How to Avoid a Sexual Harassment Claim

Nobody wants to spend time with their agency’s legal staff to deal with a mess that could have been avoided (see “How to Stay Out of Your Lawyer’s Office”). One of those messes is being involved in a sexual harassment claim.

So, what do you do? You start by acknowledging that as an executive, you set the tone for your workplace. You treat each member of your staff with respect and treat them fairly and equally.

Not only do you not engage in unwelcome behaviors, you understand that… (for more, click here).

What other ” straightforward suggestions for the workplace” would you have to help your fellow employees and agency leadership prevent sexual harassment?

Google Memo Completely Misses How Implicit Biases Harm Women

Workplace biases are back in the national conversation, thanks to the recent memo by a Google employee. The memo’s author challenges the company’s diversity policies, arguing that psychological differences between men and women explain why fewer women work in tech.

He also minimizes the effect that unconscious biases have on women in the workplace. Even though most of us believe that we value others equally and don’t discriminate, research shows that our unconscious beliefs show up in our actions. (For more, click here.)

How have you seen the concept of implicit bias influence your workplace? Which of the examples cited most impacted your understanding of the way it can play out in your organization?

Women Still Underrepresented in the Highest-Paid Federal Jobs

A significant number of women have climbed the career ladder to better paying federal jobs over the last decade, but men still occupy a disproportionate number of the most lucrative executive branch positions, according to data from the Office of Personnel Management.

As of March 2017, men made up 53.7 percent of the federal workforce, but held 66.3 percent of the jobs paying $150,000 or more, an analysis by Government Executive found. There was a positive correlation between income level and male representation in every Cabinet-level agency.

The analysis used data from OPM’s FedScope portal and broke down the more than 1.7 million white-collar employees working at Cabinet agencies by department, income and gender. (For more, click here.)

Which of the data analyses conducted by the authors do you find most interesting, or most troubling? Do you think they represent the gender distribution in leadership at your agency?

Worst to First

In this article, describes how the U.S. Postal Service cleaned up its massive backlog of employee discrimination complaints. Using the methods it used to fix its own process, the USPS now provides that service to more than two dozen other agencies.


The 1980s and 1990s were a tough time for the U.S. Postal Service.

A series of workplace-related homicides involving postal workers embroiled the largest civilian agency in federal government and its more than 600,000 employees, sinking morale and even coining the slang expression “going postal” to describe someone who becomes uncontrollably angry in the workplace.

As public scrutiny increased, it surfaced that… [to continue reading, click here…]

Where you surprised at any of the method described in this article? Which ones do you think could help other agencies more quickly process their own discrimination complaints? What one thing most stood out to you regarding the way USPS improved the morale of their workforce?

Job Restructuring as Reasonable Accommodation

An often perplexing and frustrating area of the law for federal managers is disability discrimination and reasonable accommodations. As the law has evolved, so too has the federal workforce and employee medical impairments. More often today, employees–whether veterans suffering from the non-obvious mental impairments associated with post-traumatic stress disorder or aging federal workers plagued with a whole host of physiological maladies–cannot simply be accommodated with wheelchair ramps, ergonomic desk chairs, or adjusted schedules.

With the prevalence of physical and mental impairments in the workplace, it is easy for a federal manager to unknowingly discriminate against a disabled employee by failing to provide a reasonable accommodation. To read this article, click here.

In part 2 of his series on job restructuring, the author explores how job restructuring could affect other employees. To read this follow-up article, click here.

In what ways have you seen your agency meet their reasonable accommodation responsibilities?

Have you seen co-workers asked to shoulder heavier workloads to accommodate a disabled employee? Has such action affected morale or accomplishment of the agency mission? How has management countered any unintended negative effects?

Unconscious Bias and Its Impact on the Workplace

In article, Review of Unconscious Bias, the author states, that “bias is a prejudice in favor of or against one thing, person, or group compared with another usually in a way that’s considered to be unfair. Biases may be held by an individual, group, or institution and can have negative or positive consequences. The types of biases are conscious bias (also known as explicit bias) and unconscious bias (also known as implicit bias). Biases are not limited to ethnicity and race and may exist toward or from any social group.” For more, click here.

