Two Wrongs Do Not Make a Right: Understanding Retaliation for Filing Discrimination Complaints in the U.S. Federal Government

Abstract

One of the primary barriers to equal treatment in the workplace is how victims are treated following a complaint of discrimination. If complaints are not taken seriously or if employees experience retaliation, this discourages others from objecting to discriminatory treatment. This research focuses on retaliation claims and organizational characteristics associated with those claims, using data from U.S. federal government agencies. We evaluate whether leadership reporting structure, staff capacity to manage complaints, and manager representativeness are associated with the rate of retaliation incidents reported by employees. Agencies where the Equal Employment Opportunity (EEO) Director reports directly to the agency head have lower rates of retaliation claims. Conversely, agencies with more EEO staff, per employee, have higher rates of retaliation claims. Manager representativeness is not associated with retaliation claims. Importantly, increased discrimination complaints may not signify a “bad” agency. Instead, this could signify that employees are filing because they believe their claims will be addressed fairly.

Keywords

discrimination equal employment opportunity retaliation representation

Introduction

The Black Lives Matter, #MeToo, and the transgender movements in the United States have highlighted two important issues: The real and perceived disparities between how people are treated, and how complaints of discrimination are addressed. These movements all call for equal treatment and an end to discrimination. One key barrier to equal treatment in the workplace is how victims are treated by others following a complaint of discrimination. If their complaints are not taken seriously, or worse, if they experience retaliation for filing a complaint, then this discourages others from objecting to discriminatory treatment. The use of retaliation as a threat to enforce silence in the face of discriminatory behavior is a key reason why, under U.S. law, employers are barred from retaliating against an individual for exercising their complaint rights. Within the U.S. federal government, approximately half of the discrimination complaints filed by federal employees between 2013 and 2016 alleged reprisal. While retaliation complaints are the most common type of discrimination alleged, these types of complaints are arguably the easiest to mitigate since they represent a secondary inappropriate behavior on the part of the agency.

We know that leadership does affect organizational culture (Khademian, 2002; Rainey, 2014) and has the potential to influence employee confidence in discrimination policies (Offermann & Malamut, 2002). We also know that when employees feel more confident in the complaint process, they are more likely to file complaints (Newman et al., 2003). However, no studies have examined the relationship between organizational elements, such as reporting structure or capacity, and incidents of reprisal. This study seeks to understand the organizational factors associated with retaliation rates, using data from U.S. federal government agencies. For example, does the structure of the agency’s Equal Employment Opportunity (EEO) office affect the rate of retaliation claims? How does the degree to which female and minority employees are represented by supervisors that share their demographics influence retaliation rates? Answering these questions would shed light on the black box of retaliation and provide practitioners with strategies designed to prevent retaliation from occurring (DeHart-Davis et al., 2018; Kulik, 2014). While discrimination and retaliation are often a personal experience, and filing a complaint is a personal choice grounded in law and ethics, the organizational context makes it more or less likely that individuals feel empowered to file such a claim.

The article begins by providing an overview of the legal requirements an individual must satisfy to assert a viable claim of retaliation. We then review the literature on how organizational design may affect whether employees file complaints alleging retaliation. Next we describe the data and methods used in our analysis and discuss our empirical findings and their implications. In summary, federal agencies whose EEO Directors report directly to their agency’s head have lower rates of reported retaliation. Conversely, higher agency EEO staff to employee ratios are associated with increased retaliation reports. In the basic model, increasing representativeness among women in supervisory positions is associated with increased retaliation reports. Importantly, there are two ways to look at an increase in complaints. Increased employment discrimination complaints may not signify a “bad” agency. Instead, this could signify that employees are filing secondary retaliation complaints because they have greater trust that their claims will be addressed.

Asserting a Claim for Employment Discrimination and Retaliation in the United States

Since the passage of the Civil Rights Act of 1964 and the Equal Employment Opportunity Act of 1972, employers in the United States have been responsible for removing discrimination from their workplaces. The purpose of these protections is to ensure that employees feel comfortable exercising their right to protest unfair treatment and to work in an environment free of discrimination. These anti-discrimination laws refer to retaliation as reprisal. Federal reprisal laws protect an individual against retaliation based on asserting their rights under employment discrimination laws. An employee can file a reprisal complaint at any time while a discrimination claim is being adjudicated by the agency—during pre-complaint counseling and alternative dispute resolution efforts, or during the formal investigation and hearing stage. Reprisal can take many forms, ranging from changes in workplace behaviors and social interactions to formal personnel decisions (Cortina & Magley, 2003; Svensson & Van Genugten, 2013). An employee is only required to provide one incident or example of mistreatment to present a viable claim, but if they have experienced harm in multiple forms, each complaint may include several incidents of reprisal.

Reprisal claims are not based upon the first, alleged, bad act. Instead, reprisal claims are based upon how the individual perceives the organization treated them after they made their original complaint or participated in another person’s complaint. Even if an employee’s initial claim of discrimination is found to be without merit, they can still file a retaliation claim and that claim may be upheld. Given this, reprisal claims are the most preventable type of employment discrimination.

