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: