Federal Manager's Daily Report

The EEOC has published a list of indicators that a federal agency’s defense to a charge of discrimination is merely a pretext, adding that “a complainant can demonstrate pretext by showing inconsistencies or contradictions in the evidentiary record such that a reasonable fact finder could find the articulated reason for the agency’s action unworthy of credence.”

An agency-produced article accompanying its most recent compilation of decisions notes that to prevail in an argument of disparate treatment in the workplace for reasons barred by EEO law, an employee must first make an initial case that he or she “was subjected to an adverse employment action under circumstances that would support an inference of unlawful intent.” In its defense, the agency must “articulate a legitimate nondiscriminatory reason for its actions.”

The employee then must show that the agency’s explanation was not the real reason but rather “a cover for unlawful discrimination.” To do this he or she must do more than restate the original complaint or make “generalized assertions that they had been discriminated against,” it said.

“Over the years, the Commission has pointed to several indicators that could support a finding of pretext. One such indicator in hiring and promotion cases is that the complainant’s qualifications for the position were plainly superior to those of the selectee,” the article says. “Other indicators of pretext include discriminatory statements or past personal treatment attributable to the responsible management official; comparative or statistical data showing differences in treatment across particular racial, ethnicity, gender, age-related or disability-related lines; unequal application of agency policy, deviations from standard procedures without explanation or justification; or inadequately explained inconsistencies in the evidentiary record.”

It added: “In circumstantial evidence cases, this can be done by pointing to contradictions between statements made by the officials responsible for the action which led to the complaint and other evidence in the record, be it the testimony of reliable witnesses or documents.”