EEOC Case: Middle Eastern FSO Alleges Discrimination, Raises “Unconscious Bias” Over Non-Promotion

 

EEOC Appeal No. 2020000559
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Foreign Service (“FS”) Officer, FS-04, (Political) at the U.S. Embassy in Ankara, Turkey.

On December 7, 2018, Complainant filed a formal EEO complaint alleging discrimination by the Agency on the bases of race (Middle Eastern), national origin (Iranian, naturalized U.S. Citizen), and religion (Muslim) when, on or about August 31, 2019, she learned that she was not promoted by the 2018 Foreign Service Selection Boards.
[…]

The record includes, but is not limited to, the following relevant facts:

Promotions for FSOs, such as Complainant, are determined by Selection Boards (also referred to as the Promotion Board or “Board”) comprised of volunteer reviewers from within the Agency. In 2018, it was established Agency practice for all reviewers to undergo two days of training on relevant software, and how to impartially evaluate an employee based on their awards and duty posts from the past five years, the employee’s electronic Official Personnel Files (“eOPF” or “file”), and their EER (review). The volunteers are instructed to recuse themselves if they feel they are unable to review a file objectively. During the 2018 training, the volunteers were briefed by the Agency’s Office of Civil Rights about diversity with a focus on “ensuring the Board applied the Department’s EEO principles in its deliberations and decisions.”
[..]

The promotion review was on a “class-wide basis,” so all FS-04 candidates within the same specialty were reviewed by the same Board. Thus, the Board reviewing Complainant and other FS-04s was responsible for reviewing more than 875 files within 10 weeks, or 34 to 40 employee
files per day. When asked to provide affidavits for the instant complaint, none of the panelists recognized Complainant’s name or specifically recalled the contents of her employee file.


Complainant maintains that she was qualified and deserving of a promotion based on her accomplishments, and submits copies of her EERs from 2011 to 2018, a Superior Honor Award
(2011), a Letter of Commendation (2012), two Meritorious Honor Awards (2016 and 2018) and the highest language score among her cohort of Turkish language students (2017) and service above grade in three out of four assignments. While Complainant concedes, “I do not have information from which I can assess whether my performance was superior to those selected,” Complainant asserts that her “track record in multiple positions senior my grade, my awards, and my EERs, I am on par with those promoted.”

Complainant contends that, at the time of her 2018 non-selection, “unconscious bias” was a known obstacle to achieving awards and promotions within the Agency’s selection process. She states that at least two affinity groups, Executive Women at State and Balancing Act, had been trying to raise the issue of unconscious bias with respect to the scoring process. The Union surveyed employees in 2017 and identified strong support for removing names from EERs (reviews). Regarding this survey, Complainant states that “individuals like me, with different ethnically identifiable names, almost unanimously found fault with the Agency’s practice of including names in the EERs.”
[..]

Significantly, Complainant argues that the Agency, in both investigating and deciding her case, disregarded her allegations of “unconscious bias,” instead applying a disparate treatment analysis to her allegations. It is clear from the record that Complainant was attempting to raise a disparate impact claim, as she repeatedly clarified in her affidavit that she did not believe the Panel intentionally discriminated against her, instead, describing herself as the victim of unconscious bias as a result of the Agency practice of promotion boards knowing the names of the candidates they were reviewing.

Complainant challenges the Agency’s policy of allowing reviewers for FS promotions to see the employees’ first and last names, arguing that a candidate’s name could trigger implicit bias by the reviewer. As evidence of bias against individuals of Middle Eastern dissent, Complainant cites FBI data revealing a 67% increase in hate-based incidents against Muslim Americans in 2015, the highest since the aftermath of September 11, 2001. She also cites the Muslim Public Affairs Council, which, based on media tracking, found an exponential increase in hate-based attacks. She recalls the “Muslim Ban,” where the President called first for a “total and complete shutdown of Muslims entering the United States,” later modified to “extreme vetting” of Muslim immigrants. Moreover, Complainant argues that even if all of the panelists did not realize her name was of Middle Eastern origin specifically, “it is impossible for someone not to know that I am from a specific minority group . . . and that I am likely from the Middle East with a high probability that I am Muslim.”
[…]

In the present case, as a result of the Agency’s investigation’s sole focus on disparate treatment, the record is not sufficiently developed to determine whether Complainant can establish even a prima facie case of disparate impact.3 We have presented some of the details of our prior analysis in Gwendolyn G. to provide Complainant and the Agency with guidance in determining the sort of evidence necessary to determine a disparate impact case of this sort. We are vacating the Agency’s final decision and remanding this matter to the Agency for further investigation relevant to the disparate impact claim.

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby VACATE the Agency’s Final Decision (with the exception of affirming the timeliness dismissal of promotion claims prior to 2018) and REMAND the matter for further processing in accordance with the following Order.

ORDER
1. Within one hundred and twenty (120) calendar days of the date this decision is issued, the Agency shall conduct a supplemental investigation addressing Complainant’s claim of discrimination under the disparate impact theory and issue an updated ROI to Complainant.
2. Among other things, the updated ROI shall contain the necessary statistical data to allow a decision maker to determine whether Complainant can establish a prima facie case of disparate impact analysis discussed above with respect to individuals with Middle Eastern names, as well as individuals with names that could be mistakenly identified as Middle Eastern. Evidence shall also be gathered with regard to the Agency’s justification for the challenged practice.
3. Within sixty (60) calendar days of the completion of the supplemental investigation, the Agency shall issue a new FAD to Complainant with appeal rights to this Commission. The FAD shall contain a thorough analysis of Complainant’s complaint under disparate impact theory.
The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall include a copy of the new ROI and FAD with appeal rights, and it shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
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