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Merit System Principle of the Month

MERIT SYSTEM PRINCIPLE OF THE MONTH

NUMBER 2
FAIR AND EQUITABLE TREATMENT

“All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.”

What is the intent behind the second Merit System Principle?

The second principle, concerning fair and equitable treatment, sets forth the vision that Federal personnel management be free of unfair treatment and discrimination, where decisions are made solely on legitimate merit-based considerations.  Requiring decision making without regard to political affiliation echoes the intent of the Pendleton Act of 1883 which replaced the patronage system with a merit system.  Requiring decision making without regard to race, color, religion, national origin, sex, marital status, age, or handicapping condition echoes the purpose behind Title VII of the Civil Rights Act of 1964 and related laws barring discrimination in employment.  The final clause makes clear that employees and applicants for employment are entitled to the protections of the Bill of Rights and the Privacy Act.

What is the MSPB’s role in protecting the second Merit System Principle?

As its name implies, the Merit Systems Protection Board (MSPB) protects the merit system by adjudicating appeals within its jurisdiction.  The employee may engage in discovery and request a hearing.  Among other things, Board review will consider whether the disciplinary action was taken based upon prohibited discrimination, retaliation, or for reasons which do not promote the efficiency of the Federal service.  When an employee has proven intentional discrimination, the Board may award compensatory damages except where the discrimination was based on marital status or age.  The Board may even review appeals filed by probationary employees who allege that they were terminated based on partisan political reasons or marital status discrimination.  However, the MSPB’s review authority is limited to those matters Congress and the Office of Personnel Management have given it.  Thus, although this merit principle seeks fair treatment “in all aspects of personnel management,” the Board may not review a claimed violation of the principle relating to a matter over which it lacks authority.

Doesn’t the EEOC also handle discrimination cases?  I’m confused.

The authority of the MSPB and the Equal Employment Opportunity Commission (EEOC) overlap in “mixed cases,” those cases involving an action otherwise appealable to the MSPB (e.g., a removal) and allegations of discrimination.  While the EEOC has responsibility for enforcing all Federal equal employment opportunity (EEO) laws and the duty to coordinate and lead the Federal government’s effort to eradicate workplace discrimination, the MSPB also has the responsibility to determine if the personnel actions it has authority to review were taken in accordance with law, to include the anti-discrimination laws.  In certain circumstances, the employee may choose whether to file an EEO complaint or an MSPB appeal in the first instance.  Regardless of that election, both agencies may ultimately review the case.  If the employee files an EEO complaint first, they can appeal to the Board after receiving a Final Agency Decision on the EEO complaint, or 120 days after he filed the EEO complaint if they have not received a final decision.  If the appellant files an MSPB appeal first, they may appeal the Board’s finding on the discrimination issue to the EEOC’s Office of Federal Operations.

Has the Federal government achieved the goals of this merit principle?

The MSPB recently studied workforce data and Federal employee perceptions of their treatment and issued a report to the President and Congress entitled Fair and Equitable Treatment: Progress Made and Challenges Remaining.