Via State Department/GTM:
Via State Department/GTM:
Complainant is an Asian American, who immigrated from the People’s Republic of China. Complainant alleged that one of his subordinates harassed him on the bases of his race (Asian) and national origin (Chinese) by engaging in various types of unwelcome conduct, including, but not limited to:
Complainant also alleged that his supervisors were aware of this subordinate’s unwelcome conduct but failed to effectively stop it. Assuming the allegations of the subordinate’s unwelcome conduct to be true, was the subordinate’s conduct sufficiently severe or pervasive to alter the conditions of Complainant’s employment such that Complainant stated an actionable claim of discriminatory harassment in violation of Title VII?
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Branch Chief and Supervisory Diplomatic Interpreter, GS-15, at the Agency’s Office of Operations, Office of Language Services, Non-European Language Branch, in Washington, D.C.
On July 10, 2020, Complainant filed a formal EEO complaint alleging that he was subjected to ongoing harassment/a hostile work environment on the bases of race (Asian) and national origin (Chinese) by one of his subordinates. Complainant further alleged that management officials were aware of the harassment but failed to adequately address it.
The subordinate was assigned to Complainant’s branch on February 3, 2020, after completing a 15-year stint at the Agency’s U.S. Embassy in Beijing, China. Complainant and his supervisors, the Division Chief and the Office Director, were already familiar with the subordinate, whose employment with the Agency dated back to the 1980s.
In his EEO complaint, Complainant alleged that, during the relevant time frame, the Division Chief and the Office Director were aware of several, if not all, of the subordinate’s alleged harassing actions, which included:
4. Beginning February 3, 2020, and ongoing, the subordinate regularly attempted to report directly to the Division Chief and Office Director instead of Complainant, disregarding their repeated instructions that he report through his line of supervision.
5. Beginning February 3, 2020, and ongoing, nearly all of the subordinate’s communication toward Complainant was disrespectful, such as “very rude emails.”
6. Beginning February 3, 2020, and ongoing, the subordinate continuously thwarted Complainant’s supervision by, among other things, seldom acknowledging Complainant’s emails, ignoring deadlines, and deliberately failing to satisfactorily complete assignments.
7. Between February 3, 2020 and July 10, 2020, the subordinate attended four out of the 40 meetings Complainant hosted or co-hosted as the Branch Chief, and in at least one instance (a Branch-wide staff meeting Complainant called for March 9, 2020), the subordinate made a point of leaving the office in front of Complainant’s other subordinates when the staff meeting was about to start.
8. The subordinate made fun of Complainant’s phrasing in an email he sent requesting an assignment from the subordinate, even though the phrasing, the result of Complainant’s non-native English, did not impact the content of the message.
9. The subordinate pretended not to understand Complainant’s pronunciation of the phrase “Go Virtual” and asked him to repeat himself multiple times in a manner that made Complainant self-conscious and uncomfortable.
10. From March 17, 2020 through July 10, 2020, the subordinate completed only two of the 10 assignments Complainant had given him despite Complainant’s emails and extensions.
11. On July 8, 2020, during a phone meeting about the subordinate’s Mid-Year Review, the subordinate parsed Complainant’s words, such as “work” and “assignment,” and then told Complainant, “you need to improve your English and learn how to make yourself clearer in the future.”
12. On July 8, 2020, during the Mid-Year Review phone meeting, the subordinate revealed that he was aware that Complainant had initiated an EEO complaint, accused Complainant of playing “the race card”, and told Complainant, “don’t play that game with me.”
After careful review of the record, we determine that the allegations in this complaint, taken together, state a viable claim of discriminatory harassment. Nearly all of the alleged harassing incidents occurred on or after February 3, 2020, within the supervisor/subordinate relationship between Complainant and the subordinate, which involved frequent interaction and directly impacted Complainant’s work performance. As for the allegations of events that occurred before Complainant became the subordinate’s supervisor, they can be considered as additional evidence in support of Complainant’s overall harassment claim.
