GovernmentExecutive.com

A federal judge ruled Monday that the Army's equal opportunity promotion policy is unconstitutional and gives racial minorities and women an unfair advantage over white males.

Retired Army Lt. Col. Raymond Saunders, a white male, was twice denied promotion to full colonel in the 1990s. Saunders, who retired from the Army in 1997 after 23 years of service, filed a suit with the U.S. District Court in 1999 alleging that the Army's equal employment policy discriminated against him.

U.S. District Judge Royce C. Lamberth ruled that the Army's promotion process "undeniably establishes a preference in favor of one race or gender over another, and therefore is unconstitutional," according to the 68-page opinion. If the ruling stands, the Army would have to remove race and gender considerations from its promotions process. The decision also allows Saunders to proceed with his case, but denies his request for an immediate ruling on the Army's liability.

To guide its decisions, an Army selection board handles promotions and uses equal opportunity goals to ensure that all races and both genders advance at comparable rates. The Army's promotion policy calls for the selection board to adjust a candidate's standing if there is evidence of past discrimination against the individual.

The Army failed to show a history of discrimination against female or minority officers in promotions, according to Lamberth. Lamberth referred to Army data from the last 30 years that showed blacks were promoted at the same rate or faster than white officers. Since 1993, female officers have been promoted faster than their male counterparts, according to the data.

The Army argued that Saunders would not have been promoted regardless of race and gender and asked the court to dismiss the case. The court denied the Army's request, saying its evidence was inadequate.

Lt. Col. Raymond Saunders v. Thomas E. White, Secretary of the Army, U.S. District Court for the District of Columbia (Civil Action #99-2807), March 4, 2002.

Sneak Peek

While Anita Brown was a supervisory tax technician at the Internal Revenue Service, she admitted she had accessed an employee's tax account information without authorization in May 1999, though she said the access was accidental or inadvertent. Brown admittedly had a "troubled relationship" with the employee.

The IRS fired Brown for the offense, and Brown appealed the agency's decision to the Merit Systems Protection Board. An administrative judge upheld the agency's decision. Brown appealed that decision to the full board, contending that the agency failed to prove she intentionally accessed the employee's tax records and that her punishment was overly stringent given her spotless employment record.

But the Board upheld the judge's decision, saying there was no evidence to prove that Brown did not intentionally view the information.

However, the board agreed with Brown that her punishment was too harsh given her 27 years of discipline-free government service, most of which was served at the IRS. The board also weighed the fact that Brown was cooperative throughout the agency's investigation, acknowledged the severity of the charge and agreed that the agency had a duty to pursue unauthorized access to tax accounts. Instead, the Board determined that a "demotion to the next lower-graded nonsupervisory position with the least reduction in grade and pay" was a sufficient reprimand.

Brown's demotion took effect Jan. 19, 2001. The IRS was ordered to give her back pay with interest for the time she was out of work.

Anita Brown v. Treasury Department, Merit Systems Protection Board ( PH-0752-01-0129-I-1), Feb. 15, 2002.