By Meghan Droste, February 19, 2020

 “Learn the rules like a pro, so you can break them like an artist.”

– (Possibly) Pablo Picasso

It’s Valentine’s Day as I write this column for you, dear readers.  And so it is with great love for my fellow practitioners, the EEO process, and (of course) the rules that I have to share that while creativity is wonderful, sometimes it’s a terrible litigation strategy. I truly admire great artists and creative types, and creativity can be helpful in our line of work, such as in coming up with out-of-the-box ideas during settlement discussions. But there are times when it can go too far.

I have been doing this (researching, litigating, teaching) long enough that I am rarely surprised by arguments employers raise to avoid liability.  Leon B. v. Department of State, EEOC App. No. 012018144 (Nov. 5, 2019), is one of the exceptions. The claims are fairly run of the mill: The complainant alleged that the agency discriminated against him on the basis of race, color, age, and disability when it did not select him for a special agent position.

The complainant made it through the initial stage of the application process, including an oral assessment conducted by two agency employees.  Following the assessment, the agency notified the complainant that he failed to meet the cut off score and, therefore, was not eligible to continue.

During the investigation of the formal complaint, the investigator asked the agency to provide documents regarding the scoring process, and asked both of the employees who conducted the assessment for information on what questions they asked and how the complainant’s answers compared to those of other employees. The investigator also asked the agency for information on the other candidates who were selected and those who also failed to meet the cutoff for the scoring of the oral assessment.

The agency refused to provide the requested information.

Why? Well, here comes the creative part: The agency asserted that the information was exempt from disclosure under the Freedom of Information Act, specifically exemption (k)(6).  (Notwithstanding the statements by at least one of the employees who conducted the assessment, the agency appears to be relying on the Privacy Act and not FOIA.)

This exemption allows agencies to withhold information regarding testing material in responding to Privacy Act requests when providing the materials would compromise the objectivity or fairness of the selection process.

You can probably guess that this did not end well for the agency. Because the agency failed to produce any specific information as to why the complainant did not score high enough to advance in the process, the Commission found that the agency could not articulate a legitimate, non-discriminatory reason and therefore the complainant prevailed.

The Commission ordered the agency to assign the complainant the same score as the highest scoring candidate and then continue the application process. Assuming the complainant received a clearance and passed the medical exam, the Commission also required the agency to put the complainant in a special agent position.

In your brushes with the EEO process, it is probably best to ignore Picasso’s advice in most circumstances and leave your creativity and artistry to other pursuits. Droste@FELTG.com

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