How have you seen this play out in your workplace? Has such bias affected the accomplishment of your unit or agency mission? How has it affected you directly?

Why Employees File EEO Complaints and Grievances

In this 3-part series, Steve Oppermann of tackles the hot button topic of EEO complaints and grievances: why employees file them and what managers and supervisors can do to avoid them.

Why Do Employees File EEO Complaints and Grievances? Part 1

Why Do Employees File EEO Complaints and Grievances? Advice to Managers and Supervisors

Considering the Filing of an EEO Complaint or Grievance? (Think Before You Act)

What do you think? What of Steve’s conclusions do you agree with? Disagree with? What would you add to Steve’s ideas?

Reasonable Accommodation: A Negotiation

In its guidance, the Equal Employment Opportunity Commission (EEOC) makes it clear that an employee’s request for reasonable accommodation for a disability can be made in “plain English” and that such a request triggers “an informal, interactive process between the individual and the employer.”1 Two recent Board decisions highlight that the employee’s role in the process does not end with the request, while a 2011 case illustrates that an agency must not disregard such requests. Combined, these cases demonstrate the importance of both sides taking part in discussions in good faith.2

In Miller v. Department of the Army, 121 M.S.P.R. 189 (2014), the employee’s position required that she record and transcribe hearings. She requested that the hearings be conducted in a location near her office because of difficulties with her knee, and the agency granted this request for more than three years. However, the agency’s situation changed, and it determined that the location for hearings would have to be moved. The agency offered the employee several options in an attempt to accommodate her, but she found none of them acceptable and insisted that the agency must provide the same accommodation that she had received in the past.

Ultimately, the agency performed a fitness for duty exam and then removed the employee for medical inability to perform her duties. The employee appealed the removal to MSPB. The Board held that the employee failed to establish that the agency violated its duty of reasonable accommodation because she was not entitled to the accommodation of her choice and because the agency acted within its discretion to offer her reasonable and effective accommodations, all of which she declined. The Board also held that, in light of the employee’s repeated refusals to accept any of the agency’s numerous offers of reasonable accommodation, the penalty of removal was reasonable under the circumstances.

Similarly, in Brown v. Department of the Interior, 121 M.S.P.R. 205 (2014), the employee was removed for medical inability to perform her duties. On appeal, the Board found that the employee repeatedly thwarted the agency’s many attempts to reasonably accommodate her medical restrictions. The agency had offered to reassign the employee to one of two lower-graded positions, but the employee had “adamantly emphasized” that she would only agree to be reassigned to jobs where she would retain her law enforcement status at an equivalent grade and pay level, for which the medical evidence clearly showed she could not qualify in light of her medical restrictions.

On appeal, the Board noted that reasonable accommodation discussions are meant to be a flexible and interactive process and that courts have required the parties to act in good faith in such discussions. The Board found that the record showed that the employee’s continual rejection of the agency’s offers to provide her with lower-graded positions was “obstructive, not interactive.” The Board held that, in light of the employee’s repeated refusals to accept any of the agency’s many offers to accommodate her, removal was reasonable.

In Miller and Brown, the actions of the agencies were sustained because the agencies had acted in good faith to engage their employees in the interactive process. However, when agencies do not do their part to seek solutions, the outcome of an appeal can be quite different.

For example, in Sanchez v. Department of Energy, 117 M.S.P.R. 155 (2011), the employee worked in a position covered by the “Human Reliability Program” (HRP). The HRP imposed strict physical and mental requirements because of the nature of the work (in this case the shipment of nuclear materials). The employee lost his HRP certification because of a “psychological or physical disorder” and the agency indefinitely suspended the employee for his failure to meet the HRP condition of employment. The employee then requested a reassignment to a non-HRP position. The agency did not offer the employee such a position, even though it later conceded that at the relevant time it may have had vacant non-HRP positions similar to the employee’s position of record. On appeal, the Board held that the employee was entitled to be considered for reasonable accommodation and that the agency had failed to engage in the interactive process. The case was remanded to the administrative judge for a determination as to whether the employee would have been accommodated if not for the agency’s failure to engage in the interactive process.

The lesson: reasonable accommodation discussions are not unilateral. Both parties have the obligation to work together to find a solution, and a party that refuses to do so in good faith can be held accountable.

  1. EEOC, EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act,
  2. “Good faith” may be a subjective criterion and ultimately a third party adjudicator—such as the Board or EEOC—may decide if actions were taken in good faith.

Reprinted from Issues of Merit, a publication of the Office of Policy and Evaluation, U.S. Merit Systems Protection Board

Why the Federal Government Can’t Recruit and Retain Hispanic Americans

This article, written by John Bersentes and Mark Havard, is reprinted from the Journal of Corporate Recruiting Leadership (

The U.S. is subject to powerful cultural forces rooted in demographics and ethnicity. Nowhere is the influence of these cultural crosswinds more evident today than in our growing Hispanic population and its increasing claim on a share of the American Dream. By the numbers, Latinos are the dominant minority group in the nation, totaling more than 15 percent of the population, a proportion that continues to grow at an unprecedented rate. They make up just under 13% of the U.S. workforce nationwide, certainly a significant portion but still lagging their overall share in the American population.

But the participation of Hispanic-Americans in the federal workforce is a different story. According to the latest data (2008) from the U.S. Office of Personnel Management, Latinos make up barely 8% of the Federal workforce. In recent years, a number of high-visibility initiatives have been directed at the challenge of Hispanic participation, but the numbers continue to lag. Despite their seeming best efforts, Federal agencies have generally made little progress in recruiting and retaining Hispanic employees over the last decade.

At TMP Government, this situation has puzzled us as well. In the March Journal of Corporate Recruiting Leadership (ERE’s print publication geared at recruiting leaders), we lay out a seven-step suggested solution to the problem.

For now, though, we’ll kick it off online by suggesting a few possible causes and symptoms of the government’s apparent failure to make headway on this challenge.

Statistics Tell the Tale

Again, Hispanic-Americans are the largest and fastest-growing minority segment in the U.S. By all predictions, this trend will continue at least through the first half of this century. As of its last estimate (2007), the U.S. Census Bureau pegs the median age of U.S. Hispanics at 27.7 years, compared to 36.8 years for the rest of the population. And almost 34% of U.S. Hispanics are younger than 18; for the population as a whole, only 25% of Americans are under 18. By 2050, again according to the Census Bureau, Hispanic-Americans will make up nearly 25% of the total population.

These predictions promise significant implications for our culture and economy — not to mention the U.S. labor market. Overall employment numbers in the U.S. are already showing the impact of this accelerating demographic shift. Since 1980, the American labor force has grown by more than 41%. Fully a third of this increase is accounted for by Hispanics.

Human capital professionals in the corporate world appear to dealing effectively with this groundswell of Hispanics in the general workforce, and are diligently preparing for the new HR imperatives it will bring in its wake. But this is not the case with government human capital leaders. We have one question for them:

Why is the Federal government’s track record of recruiting and developing Hispanic employees so bad?

Across the board, the feds have managed to achieve only 7.8% participation by Hispanics in the government workforce. And the news gets worse: Hispanic men and women today represent only 3.6% of individuals at federal senior pay levels — a proportion that drops to 2.5% when you take political appointees out of the calculation.

These numbers are puzzling, to say the least. The government has traditionally been the standard-bearer for minority participation in the workforce. Consider African-Americans: they make up 13% percent of the U.S. population and — according to the latest available count (2008) — more than 18% of the Federal workforce. Certainly we should credit most of this progress to vigorous initiatives by Federal agencies, beginning in the early 1970s, to recruit and retain talented African-Americans.

But when it comes to leveling the playing field for Hispanics in government, today’s recruitment initiatives appear to be yielding only marginal gains at best, and in some cases they are barely holding the line against attrition.

We’re prepared to suggest several factors that may be diminishing the government’s success in making recruitment gains among Hispanic-Americans. At the same time, we are identifying a number of technical and strategic measures that in our view can go a long way toward helping the government succeed in this mission. Moreover, these innovations have the potential to enrich other dimensions of Federal human capital management substantially — beyond recruitment and beyond the Hispanic-American segment.