To claim retaliation under U.S. federal employment discrimination laws, an individual must demonstrate that: (a) they engaged in protected activity (in this case, involvement in a discrimination claim); (b) the employer took an adverse action against them for engaging in that protected activity; (c) the adverse action was material; and (d) there is a causal connection between the protected activity and the adverse action (Barnard et al., 2017). Protected activity can take two forms. Either the individual claims that they “participat[ed] in the EEO process,” and/or they “reasonably oppos[ed] unlawful conduct” (Barnard et al., 2017, p. 2). This means that individuals are protected if they either personally file a complaint of discrimination or contribute to another individual’s complaint (e.g., testifying in an investigation). The U.S. Equal Employment Opportunity Commission (EEOC), the agency responsible for adjudicating employment discrimination claims, clarified that participation in internal investigations of discrimination, as well as formal complaints, is protected (U.S. Equal Employment Opportunity Commission [EEOC], 2016).

Assuming the claim accurately represents the facts, retaliation complaints represent a missed opportunity for the organization. At its core, a retaliation claim is a communication from employees to their employer that they have experienced a secondary procedural justice violation. While the underlying claim of discrimination may or not be valid, if an employee is not treated fairly by the organization following their complaint, then the employee has experienced harm twice over.

In addition to defining legal standards for filing discrimination and retaliation claims, U.S. federal law includes requirements specifically for the processing of discrimination claims brought by federal employees (29 CFR Part 1614). Under law, federal agencies serve as the first stage of review and adjudication for their employees’ discrimination complaints, including retaliation complaints. When a federal government employee believes they have experienced discrimination they are generally required to contact the agency’s internal EEO office within 45 days to file a formal complaint (Rubin & Alteri, 2019; 29 CFR Part 1614). While agencies may call the EEO office by various names, its core mission is to process and investigate discrimination claims, and issue a final judgment. This office typically operates independently from the broader personnel function to retain investigatory independence. If an employee chooses to file a formal complaint, the agency EEO office is obligated under federal law to conduct a formal investigation of the matter, and then issue a formal opinion and set of proposed recommendations. At any point during this process, if an employee believes she has experienced retaliation related to the initial claim, she can then file an additional complaint, claiming retaliation, which then must also be formally investigated.

Theoretical Overview

Retaliation in Employment Discrimination

Retaliation is a serious issue in the United States. Reprisal complaints are the most frequently cited type of discrimination in both the private sector and in all levels of government, and the percentage of reprisal complaints filed each year has doubled since 1998 (EEOC, 2016). In the federal government, reprisal complaints comprise roughly half of all complaints (Rubin & Alteri, 2019). However, there is limited scholarly research that systematically examines data on discrimination and reprisal complaints, particularly those filed by public sector employees (Svensson & Van Genugten, 2013). Research in the public sector typically adopts a pro-equality approach, focusing on self-reports of perceived retaliation or the legal standards to file a claim (Verheij et al., 2017). An exception to this is Guul et al.’s (2019) study of Danish public schools, which argues that organizations that are performing poorly are more likely to engage in employment discrimination. Of the studies examining retaliation, three studies focus on individual reports of experienced retaliation, not on official complaints of retaliation (Cortina & Magley, 2003; Parmerlee et al., 1982; Svensson & Van Genugten, 2013), and one study uses descriptive statistics to understand officially filed retaliation complaints (Leasher & Miller, 2012).

All of these studies considered if the reprisal was associated with the nature of the initial complaint but operationalized the discrimination complaints differently. Leasher and Miller (2012) presented correlations between the initial basis of the discrimination complaint and the filing of a reprisal complaint, finding that race-, gender-, and age-based discrimination complaints were all significantly and negatively correlated with reprisal complaints. Svensson and Van Genugten (2013) found that race-based complaints were associated with experiences of social retaliation, but not reprisal via official personnel actions. Finally, two studies found no relationship between the merit of the discrimination complaint and whether an individual experienced retaliation, where merit is defined as whether the state labor or civil rights agency determined that the initial complaint did in fact represent inappropriate behavior (Parmerlee et al., 1982; Svensson & Van Genugten, 2013).

Much of the scholarship examining the relationship between discrimination complaints and reprisal is structured to mirror the research on retaliation against whistleblowers (Mesmer-Magnus & Viswesvaran, 2005; Miceli et al., 1999; Near & Miceli, 1986). While both claims do address workplace retaliation, the laws prohibiting reprisal based on whistleblowing are completely different than discrimination-based reprisal and should not be viewed as synonymous. These studies do not question if the causes and consequences of whistleblower retaliation are the same for discrimination complaints, despite different laws governing the two types of complaints, and likely different levels of social acceptability and salience.

Finally, law review articles that address employment discrimination-based retaliation typically focus on the standards for filing complaints (Long, 2018), interpretation of existing law (Kenny, 2011; Sperino, 2015), or advocating for expansions in protections (Lidge, 2014). These analyses do not examine why individuals file reprisal complaints or how to prevent retaliation in the workplace.

The Impact of Organizational Structure on Filing Retaliation Complaints

The most common reason that an employee will decline to file a valid employment discrimination complaint is a fear that they will be retaliated against for doing so. An employee may also choose not to file a complaint because of “fear of disbelief in their claim, inaction on their claim, self-blame for the alleged incident and/or bias and stereotyping associated with self-reporting” (Lee & Yu, 2020, p. 5). Given this, organizational elements such as the leadership structure of the EEO Office, EEO agency resources, and the degree of supervisor representation are likely to affect the rate of retaliation complaints filed in the agency (Hirsh & Kornrich, 2008).

