue to be defined by agencies, courts and juries when they determine a particular complaint warrants a remedy, he said.
Holding Managers AccountableCongress recognized early on the potential impact that the No Fear law could have on the work force, particularly on employee-management relations. The law, signed by President Bush in May 2002, includes several statements expressing the sense of Congress that discourage agencies from retaliating against employees who win court judgments and settlements and taking unfounded disciplinary actions against managers who have been accused of discrimination.Still, some managers and supervisors are concerned they could be become scapegoats for agencies eager to show they are tough on discrimination.
Senior Executives Association Counsel Bill Bransford said the group, which represents 6,000 career executives across government, will fight any action by Congress or the administration that would mandate discipline of a manager or supervisor as a result of a finding of discrimination.“It’s a very real concern that the No Fear act is the first step in an attempt to hold managers out as scapegoats merely because a jury has ruled in favor of a plaintiff,” Bransford said. “It would be contrary to our system of justice to label someone as guilty without allowing them to have due process.”Managers have no input in how the government prepares discrimination court cases, cannot view documents or other evidence collected and cannot have a lawyer present while being interviewed during the investigation phase, Bransford said.
Government lawyers could take a litigating tactic during court proceedings that lessens the agency’s culpability but hangs the manager out to dry, he said.But Marsha Coleman-Adebayo disagrees. She is a senior policy analyst at the Environmental Protection Agency, and her successful discrimination and retaliation suit against the EPA in 2000 was a driving force behind the creation of the No Fear law. The system before No Fear, Coleman-Adebayo said, has been anything but just to employees who suffer years of discrimination or retaliation at the hands of managers who are never punished for their actions. Coleman-Adebayo, an African affairs specialist with a doctorate in political science from the Massachusetts Institute of Technology, said she was denied promotions twice and endured years of racial and sexual harassment. In her lawsuit, she claimed she was removed from positions without cause and was retaliated against with unfavorable assignments after filing a complaint with the EEOC.A jury agreed, finding the EPA guilty of racism, sexism and creating a hostile work environment. Coleman-Adebayo was ultimately awarded $300,000 in damages. But managers who discriminated against her were not punished and, in several instances, were promoted to better-paying positions, she said.“Clearly we need guidelines, we need regulations, which will spell out what kinds of disciplinary actions will be taken against managers,” Coleman-Adebayo said.
In the wake of her case, Coleman-Adebayo formed a coalition of federal employees who have suffered discrimination. She wants OPM to issue clear direction and guidance on what actions agencies will be expected to take when managers are found to have discriminated against employees.“The spirit of the No Fear law was that managers were to face major consequences as a result of findings of discrimination against them. We will demand that the government live up to the spirit of that law,” Coleman-Adebayo said. “These are not victimless crimes, and for someone to get slapped on the hand when you have violated someone’s human and civil rights, you do not have a right to work for the federal government.“When you cost federal taxpayers millions of dollars [in settlements or court judgments], we don’t believe you have a right to work for the federal government anymore.”
In 1998, Congress reorganized the IRS and included in its legislation a measure in which willful or intentional discrimination against a co-worker is one of 10 actions that can get an employee fired. The agency has not fired anyone for discrimination under the new rules, although several managers who were under review chose to resign or retire rather than face termination, said the IRS’ Brown, who heads the office that determines whether discriminatory acts were willful.“No federal agency is going to fire someone unless there is evidence of misconduct,” Brown said. “Employees have rights. Nobody is going to fire someone unless there is strong evidence that you violated the law.”IRS has a thorough and independent process for reviewing settlement agreements and findings of discrimination to determine whether the discrimination was intentional, and, if so, whether any mitigating factors constitute a lesser penalty than termination.
Those factors include the nature of the misconduct, the work record and performance history of the employee accused of misconduct, and extenuating circumstances such as personal hardships or provocation by others to discriminate. A thorough review is crucial because employees cannot appeal personnel actions taken.Bransford said the No Fear law could make managers more hesitant to initiate personnel actions against problem employees because of the risk to their careers if employees claim the personnel actions were discriminatory.But EEOC officials disagreed that managers will be more susceptible to disciplinary action if they are accused of discriminating against an employee.“The person accusing the manager of discrimination is going to have to prove that in court,” said Catherine McNamara, attorney adviser to the EEOC director. “Simply an accusation doesn’t lead to bad consequences for a manager. It’s a proving of discrimination in a proceeding that might lead to bad consequences for a manager.”
Bransford conceded that managers who take appropriate personnel actions and document them accordingly should not have a problem. But he said the perception that they will be targeted could make managers more skittish than they already are to target poor performers.“I think they need to be cautious,” Bransford said. “Managers, when they’re dealing with disciplinary actions or dealing with poor performing employees, always need to be careful that they document their reasons and they take the proper actions.”No Fear Act