Complainant has alleged that his supervisors were aware of the subordinate’s harassing conduct towards him but failed to effectively stop it. In fact, Complainant alleged that the harassing behavior of the subordinate continued without abatement through the filing of his complaint.
A complainant may demonstrate the necessary severity or pervasiveness to state a harassment claim by alleging that the harassing actions unreasonably interfered with his or her work performance. 2 In cases involving subordinate harassment, the impact on work performance typically manifests itself by reducing the complainant’s effectiveness as a supervisor or undermining the complainant’s credibility or authority in the eyes of other subordinates or coworkers. See, e.g., Opal; Gilberto S. v. Dep’t of the Air Force, EEOC Appeal No. 0120151198 (Mar. 11, 2016). Here, Complainant alleged that the subordinate continually undermined his authority as a supervisor, including with other employees witnessing his conduct. Taking Complainant’s allegations together and assuming them to be true, we determine that the subordinate essentially refused to recognize Complainant as his supervisor, which unreasonably and directly interfered with Complainant’s work performance. For example, Complainant alleged that the subordinate continually reported to Complainant’s supervisors instead of Complainant, rarely acknowledged Complainant’s emails or satisfactorily completed assignments, attended only four out of 40 meetings Complainant hosted or co-hosted during the relevant time frame, and completed only two out of 10 assignments.
According to Complainant, these alleged harassing acts drained Complainant’s time, as he describes sending “dozens” of emails to try and get the subordinate to complete his assignments. Complainant alleged that the subordinate’s conduct impacted Complainant’s own productivity and effectiveness, as well as the morale of the team. See, e.g., Opal; Gilberto S. v. Dep’t of the Air Force, EEOC Appeal No. 0120151198 (Mar. 11, 2016).
The subordinate’s alleged behavior occurred in the context of a nation-wide increase in reports of harassment against Asian Americans. 5 Asian American workers face multiple sources of discrimination. One source is language or accent discrimination. Perceptions of Asian accents may negatively affect the communication skills and perceived competence of Asian American workers. […] Another source of discrimination is the perception of Asian Americans as “forever foreign.” Perceptions of Asian Americans as foreign can negatively impact assessments of communication ability, competence and, importantly, trustworthiness. Id.
In the context of a contentious hour-long phone meeting, where he already made derogatory remarks about Complainant’s English proficiency, S1 notified Complainant that he was aware of Complainant’s EEO activity. The phrase, “don’t play that game with me,” and accusation of “playing the race card” in reference to Complainant’s EEO activity were stated in a manner that that could be found reasonably likely to deter EEO activity. There is no evidence that management took any steps to prevent or address the retaliatory conduct, which, along with S1’s apparently cordial relationship with Complainant’s supervisors, further supports that these statements, while made by a subordinate, state a viable claim of retaliation.
ORDER (E0618) The Agency is ordered to process the remanded complaint in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled “Implementation of the Commission’s Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period.
Professional Reflections: The U.S. Foreign Service of Today
I recall day one of my A-100 Foreign Service orientation class, a moment of true excitement and anxiety for any new Foreign Service officer preparing to embark on a journey to an unknown destination. For me, it was a career that would scratch the itch for public service and the fascination with foreign cultures, politics, and cuisine. But as I took a seat and searched the room, I noticed my class consisted of two black officers, including myself, out of 75 (my wife’s class had one, seven years prior). Weeks later, I was pleased to see the subsequent orientation class with substantially more people of color, but I soon learned the majority were hired through fellowship programs designed to increase diversity at the State Department. A monumental step, but I wondered: Why the glaring distinction with non-fellowship hires? It is such a stark one that minority officers are often assumed to be fellows, as if that is the only way racial and ethnic minorities can enter the field. The perception will likely not change soon, as only 7 percent of the U.S. Foreign Service is represented by employees who identify as black, a mere 1 percent increase since 2002.
In 2020, the U.S. diplomatic corps, regrettably, does not represent the true diversity and talent of the United States. And it shows.
