By Deborah Hopkins, February 15, 2022

By now, FELTG readers know that Diversity, Equity, Inclusion and Accessibility (DEIA) in the Federal workplace is a priority for the Biden Administration. And many agencies are in the process of hiring new employees, keeping in mind that the workforce should represent all of America, including traditionally underserved populations.

President Biden’s recent announcement that his pick for the Supreme Court would be an African American woman has also raised questions about what is and is not permitted in the hiring process within the Federal government – something we’ll be tackling in the March 16 virtual training event Nondiscriminatory Hiring in the Federal Workplace: Advancing Diversity, Equity, Inclusion and Accessibility. As we await this important event, I wanted to share three items to consider if you’re involved in the hiring process in any way.

  1. Sometimes it is legal to hire someone because of their sex.

Occasionally, a person’s sex can legally be a bona fide occupational qualification (BFOQ). While this only applies in very limited circumstances, agencies can set this requirement if there is a legitimate, business-based reason. See, e.g., Dewey R. v. DOJ, EEOC App. No. 0120142308 (May 20, 2016) (sex was a BFOQ for a correctional officer position that required performing strip searches on female inmates).

  1. It is illegal to refuse to hire someone because of their sexual orientation.

While this has been the law in the Federal government since the July 2015 decision Baldwin v. Secretary of Transportation, EEOC Appeal No. 0120133080, it became law for the rest of the country in the June 2020 Supreme Court decision Bostock v. Clayton County, 140 S. Ct. 1731.

As I say in many classes, just because a law exists doesn’t mean everyone follows it. In a recent EEOC decision, a complainant was discriminated against based on his sexual orientation when he was not hired for an Assistant Fire Operations Supervisor. While the agency claimed non-discriminatory reasons for the nonselection, EEOC found these reasons were pretextual.

For example, the complainant was ranked as the top candidate among seven after a selection panel recommended individuals to hire. However, one of the supervisors involved in the hiring process decided to expand the field to 12 candidates and changed the weight that references held. That supervisor also did not contact any of the references the complainant provided. As a result, the complainant dropped from the top spot to eighth on the list and was not given a second interview. EEOC found this discrimination was motivated by the complainant’s sexual orientation.  Bart M. v. Interior, EEOC Appeal No. 0120160543 (Jan. 14, 2021).

  1. Sometimes, the complainant doesn’t even need to apply for the job in order to state a claim of discrimination in the hiring process.

While you might think that applying for a job is a prerequisite to claiming discriminatory nonselection, there are always exceptions. A complainant need not establish that he applied for a job as an element of a prima facie case if he can show that he was actively discouraged by management from applying for the job in the first place, and that discouragement was tied to or motivated by the complainant’s protected EEO category or EEO activity. See O’Connor v. Secretary of Veterans Affairs, EEOC Appeal No. 0120112072 (2011).

We’ve got plenty more, which we’ll be sharing with you in this space and in our upcoming training sessions. We hope to see you there. [email protected].

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