Written Testimony of Dexter R. Brooks Associate Director Federal Sector Programs, EEOC

Meeting of June 17, 2015: Retaliation in the Workplace: Causes, Remedies, and Strategies for Prevention

Introduction

Madam Chair and Commissioners, thank you for the opportunity to discuss the issue of retaliation in the federal workplace.

My name is Dexter Brooks, and I have the privilege of serving as the Associate Director of EEOC's Office of Federal Operations. EEOC has charged the Office of Federal Operations (OFO) with two major responsibilities. One is adjudicating on an appellate level the EEO complaints of federal employees. The second is overseeing Executive Branch agencies' efforts to promote workplace policies that foster an inclusive work culture and prevent employment discrimination.

Retaliation is a serious and ongoing issue in the workforce, and one which EEOC has highlighted in its Strategic Enforcement Plan and Federal Complement Plan. Because of this, and in recognition of the fact that the presence of retaliation at any federal agency may seriously undermine the integrity of its EEO program, OFO has taken a heightened interest in proactively identifying and remedying retaliation in the federal sector. In the course of these remarks, I will provide an overview of specific issues affecting retaliation in the federal sector. In particular, I will: (1) provide background information; (2) address the increase of retaliation claims; (3) discuss OFO's intervening efforts over the last decade; (4) provide information on a new behavioral science view of workplace retaliation; and (5) provide examples of some best practices agencies can use to reduce or avoid retaliation charges.

Background

An employer may not fire, demote, harass or otherwise "retaliate" against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, disability and genetic information, as well on as wage differences between men and women performing substantially equal work, also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding. A successful retaliation claim need not include an unlawful adverse employment action: The standard for proving a retaliation claim requires showing that the manager's action might deter a reasonable person from opposing discrimination or participating in the EEOC complaint process. If retaliation for reporting potential unlawful discrimination in the workplace were permitted, it would have a chilling effect upon the willingness of individuals to speak out against employment discrimination or to participate in the EEOC's administrative process or other employment discrimination proceedings.

Increase in Retaliation Complaints

Over the past decade, the Equal Employment Opportunity Commission (EEOC) has reported that retaliation is the most common issue alleged by federal employees and the most common basis for discrimination findings in federal sector cases. Nearly half of all complaints filed during 2013 were retaliation complaints, with 42% of findings of discrimination based on retaliation.

In fact, retaliation has been the most frequently alleged basis of discrimination in the federal sector since FY 2008. In addition, the number of discrimination findings based on a retaliation claim has outpaced other bases of discrimination.

EEOC's Annual Report on the Federal Work Force 2009-2013 and EEOC No Fear Data for FY 2009-2013

Retaliation often arises as an amendment to another complaint: It is not uncommon to see an original discrimination allegation (on a basis other than retaliation) fail, and the complainant prevail on the subsequent retaliation allegation.

Interpersonal conflicts can potentially implicate a legal process. This is particularly apparent with retaliation because the legal standard requires an examination of the behavior after the allegation. The standard for proving a retaliation claim requires showing that after notice of a discrimination allegation, the manager's action causally connected to the allegation was such that it might deter a reasonable person from opposing discrimination or participating in the EEO complaint process.

OFO Intervening Efforts

Over the past decade, we have taken numerous opportunities to examine retaliation in the federal sector. I will highlight a few.

Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002
In Fiscal Year 2002, OFO entered into an agreement with the Environmental Protection Agency (EPA) to train its entire management staff nationwide on their roles and responsibilities under EEO laws. The training was in response to a federal lawsuit. During the same time, Congress was finalizing the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 which highlighted the EPA case as a justification for the new law. Our office used this effort to create new training designed to help managers understand retaliation. We created a stand-alone module with scenarios and information from findings on discrimination.

EEO Program Evaluations
In Fiscal Year 2008, OFO began a program evaluation of the Federal Bureau of Prisons (BOP). The evaluation was based on: (1) an unusually high level of EEO complaints alleging retaliation during fiscal years 2003-2006; and (2) a class action complaint (that EEOC did not certify) which suggested a level of perceived retaliation higher than in other federal agencies. We issued our final evaluation report in November 2010, providing BOP with several recommendations to address programmatic deficiencies and the perception of retaliation. In particular, we recommended that BOP: realign the agency's EEO Office to better support EEO efforts; increase management support for EEO; improve EEO office's monitoring of its field operations; take steps to ensure confidentiality; and abolish the informal reference system where confidential EEO information was disclosed. BOP has implemented most of our recommendations and we continue to monitor the agency's progress.

