On June 9, an article appeared on FedSmith.com, The Best Qualified Person Got the Promotion… Right?. The article’s theme was that it is not necessary, or even possible, to prove who was the best qualified. Instead, one looks for various errors, or non-compliance with established doctrine, in the promotion process. When deviations are found, management is not generally given the benefit of the doubt.
The question now has to do with the other non-selectees on the certification. They made no complaint; thus, they were not privy to whatever irregularities the investigator found; and even if they are informed, the 45-day limit for filing a complaint has almost certainly expired. So, if they were also discriminated against, they have no recourse. Right?
There is good news and there is bad news. First, the good.
EEO programs and activities are based on C.F.R. (Code of Federal Regulations) 1614. This regulation states the various requirements and procedures for administering EEO complaints. CFR 1614.501 addresses the above situation, i.e., other persons on the certification who were also discriminated against.
§1614.501 Remedies and relief.
(a) When an agency, or the Commission, in an individual case of discrimination, finds that an applicant or an employee has been discriminated against, the agency shall provide full relief, as explained in appendix A of part 1613 of this chapter, which shall include the following elements in appropriate circumstances:
(1) Notification to all employees of the agency in the affected facility of their right to be free of unlawful discrimination and assurance that the particular types of discrimination found will not recur;
(2) Commitment that corrective, curative or preventive action will be taken, or measures adopted, to ensure that violations of the law similar to those found will not recur;
(3) An unconditional offer to each identified victim of discrimination of placement in the position the person would have occupied but for the discrimination suffered by that person, or a substantially equivalent position;
(4) Payment to each identified victim of discrimination on a make whole basis for any loss of earnings the person may have suffered as a result of the discrimination; and
(5) Commitment that the agency shall cease from engaging in the specific unlawful employment practice found in the case.
The bad news is that, as far as I have been able to find out, the above is not implemented. As a practical matter, this appears to be understandable, at least from management’s perspective.
Say there are seven persons on the certification, and one gets the promotion. One of the others complains, and wins his complaint. Is the agency really going to reach out to the other five non-selectees and award them all costly benefits/promotions? Or is the agency going to try to sort through them to find out which ones would not have gotten the job, even if the process had been error-free? Clearly, this could be an administrative nightmare for all concerned.
The dilemma is that one person may have complained and won his case, but others who were what lawyers call “similarly situated” did not know of the discrimination. They were just as deserving of remedies, and there does exist a mechanism for making them whole, but this raises its own problems.
FedSmith.com readers can shed light on this. Has above reg ever been implemented? How did they do it? Were all the non-selectees promoted? If not, what? In your agency, are employees ever told of the outcome in EEO cases? Or does the Privacy Act prevent this? Feel free to share your thoughts in the comments below.