Discriminatory Hiring/Promotion

 

What is discriminatory hiring/promotion?

 

Employers cannot refuse to hire a qualified applicant or fail to promote a qualified employee to an available position because of her sex.1 In specific circumstances, federal law permits intentional discrimination if sex is a bona fide occupational qualification (BFOQ).2 Discriminatory hiring and promoting refers not only to employers’ final decisions; it may also apply to application processes designed to favor one sex over another, job postings and descriptions that indicate a preferred sex, or application procedures that are administered differently to men and women.3 Hiring and promoting practices may be unlawful if facially neutral application standards have a statistically significant disparate impact upon one sex.4 Facially neutral means that a policy or practice does not make a specific reference to sex.

 

What protections do I have against discriminatory hiring/promotion under federal law?

 

Under Title VII of the Civil Rights Act of 1964 (Title VII), an employer who employs 15 or more employees for at least 20 weeks per year may not “fail or refuse to hire” any applicant because of his or her sex.5 Employers are also prohibited from taking actions that would “deprive…any individual of employment opportunities or otherwise adversely affect [her] status as an employee.”6 Discrimination may come in a number of forms: an explicit decision not to hire or promote, job advertisements that state a discriminatory preference, or an application process that is administered differently to some applicants than others.7 In practice, Title VII can protect individuals from both intentional sex-based discrimination – known as “disparate treatment” – and good faith practices that yield unequal results between the sexes – known as “disparate impact.”8

 

Can an employer deny me a position because I am a woman?

 

Federal law permits intentional discrimination in hiring and promotion in a narrow set of circumstances. If an employer demonstrates that sex is a “bona fide occupational qualification” (BFOQ) that is reasonably required for a particular position, it is permissible to discriminate on the basis of sex.9 To succeed on a BFOQ defense, an employer must prove that “all or substantially all” members of a given sex would be unable to perform a job function “safely and efficiently.”10 Furthermore, the given job function must be related to the “essence” of the employer’s business; superfluous duties that would effectively bar applicants because of sex are not permitted.11

 

What is my recourse if I was denied a position and no BFOQ exists?

 

If you believe you were intentionally denied a position because of your sex and no BFOQ defense exists, you may file a claim under a theory referred to as “disparate treatment.”12 To do so, you must first meet a basic four-part test to establish an inference of discrimination under Title VII:

  1. You are a member of a protected class (i.e., a woman);13
  2. You applied for and were qualified for the available position sought;14
  3. The employer rejected your application; and15
  4. The employer continued to solicit applicants while the position remained open.16
If you meet each element, the employer must then present a legitimate, non-discriminatory reason for its failure to hire or promote you. If you believe the employer’s stated reason is disingenuous, you may challenge it by presenting evidence that it is merely a false justification created to conceal the employer’s true motive of prohibited discriminatory intent.17

 

 

An employer fills very few positions with female applicants, but apparently denied me a position in good faith. May I file a claim? 6

 

Even if you have no evidence that an employer intentionally failed to hire or promote you because of sex, potential may remain for a “disparate impact” claim. If facially neutral job qualifications, application procedures or application administration methods have an adverse impact upon one sex, you may pursue relief on grounds of disparate impact.18 To do so, you must prove the same basic four-element test required to demonstrate disparate impact generally:

  1. A statistical disparity in hiring or promotions exists;
  2. The disparity is the result a particular employment practice;
  3. The practice in question is not justified by business necessity; and
  4. An alternative employment practice that would yield less disparate results is, and available to the employer and would serve its business necessities equally well.19
To learn more about disparate impact in all of its contexts, refer to Disparate Treatment/Disparate Impact.

 

 

Must I have actually applied for a position and been denied in order to bring a claim against an employer?

 

Not necessarily. If an employer’s advertising, interviewing, or hiring practices and policies had the effect of totally deterring you from applying, you will not automatically be barred from filing a claim. You should bear in mind, however, that the court has expressly stated your burden of proof will be particularly high in succeeding on such a claim. 21

 

Do I have any recourse if an employment agency, rather than a direct employer, committed an act of discrimination?

 

Yes. Title VII expressly includes employment agencies in its prohibition of discriminatory employment-related conduct.22 Because employment agency referrals and the processes by which they are made have a direct and tangible connection to permanent employment, their practices are subject to the same scrutiny as those of other employers in relation to hiring.

