Despite Improvement, Discrimination is Still Problem in Federal Workforce

In many ways, the federal government is a model employer. Years ago, for example, it opened employment doors for minority workers when many private sector employees still discriminated on the basis of color. Statistics also indicate that the federal government has been more welcoming to women than some segments of the private economy. For example, one report from the Office of Personnel Management indicated that in 2014, 34 percent of the positions in the federal government’s Senior Executive Service were held by women, as opposed to only 14.6 percent of executive positions in the private sector. That is particularly important when one considers the fact that women comprise 43.3 percent of the Federal workforce, whereas they comprise 46 percent of the total U.S. civilian workforce.

Unfortunately, discrimination continues to exist, even within the federal workplace. In one recent year, for example, more than 15,000 federal employees filed discrimination complaints against federal agencies. Since the federal workforce is made up of a cross-section of American society, some prejudices and other inappropriate attitudes that exist in our society are carried to work each day by some federal supervisory employees.

EEOC Enforces Federal Laws Regarding Employment Discrimination

The U.S. Equal Employment Opportunity Commission (EEOC) enforces Federal laws prohibiting employment discrimination (ironically, in 2012, the EEOC had the third largest number of discrimination claims filed against it). These laws not only protect those working in the private sector from unlawful discrimination, the same laws protect those who work for the federal government against employment discrimination when it involves:

  •  Unfair treatment because of race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.
  •  Harassment by managers, co-workers, or others in your workplace, because of your race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.
  •  Denial of a reasonable workplace accommodation that you need because of your religious beliefs or disability.
  •  Retaliation because you complained about job discrimination, or assisted with a job discrimination investigation or lawsuit.

In addition to the protections afforded federal employees by laws enforced by the EEOC, additional federal employment regulations prohibit discrimination based upon one’s status as a parent, as a married person, or based upon one’s participation in political activities (away from your job).

Prohibited Personnel Practices

As part of its rule against discrimination, the federal government has identified twelve separate prohibited personnel practices (“PPPs”) that are defined by law [5 U.S.C. 2302(b)]. Among those twelve, for example, a federal supervisor may not:

  •  Coerce the political activity of any person, including a co-employee or subordinate
  •  Deceive or willfully obstruct anyone from competing for employment
  •  Engage in nepotism
  •  Discriminate based on personal conduct that is not averse to the on-the-job performance of an employee, applicant or another person
  •  Engage in reprisal for whistleblowing (For example, a federal employee—including a supervisor—may not take, fail to take, or threaten to take or fail to take a personnel action against an employee or applicant for disclosing to the Special Counsel, or to an Inspector General or comparable agency official information which the employee or applicant reasonably believes evidence a violation of any law, rule or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.)

Claim of Discrimination is But One Type of PPP

A claim of discrimination is just one type of prohibited personnel practice established by the Civil Service Reform Act of 1978. Whether you tell the Merit Systems Protection Board (MSPB) you are raising a PPP claim under 5 U.S.C. § 2302(b) or merely indicate that you believe you were discriminated against on one of the bases listed in that section, the burdens and standards of proof remain the same and MSPB will hear your claim if it has jurisdiction over your appeal.

Agency Discipline is Subject to Scrutiny

Federal agencies may discipline an employee “only for such cause as will promote the efficiency of the service.” Moreover, the agency has the burden of proof to show that its action meets this standard. While there is generally no requirement that an employee must have violated a specific written policy, the agency must provide a rational basis for any sort of discipline. It must also provide substantial evidence to support its position.

Common reasons for discipline include:

  •  Unapproved Absenteeism or Tardiness: Chronic absenteeism and tardiness account for the largest number of adverse actions in federal government.
  •  Refusal to Accept Reassignment: The government has broad discretion to reassign employees to different locations and duties.
  •  Conflict of Interest: Federal employees must avoid situations that compromise, or even give the appearance of compromising, their duties as agents of the government.
  •  Failure to Maintain a Condition of Employment: For example, your job may require a security clearance or a certain professional license. Without that clearance or license, you may be prevented from continuing in the job.

MSPB Appeals

The MSPB hears appeals in the case of a removal, a suspension for more than 14 days, a reduction in grade, a reduction in pay, or a furlough of 30 days or less. Note that a suspension of 14 days or less cannot be appealed to the MSPB.

Federal Employment Rights are Complex

Have you been the victim of discrimination within the federal workplace? Have you been denied a promotion or have you been unfairly disciplined? You may be able to seek redress for the wrong done to you. Bear in mind two important things: First, the law and regulations related to federal employment have become more and more complex over the years. Most federal employees determine that they need the assistance of a skilled, experienced, dispassionate attorney to maneuver through the maze. Second, the clock may be ticking on your claim or appeal. Do not delay in contacting a skilled attorney.

Melville Johnson, P.C.: MSPB and Federal Employment Attorneys

Melville Johnson is one of America’s premier federal employment practice law firms. For more than a quarter century, we’ve successfully litigated a wide variety of federal cases across the nation—with a special focus on issues involving federal employee EEO claims at the Equal Employment Opportunity Commission and the Merit Systems Protection Board. With any EEO or MSPB case or claim our firm takes on, we quickly zero in on the essential facts, apply the law and then work to reach the conclusion you desire with well-reasoned approaches and aggressive advocacy. Don’t delay. Contact us at 888.594.0424 or complete the online contact form.