EEOC REAFFIRMS THE AGE DISCRIMINATION STANDARD OF PROOF

What does an employee have to prove to win an age discrimination case?  Does he have to show that “but for” a discriminatory act he would have received the promotion or other benefit he applied for?  That is what the Supreme Court requires in the private sector.  Does it have to prove that age was a “substantial or determinative factor? EEOC just reminded us in an article entitled , “Age Discrimination: An Overview of the Law and Recent Commission Decisions” that federal employees do not have to meet either of those standards.  (See the article at the end of its March 2017 Digest.)  All a federal employee need prove is that age was “a factor” in the personnel decision.  For example. …

in Cletus W. v. Dep’t of the Treasury, the Administrative Judge (AJ) found, that the Agency discriminated against Complainant on the basis of age when it did not select him for a Trainee program. Complainant received the fifth highest score from the ranking panel, but the Selecting Official selected eight other applicants for the position. Specifically, at least one of the selectees did not have knowledge or experience comparable to that of Complainant. Further, the AJ found that the Agency failed to produce certain information during discovery and at the hearing, and made decisions during the selection process which were inconsistent with its policies. The Commission found that substantial evidence supported the AJ’s conclusion that age was a motivating factor given the fact the Selecting Official was aware of Complainant’s age, and no applicant in Complainant’s age bracket was selected for the program.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.

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