There is strong evidence that employment discrimination within the federal government is underreported. The Merit Service Protection Board (MSPB) periodically surveys federal employees regarding their experiences with unfair treatment in the federal service. The MSPB asks employees if they both have ever personally experienced employment discrimination or witnessed discrimination by an agency official in the past two years. However, this inquiry is restricted to questions regarding specific basis types and reprisal is not included. In the survey conducted just prior to the period examined in this study, the 2010 MSPB survey also asked employees if they believe that their agency and management handle discrimination complaints appropriately and protect employees against reprisal generally (including both discrimination and other forms of reprisal). The agency found that an alarming 41.3% of employees indicated they were not confident that they would be protected from reprisal generally (Merit Service Protection Board [MSPB], 2010). Similarly, when asked about their concurrence with the statement, “Prohibited Personnel Practices (e.g., illegally discriminating for or against any employee/applicant, obstructing a person’s right to compete for employment, knowingly violating veterans’ preference requirements) are not tolerated,” 27.7% of employees indicated that they did not agree with the statement (MSPB, 2010). In addition, the percent of employees in every racial category report experiencing race, sex, and age discrimination within the past 2 years far exceeds the percent of employees that actually file formal complaints (Alteri, 2020b). Together, these results suggest that employees in the federal government do not feel confident that their complaints of discrimination will be handled fairly.

The literature suggests that organizational elements and workplace environment impact the rate of discrimination complaints filed in the agency. Specifically, the size, overall level of representativeness, and presence of minority managers within the organization all impact claims of discrimination within the private sector (Hirsh & Kornrich, 2008). While this study does lend important insight into the black box of retaliation complaints, we still do not know how organizational elements are interpreted in the government, which has different regulatory and organizational constraints, as well as different processes for formalizing complaints than the private sector employers, Hirsh and Kornrich (2008) examined (DeHart-Davis et al., 2018). Given this, our study examines the relationship between retaliation complaints and various organizational characteristics.

Leadership research demonstrates that leaders influence organizational culture by focusing attention on a particular issue, such as preventing discrimination. In response, management and employees within the organization will adjust their behavior to reflect their leadership’s commitments (Khademian, 2002; Rainey, 2014; Schein, 1992; Trice & Beyer, 1993). However, despite the impact of leadership on organizational culture and the implications that this has for employee confidence in the discrimination complaint process, this issue has generally been neglected by the literature (Moon & Christensen, 2021). The two studies that do lend insight into impact of leadership on discrimination reporting both find that leadership does affect outcomes related to demographic diversity in the workplace. In their study of leadership and sexual harassment in the Department of Defense, Offermann and Malamut (2002) found employees’ confidence in anti-sexual harassment policies are dependent on how leaders within the agency implement them. Specifically, the attitude of leaders mediated the relationship between the organization’s perceived intolerance for sexual harassment and whether employees felt both free to report harassment and confidence in the complaint process. In their study of the impact of ethical leadership in federal agencies, Moon and Christensen (2021) argue that “employees are more likely to emulate the personal traits and behaviors of ethical leaders, extending fair and honest treatment to other in the same manner in which they receive it from ethical leaders” and therefore employees will model non-discriminatory behavior in response to witnessing ethical leadership (2021, p. 11). They also find that ethical leadership is negatively related to race-based employment discrimination and mitigates the relationship between diversity and discrimination complaints (2021, p. 13). Together these findings suggest that the role of the leader in federal agencies does affect discrimination within the organization.

When the EEO Director reports to the agency head the EEO Director can more easily focus the attention of other senior leaders on diversity management and non-discrimination because the EEO Director will be “at the table” on a regular basis. There is no intervening official to second-guess or re-direct the work of the EEO Director; there is no one to tone down or miscommunicate important messages related to non-discrimination. Indeed, independence and lack of interference in the complaint process were identified by EEO professionals as important to the faithful implementation of nondiscrimination law (U.S. Government Accountability Office, 2009). Furthermore, the U.S. EEOC argues that the reporting line sends a signal to employees that non-discrimination is valued and that senior management will take complaints seriously because the individual in charge of those activities is part of the senior leadership team. To reflect the argument that the reporting line sends a signal to employees that their complaints, and discrimination more generally, will be taken seriously, federal regulations formally require all federal agencies to place the EEO Director “under the immediate supervision of the agency head” (29 C.F.R. § 1614.102(b)(4)). However, while this is a formal requirement, the EEOC lacks the ability to enforce this rule with any formal sanctions.

Given underreporting of discrimination in the federal government and assuming the commitment to non-discrimination is communicated, in part, through the line of reporting authority in organizations, the study evaluates the following hypothesis:

Hypothesis 1 (H1): If the agency’s EEO Director reports to the head of the agency, the agency will experience a higher rate of reprisal discrimination complaints.

Just like leadership sends a signal to employees about how their complaint will be processed, so too do staffing levels in the EEO office. In particular, if employees perceive the EEO office as understaffed, or having low resources, this may decrease the likelihood employees will file a complaint. Low resources may send a signal that complaints will not be processed in a timely way or that offices lack adequate expertise. Timeliness of processing discrimination complaints is a long-standing problem in the federal government, and EEO practitioners identify low staffing levels as a cause of delays in processing complaints (U.S. Government Accountability Office, 2009). Longer processing time has serious, substantive, and negative impacts on employees including delays in repairing workplace relationships. Low staffing leading to less timeliness may decrease employees’ perceived self-control over the complaint, and thus deter them from filing under the theory of planned behavior (Lee et al., 2021). Understaffing can also negatively affect quality of work completed by EEO professionals (Ganster & Dwyer, 1995), discouraging employees from filing complaints.

