Farting and Discrimination in the Federal Workplace

By on February 27, 2013 in Court Cases, Current Events with 58 Comments

By now, what the Washington Post has called “The Ballad of the Farting Federal Employee” has become something of legend. It’s the tale of a Social Security Administration employee who was reprimanded for his “continuous releasing of bodily gas and the terrible smell that comes with the gas,” as the reprimanding official put it.

In reprimanding this employee, who suffered from an unspecified medical condition, the agency cited 60 instances of flatulence between Sep. 7 and Nov. 29 of last year. It claimed this “[d]isrespectful and unprofessional behavior is unacceptable and detracts from the agency’s ability to maintain a safe, pleasant and productive work environment.” Despite making a stink about this employee’s conduct, the agency later rescinded the reprimand after senior officials learned about it. Citing privacy concerns, the agency did not elaborate on the reasons for the rescission.

Although there is an aspect to this story that is about as amusing as someone sitting on a whoopee cushion, there is a serious part to it too. It is unlikely that this Social Security Administration worker was not the first federal employee to pass gas in the office. He was also likely not the first to cause trouble in the office by passing gas.

The human body is a strange organism with some unpalatable functions that can make co-workers uncomfortable. It is not unheard of for federal employees to complain about co-workers’ or supervisors’ belching or passing gas and claim that these bodily functions contribute to a hostile work environment in violation of Title VII of the Civil Rights Act. The employee in Cheryl Horner v. U.S. Postal Service (2007), for example, claimed the alleged sexual harassment to which she was subjected was evidenced, in part, by the “farting games” her supervisor and a male co-worker engaged in over the intercom. Ultimately, the Equal Employment Opportunity Commission did not find that this particular employee was subjected to sexual harassment, but the case is illustrative of the fact that bodily functions or even “bathroom humor” can become a serious issue in the federal workplace.

Agencies must be careful in how they handle employees who pass gas in the office. If an agency punishes a federal employee of a certain race, color, national origin, sex, or age for passing gas and not others of a different race, color, national origin, sex, or age, it could commit unlawful discrimination in violation of Title VII or the Age Discrimination in Employment Act.

The case Roger Stanford v. Dep’t of the Army (2004) involved a white male employee who filed an Equal Employment Opportunity complaint alleging race and sex discrimination against his agency. The agency had reprimanded him for violating “office decorum” by saying “fart” in a private conversation within earshot of an African American female co-worker, who had previously complained about his passing gas. This co-worker made a “Fard log” [sic] listing each time she heard the employee pass gas and distributed it around the office for the amusement of others. The employee became known as “Fart Man” and “Stinky.”As the employee noted in his complaint, just one day after receiving his reprimand a black employee passed gas in the presence of several co-workers and was not written up or reprimanded. Further, women in the office uttered the term “brain fart” without being reprimanded.

Initially, the EEOC’s Office of Federal Operations (“OFO”), which is the appeals division, found the employee’s harassment claim was “severe or pervasive enough to state a claim of harassment.” It reversed the agency’s initial decision dismissing the complaint for failure to state a claim and remanded the case to the agency for investigation. Subsequently, an EEOC administrative judge found the employee failed to prove he was subjected to discriminatory harassment. In particular, the judge found the employee failed to show that the co-worker’s actions were motivated by sex or race or that the agency was negligent in response to his complaints. In Roger Stanford v. Dep’t of the Army (2007), the EEOC’s OFO affirmed the judge’s findings on appeal.

Disability discrimination is another important factor that agencies must be cognizant of when addressing a federal employee’s farting or other bodily functions. If passing gas is the result of a disability, the agency could violate the Rehabilitation Act by reprimanding him or her for such conduct. The employee in John Angle v. Dep’t of Agriculture (2004) claimed the agency discriminated against him on the basis of disability, namely “excessive flatulence.” The employee claimed he suffered from a celiatic disease, but it was not diagnosed by a physician. A doctor had stated that the employee’s flatulence was “medically trivial and is physically normal.”

An EEOC administrative judge found the employee was not subjected to unlawful discrimination, noting that he failed to show he suffered from a qualifying disability. The EEOC affirmed the administrative judge’s decision, adding that “there is no evidence to conclude that any of the agency alleged actions against complainant were done due to his alleged disability of excessive flatulence.”

While this particular employee failed to meet the burden of proof, showing he had a disability recognized under the Rehabilitation Act, it is easily conceivable that another employee may be able to meet the burden. Subsequent to this case, amendments to the statute have lowered the standard for showing the existence of a qualifying disability. If an employee is able to produce documentation of a diagnosed medical condition that causes excessive flatulence that is not “medically trivial,” but is the symptom of a more serious disorder, such as Irritable Bowel Syndrome, an agency will be open to a more serious claim of disability discrimination. In other words, it could be considered disability discrimination to reprimand or harass an employee with asthma for coughing. It would be similarly questionable to reprimand an employee with a medical condition that causes flatulence for farting.

