Don’t Confuse News Articles with Legal Analysis
By William Wiley, January 17, 2018
Oh, boy. Civil service stuff above the fold recently on page A-1 of the Washington Post. Career government employees don’t often rise to that level of awareness in the public eye. Sadly, the article published the last week of 2017 focused on an aspect of federal employment that we wish wasn’t so noteworthy: sexual misconduct in the federal workplace.
They tell you that once you graduate from law school, you won’t see the world the same ever again. For example, a normal person who is not encumbered by a legal education, upon seeing a car wreck, might think, “Oh, those poor people! I hope no one’s injured. I need to call 9-1-1 and then see what I can do to help out.” The first thoughts of a lawyer, upon seeing the same car wreck, might well be, “The west-bound vehicle was negligent in not slowing down for the yellow light, but the north-bound vehicle was speeding. Looks like contributory negligence to me. And the pain and suffering suffered by the by-standers who saw the incident is probably a significant consequential damage. I wonder how many business cards I have with me?”
This same automatic-legal-brain thinking comes into play when you read the Post’s article. First, the subtitles to the piece about sexual misconduct at the Department of Justice: “Systemic Issues in Harassment Cases: Report details a lack of disciplinary action.” From this, one might conclude that the article will be addressing sexual harassment as it was described in a recently-released DoJ IG report. Well, not exactly. For example, here are some of the primary incidents reported as described in the IG report:
- A supervisor sending harassing emails to a subordinate who had ended a sexual relationship the two were having.
- An employee who groped the breasts and buttocks of two coworkers.
- A supervisor who had consensual sex on several occasions in his government office.
If you’ve been to any of our FELTG seminars regarding sexual harassment (and we have done BUCKETS of them recently), you no doubt learned that the law defines sexual harassment in part as “unwelcome” sexual conduct. Clearly, the first two incidents meet that definition. However, nothing in the description of the third incident described the acts as being “unwelcome.” If they were not, then there’s no sexual harassment.
“What? You mean it’s OK to have sex in a government office? Why wasn’t I informed?” No, Poopsie. That’s not what we mean. If you’ve been to the FELTG seminar where we teach how to discipline a civil servant, you would have learned that if you have a rule, and an employee violates the rule, you can discipline the employee. Also, you’ve learned that in addition to published official rules (e.g., agency policies), you also can enforce “common sense” rules, also known as “rules of society.” Unless you have tolerated workplace sex in the past, it’s fair to say that you have a “common sense” rule that having sex in a government office is wrong. Therefore, the supervisor in incident number three above can be disciplined, but not for sexual harassment. Instead, the discipline should rest on the common-sense rule that federal employees are not to have sex in their offices. (You experienced practitioners are probably already thinking that the secondary charge should be “Waste of Government Time” if the acts occurred on the clock rather than after hours. See what I mean about a bit of legal education changing how you think?)
The next legal bump those of us with civil service experience run into is the suggestion in the article that although some of the offending employees were counseled or reprimanded, they should have been suspended or demoted instead; i.e., the agency did not select a severe enough punishment given the nature of the misconduct.
Again, experienced practitioners know that suspensions often hurt the agency more than they hurt the employee. The agency must forgo the employee’s services for the duration of the suspension, and often coworkers suffer by having to perform the work that the suspended employee normally would have performed. If discipline is intended to correct behavior rather than punish the employee, a suspension is of questionable value. As for a demotion, if an agency were to reduce an offending employee in grade, the agency would then have to accept lower-graded work from the individual. Well, maybe the agency doesn’t NEED lower-graded work. Maybe it needs the higher-level of work the employee is already performing. The somewhat cavalier conclusion that DoJ didn’t do enough because it did not suspend or demote the offensive employees fails to acknowledge the reality of the federal workplace.
Finally, the last wrinkle in the analysis in the article is the criticism that some of the offending employees received subsequent performance awards after the misconduct occurred. That might well be a concern and something that should be addressed. But stay with me: you can’t blame DoJ for giving awards based on performance without consideration of any misconduct. Read OPM’s award regulations at 5 CFR 451. According to OPM, awards are to be based on the employee’s performance plan or perhaps other goals set in advance. You’ll find no OPM guidance regarding the consideration of misconduct when making award decisions. The famous Douglas Factors that were developed by MSPB as guidance for agencies when selecting the appropriate level of discipline for misconduct, tie performance awards into the disciple-penalty determination as a mitigating factor. However, nothing from MSPB, OPM, or the courts requires that misconduct be considered when determining a performance rating.
The article in the Post highlighted several incidents of discipline-worthy sexual misconduct. Perhaps in retrospect DoJ should have been more aggressive in its responses to the incidents. Just be careful when assessing an article in the media that discusses civil service law. Not all sexual conduct in the federal workplace is sexual harassment, and disciplinary decisions relative to sexual misconduct are more challenging to make than simply saying that the offending employee should lose some pay. Wiley@FELTG.com