EEOC just found that several offices of the Social Security Administration have been scheming to exclude employees over the age of 40 from moving into jobs with higher career promotion.  EEOC not only gave eight employees between the ages of 40 and 52 retroactive promotions, but also seriously undermined the agency’s ability to pick selection criteria out of thin air in the future—as most agencies think they have the right to do. Here is how the SSA scheme worked.

Although SSA had employees in jobs that went to a GS-8 salary, when it came time to fill jobs at the GS-7 level that went to the GS-11 level, it decided not to use the internal promotion process.  Instead, it announced the jobs externally, likely thinking that law gives the agency the right to choose the method it uses to fill vacancies.  That was step 1 of the plan.

The next one was to require that all applicants, whether already working for SSA or just getting out of college, take and pass the ACWA exam to get considered for selection.

Finally, the selection decision was based solely on the ACWA score. We suspect that SSA was thinking that another right management has under law is the right to select, giving it two layers of legal protection.  Any relevant experience, training or achievement the applicant may have had were ignored when it became all about the test score. That enabled SSA to fill most of the vacancies with applicants substantially younger than 40.  The remaining vacancies it left open rather than fill them with applicants over 40.

When the employees took their case to EEOC here is how it unraveled what appears to us to be very close to a conspiracy to violate someone’s civil rights, which can be a very, very serious thing if prosecuted.

EEOC began by questioning why the agency would only announce the job externally under a selection method that kept it from considering applicants’ SSA experience, appraisals, and training for the vacant job. In fact, the Commission noted that the Administrative Judge “observed that the Agency rejected its own regularly-used means of assessing promotional qualifications for CRs and ignored merit system principles in the process.”  The AJ saw a link between the discontinuation of the internal selection process and the aging of the workforce.

Next, it questioned the use of the ACWA test, saying it obviously favors younger applicants. The Commission pointed out that the exam was specifically designed for the recruitment of external hires and was never intended for employees who already worked for the Agency. The questions were “geared towards recent college graduates, and it was generally known that the test was easier for college students, who received study guides at their schools particularly related to the exam” according to EEOC. When coupled with the fact that the ACWA was offered at local colleges, but not at the SSA job site, the Commission ruled “the Agency used the ACWA exam as way to screen out internal employees and recruit external hires for CR positions.”

Another EEOC consideration was the agency’s inability to explain why it chose to rely so heavily on the ACWA exam. Agency managers almost never have to justify why they chose a particular selection criterion when the union files a contract grievance due to the management rights outlined in the labor law (5 USC 7106). But EEOC generally requires them to disclose the rationale behind the decision and to ultimately justify it as a legitimate business-related one if challenged.  EEOC just could not get over an agency making selections without considering the experience, training and appraisals of applicants. It seemed that they saw that as the antithesis of a legitimate business decision, especially because had the agency used the ACWA questionnaire rather than the test it could have brought those three things into the selection decision.  Perhaps the final straw shattering any chance the agency had to justify reliance on the ACWA was testimony from one of its own managers to the effect that the ACWA test seemed unfair because so many really good employee candidates for promotion failed it.

Once the validity of the test was undermined as a legitimate decision, the Commission pointed to several things suggesting the motive was discrimination.  The agency left several vacancies unfilled rather than select either of the two internal candidate who passed the ACWA, and one of its HR Supervisors testified the ACWA was used because management found that it produced selectees who were “bright,” “eager,” and “energetic.” She also mentioned the agency valued that “external recruitment brings in new blood, new people coming into the Agency.”   In response EEOC said, “Although these comments and words do not directly address age, under the circumstances presented herein, they appear to be code words that strongly imply derogatory age-based stereotyping in favor of hiring younger external employees over older internal employees for selection. See Taylor v. Homeland Sec., EEOC Appeal No. 0120052546 (Dec. 6, 2006) (management’s language that experienced employees had no desire to “grow,” “improve” and “advance” were code words that imply age bias and stereotyping).”

The Agency tried to dodge the weight of all this evidence by arguing that, although it favored external candidates, being an Agency employee versus a non-Agency employee is not a protected basis under Commission regulations. The EEOC fired back, “… that the Agency was clearly aware, and it was reasonable to think, that Agency internal employees with years of experience generally were older than newly-hired external employees. In so finding, we note that almost of all the selectees were in their 20s and 30s, while all Complainants were at age 40 or above.”  In other words, being an Agency employee can be a protected factor if the employees are all or mainly of a different race, gender, age, national origin, etc.

The agency also tried to justify the ACWA’s use by testifying that other offices had obtained good results using the test, e.g., it got people who could handle3 complex material, but EEOC ruled that the “good results” explanation was too subjective to be an adequate explanation.  SSA failed to offer any facts to support that assertion.

We like this case because it showed how employees can restrict or even overturn an agency’s right to choose the method it uses to fill jobs and the criterion it uses to select.

If you want to read all the gory details of the SSA scheme check out Marine, et al. v.  Nancy A. Berryhill, Acting Commissioner, Social Security Administration, EEOC No. 0720170001 (2017).

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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