Conversely, when employee perceives higher staffing levels in the EEO office they may be more likely to file complaints. More staffing resources may lead employees to perceive the EEO office as possessing greater levels of expertise to improve complaint handling. For example, higher levels of expertise in the EEO office are connected to improvements in timeliness of complaint processing (Choi, 2020). Rush and Kellough (2017) argue that employee expertise in law and policy increases the likelihood that the non-discrimination program will be implemented appropriately. For example, an increase in the capacity of the EEO office improves the agency capacity to implement disability accommodations rules (Araten-Bergman, 2016). This increase in capacity should also instill greater confidence that complaints will be handled appropriately and motivate employees to file valid complaints (Newman et al., 2003).

Hypothesis 2 (H2): An increase in the ratio of the EEO workforce to total employees is associated with an increase in the reprisal discrimination complaint rate.

The degree to which an employee feels represented by management is also likely to affect their willingness to file discrimination complaints. The literature operationalizes representativeness among managers in two different ways: (a) as a proportion of total managers within a particular demographic group or (b) the level of congruence between employee diversity and management diversity within the organization. In their study of EEO complaints filed against private sector employers, Hirsh and Kornrich (2008) argue diversity in the workplace, especially among managers, leads employees to make inferences about the fairness of decisions made in the workplace, with more diversity in the workplace leading to broader perceptions of fairness, and thus lower perceptions of discrimination. Indeed, they found a larger proportion of women and minority managers is associated with lower rates of sex- and race-based discrimination claims.

Similarly, the representative bureaucracy literature finds that increases in workplace diversity are often associated with fewer discriminatory policy outcomes, including in the areas of discipline assigned in schools to disruptive students and the assignment of students to special education classrooms (Grissom et al., 2015). Research on how discipline is imposed finds that more congruence in the racial composition between teachers and students leads to more equitable outcomes, that is, the discipline imposed is less punitive (Roch et al., 2010). Similarly, schools with higher proportions of African American and Hispanic teachers results in fewer African American and Hispanic students being referred to special education classrooms (Meier, 1993; Rocha & Hawes, 2009).

Other studies on race-based discrimination consider the effects of racial congruence between employees and managers. The presence of minority managers indicates to frontline employees both the possibility of promotion and the value placed in a diverse workforce (Hirsh & Lyons, 2010). Stainback and Irvin (2012) find a decrease in perceived discrimination when employees report their managers hold a similar racial identity. Hirsh and Lyons (2010) found similar results in a nationwide study when controlling for race of the respondent and diversity in the workforce broadly.

To capture this association, we examine the overall congruence between employee diversity and manager diversity in terms of both race and gender.

Hypothesis 3 (H3): As the proportion of female managers in the agency more closely approximates the proportion of female frontline employees in the agency, the rate of reprisal discrimination complaints filed by federal employees will decrease.

Hypothesis 4 (H4): As the proportion of minority managers in the agency more closely approximates the proportion of minority frontline employees in the agency, the rate of reprisal discrimination complaints filed by federal employees will decrease.

Materials and Methods

This article analyzes the relationship between agency organizational characteristics and retaliation-based employment discrimination incidents filed by federal employees. To do so, we combine agency-level discrimination data with information on agency-level EEO departments and employee and supervisor representativeness. The models further control for employee perceptions of procedural justice and satisfaction, as well as demographic characteristics of the agency. We use a panel dataset that includes 79 federal departments or agencies from the period 2013 to 2016. These 79 departments are required under federal law to report the number and types of discrimination complaints to the U.S. EEOC on an annual basis.

Dependent Variable

The dependent variable is standardized retaliation rates. The data on reported retaliation incidents come from agency reports filed with the EEOC–Form 462 reports, which they file annually. The EEOC provided these data to the authors. We standardize the incidents of retaliation rates for all agencies by taking the raw number of reprisal incidents filed and dividing this number by the total number of employees in the agency, and then multiplied this quotient by 1,000 to ease interpretation. By using this calculation, large agencies are not automatically rated as “worse” for simply having a larger number of incidents. We chose to use retaliation incidents rather than retaliation complaints as the dependent variable because it is a more accurate picture of reprisal within the agency. To allege a valid complaint of reprisal, an employee need only describe one employment-related harm that they experienced. However, many employees report experiencing multiple types of harm, or issue types, within the same complaint.

It is not appropriate to use the proportion of retaliation complaints compared with all discrimination complaints filed in a year because one is not required to file an initial complaint first, before filing a retaliation complaint. As noted above in the discussion on the U.S. legal context, individuals on the periphery of a discrimination event, those who agree to testify as a witness to discrimination during an investigation for example, may also experience retaliation and thus have the right under federal law to file a retaliation claim.

Independent Variables

This study includes four different independent variables that measure two types of organizational characteristics: agency-level EEO characteristics and supervisor representativeness. We use the EEOC database described above to create the independent variables measuring agency-level EEO characteristics. First, agencies report whether the agency EEO Director reports to the agency chief executive. While EEOC regulations require this type of reporting relationship, not all agencies comply. Our analysis includes a dummy variable that measures if the agency EEO Director reports directly to the agency head each year.

