Employer’s Failure to Provide a Legitimate, Non-Discriminatory Reason for Actions Leads to Jury Trial
December 5, 2006
Laura Garofalo - Chicago
Employers are entitled to base employment decisions on subjective considerations, such as a conclusion that one applicant is a “better fit” for a position or that an applicant does not satisfy its employment requirements. But, as a recent decision of the Seventh Circuit Court of Appeals demonstrates, employers must explain why they reached such conclusions; they cannot simply rely on the bald statement that one applicant was better than another, or that an employee did not meet subjective expectations, to justify their decisions against a discrimination charge. E.E.O.C. v. Target Corp., 460 F.3d 946 (7th Cir. 2006). A failure to adequately explain your decisions not only will likely lead to a jury trial, but a jury finding against you.
The Facts
Target maintains a multi-step hiring process for its Executive Team Leaders (ETLs). This includes a pre-screening process conducted by a recruiter; an initial interview; an ELITE interview, consisting of a standardized multiple-choice test and three rounds of one-on-one personal interviews; and a consensus meeting by all interviewers to discuss all applicants.
The recent Seventh Circuit case involved a group of individuals who claimed that they were not hired through Target’s ETL process because of their race. In particular, one applicant completed the hiring process but was not subsequently hired. Although he scored higher than 97 percent of the candidate norm group, Target claimed that the applicant did not meet the requirements for an ETL position based on his ELITE interview. However, Target did not produce the ELITE interview forms or explain how the applicant failed to meet its requirements.
The McDonnell Douglas Burden-Shifting Framework
Unless an employee has strong evidence that an employer acted with a discriminatory motive, he or she must generally attempt to prove discrimination claims through a three-step framework first articulated in a Supreme Court decision called McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Initially, the employee must establish what is called a prima facie case of disparate treatment. This varies based on the kind of discrimination alleged, but generally a plaintiff must show:
1) he or she belongs to a protected class under the discrimination laws
2) he or she applied for and was qualified for a job for which the employer was seeking applications (or, in the case of discharge, was meeting the employer’s legitimate expectations)
3) despite being qualified, the applicant was rejected (or suffered another adverse action, such as termination)
4) after the applicant’s rejection, the position remained open and the employer continued to seek applications from persons of the rejected applicant’s qualifications (or, in the case of termination, the individual was replaced by someone outside the protected class or other similarly situated individuals outside the protected class were treated differently)
Once a plaintiff establishes a prima facie case, the employer must offer a legitimate, non-discriminatory reason for its actions. The burden then shifts back to the plaintiff to show that the employer’s proffered reason was a pretext for discrimination – whether or not the employer honestly believed reason it gave for the decision.
In explaining its legitimate, non-discriminatory reason, the employer must use admissible evidence to show that it rejected the applicant for a legitimate non-discriminatory reason rather than based on a discriminatory motive. The employer must explain its reason for rejecting the applicant clearly enough to allow the court to focus its inquiry on whether the employer honestly believed that reason. An employer’s reason not to hire an applicant may be subjective, such as a poor attitude during an interview.
Target’s Explanation Wasn’t Good Enough
The Court concluded that Target failed to meet its burden to explain why it did not hire the applicant: its bare statement that the applicant did not meet the requirements for the position, with no further detail or explanation of the reasons how or why the applicant did not meet the requirements, was not enough. “Without more detail, this explanation does not frame the dispute such that the EEOC can respond to Target’s asserted reason with specific evidence that this reason was a pretext for discriminatory motive.” The Court ruled that because Target did not adequately produce a legitimate non-discriminatory reason, the EEOC was entitled to take its race discrimination claims to a jury trial even though it had not presented specific evidence to refute Target’s claim that the applicant did not meet the requirements of the position.
What Does This Mean for Employers?
Target Corp. once again demonstrates how crucial it is for employers to thoroughly think through and be able to explain all of their employment decisions. It is not enough to simply state that you believe that one employee was more qualified than another for hire or a promotion, or that an employee was discharged because he was not meeting your standard. You need to explain how and why the individual did not satisfy your requirements, with specific examples. If your reasons are objective, make sure you have the documents to back them up. Sometimes your reasons will be subjective, and you won’t have documents. But even then, make sure you can specifically articulate your reasoning in a manner that makes common sense and is consistent with your other decisions. Make sure you have not treated others differently in similar situations. Finally, make sure you give the same reason or reasons for your decision each time you communicate them; changing the reason for your decision can give an employee the basis to argue that your reason is false and discrimination is the real reason.
For more information, e-mail Laura C. Garofalo at laura.garofalo@hklaw.com or call toll free, 1-888-688-8500.