Discrimination Can Be Fair

Can discrmination by a supervisor in the federal workplace be legal? Does a supervisor have to treat all employees equally? Not always.

Federal managers and supervisors sometimes back away from requiring employees to follow work requirements when they are unsure of actions they can (or cannot) take in the federal workplace. To become a more effective federal supervisor, check out "Essential Supervisory Skills" –a two-day seminar for federal managers and supervisors — to be conducted in Washington in September by attorneys with combined experience of more than 50 years in this field.

When we hear the word “discrimination,” most of us have an automatic adverse reaction.

One of the hallmarks of our country is the acceptance both legally and morally that all people are of equal worth in our society. We have laws that prohibit discrimination in the workplace based on race, sex, disability, national origin, color, and age. We are all familiar with the federal discrimination complaint process and the protections (and problems) it provides for federal workers. But when you think hard about it, you come to realize that there is a distinction between legal and illegal discrimination. In fact, one could go so far as to say that in the world of federal employment, supervisors are being paid to discriminate. Take this example:

John supervises three employees. All are hard workers and good performers except for Mary. She seems to push every rule to the limit and just barely rates an “Acceptable” rating each year. Recently, she has taken to stretching her 30-minute lunch break to at least 45 minutes, and at least once a week, she manages to be gone a whole hour. Her two co-workers never take more than 30 minutes and occasionally even eat their lunch at their desk. John decides he wants to do something about Mary’s abuse of the lunch break. So he tells her that starting immediately she has to sign in and out in a book in his office whenever she goes to lunch.

Her reaction is predictable:

What!?! And no one else has to sign in and out? That’s discrimination! You’re discriminating against me and that’s illegal!!

Poor Mary. Not only is she a marginal worker, but she also doesn’t understand discrimination law. John is perfectly within his rights to require Mary to sign in and out, but not the other employees, because he has observed Mary breaking the 30-minute lunch rule. Yes, he may well be discriminating against her by requiring her to do something he does not require of the other employees, but his discrimination is perfectly legal.

That’s because his treatment of Mary is based on her conduct and performance – on merit – and not motivated by her sex, race, age, or any of the other “protected” categories spelled out in federal law. Ours is a merit system and as long as John’s motivation is based on merit, his actions are legal and some would say even required because of John’s responsibilities as a supervisor to maintain an efficient productive workforce.

Mary is violating the rules; every supervisor is entitled to have rules obeyed, so his action in having her sign out and back in for lunch are appropriate.

Well, even if it’s not technically “discrimination,” it’s unequal treatment. Federal employees are entitled to be treated equally, aren’t they?

Interestingly, there’s no generalized entitlement to equal treatment in the federal workplace. Certainly there are requirements for equality of opportunity when it comes to hiring and promotion, but there is no promise that every employee will be treated identically to every other employee. In fact, the Civil Service reform Act itself mandates that employees be treated differently: employees are to be rewarded, promoted, and terminated based on performance ratings (5 U.S.C. 4302). So John can fire one employee, promote another, and reward a third – all unequal treatment and all required by law, just so long as his decisions are based on merit.

Equal treatment? No. Fair treatment? Yes. Discrimination? Perfectly legal.

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