Federal employees who believe they have been subjected to discrimination on the basis of race, sex, or disability should immediately contact a federal employment law attorney.

© 2016 Mathew B. Tully, Esq.. All rights reserved. This article may not be reproduced without express written consent from Mathew B. Tully, Esq..


About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel and can be reached at mtully@fedattorney.com. To schedule a meeting with one of the firm’s federal employment law attorneys call 202-787-1900. The information in this column is not intended as legal advice.

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  1. KL says:

    My husband is retired, and he has flatulence. This is due to his operation to reduce his intake of food, since he used to be obese. So there are legitimate medical reasons for not being able to control flatulence.

  2. Tammany1 says:

    This nonsense all comes down to people believing the Constitution provides them with a right to work.  There is no such right except as liberal thought and politicians have enabled this thinking.  There are many jobs this employee could be employed at where he would not disturb his co-workers.  But no, he has a right to work at any job he wants.  This is like thinking everyone has a right to work in an office or as a mathematician.

    • admi66 says:

      wow, this is a horrible statement. You are taking someone’s livelihood away because they are farting, wtf. It isn’t the right to work, its basically that he is qualified(presumably, if he isn’t that is a whole another discussion). He is not actively harassing his coworkers. It is like saying, you are harassed because someone is too ugly and can’t control it.

  3. Williamt Sanders says:

    Farting 60 times between September 9 and November 29 (about 79 days) averages out to way less than one fart a day. Let he/she who is without sin, cast the first stone

  4. Smithmj says:

    This article is talking about coworkers who use gas-passing as a passive-agressive weapon in the office.  I’ve experience this over the years, especially while working for male lawyers.

  5. Diana_boonana says:

    I think some of you are missing the point.  If one has a “gas problem” they should do something about it, as in taking Bean-o, or consulting their physician.   No one faults them for having the situation, but for thoughtlessly allowing it to continue, which in my opinion is the same thing as “relieving oneself” in a co-workers’ presence. 

  6. Shane Benedetto says:

    So the “bottom” line is, even if you have an employee in the office that thinks its funny to  “continuous release  bodily gas” there’s not much we can do, other then walk out. 

  7. ACSolomon says:

    Just curious, but what happens if the employee with flatulence works in the same area with an employee who is physically affected by “scents.” What happens if there is a “Scent-Safe” policy in effect?

  8. Ret_fedonvacation says:

    We have an employee whose government, blue colored work station chair, is almost black now because the seat of his pants is so dirty!  This is an office where folks have to change and share work stations/desks on occasion.   How would you like to have to sit in a chair that the foam rubber & chair material has rotted out and the plastic arm rests are now deteriorating from the sweat and bodily chemicals this employee secrets into his chair and desk every work day!  His keyboard in almost unrecognizable and the carpet around his area has taken on his filthy traits.  His home is said to me a mess inside,  as is his POV.  He is intelligent, well spoken and likable, but they need to give these types of employees their own TENT or OUTHOUSE to work out of and not obligate the rest of the office to put up with their crap.

  9. Ret_fedonvacation says:

    I think they should be required to wear special under garments that are designed to hold in their body waste and not have it discharged in the work place.   Perhaps the agency should accommodate them and not throw them into general population!

  10. Tuffy1y says:

    During my 40 years as a Federal employee, this happened twice.  The frst time my supervisor asked me to come in as a witness and he told the employee that complaints had been made to him and asked the employee if he had a medical condition that was causing this and suggested that he go see a physician.  The passing of gas stopped.  Sometimes, it’s just laziness.

    The second person who passed gas in the office was a woman who would sit at her computer, pass gas and then hey, hey, hey about it and  put her hand over her mouth.  She thought it was funny, but the rest of us, including the males, thought she didn’t have much class.   I’ve often wondered if she ever got a talking to.

  11. Anastasio Groynhandler says:

    Are we supposed to conclude that farting is a form of free speech?

  12. GuestToo! says:

    Why don’t we send home this “gasey” fed so he can sit on his lazy butt and collect disability. That’s what he wants, right? I’ve seen this game over and over. People use alleged “illnesses” to abuse the system and become “office misfits”. Now he gets to sue and probably retire with a big fat check. Sad if you ask me…for the people who have to put up with people like this fed. I saw a picture of him on an online article and it is very clear that he needs to change his diet and loose that weight. Also sad that the judicial/appeals system is upholding this nonsense, yet dismisses people who have real claims. The cases listed in this article show that fact. I’ve been through the “fart” thing. The guys would fart around you cuz they wanted you to go away. This nonsense needs to be dealt with already.