 

My employer transferred me to a different position with less potential for future advancement. Does this qualify as a discriminatory promotion?

 

It is possible, but unlikely. Your potential claim in such a situation will depend on the specific details of your case. If your new position has substantially the same pay and benefits and differs only in its likelihood of future promotion, it is considered to be a “lateral transfer.”23 Federal courts do not consider purely lateral transfers to be adverse employment actions protected by Title VII.24 If your new position does offer a substantially lower salary or meaningful reduction in benefits, the action is prohibited if it was motivated by sex.25

 

How do I bring a claim for discriminatory hiring/promotion under federal law?

 

The Equal Employment Opportunity Commission (EEOC) is charged with enforcing Title VII.26 You must begin by filing a complaint with the EEOC. Aggrieved applicants and employees must bear in mind, however, that a strict time limit applies to claims of discrimination brought under Title VII. A complaint must be filed with the EEOC within 180 days of the discriminatory act.27 If the EEOC ultimately finds no “reasonable cause” to conclude an act of discriminatory hiring or promotion has occurred, an individual may commence a lawsuit.28

See The EEOC Process for information about the general procedure for filing such a complaint.

 

What protections do I have against discriminatory hiring/promotion under North Carolina law?

 

The North Carolina Equal Employment Practice Act (NCEEPA) provides protections to applicants and employees in the hiring and promotional process independent of federal law.29 NCEEPA protects the “opportunity of all persons to seek and obtain… employment without discrimination or abridgement on account of …sex” in the interest of promoting public policy.30

You have two main avenues of relief if you believe an employer unlawfully denied you the opportunity to obtain a job or promotion.31 Because hiring and promotional decisions are based on an employer’s private assessment of qualifications that are necessarily subjective, you may use either a disparate treatment or disparate impact approach to demonstrate discrimination.32

 

What is disparate treatment and how do I prove it in the context of hiring/promotion?

 

A disparate treatment complaint alleges that an employer’s actions were different towards you than towards other candidates because of your membership in a protected class – in this case, because you are woman – and the difference in treatment had a negative impact on your employment.33 To succeed, you must first prove a set of four basic elements:

  1. You are a member of a protected group (i.e., a woman);
  2. You were qualified for an available position or a promotion;
  3. You were denied the available job or passed over for the promotion; and
  4. The person receiving the job or promotion was not a member of the protected class.34
Once you prove each of these four elements, the court will presume impermissible discrimination.35 The employer must then present evidence of a legitimate non-discriminatory reason for failing to hire or promote you.36 Once the employer does so, the complainant must prove that the employer’s stated reason is mere pretext for a discriminatory motive behind the employer’s conduct.37

 

 

What is disparate impact and how do I prove it in the context of hiring/promotion?

 

If you have no evidence that an employer intentionally failed to hire or promote you because of sex, you may still be able to pursue a disparate impact claim. The North Carolina Supreme Court has adopted the Title VII standard for evaluating disparate impact claims.38 If an employer’s recruitment methods, job qualifications or application process have a disproportionate adverse impact upon women, you may pursue a disparate impact claim.39 To do so, you must prove the same basic four-element required to demonstrate disparate impact:

  1. A statistical disparity in hiring or promotions exists;
  2. The disparity is the result a particular employment practice;
  3. The practice in question is not justified by business necessity; and
  4. An alternative employment practice that would yield less disparate results is available to the employer and would serve its business necessities equally well. 40
To learn more about disparate impact in all of its contexts, see Disparate Treatment/Disparate Impact.

 

 

How do I bring a claim for discriminatory hiring/promotion under North Carolina law?

 

If you are a North Carolina state or county government employee who is or was subject to the provisions of the State Personnel Act, Chapter 126 of the North Carolina General Statute, you may file a complaint with the Civil Rights Division of the North Carolina Office of Administrative Hearings (CRD).41 If eligible, you may file your complaint directly with the CRD without having exhausted in-house remedies or grievance procedures.42 A strict time limit applies. Complaints must be filed with the CRD within 180 days of the employer’s discriminatory act.43 If you are not a current or former North Carolina state or county government employee, your options for pursuing relief under state law are limited; your best course of action would be to utilize the federal protections outlined above.

