Knock, Knock. Who’s There? The Efficiency of the Service.

By Dan Gephart, June 12, 2019

Since Father’s Day is this Sunday, I think it’s probably the safest time for me to come clean about an embarrassing habit.

I tell Dad jokes. I mean, I tell Dad jokes a lot. My sons were barely teenagers before they developed an instinctive ability to recognize an incoming Dad joke before the words even left my mouth. And once they sense a Dad joke coming, they plead for me to reconsider:

Me: Speaking of Benji …

Son 1: Dad, we’re not talking about the dog anymore.

Me: It reminded me that I saw your friend’s dog yesterday.

Son 2: Don’t do this.

Me: You won’t believe it, I saw him doing magic.

Son 1: Please no. Dad,

Me: I guess we all know what breed he is now.

Son 2: Seriously Dad, I’m begging you.

Me: He’s a Labracadabrador.

Son 1, Son 2: (Groans that sound as if they’re dying.)

Years of grumbles, sighs, and finger wagging haven’t stopped me. A dad and his bad jokes are like the Golden State Warriors in the NBA Finals; they’re always there. While my Dad jokes may lack taste, humor, or a single redeeming quality, at least they are rather anodyne. Not so, however, for jokes with sexual implications, especially when they’re told in the federal workplace — even if they don’t rise to the level of hostile workplace or harassment.

Here’s an example: David Lang, a GS-14 Deputy Security Officer at the Department of the Treasury, wandered into a conference room where his colleagues were preparing for a meeting with VIP guests. The meeting had nothing to do with Lang’s job. There was no real reason for him to be there. However, some of the attendees had arrived early, so the meeting host, who was not ready, told the crowd they could ask Lang about security. The meeting host assumed Lang would talk about security issues.

He was wrong.

With no agenda or prepared material, Lang started to adlib, which led to a sexually suggestive anecdote about a drunk person in a police station. Lang acted out the story, specifically mimicking the drunk. As he neared the end of the story, his boss walked in. Lang looked directly at her as he continued with his joke. This MSPB initial decision (Lang v. Treasury, DA-0752-04-0442-I-1, (MSPB AJ 2005)) didn’t go into any further detail, but I imagine Lang’s boss giving him the same look I’ve seen on my sons’ faces. With his boss glaring at him, Lang paused, then continued to the punchline: “The drunk man looked down and said: ‘Oh no, they stole my girlfriend, too.’”

As the boss walked out, Lang told the audience: “Well, that was my boss, so be on the lookout for my resume.” Lang wasn’t terminated, but he was demoted to a GS-13. Of course, he appealed the demotion. In affirming the agency’s decision, the Merit Systems Protection Board administrative judge wrote:

“I find that the deciding official in this case properly considered the applicable Douglas factors and he adequately assessed the overall circumstances, including those that favored mitigation. He found that, under these circumstances, placing the appellant into a non-supervisory position with the least reduction in his pay was warranted and would best promote the efficiency of the service.”

Lang filed a petition for review, which the Board denied.

Inappropriate jokes also led to the demotion of the GS-13 Employee Relations specialist in Hatch v. Air Force, 40 MSPR 260 (1989). Hatch regularly told jokes with sexual connotations, often in meetings and, per the parlance of the day, “in mixed company.” The AJ found that the jokes adversely affected the efficiency of the service because of the number of subordinates who found them to be offensive.

The term “efficiency of the service” debuted in the Lloyd-La Follette Act of 1912, and was eventually folded into the Civil Rights Act of 1978. As long as there is a nexus between the misconduct and the federal job, the supervisor can take an action. It doesn’t matter that the actions don’t meet a legal definition of hostile work environment. As the Federal Circuit wrote in Carosella v. US Postal Service, 816 F.2d 638 (Fed. Cir. 1987):

“An employer is not required to tolerate the disruption and inefficiencies caused by a hostile workplace environment until the wrongdoer has so clearly violated the law that the victims are sure to prevail in a Title VII action.”

In 1994, the MSPB published a report on sexual harassment in the federal workplace, which clearly explained the costs of boorish behavior:

“Imagine an employee who’s being bothered by a coworker who leers at her or makes comments full of innuendo or double entendres, or who tells jokes that are simply inappropriate in a work setting. The time this employee spends worrying about the coworker, the time she spends confiding in her office mate about the latest off-color remark, the time she spends walking the long way to the photocopier to avoid passing his desk, is all time that sexual harassment steals from all of us who pay taxes.

Adding up those minutes and multiplying by weeks and months begins to paint a picture of how costly sexual harassment is. Increase this one individual’s lost time by the thousands of cases like this in a year, and the waste begins to look enormous. And this may well be a case that doesn’t even come close to being considered illegal discrimination by the courts. Whether or not they’re illegal, these situations are expensive.”

If you’re a supervisor who likes to tell jokes, think about your audience before you let the next one loose. And if you’re a supervisor of a Fed who fancies himself a cutting-edge comedian, take action before someone has to file an EEO claim.

I guess you could say that Dad jokes and inappropriate work jokes share one thing: Neither is a laughing matter. Gephart@FELTG.com