Federal Legal Corner: Reprisal Found in Comments about EEO Activity

On March 27, 2014, the EEOC issued its decision in Complainant v. Department of Justice, EEOC Appeal No. 0120123111, ruling that the FBI had violated Title VII of the Civil Rights Act of 1964 when a supervisor announced in a meeting of subordinates that certain subordinates had contacted the EEO office, and made threats based upon this EEO contact.

The complainant, a special agent and part-time pilot for the FBI, alleged that the agency had subjected him to discrimination based upon reprisal. He stated that he and another special agent had contacted the EEO office about an atmosphere of harassment in the workplace, including their supervisor sending a text message to multiple people indicating that the complainant and the coworkerhad a sexual relationship. The complainant also alleged, among other things, that during a meeting, the supervisor made comments that employees had contacted the EEO office.This meeting was peppered by a “flurry of profanity,” from the supervisor, who threatened to “ground the [profanity] planes,” and “shut down the whole [profanity] squad … if this nonsense did not stop.”At the meeting, the supervisor also admitted to sending the text alluding to the two being in a sexual relationship, but argued that the text was a joke.

The EEOC found that the comments made by the supervisor constituted a per se violation of Title VII because such comments were likely to have a chilling effect and deter employees from exercising their EEO rights.The EEOC added that agencies have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices in all aspects of an agency’s personnel matters.The EEOC also pointed out that its supervisors must promote and enforce a vigorous equal employment opportunity program.

This case is a reminder that supervisors can easily find themselves in violation of rules against per se reprisal when they make direct verbal comments—even if benign sounding—about subordinates’ EEO activities.Particularly when the comments are negative, or can be construed as trying to dissuade further pursuing EEO activity, the EEOC has been finding per se reprisal with more frequency in recent years.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.