In our last post, we discussed how to defend non-selections from a selecting official’s perspective. In this post, we’ll discuss this issue from an investigator’s perspective.
Those of us trained as EEO investigators, are familiar with the shifting burdens of proof outlined in McDonnell Douglas v. Green. Of specific note is management’s burden to articulate a legitimate, non-discriminatory reason for its actions. In this case, we are looking for management’s reasons for not selecting the complainant. Countless times, we see (as investigators and reviewers of investigations) managers saying, “I picked the selectee because they had more points than the complainant.” They offer nothing more. Both McDonnell Douglas and EEOC have found that a more comprehensive answer should be provided. A manager must provide a response that is more than “I didn’t discriminate” or “The selectee got more points.” Management must give a reason, specific enough, for the complainant to rebut.
In practice, this requires investigators to probe management officials for more specific reasons for not selecting the complainant. We offer the following ideas for probing selecting officials, and in some cases, panel members for specific reasons for their decision.
- For the selecting officials:
- You testified that you chose the selectee because they received more points than the complainant. Did you consider any other factors in your decision? If so, what where they?
- Please provide the criteria you used in your selection process.
- For panel members:
- Please provide a specific explanation as to why you found the selectee to be superior to the complainant. Provide details about how you scored the complainant and the selectee.
- What criteria did you use to evaluate the candidates for this position? How did the complainant and selectee compare using this criteria?
These follow-up question should elicit responses that are specific enough to be rebuttable. Without these follow-up questions, an investigator risks having a case remanded for supplemental investigation, and there is some risk for management’s ability to defend its selection.
As investigators our jobs are made easier by selecting officials who are able to articulate a specific reason for their selection, but we must be prepared to probe when management officials or panel members are not able to provide specifics regarding the process they followed and how they applied the criteria.
What questions have you found helpful in obtaining a thorough articulation from management?
Probing for more information besides the scoring methodology is critical. EEO training to Managers should reiterate the importance of being able to articulate the reason for selection.