 

Discriminatory Promotion: “It Happened to Me” 44

 

Gwendolyn L. Gordon (Gordon) had served as an assistant superintendent for the Pamlico Correctional Institution in North Carolina for five years and eight months when she applied for a promotion. The North Carolina Department of Corrections (DOC) posted a job opening for Superintendent IV of Pamlico. She was qualified for the position and boasted an impressive resume. She had a four-year degree in business administration and over twenty years of work experience with the DOC. Gordon was a certified Basic Correctional Officer who had broad experience with a host of internal duties and responsibilities. Her professional experience included “supervising inmates… opening jails, expanding facilities, and developing labor contracts and community work assignments.” Six other individuals applied for the open superintendent position, including Robert Hines (Hines), the man who was eventually awarded the job. Hines’ resume lacked much of the luster of Gordon’s. He possessed a two-year associate’s degree and his professional experience was primarily in operations and custodial matters, as opposed to running and overseeing programs.

Gordon realized that she had been passed over for a promotion for which she was objectively qualified. Because Hines was male, she suspected that gender discrimination might be at play in the DOC’s promotion decision. Gordon filed a complaint with the Office of Administrative Hearings (OAH) to contest the DOC’s selection of Hines for the promotion. The OAH ruled that the DOC had committed acts of racial and sexual discrimination, and ordered that she receive back pay and benefits until a similar position became available to which she could be promoted.

The DOC appealed the ruling and a trial court ruled in favor of the DOC. Gordon decided to pursue her case further and appealed to the North Carolina Court of Appeals. The Court found that Gordon had met her initial burden of proving that discrimination was likely the reason behind her failure to receive the promotion. She succeeded in convincing the court that the DOC’s stated reason for promoting Hines – that he was better qualified – was mere pretext because her credentials were objectively superior. The Court of Appeals reversed the trial court’s decision and reinstated Gordon’s awards for back-pay and benefits, and ordered the DOC to pay her attorneys’ fees.

 

 

1 42 U.S.C.A. § 2000e-2(a)(2) (West 2009).
2 Id. at § 2000e-2(e).
3 Lindemann, supra note 144, at 1094.
4 Id. at 1107
5 42 U.S.C.A. § 2000e-2(a)(2) (West 2009).
6 Id.
7 Lindemann, supra note 144, at 1076-1077.
8 Watson v. Fort Worth Bank &Trust, 487 U.S. 977, 986-87 (1988).
9 42 U.S.C.A. § 2000e-2(e)(1) (West 2009).
10 Dothard v. Rwalinson, 433 U.S. 321, 333 (1977).
11 Lindemann, supra note 144, at 406.
12 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
13 Id.
14 Id.
15 Id.
16 Id.
17 Lindemann, supra note 144, at 1103-1104.
18 See Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).
19 Id.
20 See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977).
21 Id.
22 42 U.S.C.A. § 2000e-2 (West 2009).
23 Lindemann, supra note 144, at 1118.
24 Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995).
25 Lindemann, supra note 144, at 1117-1119.
26 42 U.S.C.A. § 2000e-5(a) (West 2009).
27 Id. at § 2000e-5(e)(1).
28 29 C.F.R. § 1601.19(a) (2009).
29 N.C. Gen. Stat. Ann. § 143-422.2 (West 2009).
30 Id.
31 Id.
32 See N.C. Dep’t of Corr. v. Hodge, 394 S.E.2d 285 (N.C. Ct. App. 1990).
33 N.C. Gen. Stat. Ann. § 143-422.2 (West 2009).
34 Gordon v. N.C. Dep’t of Corr., 618 S.E.2d 280, 288-289 (N.C. Ct. App. 2005).
35 Id. at 287.
36 Id. at 288.
37 Id.
38 N.C. Dep’t of Corr. v. Hodge, 394 S.E.2d 285, 289 (N.C. Ct. App. 1990).
39 See Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).
40 Id.
41 North Carolina Office of Administrative Hearings, http://www.ncoah.com/civil/faq.html (last visited Feb. 8, 2010).
42 Id.
43 Id.
44 See Gordon v. N.C. Dep’t of Corr., 618 S.E.2d 280 (N.C. Ct. App. 2005).