We have fielded a number of calls recently asking how to help an employee who wants to challenge her non-selection for a promotion. All you have to do is convince an arbitrator that some law, regulation or labor contract provision was broken and that "but for" that violation the employee would have been selected. This gives the union, and the arbitrator, a lot of freedom if you know how to use it. You don't even need to prove a violation of a specific law, like the law against race discrimination or the law against anti-union retaliation. Its enough to prove a violation of the general requirement in most labor contracts that employees be treated "fairly and equitably." To show you how this works, two FLRA decisions are attached to this newsletter: Picatinny Arsenal, New Jersey, 48 FLRA No. 92 (1993) and Redstone Arsenal, Alabama, 20 FLRA No. 94 (1985). In the first case, the arbitrator found that an employee had been "pre-selected" for a promotion and ordered the selected employee removed and the action re-run. The Authority upheld the award. In the second case, the arbitrator found that the employee who got the promotion was pre-selected and ordered the agency to promote the grievant to the next available vacancy. The Authority reversed the arbitrator's award because he did not make the magic "but for"finding. That is, the award was improper because the arbitrator did not find that without the violation, the grievant would have been picked for the promotion. Now you know how to do promotion grievances!

The EEOC has at last finalized the regulations it proposed in March 2000 on the Americans with Disabilities Act. What the new regulations do is make all of the EEOC's regulations on the ADA for the private sector (at 29 CFR Part 1630) applicable to federal government employees. 67 Federal Register 35732 (May 21, 2002),

Some laws provide extra remedies if the employee proves the violation was "wilful." The Fair Labor Standards Act requires payment of 3 years back pay instead of 2 if the violation is wilful. The Privacy Act allows recovery of a minimum penalty of $1,000, plus attorney's fees, if the violation is wilful. Employers sometimes plead ignorance and say their managers just didn't know about the law. The Seventh Circuit rejected this defense in an age discrimination case in EEOC v. University of Wisconsin, 88 FEP Cases 1133 (7 th Cir. 2002). The Court found that the violation was wilful because the employment decisions were expressly based on age, because the managers had been given no employment law training, and because nobody involved in the decisions seemed to know the age at which employees are protected from age discrimination.

Readers of this newsletter have seen the alarming trend in the courts in recent years to dismiss EEO claims if the action is not, in the court's opinion, serious enough to be an "adverse employment action." The result is that employers in some circuits now have the freedom to discriminate all they want on "minor" things like performance appraisals and denials of leave. The Eighth Circuit issued a refreshing decision against this trend in Brown v. Lester E. Cox Medical Center, 12 AD Cases 1831 (8th Cir, 2002). The employee, a nurse, had been transferred to work in a supply room after the employer learned she had multiple sclerosis. The employer argued that she suffered no "adverse employment action" because her pay and benefits remained the same. The Court disagreed, saying that the reassignment prevented her from using her professional nursing skills and damaged her career prospects.