It shows every time a visa applicant asks to speak to a “real American” at the interview window, as an Asian-American colleague experienced. The interviewee demanded he speak to a supervisor, looking over my colleague’s shoulder for the “pale, male, and Yale” American who surely must have been around the corner. My colleague granted the request, inviting the consul to the window. The consul was Afghan-American. I relished the satisfaction of imagining the applicant’s facial expression in that moment. But now, six years after the encounter, knowing only 6 percent of Foreign Service employees are of Asian descent, I ponder what assumptions remain about U.S. citizens in the minds of those we interact with abroad.
Currently serving foreign service officer Kip Whittington writes essay on issues of racism and diversity within the State Department https://t.co/2d155fcPEF
— Robbie Gramer (@RobbieGramer) July 31, 2020
Honored to be part of the Juneteenth commemoration to highlight our collective solidarity at an inflection point in our nation’s history. Together, we can promote cultural change, to ensure all @StateDept employees succeed – in an inclusive & unbiased work environment.
— Carol Z. Perez (@StateDG) June 19, 2020
""How is it that I have a shared trauma with someone that started their State Department career before I was born? "
— Diplopundit TEST/TRACE/ISOLATE (@Diplopundit) July 7, 2020
"Dear State Department, you have failed so many people, myself included. You have a responsibility to create change. And the rest of us are waiting to see how you respond.[…] Let’s see if you have what it takes."https://t.co/B06R3NpyN5
— Diplopundit TEST/TRACE/ISOLATE (@Diplopundit) July 7, 2020
"Anti-black racism is real in the U.S. but it's also in Canada, (…) and we have work to do in our system as well," Trudeau said following the death of George Floyd.
— Globalnews.ca (@globalnews) May 29, 2020
Racism continues to be prevalent in our societies.
We must raise our voices against all expressions of racism and instances of racist behaviour. We urgently need to dismantle racist structures and reform racist institutions.
— António Guterres (@antonioguterres) May 29, 2020
On behalf of the entire @_AfricanUnion family, I condemn in the strongest terms the murder of #GeorgeFloyd at the hands of law enforcement officers in the United States of America. See my full statement here: https://t.co/LslbVFrWHN
— Moussa Faki Mahamat (@AUC_MoussaFaki) May 29, 2020
The racist and fascist approach that led to the death of George Floyd in the US city of Minneapolis as a result of torture has not only deeply saddened all of us, but it has also become one of the most painful manifestations of the unjust order we stand against across the world.
— Recep Tayyip Erdoğan (@RTErdogan) May 28, 2020
"I can't breathe." pic.twitter.com/UXHgXMT0lk
— Hua Chunying 华春莹 (@SpokespersonCHN) May 30, 2020
From Chinese state media.
(Object of endless complaints / suggestions / lessons from US officials and reporters over the years, about importance of freely critical press.) https://t.co/G1xmCoVmSd
— James Fallows (@JamesFallows) June 1, 2020
Some don't think #BlackLivesMatter.
To those of us who do: it is long overdue for the entire world to wage war against racism.
— Javad Zarif (@JZarif) May 30, 2020
❗ #American #police commit high-profile crimes all too often. Against this backdrop, #Washington refuses to expand its humanitarian commitments in international #law every year. #US authorities should meticulously investigate the murder of #GeorgeFloyd. https://t.co/zx5rFh6qoB pic.twitter.com/jm4dHL07AZ
— MFA Russia 🇷🇺 (@mfa_russia) May 30, 2020
Demonstrations against police brutality are popping up in cities across the world.
