WHO IS RESPONSIBLE FOR THIS BEHAVIOR?
A newly hired employee of the Border Patrol asked for a reasonable accommodation because he had a learning disability. An agency psychiatrist diagnosed him as having a learning disability involving his reading, slow rate of work, and short term memory. Here is how EEOC described how the employee’s managers reacted. “The SL Supervisor asked for additional documentation to support Complainant’s assertion. On that date, Complainant indicated that the alleged harassment began. He said that the SL Supervisor began making predictions about Complainant’s purported inability to memorize facts both directly to Complainant and to the FTOs. On the same day, FTO SS made disparaging and embarrassing comments about Complainant to the whole class. FTO SS continued to ridicule Complainant by stating that his daughter at five could remember the station’s phone number. The next day, FTO RS told the entire intern class that Complainant could have worked all day and still would not be able to complete the work. On February 13, 2009, FTO VA made sounds of shock and laughed while reviewing Complainant’s test on February 13, 2009. On February 18, 2009, FTO SS remarked, while Complainant was reading a Field Observation Report, ‘I could read Moby Dick in less time.’ In sum, the AJ found that the record supported Complainant’s claim that he was openly ridiculed by the FTOs, including FTO RS, FTO SS, FTO VA, and FTO JZ, on various occasions starting in February 2009.” Yes, the EEOC found the managers and Field Training Officers violated the law by harassing the employee for filing for a reasonable accommodation, and yes the employee got over $50,000 in back pay to soften the blow of ultimately having been terminated. But we want to talk about who is responsible for the managers’ behavior. As far as we are concerned, it is…
management. First of all, agency leaders allowed managers like this to get through their manager training program.
Second, there is no evidence that agency leaders in the EEO, HR or LR shops did or do anything special when an employee files an EEO charge to minimize the chances of retaliation. We have often wondered why agencies do not immediately alert managers who might have contact with the employee requesting an accommodation or who filed a charge about their obligations. The agency need not reveal the name of the charging employee. For example, if an employee in Group 12 files a charge with EEO against her manager without telling the manager, what prevents agency EEO leaders from circulating an urgent reminder to managers in Groups 11, 12 and 13 that a charge is pending somewhere in that area and giving them a list of examples of retaliation or harassing behavior that has been found to violate law. That obscures the identity of the charging employee while reducing the chances of a violation of law. After all, even if the employee’s original charge (or accommodation request) is groundless, the agency potentially could be liable for well over $300,000 in damages and attorney fees if a manager retaliates or harasses the employee. (Complainant v.Johnson, DHS, CBP EEOC Appeal No. 0720140021, August 2015)
In this particular case EEOC asked the agency to consider disciplining the offending managers. DUHHHHHHH! But why not order the agency to take some action against those managers in the EEO/HR functions who, according to the record, did not do a single thing to prevent the chances of retaliation and harassment. Where was the “just in time” support for the managers? Does anyone really think that when the Border Patrol leadership gets a tip about a potential illegal entry that it says nothing to the employees patrolling the sector of the potential crime? Of course not. So, when it has reason to believe that a civil rights violation might occur or there is a higher than normal potential for one, why not speak up and act then as well?