WHAT DO SELECTING OFFICIALS OWE BQ CANDIDATES? A LOT!
Law requires selecting officials to explain to non-selected BQ promotion applicants why they were passed over. In fact, it requires them to be quite specific about why. See if you can figure out which of these selecting official explanations meets the requirements of law.
- You just were not the “best candidate” for the job.
- You were not sufficiently suited for the job.
- You did not do as well as the selectee in the interview.
- The interview panel did not like your appearance.
- You did not have the specific job knowledge and experience I was looking for.
- You will not fit in with this group.
- The selectee has more potential for these particular duties.
- You need to show better interpersonal skills and leadership potential.
- You need to improve your appraisal scores, get more experience, and demonstrate you are ready.
Here is the short answer. Not one of them is legally adequate under the law. Under the right circumstances, which we will describe below, if the selecting official used one of these explanations to defend her decision to pass over a non-selected BQ candidate, that candidate would likely be entitled to a retroactive promotion, attorney fees, and damages.
We are talking about the many civil rights laws that prohibit discrimination. They require the selecting official to provide with “sufficient clarity” the reasons for the employee’s non-selection such that he/she has a “full and fair opportunity” to demonstrate the reasons are a pretext or incorrect. Even if the non-selection was based on subjective reasoning the selecting official must “articulate a clear and reasonably specific factual basis upon which it based its subjective opinion.” If the selecting official did not like the candidate’s appearance, he must reveal what objective aspect of the appearance he did not like, e.g., wrinkled clothes, dirty fingernails, piercings, tats, etc. If non-selection was based on a poor interview, what specifically did the employee not do well, e.g., ramble, avoid eye contact, not answer the questions, pick at something, etc. If a lack of potential, training and experience hurt the employee, what specific experience and training did the selected candidate have that the non-selected one lacked. These examples come from federal court and EEOC decisions listed below.
Unfortunately, often HR only tells selecting officials to “select the person you think is best.” No one tells them that there are fairly tight limits on their selection discretion. They may know they cannot violate the law or regulations when making a decision, but have little idea of what actions constitute a violation law. If they work in the federal sector, they also have to base their decision on merit (See 5 CFR 7 and 5 CFR 300.101), not just a non-merit factor like, “I have known the selectee longer than you” or “She already works the night shift where the vacancy is and you do not.”
Although that is the law, union reps need to know how to force the explanations out of them. Here’s how. Suppose a 45 year old Hispanic woman walked into your union office to ask the union to file a grievance over her non-selection even though she was on the BQ list. The best first step is to ask the selecting official or management for a specific reason for her non-selection. If they get back something vague like the statements at the outset of this posting, the union can ask again or file an EEO charge claiming discrimination to force the selecting official to go on the record. Too many people think they need rock solid proof to file EEO charges, such as the selecting official had a history of calling Hispanic employees derogatory names. Not true. All they need to show is the following:
- There was a vacancy,
- The employee qualified for selection (ideally, she was on the BQ list),
- The employee was passed over, and
- Management selected someone else not on the list or lower-rated on it.
The law also requires that the employee be a member of a protected civil rights class, but everyone is. The employee may not even have to be from a different protected class than the selectee. Check out more about these criteria that are known as the “prima facie” test.
During that pre-complainant process the employee normally can get a copy of the promotion file and ask the EEO specialist to have the selecting official provide a specific reason for non-selection. If the reason does not meet the specificity requirements of the law or it violates merit, the employee or union have the choice of filing a formal EEO complaint or filing a grievance claiming a civil rights violation—if the contract permits grievances to be filed months after the violation. Unions can negotiate for a delayed grievance filing date when an EEO charge has been filed. Or they could allege that it was not until the EEO pre-complaint process concluded that they knew that the law, regulations or contract had been violated, e.g., it was only with the revelation of the reason for non-selection that they knew with some certainty.
No matter which you choose, at some point the selecting official will have to swear before a judge or arbitrator to the reason why he non-selected this woman. If his reason is still too vague, based on something other than merit, not believable, has changed from prior statements, or inconsistent with the documentary evidence, the employee will likely get that retroactive promotion and other benefits.
Life would be quite easy if the union rep or employee only needed to an e-mail requesting the reason for the non-selection to get them, but that is not reality. Even when they file a grievance management regularly stonewalls the union forcing it to run the particularized need gaunlet. So, union reps must be prepared to use the EEO route to force out of the selecting official what he/she owed the employee in the first place. This is another one of those situations where just using what is in the contract is not enough.
If you want to read more about getting information out of the selecting official, click over to our two prior postings entitled Waterboarding Selecting Officials and Waterboarding Selection Officials II.
Here are some case decisions addressing this issue.
Prevo v. FDIC, EEOC No. 01972832 (2000)
Klein v. Dept. of Agriculture, EEOC No. 01200617211 (2008)
Johnson v. Dept of Homeland Security, EEOC No.0120072888 (2008)
Patrick v. Ridge, 394 F.3d 311 (5th Cir. 2004)
Chapman v. AI Transp., 229 F.3d 1012 (11th Cir.2000)
EEOC v. Target Corp., 460 F.3d 946 (7th Cir.2006)