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Merit System Principle 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, he or she can appeal to the Board after receiving a Final Agency Decision on the EEO complaint, or 180 days after the filing the EEO complaint if a final decision has not yet been received.  If the appellant files an MSPB appeal first, he or she may appeal the Board’s finding on the discrimination issue to the EEOC’s Office of Federal Operations.

Has the MSPB studied the issue of equity?
MSPB studies examining the treatment of Federal employees by demographic group include the 2009 report Fair and Equitable Treatment: Progress Made and Challenges Remaining and the 2011 report Women in the Federal Government: Ambitions and Achievements, which updated earlier reports, Fair and Equitable Treatment: A Progress Report on Minority Employment in the Federal Government (1996) and A Question of Equity: Women and the Glass Ceiling in the Federal Government (1992). A 1997 report, Achieving a Representative Federal Workforce: Addressing the Barriers to Hispanic Representation, examined the challenges unique to Hispanic employees.

MSPB’s periodic Merit Principles Survey includes core items that address employee perceptions regarding the occurrence of PPPs, such as discrimination based on political affiliation, race, religion, sex, marital status, age and disability. Trends in Federal employee opinions regarding discrimination have been presented in reports such as Prohibited Personnel Practices: Employee Perceptions (2011). Results of the Merit Principles Surveys have also been analyzed by demographic variables such as ethnicity, race and sex in reports such as The Federal Government: A Model Employer or a Work in Progress? (2008) and Fair and Equitable Treatment: Progress Made and Challenges Remaining (2009). As reported in the 2009 report, Fair and Equitable Treatment: Progress Made and Challenges Remaining, survey responses have consistently indicated a downward trend (since 1996) in the prevalence of perceived discrimination based on race/national origin, sex and age, with discrimination based on marital status, disability, religion and political affiliation remaining below four percent. These results suggest improvement in employees’ perceptions regarding how well Federal agencies adhere to MSP 2, but survey results also suggest there is still some room for improvement.