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A Superfluous Federal Agency Is Caught Discriminating — Again!

This latest scandal involving ugly discrimination against a dedicated member of the military is just another outrageous example of why Congress should shut down the U.S. Election Assistance Commission.

Hans A. von Spakovsky


May 24, 2011 - 8:54 am
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Rep. Greg Harper (R-Miss.) has introduced a bill to eliminate one of the least known and most useless agencies in Washington: the U.S. Election Assistance Commission (EAC). The fact that this supposedly temporary $18 million-a-year agency is apparently on the hook to pay damages for refusing to hire a military veteran provides another sound reason for shutting it down. This is the second time in less than two years that the EAC has discriminated in hiring a job applicant — and for the very same position no less.

The Office of Special Counsel (OSC) is the independent agency that investigates prohibited political activity by federal employees. On December 2, 2009, it announced that two EAC commissioners had discriminated against a job-seeker applying for the position of General Counsel, a career civil service post. Although OSC did not identify the discriminators, the two commissioners were Gracia Hillman and Rosemary Rodriguez.

After interviewing the applicant, Hillman and Rodriguez, both Democrats, had voted along with the two Republican commissioners to hire him. He was sent an offer letter. However, according to OSC, when Hillman and Rodriguez discovered the lawyer was a Republican, they refused to approve his appointment as General Counsel. The OSC concluded that Hillman and Rodriguez had engaged in a “prohibited personnel practice” — specifically, they discriminated against the prospective EAC employee “because of his political affiliation, in violation of civil service laws.”

The lawyer received a six-figure settlement from the EAC — all of it paid by taxpayers, not those who violated the law. Now the Labor Department has found that the EAC discriminated again. And it’s the behavior of one of the same commissioners, Gracia Hillman, that was the problem. Neither Hillman nor Rodriguez is on the Commission now, but Hillman was still a commissioner last August when the EAC tried again to fill the still-open General Counsel slot. One of the applicants was a lawyer with extensive experience in voting and election law, as well as election administration. He had perfect qualifications for the job with one exception, at least according to Hillman’s point of view — he is a reserve naval officer.

During the interview, Hillman started asking detailed questions about his military service. According to the attorney, Hillman’s questioning showed that she believed “that no military reservist could ever be ‘objectively’ involved with voting issues due to some imaginary legal conflict under attorney bar requirements,” an absurd (and offensive) notion. Hillman’s questions showed that the lawyer’s military service was “a negative in her eyes and [she] sought to convey these negative ramifications to the other Commissioners and staff present.” She even discussed “the potential burdens on the Commission in the event [the lawyer] was out of the office on reserve duty,” despite the fact that his ordinary schedule involves only one weekend a month (when he would not be working at the EAC) and two weeks a year of active duty training. The lawyer said it was clear to him that Hillman believed his military service “was a valid reason not to hire [him] as General Counsel.”

Hillman’s (and the EAC’s) problem is that this kind of discrimination against a military service member is illegal under federal law. The Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4311, prohibits denying employment to any individual on the basis of membership in the uniformed services. When he wasn’t hired, the lawyer complained to the Department of Labor (DOL), which has responsibility for investigating this type of discrimination against members of the military.

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