Author’s note: this is an account of one aspect of the EEO process as it applies to Federal employees. For more detailed information, please consult your local EEO office.
True? To win an EEO complaint regarding non-selection on a competitive job announcement you must prove you were the best qualified person on the certificate.
False. There is no “best qualified” person. There is, rather, a listing of fully qualified persons who applied for the job, who each accumulated enough points to make the certificate, or cert. As a practical matter, all those on the cert are equally well qualified. “Best” is subjective, a matter of opinion, like a beauty contest.
If the above is true, then how does a person ever manage to win an EEO complaint regarding non-selection? It is not at all uncommon for a complainant to win such a case. How does he/she do it?
(In the rest of this article, “he” or “his” will refer to a person of either gender. Below assumes the complaint is based on membership in an EEO protected class, such as race, religion, age, gender, etc. Nearly everybody qualifies.)
First, he sits down with an EEO counselor and states his complaint. The counselor does some checking and prepares a preliminary report, with a copy to the employee. If, after reviewing the report, the employee still feels he was unfairly passed over, he can file a formal complaint. This is when it gets interesting.
The formal complaint is reviewed by the EEO manager. If the complaint is in order, the manager will request an investigation by an outside, independent source. The investigator will gather information from all concerned, with great thoroughness. His final report will include all pertinent documents and statements from panel members, HR employees, and others. The investigator will be careful to be neutral and make no recommendations.
The employee reads the entire file, carefully. He may find nothing amiss, in which case he will drop the complaint. But he may see problems, such as: certain procedures were not followed, requirements were somehow overlooked, or there were irregularities of one kind or another. For example:
- The management labor agreement specifies that all candidates must be interviewed, with written justification for any omissions. Four persons were interviewed while four others were not. There is no documented justification for the omissions.
- Management asks for a new cert with more candidates from a wider search area, ostensibly because they want to select more persons than originally planned. And then management selects the original number anyway. This leads to suspicions they were actually looking for applicants of a certain class not found on the first cert but present (and selected) on the second, and this is the real reason they asked for a new cert.
- Despite requests from the investigator, the agency fails to provide demographic information regarding incumbents in the same job title where the position was being filled.
- In their sworn statements, panel members indicate the selection(s) was(were) discussed with and approved by a GS-15 director. The meeting and discussion with such a comparatively high-level manager might suggest the selecting official was aware there was something questionable about the selection(s), something that could be challenged.
- An email from the EEO manager to the HR supervisor is included in the investigative file, with some text redacted. It turns out the redacted text characterizes the HR handling of the complainant’s application as “a train wreck waiting to occur.”
Above is just a sampling of facts that may substantiate a charge of unlawful discrimination. There are many other possibilities. If the employee still believes his complaint is justified, he requests a formal determination, either by his agency or by the Equal Employment Opportunity Commission, i.e., a hearing before a judge.
It is generally quite difficult for an applicant to know with certainty whether there was something wrong in a job selection process. The EEO complaint procedure makes it clear, one way or another.
In summary, it is not necessary – or even possible – for a complainant to prove he was the “best qualified.” This is far too subjective. Management failure to comply with applicable requirements can, in and of itself, sustain a charge of unlawful discrimination.
For more information, see the EEO website.