What factors influence the government’s disappointing track record in recruiting and retaining Hispanics?

Here, in brief, are a handful of factors that may be contributing to the Feds’ apparent lack of success with the Hispanic-American segment.

Competitive Barriers From Industry

The corporate community has seemingly mastered the Hispanic recruitment challenge. Indeed it may hold the trump card here, both by reason of the resources it can devote to Hispanic engagement programs and the pay premiums it can offer to talented Latino candidates. The government simply can’t keep pace on either score. The Feds aren’t empowered to offer pay incentives based on minority status, and most agencies today don’t have the budgets or staff resources to build comprehensive recruiting/retention programs targeted at the Hispanic segment.

“Geo-Demographic” Barriers

Most federal entry-level positions tend to be in the national capital region. In the District of Columbia and the two adjacent states (Maryland and Virginia), the population of Hispanics is well below that of many other regions, especially in the Southwest and California. The “hire-able” population is simply not that deep in Washington, despite some clustering of Hispanic blue-collar workers in Washington and its near suburbs. Compounding this difficulty is a disconcerting “psychographic” factor suggested anecdotally by many recruiters: young, job-seeking Hispanics in general are less inclined to relocate, because it means leaving their extended families for new positions away from home. In the absence of family ties here, a move to the Washington area for a government job may be inherently less attractive for some Hispanic-Americans.

Lack of High-level Commitment and Resources Among Individual Agencies and Departments

Let’s face it: campaigns to improve Hispanic participation in the Federal workforce simply cannot draw on the same driving momentum in society as the widespread movement for civil rights and equal opportunity for African-Americans. From the 1960s on, in fact, the federal government was the primary institutional driver behind this movement, and a natural leader in the crusade to roll back hiring barriers impeding black Americans.

But when it comes to Hispanics and other underserved minorities, there’s neither the degree of enforced commitment nor even (so far as we can tell) a deeply felt personal commitment at high levels. Without the visible presence of management champions of the cause, there’s little incentive to build real momentum for Hispanic programs within agencies. By the same token, agency funds are rarely available to mount Hispanic programming on the same scale as earlier equal opportunity initiatives centering on African-Americans (except, perhaps, where Spanish language skills are a job requirement).

Misleading Emphasis on Recruiting for Spanish-speaking Positions and Bilingual Skills

Break down the government’s current roster of Hispanic employees and you will find a disconcerting reality: they tend to cluster in public interface positions that call for fluency in Spanish, as well as in low-paying service jobs, like maintenance and food service. In the first instance — although it’s anything but pleasant to contemplate — we’re suggesting that some agencies that need to recruit aggressively for bilingual positions may unconsciously put bilingual qualifications first when they evaluate any Hispanic-American candidate. The result: they may unconsciously filter non-Spanish speaking Hispanics out of consideration for ‘mainstream’ positions that don’t require Spanish-language skills.

We realize that this element is potentially controversial, and are not suggesting that conscious prejudice plays any part in this cycle (if it exists). But we are suggesting that maybe, just maybe, unconscious habits of mind among hiring officials could be channeling Hispanic candidates into the constituent interface track and not considering them carefully enough for mainstream positions if they don’t — or even if they do — fit the bilingual mold.

Scarcity of Agency Resources to Take Comprehensive, Top-down Action

It’s the rare individual agency or department that elevates the full cycle of Hispanic recruitment, retention, and development to a top-level institutional initiative. We have encountered few agencies that have set out to elicit engaged participation from senior leadership, the agency management team, hiring managers, and their operating components, and all units in the agency HR infrastructure. An agency that adopts this kind of vertically integrated organizational strategy would have an advantage ion recruiting all diversity classes, not just Hispanic-Americans.

There’s another flavor of integration that might also help at the agency level: effectively integrating its recruitment outreach thematically by underscoring:

  • the full employment life-cycle at the agency, and
  • the agency’s commitment to productive inclusion of all diversity classes in the workplace community.