In London, hundreds of protesters marched to the US embassy today to protest George Floyd’s death (📷: AP) pic.twitter.com/sqlSxfmjgR
— BuzzFeed News (@BuzzFeedNews) May 31, 2020
Around 100 people demonstrated outside the US embassy in Dublin today, demanding justice for George Floyd. A peaceful protest was also held outside the official residence of the US ambassador, Deerfield, in the Phoenix Park.https://t.co/cr2mzxfNBi
— RTÉ News (@rtenews) May 31, 2020
Protests held outside United States Embassy and US Ambassador's residence in Dublin over death of George Floydhttps://t.co/tHrgJbtWsX
— Irish Daily Mirror (@IrishMirror) May 31, 2020
WATCH: Protesters gather outside the US embassy in Berlin to demand justice for George Floyd. pic.twitter.com/gKPlfFfv6s
— NBC News (@NBCNews) May 30, 2020
Over 1000 protest in Denmark over the death of black American George Floyd https://t.co/79NSEDPeFD
— The Local Denmark (@TheLocalDenmark) May 31, 2020
Justice for George Floyd. US Embassy, Mexico City. pic.twitter.com/SLraGkNYO9
— Madeleine Wattenbarger (@madeleinewhat) May 30, 2020
Watch: Protesters gathered across Canada today in solidarity with those calling for justice for George Floyd in the United States. https://t.co/SEGCVRjYfF
— CTV News Vancouver (@CTVVancouver) May 31, 2020
LIVE from Christie Pitts Park in Toronto. The crowd gathers to protest the deaths of Regis Korchinski-Paquet and George Floyd. pic.twitter.com/g0kEwOvEDp
— The Post Millennial (@TPostMillennial) May 30, 2020
— Newshub Breaking (@NewshubBreaking) June 1, 2020
TPM reports that the State Department spokesperson argued on Twitter that “The assertion that @StateDept is ‘racist’ is disgusting and false—a brazen attempt to create division for domestic political gain,” an apparent reaction to a letter from House Democrats and a CNN editorial arguing that a senior department official had improperly worked to remove anti-racism rhetoric from a UN document.
.@StateDept hires and empowers those who represent diversity of race, color, religion, sex, gender identity, national origin, age, disability, genetic information, sexual orientation and opinion to advance US Foreign Policy.
— Heather Nauert (@statedeptspox) September 16, 2018
Now, Ms. Nauert claimed that “State is among the most diverse of government agencies, employing a workforce from every part of America and every region of the globe.” First, it’s really nice to see that local employees from around the globe are considered employees when necessary but not really when it comes to EEO regulations (see Baloun v. Kerry: U.S. Equal Employment Protection Do Not Cover Foreign Employees of U.S. Embassies). Second, the official word is (since it’s from the spox) that the State Department is among the most diverse of government agencies. Yo, is it? Really, really, really?
CRS report dated May 2018 states that “senior officials at the Department of State, some Members of Congress, and others have long maintained that the demographic makeup of the Foreign Service is not sufficiently representative of the American people with respect to race, gender, socioeconomic background, and regional origin.” That report also notes that Secretary Pompeo has not commented on former Secretary Tillerson’s diversity-related priorities or indicated what diversity-related priorities he may pursue.110
CRS report R45168 dated August 2018 on State Ops and FY2019 Budget and Appropriations notes the following about diversity at State:
Former Secretary Tillerson prioritized efforts to promote diversity in the Foreign Service.16 Secretary of State Mike Pompeo, who replaced Tillerson in April 2018, has commented that “the State Department’s work force must be diverse … in every sense of the word” and indicated that he will be engaged on diversity matters.17
The Human Resources funding category within D&CP provides funding for the Charles B. Rangel International Affairs and Thomas R. Pickering Foreign Affairs fellowship programs to promote greater diversity in the Foreign Service, as authorized by Section 47 of the Department of State Basic Authorities Act (P.L. 84-885). While Congress required the State Department to expand the number of fellows participating in the Rangel and Pickering programs by 10 apiece pursuant to Section 706 of the Department of State Authorities Act, 2017 (P.L. 114-323), it has provided the department the discretion to fund these programs at levels it deems appropriate from monies appropriated for Human Resources. The House and Senate committee bills would continue to provide such discretion. The House committee report indicates support for department efforts to increase diversity in hiring, including through the Rangel and Pickering programs. It also encourages the Secretary of State to explore more opportunities to further the goal of increasing workforce diversity.18 The Senate committee report recommends the continued expansion of the department’s workforce diversity programs and directs that qualified graduates of the Rangel and Pickering programs shall be inducted into the Foreign Service.19
Take a look at the agency’s diversity stats as of June 30, 2018 below (the original document is available here via state.gov).