Second, we calculate the ratio of the EEO workforce to agency employees. Research suggests that agencies with more specialized personnel, such as the EEO workforce, have greater success in implementing laws and regulations (Boyne et al., 2005). Agencies are required to report information on the number of EEO Counselors and Investigators the agency employs as full-time, part-time and collateral duty staff. Agencies report both government employees doing this work and the number of contractors (for information on the impact of contracting in EEO offices, see Choi (2020)). Staff who are classified as part-time or collateral duty do not work a full-time equivalent in the role. Since agencies are not required to report the number of hours spent in the EEO role, we have treated all part-time and collateral duty staff as 0.5 duty. The variable measuring the ratio of EEO workforce is constructed (with PT indicating part-time employees and FT indicating full-time employees):

E E O W o r k f o r c e (r a t i o) = \frac{((E E O P T + E E O C o l l a t e r a l) * 0.5) + E E O F T}{A g e n c y E m p l o y e e s}

Third, we measure female and minority supervisor representativeness within the agency, respectively. Variables for each measure are constructed using the gap between the proportion of employees represented within a particular group and the proportion of representation among supervisors for the same group (Roch et al., 2010). Data for these variables were drawn from FedScope, the U.S. Office of Personnel Management’s (OPM) database for employee demographics. Employees who are classified as a supervisor or manager in FedScope are included as supervisors in this analysis. To construct the measures, we calculate rates or proportions of employees of a group, within a particular federal agency, = All Employees of “×” Group (e.g., female or minority group, respectively) / All Employees, and the proportion of supervisors of the same group within the same agency, = Supervisors of “×” Group (e.g., female or minority group, respectively) / All Supervisors.

M i n o r i t y S u p e r v i s o r D i s t a n c e = (\begin{array}{l} \frac{F e m a l e o r M i n o r i t y S u p e r v i s o r}{A l l S u p e r v i s o r} - \\ \frac{F e m a l e o r M i n o r i t y E m p l o y e e s}{A l l E m p l o y e e s} \end{array})

Under-representation occurs when the ratio of minority supervisors is less than the ratio of minority employees within that agency (Minority Supervisor Distance <0). We posit that measuring the minority or female supervisor gap is a better source of under representativeness than more commonly used simple supervisor–employee ratios.

Control Variables

The empirical models also include controls for employee perceptions of procedural justice and satisfaction, the rate of non-reprisal employment discrimination complaints, as well other organizational factors that are likely to affect discrimination within the organization. Specifically, we use FedScope data to control for the rates of female employees, minority employees, and the size of the agency. We use the EEO dataset mentioned above to create the rate of non-reprisal discrimination complaints filed within the agency (e.g., sex- or race-based complaints). Like the dependent variable, we standardize the complaint rates by taking the raw number of reprisal complaints filed and divide this number by the total number of employees in the agency, and then multiply this quotient by 1,000 to ease interpretation.

To construct the procedural justice and employee satisfaction index variables we use survey weights to construct agency-level results of Federal Employee Viewpoint Survey (FEVS) questions and combine these results into two separate additive indexes. The FEVS is a survey of federal employees conducted annually by OPM that measures employee perceptions of how their workplace is managed. To ensure that we do not “drop observations unnecessarily or unknowingly combine two different agencies’ data improperly” we followed the guidance in Alteri (2020a, p. 1) regarding the steps that are necessary to ensure that the agency identifier codes in the FedScope and FEVS datasets were properly matched. To create the procedural justice index, we use the FEVS questions adopted by Rubin and Weinberg (2016) to create an additive index (see Table 1). For the employee satisfaction index, we use the FEVS questions commonly adopted by the literature to measure this construct: Considering everything, how satisfied are you with your job; considering everything, how satisfied are you with your pay; and considering everything, how satisfied are you with your organization (Yang & Kassekert, 2010).

Table 1.

FEVS Questions Included in the Procedural Justice Index.

2016 FEVS survey questions

How satisfied are you with your involvement in decisions that affect your work?

Promotions in my work unit are based on merit.

My supervisor/team leader is committed to a workforce representative of all segments of society.

My performance appraisal is a fair representation of my performance.

I can disclose a suspected violation of law, rule, or regulation without fear of reprisal.

My organization’s leaders maintain high standards of honesty and integrity.

Note. FEVS = Federal Employee Viewpoint Survey.

Empirical Strategy

A panel dataset covering the years 2013 to 2016 is used to evaluate whether organizational design is related to the rate of reprisal reported in federal agencies. The empirical strategy in this study is executed in two analyses. The first model looks at the relationship between the rate of reprisal incidents reported and the characteristics of agency supervisors and agency EEO departments. The second model adds control variables including the rates of non-reprisal complaints within the agency, agency demographics, and employee fairness perceptions and satisfaction measures. We used a panel dataset to analyze the research questions and fitted each model was using both fixed and random effects. A Hausman Test was conducted on each and for both of the models, the fixed effects model is most appropriate. To account for the 79 clusters in the dataset, we have run these models with robust standard errors. F-tests of these models indicate that the coefficients in the model were different than zero.

Lagged variables, such as the previous year’s retaliation complaint or incident rate, are not included in the models. It is not appropriate to include lagged variables because of the time constraints on filing discrimination complaints under federal law; federal employees are required to file formal retaliation complaints within 45 days of the offensive behavior occurring. As a result, it is not appropriate to assume one type of complaint occurring in one year is associated with another complaint filed in the next year. In the second model, procedural justice and satisfaction indices are included to account for the climate within each agency.

