A Federal Communications Commission (FCC) certifying officer requested a decision regarding the propriety of the proposed settlement amount of an employment discrimination claim. The claim was filed by an FCC employee temporarily detailed to a higher grade position who alleged race, sex, and age discrimination when she was not temporarily promoted to a higher grade level. The Civil Rights Act of 1964 provides that a federal agency may offer a compromise settlement to an employee pursuing an employment discrimination claim without a finding of discrimination. GAO has held that a lump-sum payment may be made without a concomitant personnel action; however, the amount of a lump-sum settlement is limited to the amount of backpay which would have been awarded if a finding of discrimination had been made. GAO found that the proposed settlement amount should be reduced because: (1) it exceeded the amount that the employee would have received under a finding of discrimination; (2) the employee was not entitled to backpay for a period during which she was not eligible for promotion; and (3) the employee was not entitled to backpay for a period during which no discrimination was alleged. Accordingly, backpay for the two periods in question must be excluded from the settlement.
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