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U.S. Merit Systems Protection Board
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Home
	  Prohibited Personnel Practices
      Frequently Asked Questions
      1- Non-Discrimination
         2 - Proper Considerations
         3 - Coercing  Political Activity
               4 -  Obstructing the Right to Compete for Employment
               5 - Influencing  Withdrawal from Competition
               6 - Granting  Any Preference or Advantage Not Authorized by Law
               7 - Nepotism
                   8 - Whistleblower Protection
                   9 - Protection Against Retaliation
                   10 - Conduct Not Adversely Affecting Performance
                   11 - Violating Veterans' Preference
                   12 - Violating Merit System Principles
                   13 - Nondisclosure Forms, Policies & Agreements
					14 - Accessing Medical RecordsSearch & Site Index Prohibited Personnel Practice 1: Non-Discrimination in Employment
 Prohibited Personnel Practice of the Month - October 2011
				  **Number 1:
		  Non-Discrimination in Employment**Any employee who has authority to take, direct others to    take, recommend, or approve any personnel action, shall not, with respect to    such authority—
                  discriminate for or against any employee or applicant for    employment— 
                (A) on the basis of race, color, religion, sex,    or national origin, as prohibited under section 717 of the Civil Rights Act    of 1964 (42    U.S.C. 2000e–16); 
                (B) on the basis of age, as prohibited under    sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a); 
                (C) on the basis of sex, as prohibited under    section 6(d) of the Fair Labor Standards Act of 1938 (29    U.S.C. 206(d)); 
                (D) on the basis of handicapping condition, as    prohibited under section 501 of the Rehabilitation Act of 1973 (29    U.S.C. 791); or 
                (E) on the basis of marital status or political    affiliation, as prohibited under any law, rule, or regulation.***The first prohibited personnel practice seems to repeat what merit system  principle 2 says.  Is there a difference?***
            The first prohibited personnel  practice (PPP), 5  U.S.C. § 2302(b)(1), is very similar to the second merit system principle, but the  biggest difference between the two is that all of the merit system principles represent ideals for the way the Federal government should be run but they are  not enforceable, standing alone.  Thus,  many of the principles have a similar PPP that serves to enforce the ideals  represented by the principle.  There are  also some additional differences that are significant, most notably that with  the exception of subsection (E), the PPP names the specific law that prohibits  the conduct and therefore gives it context and meaning because those laws have  been subject to much administrative and judicial litigation over their  lifetimes.  Finally, the principle  concerning “privacy and constitutional rights” is not repeated in this PPP.
          ***If I file an  appeal with the Merit Systems Protection Board (MSPB) and claim that I was discriminated  against, will MSPB hear my claim?***
If  your claim is filed in connection with a matter that is appealable to MSPB, we  will hear your discrimination defense in addition to your claims about the  underlying action itself.  This kind of  appeal is known as a “mixed case.”   Although MSPB cannot hear claims of discrimination when appeals are  filed under three specific statutes (the Veterans  Employment Opportunities Act of 1998, the Uniformed  Services Employment and Reemployment Rights Act of 1994, and the individual  right of action provisions of the Whistleblower Protection  Act), MSPB will consider an allegation of discrimination as a defense to an  appealable agency action in most instances.  However, in the absence of an  otherwise appealable action, a PPP claim may not be considered.
          ***I know  what it means when I say that I was discriminated against, but I don’t know  much about PPPs.  What’s the difference?***
            There is no difference.   A claim of discrimination is just one type of PPP established by the Civil Service Reform Act of  1978, Pub. L. No. 95‐454, 92 Stat. 1111 (CSRA). Whether you tell MSPB you  are raising a PPP claim under 5 U.S.C. § 2302(b)(1) or just  say you believe you were discriminated against on one of the bases listed in  that section, the burdens and standards of proof remain the same and MSPB will  hear your claim if it has jurisdiction over your appeal.
