LR specialists have so concentrated power in their hands that employees and union reps rarely can have a substantive discussion with their managers about fixing problems promptly. There may be some agency benefits from this approach, but the EEOC just pointed out a significant disadvantage of keeping front-line decision-makers LR/ER clueless.

Front-line managers are the very people who make most of the day-to-day decisions that potentially can generate grievances, charges and complaints. Denying them the knowledge and skills to make them correctly only increases the odds of serious mistakes.

In a recent Social Security Administration case (Ponisciak v. Social Security Administration, EEOC No.0720110031 (June 2012)) an employee was passed over for promotion soon after engaging in protected EEO activity.  He responded by charging management with reprisal because he recognized that he met the “prima facie” test for proving discrimination.  He could show that–

(1) he recently had engaged in a protected anti-discrimination or EEO activity;

(2) the agency was aware of the protected activity;

(3) he subsequently was subjected to adverse treatment by the agency; and

(4) a nexus exists between the protected activity and the adverse treatment.

Almost any employee should be able to meet that test if non-selected soon after filing an EEO charge, helping another employee with a charge, or accusing management publicly of discrimination. Consequently, in today’s litigious world, all managers should be able to recognize that there is a very high risk of a retaliation charge being filed against them when those factors are present. But, sadly, line managers rarely are aware of that thanks largely to LR.

Once the “prima facie” test is met and management offers its explanation of why it made the decision it did, all the employee need do is present facts that, if not rebutted by management, give rise to an inference of discrimination. Experienced union reps know that is often easy to do in LR’s age of dumbing-down supervisors. In the SSA case, the judge said the following about the manager’s explanation for why the employee was not selected:

    • The supervisor testified that the employee did not show initiative, but was unable to describe the basis for that conclusion;
    • The supervisor rated the complainant and another employee at different performance levels, but used the same words to describe in detail why they deserved their scores; and,
    • The ranking panel had destroyed the notes it kept of how well the candidates did in their interview.

Those are all elementary mistakes—very elementary, almost Pre-K.  If FEDSMILL was asked to list 50 employee-employer relationship details every manager should know before managing anyone, the knowledge of the elements of retaliation would be on it.  Why?  Because if a supervisor makes this mistake, there is virtually nothing LR can do after the fact to avoid retroactively promoting the complaining employee, giving him back pay with interest, writing another check of up to $300,000 to compensate him for the emotional stress they caused him and writing a third, very substantial attorney fees check to his lawyer.  If circumstances are just right the supervisors also can be suspended or barred from managing anyone in the future.

Workplace problems are inevitable, which makes knowledgeable and empowered supervisors critically important to avoiding them—or at least recognizing when they had better act quickly to fix a mistake. The benefits of centralizing all employee relations decisions in LR for after-the-fact judgments cannot possibly outweigh the harm done by keeping line managers clueless. In fact, it is a great way to drive up demand for LR staff and services.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
This entry was posted in EEO/Discrimination, Promotion/Hiring and tagged , . Bookmark the permalink.

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