If the union levels charges of discrimination in a non-selection grievance, it substantially increases its chances of winning.  So great is the advantage that FEDSMILL believes the union should level a discrimination charge in a non-selection grievance unless it is positive it will not help it.  Here’ s why.

First, almost anyone can allege discrimination.  If a person over 40 is passed over for someone under 40 (or even someone over 40, but  substantially younger), he can make the claim.  If a woman is passed over for a man (or vice versa), either can make the claim.  If an African-American is passed over for an Asian or Hispanic applicant, he/she has a civil rights claim.

Second, you do not need direct proof of the selecting official mocking a particular race, gender or age group moments before he made the selection to prove discrimination.  The Supreme Court has created something called a prima facie test for determining when a promotion candidate is the victim of discrimination.  A prima facie test merely means that at first glance there is at least an inference of discrimination, and if you can prove just this, the employer has to reveal information you are not likely to get in a simple contract grievance. 

Here is how the prima facie test works.  All the union need do to establish this inference of discrimination is show that the grievant  (1) belongs to a protected race, gender, age or national origin class ; (2)  applied and was qualified for a job for which the employer was seeking applicants; (3) was rejected for the position; and that (4) the position remained open after his or her rejection as the employer continued to seek or consider applications from others.  Once the union establishes that, the management is required to explain, under oath if necessary, why it chose not to select the grieving employee.  If it comes up with a legitimate, non-discriminatory, merit-based reason, it wins.  But once it reveals the reason, the union has a chance to knock holes in it and if it does the union generally wins.

EEOC issued a decision last month that is a great example of how this works.  (Bakken v. LaHood, FAA, EEOC Appeal No. 0120093529 (August 8, 2011))  This FAA employee was 42 years old when he was not selected for promotion.  He claimed discrimination and quickly proved his prima facie case.  (EEOC modified the wording of the test slightly to fit an age discrimination case, i.e., he was over 40, he applied, he was qualified, he was not selected, and “he was passed over in favor of someone substantially younger than he.”) 

When EEOC asked management to explain a “specific, clear and individualized explanation” for not selecting him, management said that, based on its crediting plan, the employee ranked lower than most (but not all) of the selectees.  However, management refused to reveal the details of the plan to the EEOC judge in its testimony or even via documents. 

EEOC responded by saying that management had failed to meet its burden to come forth with the “…bases, factors, or assessments motivating its decision….”  EEOC decided that management had only provided a “… summary of the mechanics of its selection.”  Finally, EEOC announced that it will only allow management to keep a crediting plan confidential when the record adequately provides “… enough information to sufficiently determine the Agency’s legitimate, non-discriminatory explanation for non-selection.”  Therefore, it decided management had violated age discrimination laws  and ordered the employee placed in the position and given back pay.

Even though this complaint was processed by EEOC, it could have gone through a grievance process to arbitration and produced the same decision.   Here are the benefits the employee reaped by alleging discrimination.

  1. A.  He only needed to establish an inference of guilt through indirect evidence, not direct proof.
  2. B.  Management was required to explain why it non-selected him, which it rarely must do in a contract grievance.
  3. C.  Management paid a price for refusing to provide enough details about its decision.
  4. D.  The employee did not get priority consideration; he got something better, i.e., the job and back pay.

If you still doubt the benefits of the prima facie test, read this VA case. (Stuart v. Sinseki , EEOC Appeal No. 0720090038 (October 2010)) .  Note that not only did Stuart reap all the benefits just listed, but she also was given $3,000 in damages above her back pay.  If interested in a more structured explanation of how this works, read Subchapter VI.B. of the EEOC Compliance Manual (Section 15).

The third advantage of leveling a discrimination charge was barely touched upon above, i.e., management’s obligation to provide more specifics than a “summary of the mechanics of its selection.”  Take a look at Patrick v. Ridge, a federal circuit court Homeland Security case where management passed over Patrick because she was not “sufficiently suited for the job” and would not “fit in.”  The court ruled against the agency saying that, a  “content-less and nonspecific statement, such as that a candidate is not ‘sufficiently suited’ for the position, is not specific enough to meet a defendant employer’s burden of production….It is, at bottom, a non-reason.”  In a simple contract, non-selection grievance, the union would be lucky to force the employer to reveal any reason why it passed over the employee, much less a reason that meets these tough substantive standards. Combing the discrimination allegation with acclaim the contract was also violated puts management in a tough position.


(Tomorrow FEDSMILL will explain how the union can benefit from claiming anti-union discrimination in a non-selection grievance. But remember, FEDSMILL is not offering legal advice.  Get an attorney if you need that.)

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.
This entry was posted in EEO/Discrimination, FLRA, Grievance/Arbitration, Promotion/Hiring and tagged , , , . Bookmark the permalink.

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