Employers and organizations must often make difficult hiring and firing decisions that may leave some employees unhappy. This includes decisions concerning which employees get promotions and raises and which get laid-off. This blog post concerns what employers can do to limit liability for discrimination claims when forced to choose between various job or promotion candidates.
The United States District Court for the District of Massachusetts answered some questions about this in a recent, May 2013, decision concerning a disgruntled employee. In Hicks v. Napolitano, Hicks who was a 12-year civilian employee of the United States Coast Guard, brought suit alleging that she was overlooked for a promotion because of her gender and race in violation of Title VII.
In 2009, the office that employed Hicks sought application for a “Housing Manager.” Hicks applied for this position, along with along with a male candidate by the name of Krout,” who had been active in the Coast Guard for over 24-years. Both candidates received interviews from an all male panel. The panelists ranked the candidates’ answers to interview questions on a scale of 1-3. Hicks was awarded 142 points, and Krout was awarded 148 points. As a result of the scores, Krout was thereafter awarded the job.
In analyzing the claim, the district court utilized the McDonnell Douglas test. Under this test, Hicks had the burden of showing, “(1) she is a member of a protected class, (2) she was qualified for the open position for which she applied, (3) she was rejected for that position, and (4) someone holding similar qualifications received the position instead.” It is then the burden of the government to articulate a lawful, non-discriminatory reason for the adverse employment decision.
In its motion for summary judgment, the defense was successfully able to prove that Krout outscored Hicks on the test, and the housing manager’s position in question was historically held by more women than men.
This case demonstrates that in disparate impact cases, the courts carefully inquire into the qualifications of promotion applicants. Therefore, when making hiring (or firing) decisions, employers should be aware that they may have to justify these decision later—in court. This means employers must not only be able to articulate the job description, but must also have justified reasons as to why that decision was made and reasons why particular applicants are hired. This can be done through transparent record keeping and fair evaluation systems.
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