Issue Briefs

Following is an excerpt from a recent EEOC publication describing its precedent on “disparate treatment” of federal employees to establish a case of discrimination or reprisal under EEO law.

Apart from procedural dismissals, the most common issue that the Commission must address in a federal sector appeal is whether a complainant has been subjected to disparate treatment discrimination because of his or her statutorily protected status or activity. An examination of decisions in which the Commission has found disparate treatment discrimination reveals certain factors that complainants should consider when pursuing a claim. These decisions can provide complainants and their representatives with a better sense of the elements needed to prevail in a disparate treatment claim.

To prevail on appeal in a disparate treatment case, the complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in the landmark case of McDonnell-Douglas Corporation v. Green. The complainant must initially establish a prima facie case of discrimination by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of unlawful intent. Proof of a prima facie case will vary depending upon the circumstances of the particular case. Once the complainant establishes a prima facie case, the burden of evidentiary production shifts to the agency to articulate a legitimate nondiscriminatory reason for its actions. The burden then returns to the complainant to prove, by a preponderance of the evidence, that the explanation the agency has put forward is a pretext, that is, the explanation is not the real reason but rather a cover for unlawful discrimination.

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. 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. 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.

Complainants must do more to prove a claim of discrimination on appeal than merely restate the prima facie case or make generalized assertions that they had been discriminated against. Complainants must establish that the reasons articulated by the agency for the actions it took were a pretext for a discriminatory motive. 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.