Combining the agency discrimination data with employee demographics and perceptual data results in an unbalanced panel. Agencies are required to annually report the discrimination complaints filed, as well data on their EEO office, however, not all agencies have consistently done so and the U.S. EEOC lacks the ability to force agencies to comply. This analysis uses an unbalanced panel because including only agencies that had a full dataset in the 4-year period would have resulted in nearly half of the agencies being excluded. Unbalanced panels have been well studied in econometrics and Baltagi and Liu note that “panel data are usually unbalanced or unequally spaced due to lack of observations on households not interviewed in certain years or firms not filing their data survey forms for a particular period” (2020, p. 709). Rather than discarding these data completely, or dropping observations so that only a balanced panel remains, analyzing an unbalanced panel allows for a more thorough analysis of the available data.

It is important to note the manner in which the retaliation claims are reported does not allow researchers to know the nature of the original complaint. For example, researchers are not able to determine whether a retaliation complaint follows a race-based discrimination complaint, or an earlier complaint alleging sexual harassment.

Results

Descriptive statistics are presented in table 2. In 2016, roughly 62% of federal agency EEO Directors reported to agency heads. Over the period 2013 to 2016, we see changes in 42% of agencies’ reporting relationships. Agencies also vary in the size of the gap between employee representation and manager diversity in terms of race and gender, with some agencies overrepresented in both groups among leadership. However, in the average agency, the proportion of minority and female supervisors is lower than representation among line employees (female supervisor gap: −0.063; minority supervisor gap: −0.069). This means that there is a higher percent of female and minority line employees than there are supervisors on average. The degree to which the agency is under- or over-represented among the supervisor populations varies from year, though most retain their designation as over- or under-represented during the period studied.

Table 2.

Description of Data: 2016.

Variable	M	SD	Minimum	Maximum
Dependent variable
Rate of retaliation reports (standardized)	5.366	3.908	0.000	19.104
Independent variables
EEO reporting to agency head*	0.592	0.495	0.000	1.000
Ratio of EEO to total workforce	0.006	0.015	0.000	0.114
Female supervisor gap	−0.063	0.039	−0.180	0.014
Minority supervisor gap	−0.069	0.045	−0.203	0.081
Control variables
Procedural justice index	21.216	1.306	17.256	24.945
Employee satisfaction index	10.808	0.659	8.426	12.339
Rate of women in agency workforce	0.455	0.145	0.210	0.746
Rate of minorities in agency workforce	0.373	0.135	0.132	0.909
Rate of non-reprisal complaints (standardized)	3.131	2.184	0.000	11.135
Organization size	16,357	41,566	480	335,130

Note. EEO = Equal Employment Opportunity.

Does the EEO Director report to the Agency Head? (1 = yes; 0 = no).

Table 3 presents the OLS findings on the associations between organizational structure and retaliation complaint rates. In the first model, if an agency’s EEO Director reports to the agency head, the agency experiences 1.049 fewer discrimination complaints based on retaliation, per 1,000 employees, as compared with an EEO Director that has a different reporting relationship. This result is significant, but the relationship is the opposite of what we predicted in H1. The measure of agency EEO office capacity is significant and positive, supporting H2. Increases in the ratio of EEO staff to overall agency employees are associated with an increase in cases alleging reprisal. Specifically, a one percentage point increase in the ratio of EEO staff to the overall employee population is associated with an increase of 1.108 complaints per 1,000 employees.

Table 3.

Impact of Organizational Structure on Retaliation Complaint Rates.

	Model 1		Model 2
	b	Robust standard error	b	Robust standard error
EEO reporting ♦	−1.049	(0.488)*	−1.025	(0.554)†
Ratio of EEO workforce to total workforce	110.847	(32.490)*	98.561	(36.781)*
Female supervisor gap	27.229	(15.719)†	14.530	(16.512)
Minority supervisor gap	−18.500	(15.771)	−11.427	(16.477)
Procedural justice index			−.387	(.408)
Employee satisfaction index			.689	(.572)
Rate of female employees			−12.603	(27.493)
Rate of minority employees			19.997	(17.818)
Rate of non-reprisal complaints (stndizd)			.019	(.112)
Organization size (logged)			6.350	(4.153)
_cons	5.734	(1.520)	−52.613	(41.565)
Number of observations		222		222
Number of groups		79		79
Prob > F		.0004		.0075
R²: within		.1686		.2139
R²: between		.0435		.0163
R²: overall		.0484		.0046

Note. EEO = Equal Employment Opportunity.

†

p < .1. *p < .05). Models use fixed effects.

♦ Does the EEO Director report to the Agency Head? (1 = Yes; 0 = No).

H3 and H4 proposed a negative association between the size of the gap between manager and employee diversity, in terms of gender and race, and the reprisal complaint rate. The results in Model 1 suggest a positive, but weak association (p< .10) for gender. Despite H4, the gaps in representation between minority employees and management are not statistically significant.

The second model in Table 3 includes additional controls for employee perceptions of procedural justice, satisfaction levels, and the rate of other discrimination complaints filed to account for the workplace climate, as well as other control variables likely to affect the rate of reprisal incidents. None of the additional control variables in Model 2 exhibited significant associations with the rate of reprisal complaints. After adding these additional controls, the sign of the EEO Director reporting structure and agency EEO capacity remains the same. However, the strength of the association for the Director’s reporting relationship weakens (p < .10). In the second model, neither the gaps in representation between minority nor female employees and management are statistically significant. This means that, when we control for other organizational elements likely to affect reprisal claims, the degree the supervisor population over- or under-represents minority and female employees does not appear to affect the rate of complaints filed. Accordingly, the findings present interesting puzzles in need of further inquiry.

Discussion

In this research, we explored the degree to which organizational characteristics are associated with the filing of retaliation complaints by employees in the U.S. federal government. While these design elements have been evaluated in the private sector (e.g., Hirsh & Kornrich, 2008), these have received limited testing in public sector settings (with Alteri, 2020b and Leasher & Miller, 2012 as important exceptions). We find that the level of staffing in EEO office exhibits the most consistent associations, namely an increase in the ratio of EEO staff to employees results in a higher rate of reprisal complaints. In comparison, we find only a weak negative association between having an agency’s EEO Director report to the agency head and the retaliation complaint rate. These opposing findings represent present a dilemma for scholars and practitioners.

Understanding reprisal-based employment discrimination is complicated. Part of the reason is that understanding discrimination in the workplace requires untangling two problems. First, we know that retaliation occurs following participation in an employment discrimination complaint. Under U.S. law employees can be victims of retaliation even if they did not file the complaint themselves, but they participated in fact-finding or were witnesses to the incident. This is a major issue because roughly half of all employment discrimination complaints filed by federal employees allege retaliation. Second, we also know that discrimination complaints are underreported. This could be due, in part, to the fact that 41.3% of employees are concerned they would be a victim of reprisal if they reported wrongdoing in their agency (MSPB, 2010). This means that our understanding of how many instances of retaliation occur in the workplace is far below what is actually occurring. This duality is important because it means that when we examine the relationship between instances of formal reprisal complaints, and factors that affect the number of complaints filed, we are studying elements that are exerting opposing pressure on the same workplace behavior—the exercise of voice objecting to unfair treatment.

Contrary to our H1, in both models, when the EEO Director reported to the agency head, the agency reported a lower retaliation complaint rate. The reporting structure plays an important role in signifying the focus of senior leadership and a commitment to neutrality in the EEO Office. It also may serve as a signal regarding the agency’s attitude toward the EEOC’s recommendations. Leadership that are following these recommendations is more likely to adopt inclusive practices that work to prevent all initial discrimination and secondary retaliation from occurring. Inclusive work practices, rather than simply a focus on diversity management, is important because this has been shown to both have a positive influence on organizational performance (Sabharwal, 2014) and decreasing incidents of discrimination (Yu & Lee, 2020). Leaders influence organizational culture by focusing attention on a particular issue, so emphasizing a commitment to neutrality within the EEO Office should have a trickle-down impact on the agency-wide nondiscrimination efforts. In addition, it may also serve to restrain potential perpetrators. Specifically, if someone is upset with a co-worker or subordinate for filing a discrimination complaint and is considering retaliating, they may re-think their choice of action if they perceive the agency devotes meaningful resources to the complaint process. As a result, having the EEO Director report directly to the agency head may serve as a deterrent, thus decreasing inappropriate and unfair treatment.

Our findings also confirmed H2, which predicted that an increase in EEO office capacity would be associated with an increase in reports of reprisal. This is consistent with previous research that indicates increased agency expertise and capacity improves implementation (Rush & Kellough, 2017). The positive association suggests that agencies with greater EEO capacity are better able to handle employee complaints in a timely and respectful manner (Choi, 2020; Newman et al., 2003).

H3 and H4 predicted that increases in representativeness among female and minority supervisors would decrease the rate of complaints because employees would perceive an overall safer workplace and thus have fewer incidents to report. H3 and H4 were not supported in the full model with the controls. These findings are consistent with the finding that supervisor representativeness exhibits no association with race-, or age-based discrimination complaints (Alteri, 2020b, p. 19). It could be that opposing forces, a reduction in discrimination and increased complaints filed because it is safer to report, are suppressing any impact this factor might have on complaints filed. However, the data available do not allow researchers to link the initial basis of the complaint to demographic details about either the employee or their manager. As a result, we are not able to parse the relationship between an employee’s supervisor and either their perceptions of safety in reporting or experienced reprisal further. Our controls for perceptions of procedural justice and workplace satisfaction only approximate such attitudes.

To understand the magnitude of these relationships, it is helpful to put the findings into context. To do so, we take the per employee change in discrimination complaints based on retaliation, multiplied by the number of employees within the agency. For an agency with an average reprisal complaint rate like the U.S. Customs and Boarder Protection, which had almost 59,000 employees in 2016, Model 1 indicates that reporting directly to the agency head is associated with roughly 62 fewer reports of reprisal per year, a 35% decrease. Conversely, increasing the ratio of EEO staff by 1%, as compared with the overall employee population is associated with 65 additional claims, a 37% increase. Effectively, these results cancel each other out, lending support to the idea that factors that affect reprisal exert pressure on the statistics in opposite directions, making it far more complicated to study. The data available do not allow us to untangle why this is occurring; however, it does provide an important clue about the relationship between reporting to the agency head, EEO staffing capacity, and reports of reprisal.