          ***If I want  to raise a claim of sex discrimination, what’s the difference between raising  it under subsection A and subsection C?***
            The Fair Labor Standards Act (FLSA) section cited in the  law, with limited exceptions, prohibits paying  lower wages on the basis of sex for “equal work on jobs the performance of  which requires equal skill, effort, and responsibility, and which are performed  under similar working conditions.”  The Civil  Rights Act of 1964 is not limited to wage disparities, but covers “[a]ll personnel  actions affecting employees or applicants for employment.”  Thus, if you believe that you are being paid  less than a co-worker because of your gender, your claim will fall under  (C).  All other gender-based claims will  come under (A).  While most claims,  therefore, come under (A), during the processing of your appeal the  administrative judge will provide enough information to enable you to know what  your burden of proof is depending on the type of claim you raise.
          ***Most of the  other kinds of discrimination are familiar, but what are******marital status and political  affiliation discrimination?*******
            To prove the former, an employee must demonstrate  that unmarried employees were treated differently from married employees.  *Stokes  v. Federal Aviation Administration*, 761  F.2d 682, 685 (Fed. Cir. 1985).  Thus, such a claim does not include  circumstances that may result from your marital status, e.g., child care  responsibilities.  Political affiliation  discrimination does not cover “office politics” or political correctness.  Rather, it means discrimination based on a  person’s affiliation with any partisan political party or candidate.  *Mastriano  v. Federal Aviation Administration*, 714  F.2d 1152, 1155 (Fed. Cir. 1983).  As  such, it harkens back to the roots of MSPB, the Pendleton Act of 1883, which replaced the patronage system with a merit system.
         ***What  about sexual orientation discrimination?   Is that the same as sex discrimination?***
	
	
	Yes. Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment because of an "individual’s . . . sex." 42 U.S.C. § 2000e-2(a)(1). In *Bostock v. Clayton County, Georgia*, 140 S. Ct. 1731 (2020), the Supreme Court held Title VII's prohibition of discrimination based on sex includes sexual orientation and transgender status because "homosexuality and transgender status are inextricably bound up with sex." 
          ***I thought  that if I believe that I was discriminated against, I had to bring my claim to  the agency and the EEOC.  Doesn’t the  EEOC decide such claims?  Plus, I know  that OSC can investigate PPPs, so does it also have authority?***

            The EEOC does have authority to decide claims of  discrimination under the Civil Rights Act of 1964, the Age Discrimination in  Employment Act, the Fair Labor Standards Act, and the Rehabilitation Act, and  to award appropriate remedies, but it lacks authority with respect to claims of  discrimination based on marital status or political  affiliation.  *See* www.EEOC.gov/federal/otherprotections.cfm.   The MSPB has authority to hear all of  those claims when they are raised in connection with a matter that we have  jurisdiction over.  As to OSC, because  discrimination is a PPP, it does have the authority to investigate and seek  corrective and disciplinary action concerning such claims.  However, OSC states that because procedures for investigating  those complaints have already been established in Federal agencies and the  EEOC, it “follows a general policy of deferring complaints involving  discrimination to those agencies' procedures.”   In fact, there is yet an additional option  for employees covered by a collective bargaining agreement, filing a  grievance.  *See* 5 C.F.R.  § 1201.3(c)(1)(i), which provides for an election between filing a  grievance and appealing to MSPB.
          ***With all of  those options available, how do I know where to file?***
            When Congress listed the PPPs in the CSRA, it struggled  with the same issue.  It decided that,  because EEOC’s expertise lies in issues of discrimination law and MSPB’s is in  civil service law, when the two come together in one case, deference should be  given to each agency based on that expertise.  *See* Conference Report on  S.2640, H.R. Rep. 95-1717, at  139 (1978), *as reprinted in* Committee on Post Office and Civil Service  House of Representatives, 96th Cong., Legislative History of the Civil Service  Reform Act of 1978, at 1981 (1978).  As  a result, 5 U.S.C.  § 7702(a) provides that when an employee or applicant is affected by  an action that is appealable to MSPB and wishes to raise a claim of  discrimination on one of the bases set out in section 2302(b)(1),  that is, a “mixed case,” MSPB may hear and decide both the appealable matter  and the issue of discrimination, whether the discrimination issue was first  raised to the agency (if the agency has decided it or 120 days have passed  since a formal complaint was filed) or brought directly to MSPB.  Also, MSPB’s own regulations, at 5 C.F.R. § 1201.21,  provide that when an agency takes an appealable action, it must notify the  employee of the right of appeal to MSPB.
