Any subordinate federal employee can file an equal employment opportunity (EEO) claim against his or her boss at any time, for any reason, and without basis or belief that discrimination is really the problem — and can do so with impunity. Thus, even the best manager cannot stop an abusive EEO complaint.
But a good manager can deal effectively with the complainant and substantially reduce the likelihood of a subsequent reprisal complaint.
Some federal managers are subjected to EEO complaints that can hang around for years in a broken EEO system that delays justice for complainants who are real victims of discrimination. The system requires managers to “manage” EEO complainants, some of whom think they are invulnerable because they have filed an EEO complaint.
One of the most difficult things for the manager is figuring out an appropriate balance when an employee has filed a complaint. This is not such a problem in the private sector, where most EEO complaints are filed by discharged employees. But in the federal civil service, approximately 20,000 EEO complaints are filed every year by employees who keep on coming to work. Many of these employees are sincere about their complaints and worry about reprisal. Others demonstrate an attitude that says, “OK, I dare you to come after me. I’ve filed an EEO complaint.”
The manager must keep making tough day-to-day decisions, including adverse decisions about employees who have filed complaints or have otherwise engaged in EEO activity. There are a few caution areas.
First, do not attack what you have previously allowed. Make sure that the negative adverse action, such as a marginal performance rating or a reprimand, is not in response to the same type of poor performance or misconduct that you tolerated for months or years before the employee went to the EEO office. An employee who performed at a substandard level but was carried with a high or at least good rating could have a good reprisal claim if the manager all of a sudden decides to give the employee the rating he or she deserves. This is particularly true if the lower rating comes shortly after the employee contacts the EEO counselor.
Second, document the reasons for an action. The best practice is to document all the time, not just after an employee has engaged in EEO activity. But if the documentation comes only after the complaint, the successful supervisor will document why an employee’s poor performance or misconduct is more severe than it was before the EEO activity occurred.
Third, do not procrastinate. This is another rule that applies all the time. Promptness in dealing with difficult personnel decisions cuts down on problems with a problem employee who says: “What do you mean I write bad reports, these are the same type of reports I have always written. You’re only doing this because I filed an EEO complaint.” A manager who is continuously on top of concerns and issues in the office is less likely to experience a reprisal claim.
Fourth, be professional. Avoid harsh or humiliating language, especially in front of co-workers. Do not make reference, either to the employee alone or in a group, to the employee’s EEO activity. Threatening or mocking behavior about the employee’s exercise of his or her right to complain about discrimination can, by itself and without the presence of any other personnel action, be a basis for a successful reprisal claim.
Finally, be careful and be circumspect. Consider what actions and management style by you might provoke a reprisal claim. Respect the employee’s dignity. Seek the advice of the human resources or general counsel’s office in deciding whether and how to proceed with a negative personnel action. Let an objective professional test your documentation and reasons for proceeding, and be candid with that professional about the subordinate’s EEO activity.
Employees who have filed EEO complaints are not immune from adverse personnel actions. In fact, tolerating bad behavior or poor performance just because an employee has filed an EEO complaint can be harmful to the supervisor in the long run. But, when a subordinate has filed a complaint, the supervisor does have to work a bit harder and more cautiously to avoid or successfully rebut a reprisal complaint.