Back in 2012 IRS informed an Africa-American applicant he was conditionally selected for a vacancy and gave him a preemployment background form to complete.  When he noted that he was currently under charges for violations of the law, stating he was “falsely accused of engaging in an attempted sexual assault,” and that his trial was pending IRS withdrew his selection. Once the employee filed an EEO complaint alleging race discrimination, IRS declared that it withdrew the offer because it does not allow applicants with “open” criminal matters to enter on duty, or until case disposition information is received. Almost two years after it withdrew the job offer, all charges against Complainant were dismissed and expunged.

When the agency was forced to turn over data on all its conditional offers of employment, EEOC found that there were applicants outside of Complainant’s protected class who were approved for hire, despite unresolved criminal matters. For example, the Agency’s evidence showed that an applicant with an unidentified race had an “active” case related to theft of government property with a trial scheduled for June 18, 2013 when hired. In addition, a White applicant was hired although he reported that he had been arrested for “Larceny/Building” and another White applicant was arrested for “menacing, Refusal to Submit to Breath/Blood/Urine; and operating a motor vehicle while under the influence of alcohol/drugs etc. with a blood alcohol content of .08.”

EEOC concluded that the applicant had “established that the Agency subjected him to disparate treatment based on race when it rescinded his tentative offer of employment.”  Aside from his back pay and leave balances, the agency was ordered to give the employee compensatory damages and extra money to remove any adverse income impact from getting 11 years of back pay in one year.

While union reps rarely come into contact with applicants looking for their help, this case could help the current employee who applies for a promotion, is conditionally selected and then rejected based on a more thorough background investigation than the employee had previously. It is particularly useful as support for making a request for a very wide range of data on applicants.

For details, check out Dudley H., v. Janet L. Yellen, Sec’t’y., Dep’t. of the Treasury (IRS), EEOC No. 2019005559 (2023)

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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