Discrimination litigation typically involves challenges to termination decisions, harassment/hostile work environments, or compensation decisions. There are far fewer reported cases alleging discrimination in promotion or hiring decisions. That’s not because bias less frequently infects promotion and hiring decisions. Rather, it’s because courts have erected hurdles to successfully proving discrimination in these cases. It’s also because potential plaintiffs adversely affected by these decisions have less access to the evidence that can prove bias, and because current employees are understandably extremely reluctant to challenge an adverse promotion decision and risk losing their job.
This blog summarizes these legal hurdles, and suggests steps to empower individuals subject to hiring and promotion discrimination to enforce their rights.
The Court-Imposed Obstacles
The same basic sequence of proof (described as called the McDonnell-Douglas burden shifting test) applies to termination versus hiring/promotion discrimination: the plaintiff has the initial burden of establishing a prima facie case, the defendant then has the burden of proffering (not proving) a legitimate business reason, and plaintiff then has the ultimate burden to prove (by a preponderance of the evidence) that this reason is pre-textual. The manner in which courts analyze promotion and hiring cases is, however, far more demanding than challenges to termination decisions. For instance, at the prima facie case stage, courts not only require the plaintiff to demonstrate that he or she was fully qualified for the job/promotion sought, but that the defendant either hired a similarly or less qualified non-protected class individual into the position, or the position remained open after it was denied to the plaintiff.
Moreover, at the business reason/pretext stage, courts too often give great deference to the defendant’s subjective assessment of qualifications, and will often accept without further scrutiny a defendant’s allegations that the plaintiff didn’t interview well or that the successful candidate was a better “fit” for the hire/promotion.
How to Overcome These Obstacles
First, if you can offer “direct evidence” of discrimination in a hiring or promotion decision, the McDonnell-Douglas burden shifting test won’t apply, and the decision about whether discrimination occurred must be resolved by trial. Direct evidence is defined as evidence which, without the need for inferences, supports the conclusion that discriminatory bias may have infected the challenged decision. This often will involve biased comments by the decision maker in the very screening process involved in the decision. It doesn’t haven’t to be an admission that “I didn’t select [plaintiff] because I don’t like women (or some other protected category).” Rather, it could be a comments in the decision making/screening process that more generally reflects this kind of bias. For instance, at an interview the decision maker might state “I have trouble depending on women to do this kind of work,” or something similar which reflects a biased or stereotypical view of the protected group. This kind of evidence can be game-changing in hiring/promotion cases.
Second, if there is excess subjectivity in the decision making process, point that out, as well as the long-line of reported decisions which recognizes that the more subjective the criteria, the greater the likelihood that bias may have infected the decision making process.
Third, to the extent there are objective criteria and these were either bypassed or downplayed when plaintiff wasn’t selected, focus attention on this and use it to demonstrate the superior qualifications of the plaintiff to the selected candidate. When you can offer this kind of evidence, it has been held to allow an inference of discrimination sufficient to establish pretext and get you to trial.
Fourth, stress any deviations from policy or even practice in the challenged hiring or promotion decision. Rules matter in these decision, and deviations from these rules, even minor ones, can be the difference from summary dismissal versus getting a chance to prove the case at trial.
Experienced Lawyers Can Make a Difference
Experienced legal counsel understand that while hiring and promotion discrimination cases may be more difficult to prove that more typical termination or harassment claims, discrimination often occurs in these decisions and these rights need to be enforced.
The discrimination lawyers at Schaefer Halleen are available for a free consultation to assist you in determining whether you have a viable claim of hiring or promotion discrimination, and know how to prosecute any such claim successfully into litigation, if necessary.