Details of Air Marshal Discrimination Inquiry Released

On Wednesday, we wrote about a CNN article which reported that it had gained access to an internal governmental e-mail discussing an investigation at the Federal Air Marshal Service (“FAMS”) .  The investigation was a reaction to employee allegations that FAMS has a hostile work environment rife with discrimination and retaliation.  Today, we have received a copy of the report.  Conducted by the Department of Homeland Security (“DHS”) Office of Inspector General (“OIG”), the report is entitled “Allegations of Misconduct and Illegal Discrimination and Retaliation in the Federal Air Marshal Service.”

In general, the report bears out the content of the email that CNN was able to access.  Specifically, in its executive summary the report states that “Although individual employees may have experienced discrimination or retaliation, our review does not support a finding of widespread discrimination and retaliation within the Federal Air Marshal Service.  However, employees’ perceptions of discrimination and retaliation are extensive, and we heard too many negative and conflicting accounts of events to dismiss them.”  The report goes on, however, to stress the extent to which its employees perceive discrimination and retaliation in the workplace, which “misconception” the report blames on tension, mistrust, and “strained relations” rather than the actual existence of a pervasive or systemic problem.

The report notes that fear of retaliation is not a new phenomenon among FAMS employees.  Indeed, in May 2006 the House Judiciary Committee released a report stating that “Federal Air Marshals in many field offices expressed concerns with policies and reluctance to approach managers due to fear of retaliation.”  At that time, the Ranking Member of the House Committee on Homeland Security issued a statement noting that many of the claims in the report had been or were in the process of being corrected.  Years later, in 2009, the U.S. Government Accountability Office (“GAO”) issued a report asserting that FAMS had implemented processes such as working groups and listening sessions to address workforce issues, and Federal Air Marshals were satisfied with these efforts.

The report makes an effort to explain why there exists this pervasive perception among FAMS employees of rampant discrimination and retaliation.  The report asserts that “Sometimes employees believe supervisors have discriminated or retaliated against them by giving preferential treatment to other employees based on biases or personal relationships.”  The report went on to state that marshals “occasionally appeared to take certain management actions out of context, such as feeling victimized by a policy decision that applied to the entire field office, failing to tell us what we would later discover was the ‘whole story,’ or misinterpreting a management decision as harassment.”  The report, then, rather than making recommendations aimed to correct unacceptable levels of discrimination and retaliation that it finds do not exist, makes various recommendations for remedying the perception that they exist.

The facts, however, simply do not bear out this whitewashing.  The OIG conducted a survey of the entire FAMS workforce. The survey found that one-quarter of respondents feel they have been discriminated against, 47% of respondents fear retaliation, 52% of the respondents believe senior managers in FAMS will not be held accountable if they engage in misconduct, and 55% believe favoritism is tolerated.  Bear in mind that the one-quarter that feels it has been discriminated against is of total, not specifically minority, employees – when you look, for instance, at African American employees, the number rises to 44%.

Moreover, the survey found the following results: a) Fifty percent believe the performance standards upon which their rating is based are appropriate for the work they do; b) Fifty-one percent believe their supervisor has enough information concerning the performance of their duties to accurately rate; c) Forty-seven percent believe personal favoritism is not a factor their supervisor considers when rating them; d) Fifty-one percent believe their current performance appraisal is an accurate reflection of their performance; and e) forty-six percent believe their supervisor provides constructive suggestions to improve job performance.  The OIG report stated that these results indicated ambiguity about performance standards.  However, when less than half of your workforce believe that favoritism is not a part of your rating system, then you either have a mostly delusional workforce – which we certainly hope is not true among our federal air marshals – or you have a serious problem that you need to address.