Agencies that approach the Hispanic/diversity recruitment challenge from all of these integrative perspectives, it seems to us, stand a much better chance of success than agencies that revert to standard “checklist” practices of minority hiring.

Lack of Concrete, Government-wide Initiatives for Meeting This Challenge

Up until now, agencies have tended to go it alone rather than teaming with other agencies in the Hispanic recruitment mission. While surely this is due to budgetary constraints (as well as something of a competitive dimension, owing to the perceived scarcity of Hispanic candidates), it’s a less-than-effective way to tackle the challenge. In the typical agency HR infrastructure, recruiting resources are limited and/or distributed across multiple initiatives. The result: Hispanic recruitment and retention (despite the current hue-and-cry) may not attract the urgent managerial, budgetary, and strategic attention they deserve. And while a given agency may have its share of individual champions for the Hispanic cause, it can find itself without the resources and allies to gain real purchase on the initiative.

The alternative is collective effort across agency boundaries. If insularity and inter-agency competitiveness can be set aside and budget barriers cleared, this approach could create empowering economies of scale, not to mention bringing individual, agency-based champions together on the same team, where their collective talent, energy, and enthusiasm can be harnessed and channeled.

Of course, government-wide taskforces to analyze the challenge are a critical (and-all-too familiar) first step, but up to now they haven’t demonstrated the power to implement collective solutions. Luckily, today’s Office of Personnel Management is a leading champion of collective government-wide common action among agencies. OPM is developing similar programs to coordinate recruiting pools of special talent, like technology and finance, for multiple agencies to draw on for new employees. A similar initiative for Hispanic recruiting could go far to address the current challenge.

We realize that many of the influential factors we suggest above will likely stir discussion and controversy. It’s important to regard them as topics for consideration, not hard formulas. We want to inspire more dialogue on this topic, and ultimately spur progress on this very serious challenge.  [Note: HR Happenings will reprint the March 2010 Journal article that includes the authors’ proposed solutions for the issues discussed in this article.]

Here’s an update on Hispanic representation in the federal government:
Federal Government’s Hispanic Population Stays Virtually Stagnant

What do you think? Do the statistics support a conclusion of Hispanic underrepresentation at your agency? From your experience as a federal HR practitioner, which of the factors discussed in this article play into underrepresentation at your agency? Government-wide? What other factors should be considered? What would you propose as a possible solution(s)?

Fair and Equitable Treatment: Progress Made and Challenges Remaining

In a newly released report, the MSPB examines the federal government’s progress toward achieving a representative workforce and treating all employees fairly. The assessment is based on an analysis of statistical data and federal employee perceptions of their experiences and treatment in the workplace.

The MSPB found that  progress has been made. First, the federal workforce has become more diverse, in keeping with the federal government’s commitment to recruit and retain a workforce from all segments of American society. Second, an increasing percentage of federal employees perceive that they are treated fairly, and a decreasing percentage believe that they have experienced discrimination on factors such as ethnicity/race, gender, and age.

Nevertheless, challenges remain. For example, the percentage of minorities at higher levels of pay and responsibility (such as General Schedule grades GS-14 and GS-15 and the Senior Executive Service) remains below their rate of employment at lower levels. In addition, may employees believe that personnel decisions are often based on factors other than merit, such as favoritism.

As Chairman Grundmann stated, “Fairness–and an engaged, high-performing workforce–require more than the absence of discrimination and prohibited personnel practices. It is essential for agencies to ensure that their HR policies and practices do not create barriers to merit-based selection, advancement, recognition, and retention. We also remind agencies that safeguards and employee protections are a critical component of decentralized, flexible HR systems.”

MSPB research also confirmed the importance of employee actions to achieving a representative, high-performing workforce. Data  from an MSPB survey on career advancement shows that applicants and employees can do much to improve their prospects for success on the job and for promotion. Federal employees reported that challenging work assignments, a good working relationship with a supportive supervisor, and formal education and on-the-job development could pay substantial dividends. Accordingly, the report includes recommendations for federal employees who seem advancement within the federal service.

What do you think? What does your agency do (or what additional things do you think they should do) to ensure that all employees are treated fairly in the federal workplace?