          In addition, both MSPB and EEOC have regulations setting  out the rules specifically applicable to mixed cases.  They provide  that if the employee files an EEO complaint first, the employee can appeal to MSPB  after receiving a Final Agency Decision on the EEO complaint from the agency,  or 180 days after filing the EEO complaint if no final decision has been  received.  If the employee files an MSPB appeal first, the employee may  appeal the Board’s finding on the discrimination issue to the EEOC’s Office of  Federal Operations.  For the applicable  rules, *see* 29 C.F.R. Part 1614 and 5 C.F.R. Part 1201,  subpart E.
          As to grievances, an employee who  elects to file a grievance and raises an allegation of discrimination may  appeal to the Board for review of a final arbitration decision.  In such cases, though, the employee must file  his appeal directly with the Clerk of the Board and will not be entitled to the  procedures granted by an appeal at the regional and field offices. *See* 5 C.F.R. § 1201.3(c)(3).
          Last, since OSC defers to the  discrimination complaint process, filing there is not a good choice for gaining  review.  Whether you file initially with  MSPB or go through your agency’s EEO or grievance process, however, 5 U.S.C. § 2302(b)(1)  makes discrimination under the laws it names a PPP, so the same law will apply  to proving your claim.  And, don’t worry about possibly filing at the wrong agency.  Congress recognized there might well be  confusion and also provided in the CSRA that
          *In any case in  which an employee is required to file any action, appeal, or petition under  this section and the employee timely files the action, appeal, or petition with  an agency other than the agency with which the action, appeal, or petition is  to be filed, the employee shall be treated as having timely filed the action,  appeal, or petition as of the date it is filed with the proper agency.*5 U.S.C. § 7702(f).
          ***It seems  like MSPB would receive a lot of cases alleging this prohibited practice.  Has it?***
            Yes, in fact MSPB statistics for the last five fiscal years  for which statistics were available (prior to November 2011) show that more  than 9,000 allegations of discrimination were made, including those cases in  which more than one type of discrimination was asserted.  However, MSPB administrative judges decided  on their merits only about 1,500 of them because many cases were settled or  dismissed for untimeliness or lack of jurisdiction, or the allegation was  withdrawn.  These same statistics show  that the claim raised most frequently is disability discrimination, followed by  race, then sex.
          ***Has the  Board recently issued any significant decisions addressing issues of  discrimination?***
            Yes.  For example, in *Southerland v. Department of Defense*, 2011  MSPB 92 (October 5, 2011), it interpreted  the Americans With Disabilities Act Amendments Act (ADAAA) and held that if an  employee is not challenging the agency's failure to make reasonable  accommodation and does not require a reasonable accommodation, the analysis should proceed under the  “regarded as” prong of the definition of disability, which does not require a  showing of an impairment that substantially limits a major life activity or a  record of such an impairment.  It  also held that a “but for” test applies under the ADAAA, i.e., that the  employee must show that but for the disability, the agency would not have taken  the appealed action, and the burden of persuasion does not shift to the agency  to show that it would have taken the action regardless of disability, even if  the appellant produces some evidence that disability was one motivating factor  in the adverse employment action.  In *Bowman v. Department of Agriculture*, 113  M.S.P.R. 214 (2010), the Board also adopted the “but for” test for claims  of age discrimination made under the Age Discrimination in Employment Act.  In *Davis  v. Department of the Interior*, 114  M.S.P.R. 527 (2010), addressing generally the requirements of Title VII of  the Civil Rights Act but specifically race and sex discrimination, it clarified  that to meet the burden of proof that the agency’s action was discriminatory,  the appellant need not introduce evidence of a similarly situated employee not  in his or her protected group who was treated more favorably, but may rely on  anyevidence giving rise to an inference that the unfavorable treatment  at issue was due to illegal discrimination.
          ***Has the Board  studied discrimination in the Federal government?***
    It has.  As we noted  in connection with merit system principle 2, it 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.  This is just the most recent study relative  to issues of discrimination and fair treatment.   You may find all of the others, dating back to the first, a 1981 report  on sexual harassment, on MSPB’s website at www.mspb.gov/studies/viewallstudies.htm.


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