Employment Law Daily EEOC advances claims that company failed to hire qualified women
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Thursday, November 1, 2018

EEOC advances claims that company failed to hire qualified women

By Kathleen Kapusta, J.D.

Refusing to dismiss the EEOC’s Title VII sex discrimination claim alleging that since at least 2009, an employer has discriminated against qualified female applicants in favor of hiring less qualified men throughout its facilities, a federal district court in New York found the alleged facts gave at least minimal support for the proposition that the employer was motivated by discriminatory intent. The court also rejected the employer’s assertion that the disparate treatment claims against it should be dismissed because they were beyond the scope of the disparate impact claims raised by the charging party. The information regarding the alleged disparate treatment of female applicants was ascertained by the EEOC in the course of a reasonable investigation into the charging party’s complaint and notice was provided to the employer regarding the full scope of the investigation and charges (EEOC v. Upstate Niagara Cooperative, Inc., October 26, 2018, Skretny, W.).

When the charging party applied for a temporary production job at one of the employer’s facilities in April 2010, she was offered the position contingent on passing a physical exam. She objected to lifting a 50-pound crate above her shoulders, believing it would violate OSHA regulations, and the offer was rescinded. During the same time period, the facility hired five men.

EEOC charge. She then filed an EEOC charge alleging the company’s pre-employment physical exam had a disparate impact on female applicants. After an investigation, the EEOC issued a Letter of Determination concluding that the employer engaged in a pattern or practice of disparate treatment in hiring on the basis of sex but found that the exam’s lifting requirements did not have a disparate impact on women.

Lawsuit. After unsuccessfully engaging in conciliation efforts, the EEOC sued, alleging that the company engaged in unlawful employment practices at its three largest facilities by failing to hire qualified women for various positions in favor of equally or less qualified men, “including hiring male applicants with no relevant past work experience at all.” It claimed that between 2008 and 2014, despite a pool of qualified female candidates, of the approximately 160 employees it hired into production-related positions at three facilities, 155 were men.

Scope. Moving to dismiss, the company, as a threshold matter, argued that the disparate treatment claims were beyond the scope of the disparate impact claims raised by the charging party. However, the court explained, EEOC enforcement actions, unlike private actions, are not limited to the claims presented by the charging party. Here, complaint allegations that the company discriminated against female applicants by denying employment opportunities to qualified female applicants were ascertained in the course of a reasonable investigation of the charging party’s complaint, said the court, noting that both claims involved discrimination on the basis of sex.

And while the company argued that the charging party wasn’t affected by the disparate treatment claim because she did receive a job offer, the court found that based on her initial disparate impact claim, it was reasonable that the EEOC would conduct an investigation into any potential hiring disparities based on sex. Further, the employer appeared to have received adequate notice of the claim through the EEOC’s Letter of Determination, which triggered unsuccessful conciliation efforts.

Sex discrimination. Next, the court found that with respect to the EEOC’s claims that the company denied employment opportunities to women in favor of hiring less qualified men, it alleged facts giving “at least minimal support for the proposition that the employer was motivated by discriminatory intent.” Where the complaint alleges that an employer hired someone outside of the aggrieved individuals’ protected class that is enough to raise an inference of discrimination at the motion to dismiss stage of litigation.

Here, the EEOC alleged that the company engaged in a pattern of depriving the charging party and other qualified female applicants of equal employment opportunities and otherwise adversely affected their status as applicants because of their sex, that female and male applicants for the same jobs were at least similarly situated, and that some female applicants were more qualified but men were hired over women because of their sex. The complaint also cited statistics regarding the disparity between male and female employees at the company’s facilities, and alleged that qualified female applicants were passed over for employment in favor of men, some of whom had “no relevant past work experience at all.” This was enough to sufficiently state plausible support to a minimal inference of discriminatory motive.

And while the company argued the allegations regarding the charging party should be dismissed because the complaint failed to allege facts “connect[ing] the decision to rescind her job offer with her gender in any way, and in fact admit that the decision was related to her admitted refusal to complete the [physical examination,” under the relaxed pleading standard at this stage of the case, the factual allegations were sufficient as a matter of law to create a “minimal inference” that the charging party’s sex played a role in the company’s hiring decision.

Pattern or practice. Also rejected was the company’s assertion that because the EEOC sought to vindicate the rights of a class of individuals, it had to bring this suit under Section 707, which explicitly references pattern or practice claims, rather than Section 706. The EEOC, said the court, may bring its current claims under the authorization provided by Section 706 and need not plead a pattern or practice claim of discrimination.

Record-keeping allegations. Finally, turning to the EEOC’s allegations that since at least 2009, the company failed to make and preserve records relevant to the determination of whether unlawful employment practices have been or are being committed—including employment applications, complete applicant logs, interview documentation, and other hiring-related documentation—that it failed to retain hiring-related material for one year, and that it failed to retain and preserve applications and hiring-related material that were plainly relevant to the charge’s sex discrimination in hiring allegations, the court found that these facts were sufficient to state a claim of a record-keeping violation.

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