Limitations and Future Research

The available data only include agencies that complied with EEOC reporting requirements each year; as a result, this study relies upon an unbalanced panel. Including only agencies with a full panel during the period studied would have resulted in nearly half of the agencies being excluded. Second, this article does not examine individual reprisal complaints or reports, neither the form of the retaliation, nor the type of initial discrimination complaint. The dataset compiled by the EEOC does not track data by case and does not identify the underlying basis for the reprisal complaint (e.g., the employee first experienced race discrimination and then was a victim of retaliation after filing a complaint). The data reported to the EEOC also do not include any demographic information on the individuals involved in discrimination complaints. However, access to this information, through a qualitative analysis of the discrimination case files or a survey of employees filing both initial discrimination and reprisal complaints would allow us to understand whether particular types of discrimination complaints are likely to result in real or perceived retaliation and what groups are most affected. This data would allow practitioners to design interventions specifically designed to prevent retaliation when these types of complaints are filed.

The models do not account for what may influence an agency’s decision to design its reporting structure or staffing levels in the EEO office. There may be important events in an agency’s past that pre-disposes it to have a direct reporting relationship, or makes it more inclined to invest in higher staffing levels to process complaints. Potential drivers could include court-imposed consent decrees against an agency, or union contracts for example. While a 4-year panel was used for this study, the time period may not be long enough to account for these types of historical drivers. Additional data collection at the agency level would be required to develop new variables to account for such pressures.

While outside of the scope of this article, understanding the relationship between the variables examined in this study and case processing time, training or professionalism of EEO staff, and/or satisfaction with the complaint process would help us understand why these organizational elements have mixed effects on the rate of reprisal complaints filed. For example, future researchers could analyze the organizational structural elements included in this paper along with the response times for processing a claim. This may provide additional evidence regard whether the increased capacity is providing faster response time, and this is translating into increased employee confidence that when they file a reprisal complaint it will be taken seriously.

It is important to acknowledge that studying formally filed retaliation complaint, or the broader collection of formal discrimination complaints, only illustrates part of the discrimination perceived by employees. Scholars and practitioners should assume that some portion of unfair and demeaning behavior is not being reported. As a result, relying on formal complaints likely undercounts these incidents. Data on the number of federal employees who experience reprisal-based discrimination would also be helpful in untangling this puzzle. Currently, the MSPB does ask if an employee if they both have ever personally experienced discrimination by an agency official in the past 2 years. However, the survey does not ask if the employee has been a victim of reprisal as a result of participating in an employment discrimination complaint. This information would allow us to determine the degree of underreporting that is present in reprisal complaints and why particular agency may experience greater underreporting than others. It would also be helpful to know how EEO professionals view increases in discrimination complaints. While we do know from the MSPB data that underreporting of discrimination is an issue in the federal government (Alteri, 2020b), we don’t know how agency EEO professionals internalize changes in complaint rates.

Finally, it is also important to understand how contracting affects employee confidence in the EEO complaint process and in how claims are handled. While outside the scope of this article, this information would shed light on how federal contractor who are handling and adjudicating agency EEO complaints change the nature of the complaint process and employees’ confidence in the process. While Choi (2020) does not include an evaluation of employee perceptions of the role of contractors, the study does find an increase in the use of contractors is associated with lower timeliness in processing all forms of discrimination complaints.

Conclusion

While the federal government has historically been at the forefront of a drive toward equality in the workplace, there is still work to do. U.S. Supreme Court decisions prompting changes in how discrimination laws are interpreted, as well as the Black Lives Matter, #MeToo, and the transgender movements have highlighted that there are still large disparities between how people are treated and how complaints of discrimination are addressed. One of the most preventable barriers to equal treatment is how victims are treated after they raise a complaint of discrimination. However, even though retaliation is the most preventable form of employment discrimination, it is a serious problem in the federal government and comprises roughly half of all discrimination complaints filed by federal employees.

This study represents the first step in working toward two related goals: (a) reducing retaliation following participation in an employment discrimination claim; and (b) increasing the number of valid reprisal complaints filed until the number of complaints equals the instances of retaliation that employees experience, eliminating employee silence. We know that organizational structure affects the rate of employment-based reprisal reported within the agency. Agencies in which the EEO Director reports directly to the agency head have lower rates of reported retaliation. We also know that increasing the EEO staffing capacity, per employee, is associated with higher rates of reported retaliation. These seemingly contradictory results may both be pointing to progress. Increased employment discrimination complaints may not signify a “bad” agency. Instead, this could signify that employees are filing secondary retaliation complaints because they have greater trust that their claims will be addressed. However, further study is required to determine why these factors are related to changes in complaint rates.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Ashley M. Alteri

Author Biographies

Ashley M. Alteri’s research interests focus on labor and employment issues within public and private sector workplaces. She is particularly interested in the intersection between theory, employment laws, and workplace policies. Her work has been published in Review of Public Personnel Administration, Conflict Resolution Quarterly, and Administration & Society.

Ellen V. Rubin’s work focuses on public personnel management including understanding perceptions of fairness in the public sector workplace and organizational performance. Her published work appears in Journal of Public Administration Research and Theory and the Review of Public Personnel Administration. She earned her PhD from the University of Georgia.

Young Joo Park is an assistant professor in the School of Public Administration at the University of New Mexico. She studies public financial management with a particular focus on financial condition analysis, non-profit finance, and health care finance.

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