OPM issues guidelines for discrimination and retaliation cases

The Office of Personnel Management has published new best practices for handling disciplinary actions prompted by discriminatory behavior or retaliation against whistleblowers.

The advice, compiled in a Sept. 30 report, is based on interviews with officials at agencies that held employees accountable in whistleblower and anti-discrimination cases in 2006, and received top leadership ratings on the 2006 Federal Human Capital Survey. OPM did not name the agencies consulted.

"The United States and its citizens are best served when the federal workplace is free of discrimination and retaliation," the report stated. "In order to maintain a productive workforce that is fully engaged in the many important missions of the government, the rights of employees, former employees and applicants for federal employment must be steadfastly protected and those who violate these rights must be held accountable."

The guidance was required by the 2002 Notification and Federal Employee Anti-Discrimination and Retaliation Act, which regulates how agencies respond to and report bias and whistleblower cases. Agencies have until the end of October to explain to congressional leaders, the Equal Employment Opportunity Commission, the U.S. attorney general and the OPM director how they plan to implement the best practices.

The review found a correlation between disciplinary action against employees found to have engaged in discrimination or whistleblower retaliation and achieving high scores on certain human capital survey questions about agency leadership. Agencies that punished employees ranked well when survey respondents were asked if they could "disclose a suspected violation of any law, rule or regulation without fear of reprisal," and respondents gave all but one of the disciplining agencies above-average scores when asked whether "prohibited personnel practices…are not tolerated."

OPM recommended that agency leaders and managers take more responsibility for enforcing whistleblower and anti-discrimination rules and encourage relationships among human resources, equal opportunity and legal offices to guarantee consistent actions and accountability.

But the report also suggested that officials consider alternatives to immediate suspension or termination if a long-time employee has a clean record. In such circumstances, the report said, it might be appropriate to allow the employee to undergo some kind of treatment or training after an incident, with the understanding that a future violation would result in an automatic penalty that could not be appealed.

OPM encouraged agencies to train supervisors and managers on a range of communications issues so they can spot impending problems and defuse them before they rise to the level of complaints.

"Sometimes referred to as 'soft' skills, interpersonal communication and associated proficiencies are essential components of strong, effective supervision and management," the report stated.