Discriminatory Hiring/Promotion

 

What is Discriminatory Hiring/Promotion?

 

Employers cannot fail to hire a qualified applicant or fail to promote a qualified employee to an available position because of her sex. In specific circumstances, federal law permits intentional discrimination if sex1 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. These discriminatory practices and policies are illegal in Pennsylvania, and are actionable pursuant to both state and federal laws.

 

What are Pennsylvania’s laws regarding discriminatory hiring/promotion?

 

The Pennsylvania Human Relations Act (PHRA) declares it illegal to refuse to hire, employ, or contract with you because you are a woman.5 It is also illegal to advertise for a position in a way that expresses a preference for one sex or the other.6 In addition, employers cannot use a quota system to limit employment for women.7

 

Who does the PHRA cover?

 

The PHRA covers employers who have four or more employees, including government agencies, charities, and religious organizations.8 It does not cover agricultural or domestic workers, workers who live in the personal residence of their employer as part of their job, or individuals employed by family members.9 All other employees are covered.

 

How do I bring a claim in Pennsylvania?

 

The Pennsylvania courts have repeatedly held that there are no separate common law remedies for sex discrimination, including wrongful termination and sexual harassment, because the PHRA preempts all other claims based on discrimination.10 You cannot go directly to court under the PHRA, rather you must first file a complaint with the PHRC.11
See How to File a Claim with PHRC.

 

How long do I have to bring a claim?

 

You have 180 days to bring a claim under the PHRA.12

 

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

 

Under Title VII of the Civil Rights Act of 1964 (Title VII), employers may not “fail or refuse to hire” any applicant because of his or her sex.13 Employers are also prohibited from taking actions that would “deprive…any individual of employment opportunities or otherwise adversely affect [her] status as an employee.”14 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.15 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.”16

 

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.17 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.”18 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.19

 

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.”20 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);
  2. You applied for and were qualified for the available position sought;
  3. The employer rejected your application; and
  4. The employer continued to solicit applicants while the position remained open. 21

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.22


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

 

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. 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. 24

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 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.25 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.26

 

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.27 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.”28 Federal courts do not consider purely lateral transfers to be adverse employment actions protected by Title VII.29 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. 30

 

Am I covered by Title VII?

 

Title VII generally covers employers who employ fifteen or more people, but there are some limited exceptions.31 Although most federal employers are covered, employees of the Library of Congress, the General Accounting Office, and uniformed members of the military are not protected by Title VII.32 Other exemptions include: private membership clubs that have received tax exempt status,33 Indian tribes,34 and public international organizations such as the International Monetary Fund and the World Bank.35

 

How do I bring a claim under Title VII?

 

In order to bring a claim under Title VII, you have to go through the Equal Employment Opportunities Commission (EEOC). You cannot bring a case to court without first doing so. See The EEOC Process for more information.

 

How long do I have to file my claim under Title VII?

 

Federal employees must file a claim with the agency committing the discrimination within 45 days.36 Because the PHRC is Pennsylvania’s Fair Employment Practices Agency, private employees have 300 days after the alleged discriminatory practice to file a complaint.37
See The EEOC Process for more information.

 

What remedies am I entitled to under Title VII?

 

If the court finds that your employer has violated Title VII, there are several available remedies. The court has the freedom to demand that your employer take appropriate action, such as ceasing the discriminatory practice, hiring or promoting you, or paying you lost wages as far back as two years prior to your complaint with the EEOC. 38

However, if your employer can show that there was a non-discriminatory reason for its action as well as the discriminatory reason you proved, and that it would have taken the same action anyway, your remedies will be severely limited. The court is limited to telling your employer to stop the discriminatory practices, declaring that the practices are discriminatory, and paying attorney fees. 39

On the other hand, if you can show that your employer discriminated maliciously or recklessly, then the court may award extra payments beyond lost wages.40 These payments are limited by the size of your employer.41

 

Discriminatory Hiring: “It Happened to Me” 42

 

Alicia Cintron (Cintron) was an adult female resident of Delaware. In May of 1996, she applied to be a truck driver for a waste removal company called J. P. Mascaro & Sons, Inc. In order to qualify for the job, the applicant was required to hold a CDL driver’s license, complete a company-conducted road test, and provide a motor vehicle report. If the applicant fulfilled these requests satisfactorily, then the company would administer physical and drug tests.

