During the course of an employee relations seminar I raise a case where two workers were found sleeping on the job. One (call him Abel) responds with honesty and contrition. The other (call him Cain) obnoxiously denies he was sleeping, insults the supervisor who found them, has lower performance ratings than his coworker, and has a past disciplinary record. After running through all of the relevant Douglas factors I then ask the team working on that case study, “These two were caught in the same place, at the same time, doing the same thing – do you want to give them the same penalty?”
As often as not, the response is “Yes”. It continues to astonish me. They look at the relevant Douglas factors on the screen behind me and have just experienced Cain’s loathsome attitude, yet the myth of consistency trumps their common sense. Some of the blame for this lack of discretion/discernment lies with my own profession, human resource management.
Addressing the inner child
I was the third of six children growing up. My parents, being reasonable folks, strived for consistency in discipline. For 4 of my siblings, just getting caught was all the discipline they ever required. They seldom did the wrong thing wittingly, and the chances of them being “repeat offenders” after being caught were slim to nil. This, by the way, is true for most Federal employees who are found to have done something wrong in the workplace. As for me, my parents had reasons for suspecting my sincerity as well as my willingness to cease and desist, so discipline was often greater.
As I fast-forward 20 years from my 10th birthday, I recall our agency’s first impressions of the Douglas factors (fashioned by the US Merit Systems Protection Board in 1980). It was evident that consistency, while important, could be trumped by other factors. As with my parents, a past disciplinary record, supervisory confidence, and/or job performance (among several other factors) might justify disciplinary inconsistencies. These could be easily explained or proven by a “preponderance of the evidence” as the law requires.
In Douglas the MSPB wrote the following when introducing the 12 factors that have become ubiquitous over the years:
In considering whether the agency’s judgment was reasonably exercised, it must be borne in mind that the relevant factors are not to be evaluated mechanistically by any preordained formula. For example, the principle of “like penalties for like offenses” does not require mathematical rigidity or perfect consistency regardless of variations in circumstances or changes in prevailing regulations, standards, or mores. This consideration is redolent of equal protection concepts, also reflected in the merit system principle calling for “fair and equitable treatment” of employees and applicants in all aspects of personnel management. As such, this principle must be applied with practical realism, eschewing insistence upon rigid formalism so long as the substance of equity in relation to genuinely similar cases is preserved.
The words “mechanistically”, “mathematical”, and “rigid” jump out of this quote as I read it for the umpteenth time. They are all inserted to remind HR specialists, EEO specialists, union officials, managers, labor arbitrators, and administrative judges that discipline should (as my parents understood) be tailored to the individual and his/her particular (and occasionally peculiar) circumstances. Thus, judges (especially those from the EEOC) often speak to the idea of “similarly situated” employees. Consistency should only apply when the employees’ records and offenses closely resemble one another.
Kids and grown-ups
What too many managers and HR specialists have forgotten is that, discipline has an objective – correct the problem and/or change the behavior. It is not a paperwork or pencil-whipping exercise and should not reflect a bureaucratic response to issues of personal responsibility.
Discipline in the Federal sector is most commonly used when an adult is behaving in ways children are taught not to. When I called in to report myself sick, when in fact I was packed and ready to go fishing, the offense was no different than when I lied to my mother or teacher back in elementary school… except that I was in my 20s.
In my case, a mere statement from my supervisor expressing his doubt as to my sincerity was enough. I was chastened, embarrassed, and unwilling to repeat the offense ever again. Years ago I learned a Spanish expression, ¡Que sinverguenza! It means “How shameless!” That response would apply to someone in circumstances like mine, who continued to lie about being sick – even after being confronted. Moreover, if that person had already been caught lying about their arrival at work, I’m even more concerned as to what level of discipline will accomplish the objective – change.
The three deadly sins
So how have we arrived at a Federal culture that defies logic by disciplining people with the same penalty, even when their circumstances/records are quite different? I believe the causes vary from agency to agency; however, here are the 3 that come to mind immediately:
- Fear of alienating an employee who is senior, or connected, or nasty, or a former coworker;
- Fear of grievances or EEO complaints that might tarnish a manager’s image;
- Fear as to whether senior leaders and/or judges will understand common sense; and
- Fear of confrontation and risk, in general.
- It’s easy to design tables of penalties – they don’t focus on the individual;
- It’s easy to look through a history or spreadsheet that shows past actions… without concern as to whether they succeeded or not;
- It’s easy to let HR specialists who have never supervised a day, tell actual leaders what to do; and
- It’s easy to avoid grievances and complaints by responding, “We do the same for everyone.”
- Every Employee and Labor Relations Specialist should read McDonnell Douglas v Green and Curtis Douglas et.al. v Veterans Administration et.al. – word for word;
- Someone in your agency who has tried a discipline case and won it (the vast majority of cases are won by the agency) should explain how the system really works;
- Those who decide on disciplinary penalties should be taught the importance of assessing an employee’s integrity and likelihood to change their ways; and
- Mediating a sensible and binding written agreement regarding future behavior may prove more valuable than disciplinary memos, lectures, and/or suspensions.
It’s time we in/with government acknowledge that treating people as individuals is not illegal, inappropriate or wrong. Better performers should get higher ratings. Longer serving employees get more annual leave. Better qualified people should get chosen for promotion. …and employees who say, “It’s my sick leave and I can use it any way I want.” should get their posteriors kicked harder than those who are ashamed and embarrassed at having been outed.
This does not mean that cliques, cronyism, incompetent leadership, and bias should be tolerated or explained away. They rot organizations from within. Rather, it’s time for a new generation of supervisors, managers, and HR specialists to look at two employees caught doing the same thing at the same time in the same place and know that punishing them with the same sanction may be the wrong course of action. My parents and my siblings would, no doubt, understand this.