In a class action appeal filed with the Merit Systems Protection Board, four military reserve officers allege that U.S. Customs and Border Protection (CBP) has engaged in a “continuous” and “wide-ranging pattern of harassment” against members of the U.S. Armed Services and National Guard, including targeting them with pre-employment polygraph screening, in violation of the Uniformed Services Employment and Reemployment Rights Act (38 U.S.C. § 4301 et seq.). The case is Ferguson, et al. v. Department of Homeland Security, et al., filed 15 February 2013.
One of the appellants, Jason Dutcher, was a lieutenant commander in the U.S. Navy Reserve when in June 2010 he applied for employment with CBP’s Office of Air and Marine. His application was rejected “ostensibly because he failed a polygraph examination.”
With regard to CBP’s pre-employment polygraph polygraph practices, the appeal alleges:
78. On information and belief, Appellant Dutcher and members of the Applicant Subclass were denied initial employment based on their membership in the United States Armed Services or National Guard.
79. On information and belief, and thereon alleged, polygraph examinations are or were administered to applicants with military service obligations at an unreasonably higher and inexplicably rate [sic] than to those applicants without military service obligations.
80. On information and belief, and thereon alleged, applicants with military service obligations fail the polygraph examinations at an unreasonably and inexplicably higher rate than do those applicants without military service obligations.
81. The Class’ obligations and membership in the uniformed services was and is a motivating factor in all discriminatory, harassing and hostile actions Appellees have taken against the Appellants.
The class that Dutcher seeks to represent includes “all those individuals who applied for employment at DHS, CBP and/or OAM between January 1, 1994 and the present who were not hired due to their military service obligations” (para. 101).
The appellants’ allegations also include:
129. Upon information and belief, Appellees have repeatedly made comments to members of the Applicant Subclass during the application process indicating that the applicant’s affiliation with the military made it difficult for Appellees to hire the applicant because the individual may have future military commitments.
130. Upon information and belief, Appellees have repeatedly refused to hire members of the Applicant Subclass because they may have future military obligations.
131. Upon information and belief, Appellees administer polygraph tests during the application process randomly, arbitrarily and at an unreasonably higher rate to members of the Applicant Subclass than to applicants with no military service affiliation.
132. Upon information and belief, an unreasonably and inexplicably higher percentage of applicants with military service affiliations fail the polygraph tests than do applicants with no military service affiliation.
133. USERRA requires employers to treat all applicants for employment similarly regardless of their military service affiliation and obligations.
134. By repeatedly discriminating against Appellant Dutcher and the Applicant Subclass through their refusal to hire members of the Applicant Subclass, Appellees have violated §4311 of USERRA.
135. Appellant’ Dutcher’s and the Applicant Subclass’ service obligations were a motivating factor in the discriminatory actions Appellees have taken against Appellant and the Applicant Subclass.