Fedweek Legal

Frequently federal employees feel that they were unfairly denied a competitive promotion. A non-promotion is discriminatory only if the employee was not selected because the individual is in a protected class (for example, sex, race, age, national origin, disability or religion). Proving that a selection decision was discriminatory can be very difficult.

To prove that a non-selection was discriminatory, the employee must first show that he or she is a member of a protected group, was qualified for the position, and that the individual(s) selected were outside the protected category. However, this last factor will not be present if the agency cancelled the vacancy announcement to avoid selecting a highly qualified candidate because of the candidate’s race, for example. After the employee is able to present these facts, then the agency must articulate legitimate, nondiscriminatory reason(s) for the selection decision. Then the employee must prove that the agency’s reasons are false and are an effort to hide the true reason for the non-selection — discrimination.

As a practical matter, the employee must show that he or she was highly qualified for the position and that if discrimination had not played a role, he or she would have been selected. Certain facts can help prove that a selection was discriminatory. For example: the selecting officials rely on very subjective criteria; the selecting officials do not follow established civil service procedures and requirements; or the agency uses criteria for rejecting a candidate which were not used in the initial qualification, rating or ranking process. Deviations from normal procedures may be evidence of discrimination. Statistics may also be very helpful. For example, if a selecting official has frequently had the opportunity to select a highly qualified African American, but has never done so, then the statistics help prove race discrimination. An employee who believes that he or she was discriminated against should contact an EEO counselor within 45 calendar days.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **