HOW SENIORITY IMMUNIZES MANAGEMENT
The various employment civil rights acts work by forcing managers to make a choice when they select employees for promotion, awards, etc. Ironically, making decisions based on seniority gives management near total immunity. Here is how.
One of the most important provisions of the Civil Rights Act is the following:
Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations. (See 42 USC 2000E-2(h))
In other words, when making employment decisions covered by that law, managers must use one of three methods: 1- seniority, 2- merit systems, or 3- a production count. While some performance awards and gainsharing systems operate on a production count method, we are not aware of any federal promotion decisions based solely on production counts. Indeed, separate statutes and regulations require fed managers to use merit systems to promote. But there is still a vital role for seniority to play in federal sector promotions.
HR specialists unnecessarily complicate a selecting official’s life by leading him or her to believe that the promotion decision is all about (and only about) merit, i.e. selecting the best qualified. However, if you have ever served as the selecting official you know that it is rarely that easy. Just the small number of us putting this posting together at Camp FEDSMILL.com have seen situations where the selecting official did not want the numerically or otherwise indisputably best person for the job because:
- 1. She is too good for this job and if I select her she will be gone in three months.
- 2. I cannot take him away from the vital program he is working now no matter how good he is for this job. He will get the next promotion.
- 3. No one in the office gets along with that top rated candidate and selecting him will destroy our team work atmosphere.
- 4. I want the promotion to go to someone in my own shop rather than an outsider no matter how good she is. It will boost everyone’s morale.
- 5. He may be the top rated candidate and she the lowest, but I know her better and am certain she will succeed in the job.
- 6. She may have the top rating for the job and even some very successful time acting in the job already, but I need new blood and perspective here.
- 7. She may have greater potential, but he has more experience and will not need any training to get up to speed.
As common as those situations are, federal regulations give selecting officials no guidance or help. In fact, they leave them totally exposed by suggesting they are free to select anyone on the BQ list.
And when we say exposed, we mean liable for a discrimination charge or grievance that could cost the agency lots of money and the individual selecting official liable for a legal finding that he violated the civil rights laws. That would be is a prohibited personnel practice that can get a manager fired. HR specialists never seem to tell the selecting officials about that reality or risk.
But here is what a HR specialist should be telling a selecting official. “Under the civil rights laws, you and the agency are least exposed to liability if you select either the top merit system ranked person or you select the most senior. Despite what you may have heard, it is perfectly legal for selecting officials to choose between equally qualified people, which everyone on the BQ could be, by using seniority.”
If the HR specialist needs any back up for that, he/she can give the manager the following excerpt from an FLRA case (NFFE, 45 FLRA 52) .
The Authority has found negotiable proposals which establish seniority as a tie-breaking procedure for selecting employees for promotion, where management has determined the sources it will consider, and where management has determined which employee-applicants are equally qualified. See,. . . 29 FLRA 734, 793 (1987) (DODDS) (proposal that required the agency to use seniority as a tie-breaker if management determined that two or more employees were equally qualified and where management had determined to make the selection from one source, found negotiable because it did not interfere with management’s right under section 7106(a)(2)(C) of the Statute), aff’d as to other matters sub nom. Overseas Education Association, Inc. v. FLRA, 872 F.2d 1032 (D.C. Cir. 1988).
If that is not enough to overcome the urban legend that seniority has not place in federal promotion decisions, have them read Lightsey v. Potter, a circuit court of appeals decision from which the following excerpt came:
The district court also properly granted summary judgment regarding Hodges because the USPS proffered a legitimate, non-discriminatory reason for promoting Hodges — she was more senior in her respective craft than Lightsey was in his, and the USPS promotes employees to regular status based solely on seniority — and Lightsey failed to rebut this proffered reason.
Management would be wise to declare as a matter of policy that selecting officials may use seniority to break ties among the equally qualified, but almost none do. That might make it more difficult for a selecting official to actually use it in a specific promotion action. Consequently, unions should propose that the process be added to the contract. Despite management’s initial, knee-jerk reaction against the idea, the Civil Rights Act not only makes it a legitimate factor to use among the equally qualified, but also conveys virtually totally immunity from a charge and finding of discrimination.