Cintron had a type “B” CDL driver’s license and was expected to obtain the “A” CDL license in July of 1996. Prior to her application, she had driven school buses part-time for three years in several school districts and had driven a delivery truck for DuPont.

During the interview process, Cintron had to answer a number of intrusive questions relating to her sex. Her interviewer, D’Ambrosio, also acting as the shop manager of the Bridgeport Mascaro branch, asked whether she could “handle” working and overseeing male truck drivers, who “work until three o’clock, pee on tires, and curse.”

In general, D’Ambrosio would refer applicants to the acting general manager, Macelak, after they passed the driving test. However, Cintron was sent home even though she passed the road test. When she asked for an explanation, D’Ambrosio said that she was “just a girl trying to break into a man’s world.” After turning Cintron down, Mascaros continued to solicit applications for the position and eventually hired Pyatt, a male applicant, for the job.

Cintron brought a claim via the Pennsylvania Human Relations Commission (PHRC). The PHRC initially found that there may have been sex-based discrimination, but was unable to eliminate the alleged unlawful practice through conference, conciliation, and persuasion. The matter was approved for public hearing.

The final order was entered on May 23, 2000. Although Cintron was unable to get substantial monetary relief, the PHRC issued an order against Mascaros, prohibiting him from discriminating on the basis of sex.

 

 

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 43 Pa. Const. Stat. Ann. § 955(a) (West 2009).
6 Id. at § 955 (b)(2).
7 Id. at § 955 (b)(3).
8 Id. at § 954(b).
9 Id. at § 954(c).
10 Brennan v. Nat’l Telephone Directory Corp., 850 F. Supp. 331, 345 (E.D. Pa. 1994); Clay v, Advanced Computer Applicatons, Inc., 559 A.2d 917 (Pa. 1989)
11 43 Pa. Const. Stat. Ann. § 962(b) (West 2010).
12 Id. at § 959(h).
13 42 U.S.C.A. § 2000e-2(a)(2) (West 2009).
14 Id.
15 Lindemann, supra note 144, at 1076-1077.
16 Watson v. Fort Worth Bank &Trust, 487 U.S. 977, 986-87 (1988).
17 42 U.S.C.A. § 2000e-2(e)(1) (West 2009).
18 Dothard v. Rwalinson, 433 U.S. 321, 333 (1977).
19 Lindemann, supra note 144, at 406.
20 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
21 Id.
22 Lindemann, supra note 144, at 1103-1104.
23 See Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).
24 Id.
25 See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977).
26 Id.
27 42 U.S.C.A. § 2000e-2 (West 2009).
28 Lindemann, supra note 144, at 1118.
29 Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995).
30 Lindemann, supra note 144, at 1117-1119.
31 42 U.S.C.A. §2000e(b) (West 2009).
32 29 C.F.R. §1614.103 (2009).
33 EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-ii (last visited Mar.1, 2010).
34 EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-i (last visited Mar. 1, 2010).
35 EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-iii (last visited Mar.1, 2010).
36 29 C.F.R. § 1614.105(a)(1) (West 2010).
37 EEOC Compliance Manual “Threshold Issues” http://www.eeoc.gov/policy/docs/threshold.html#2-IV-A (last visited Feb. 26, 2010).
38 42 U.S.C.A. § 2000e-5(g)(1) (2009).
39 Id. at § 2000e-5(g)(2)(B)(i)-(ii).
40 Id. at § 1981a-(b)(1).
41 Id. at § 1981a-(b)(3).
42 Pennsylvania Human Relations Commission, http://sites.state.pa.us/PA_Exec/PHRC/legal/finalorders/E79969D.pdf (last visited Feb. 26, 2010).