Federal Complement Plan
In FY 2013, EEOC issued its Strategic Enforcement Plan and the Federal Sector Complement Plan. Priority Five: Preserving Access to the Legal System explained that EEOC would target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC's investigative or enforcement efforts.

In our Federal Complement Plan, OFO committed to review all training modules on retaliation and ensure that they are up to date and instruct all federal sector trainers: (1) to emphasize to their audiences that each statute EEOC enforces prohibits retaliation; and (2) to include in each training module/session a retaliation update and, where appropriate, a discussion of the No FEAR Act. We continue to update our training modules to comply with this requirement and fulfill our commitment.

Partnerships
Early this fiscal year, OFO's Training and Outreach Division reached out to the Federal Managers Association (FMA) to discuss potential partnerships to assist federal managers. FMA is the oldest and largest management organization in the federal government. After a brainstorming session between FMA and OFO, we decided among other things to draft a featured article for FMA's quarterly magazine addressing retaliation from a practical perspective.

In preparing for the article, we decided to expand our efforts toward understanding retaliation. Instead of strictly focusing only on the legal aspects of retaliation, we decided also to explore its behavioral science aspects. In partnership with EEOC's Office of General Counsel, OFO's newly- hired Social Science Research Analyst, Dr. Mxolisi Siwatu worked with OGC's Industrial-Organizational Psychologist, Dr. Romella El Kharzazi to research the behavior explanations for retaliatory behavior. Below is a brief summary of their research.

Behavioral Explanations

Social psychology has provided us with a broader understanding of the underlying causes of retaliatory behavior. The act of retaliation is equivalent to revenge where a person perceives unfair treatment and attempts to restore equilibrium by taking the matter into his or her own hands. Research has consistently demonstrated that the desire for retaliation is common upon experiencing an offensive interpersonal encounter, particularly if the encounter threatens one's self image. Interestingly, while the desire to retaliate is common, acting on this inclination is not, as doing so can be quite costly in social and professional settings. Unlike other animals, humans are unique in their ability to weigh consequences and make decisions based on what is most beneficial within a given socio-cultural context. In this respect, we have the ability to override our more basic inclinations and behave based on what is socially (or legally) acceptable. Cognitive, emotional, and social processes can override "instinct" and guide our behavioral choices. Ultimately, the decision to retaliate is a consequence of an interaction of these factors.

The process of retaliation begins with a perceived offense (e.g., alleging discrimination). If those accused sincerely believe that they have done nothing wrong, or if they believe that their offensive behavior was somehow justified, they may begin to ruminate and desire retaliation. In this regard, retaliation is a coping mechanism - a way of alleviating the psychological discomfort associated with perceived injustice.

Several factors ultimately affect whether a manager will engage in retaliation. These include the manager's psychological traits, perceptions of the organizational culture, and organizational opportunities. At the psychological level, researchers have found that a variety of personality traits are associated with retaliation. For example, it has been suggested that those with a sense of entitlement will experience offenses much more emotionally than others and take them much more personally.¹ As such, these individuals are more likely to ruminate over the offense, ultimately seeking retaliation. Similarly, authoritarian personalities, people who place a high value on status in group settings, are predisposed to retaliation when offended, particularly if that offense is from someone of a "subordinate" status.² Extraverts, on the other hand, are much more likely to seek non-aggressive resolution in conflict situations, forgiving offenders in an attempt to salvage the relationship.³ Such individuals are less likely to ruminate and seek retaliation.

Researchers have also concluded that people seek retaliation when they feel the workplace is not fair and that they cannot depend on formal channels for fair or just treatment.⁴ Individuals will also retaliate if they perceive the perpetrator as behaving in a way that is intentionally malicious.

Individuals are also more likely to retaliate, if:

• The accusation is very serious;
• The accusation will negatively impact future relationships with others at work;
• The accused feels that he or she is being judged;
• The accused believes that his or her job is in jeopardy; and/or
• There is reason to believe that the accusation will harm perceived employability.

