Suppose an employee files an EEO charge or grievance over a denied promotion and the judge finds that there was discrimination in how the employee and other candidates were treated. But also assume that the judge also concludes that the complaining employee would not have been the one selected even if there was no discrimination. The job would have gone to someone who did not even challenge his non-selection. The grieving employee will probably feel likes/he lost. S/he is not getting the promotion or any back pay.  But there is a substantial consolation prize.

Almost any employee who is the victim of discriminatory treatment, but denied the job will be eligible for compensatory damages of up to $300,000. That kind of cash can smooth over a lot of the employee’s disappointment. The Commission decided a case just last week entitled, Alena C. v Robert Wilkie, Veterans Administration, EEOC No. 0720180003 (April 2018). There an employee went through precisely this situation and the EEOC awarded her $50,000.00 in compensatory damages.  The employee testified that as a result of being passed over for a GS-13 promotion she has been emotional, stressed, suffered headaches, had hives, nerve pain and spasms, among other symptoms. Her case was similar to others who got $50,000 because discrimination caused them to a- lose sleep and a basic enjoyment of life, b- suffer mood swings, c- feel humiliated, d- lose weight, and e- no longer be able to deal with their husband or children.

Ironically, in this case it appears that the employee who did not get the job walked away with a lot more money than the employee who did get the job and retroactive promotion—at least in the short term.

The lesson to take from this case is that any employee who believes the agency discriminated against them, but who concedes that some other employee was probably the better candidate should file anyway. Whether it is called back pay or compensatory damages, it is still money and both also typically come with an order that the agency consider disciplining the discriminating manager.

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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