In addition to the various personality factors mentioned above, organizational structures impact retaliation. Rigid bureaucratic structures promote retaliatory behavior among managers. Organizations that do not foster a procedurally just climate also encourage retaliation. Organizations that foster a climate of aggression and bullying are more likely have managers who abuse power and retaliate when claims are made.⁵

• Other organizational factors that influence retaliation are:
• A lack of administrative policies discouraging retaliation;
• An authoritarian management culture;
• Overly hierarchical organizations, where rank or organizational level is prized;
• High levels of task-related conflicts;
• Reward systems and structures that promote competition; and
• The ability of the accused to isolate the accuser.

Best Practices

There are several best practices that employers should implement to prevent or reduce instances of retaliation from occurring in the workplace. Some practices should occur on a regular basis even if no current retaliation claim has been filed while others should take place immediately upon a claim being reported:

Some best practices that should occur on an on-going basis include:

• Provide regular training for supervisors and managers. Training is critical to reducing unlawful workplace behaviors and is often required by law. Additionally, training can help create a more informed, productive, and respectful workforce. Training efforts should be organic to the agency's culture with a particular focus on management training. Often, managers are not prepared for the inevitable conflicts associated with managing human relations within the workplace. Conducting preventative training efforts will assist in the reduction of both EEO and non-EEO (e.g., grievances and whistleblower) complaints.
• Have and distribute a non-retaliation policy. A non-retaliation policy should be provided to every employee in their new hire paperwork. It should also be discussed during orientation and at regular supervisory and safety trainings. It can also be displayed prominently in common areas, on bulletin boards, and in the employee newsletters.
• Have an effective complaint procedure in place and create a workplace where employees not only feel comfortable reporting instances of retaliation, they also understand the importance of such reporting.
• In addition to training, EEO and Civil Rights programs within the agency should explore ways to provide information to managers at the outset of the complaint process. This information should acknowledge the potential emotional response involved with being accused of a discriminatory action, as well as the problematic implications of seeking to avenge any perceived offense. By acknowledging the potential negative reactions managers may experience when faced with a discrimination allegation, and reviewing examples of both constructive and problematic responses, these education efforts should help managers to focus on the continued work interaction and relationship with employees.

If a manager or supervisor is named in a discrimination allegation, there are several best practices organizations can implement to avoid a subsequent claim of retaliation:

• Managers should avoid publicly discussing the allegation to prevent claims based on perceived retaliation from occurring.
• The agency should conduct a prompt and thorough investigation as soon as practicable following a reported allegation of discrimination.
• Managers should be mindful not to isolate the complainant and try to avoid reactive behavior such as denying the employee information/equipment/benefits that are provided to other employees performing similar duties.
• Managers should provide clear and accurate information to the EEO staff, EEO investigators, and/or a judge. At no time should a manager interfere with the EEO process or threaten the complaining employee, witnesses, or anyone else involved in the processing of a complaint or investigation.
• When the investigation is complete, a detailed report should be written and files should be kept appropriately. When a final determination is made, an agency should take immediate corrective action - if necessary - and all parties involved should be informed that the investigation has been completed.
• While it may be difficult not to take an EEO allegation personally, managers should take a step back to consider their reactions in these situations. A negative change of behavior toward an employee after an EEO allegation can be perceived as retaliatory.

Conclusion

Thank you for the opportunity to appear here today. OFO looks forward to continuing to work vigilantly with the federal sector community toward accomplishing our goals. A model federal workforce that fully reflects the contributions of all of this nation's peoples, safeguards an unfettered freedom to compete and provides steadfast protection of civil rights. I welcome any questions from you, Madam Chair and the Commissioners.  

Footnotes

¹ Lee, K. & Ashton, M.C. (2012). Getting mad and getting even: Agreeableness and honest-humility as predictors of revenge intention. Personality and Individual Differences, 52, 596-600. doi: 10.1016/j.paid.2011.12.004

² Samnani, A. & Singh, P. (2012). 20 years of workplace bullying research: A review of the antecedents and consequences of bullying in the workplace. Aggression and Violent Behavior, 17, 581-589. Retrieved from http://dx.doi.org/10.10.16/j.avb.2012.08.004

³ Berry, J.W., Worthington, E.L., O'Connor, L.E., Parrot, Les, & Wade, N.G. (2005). Forgiveness, vengeful rumination, and affective traits. Journal of Personality, 73(1). doi: 10.1111/j.1467-6494.2004.00308.x

⁴See Footnote #3.

⁵See Footnotes #3 and #5.