Employment Law Daily Female with longer tenure but less education and experience than higher-paid male can’t show bias
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Thursday, April 19, 2018

Female with longer tenure but less education and experience than higher-paid male can’t show bias

By Marjorie Johnson, J.D.

A female employee who was passed over for a promotion in favor of a male candidate with a shorter tenure at the company was unable to pursue her Title II claims of gender discrimination. The male applicant had a higher education level, more managerial experience, and was favored by the interviewers, and the plaintiff failed to cast doubt on the honesty of the employer’s explanation for selecting him. Granting the employer’s motion for summary judgment, a federal court in Indiana also tossed her Equal Pay Act claim since the employer provided adequate, gender-neutral grounds for paying him more than her (Schambers v. Key Family of Companies, April 16, 2018, Lawrence, W.).

Promoted to team lead. In 2008, the plaintiff began working for the employer as a premium analyst. She was promoted to team lead positions in 2010 and 2014. A few months later, her supervisor encouraged her to apply for an enrollment platform position, but she was not offered the job. She submitted a letter of resignation, but her supervisor persuaded her to rescind her resignation by indicating that a new team management position was being created and that she would be favored for the role.

Newly hired male gets promotion. Meanwhile, the company hired the male employee as a premium analyst on the plaintiff’s team in July 2015. Though he worked underneath her, he received a higher pay (his hourly rate was $21.50 while hers was $19.20). In October 2015, the company created the new position of assistant manager-premium processing and both the plaintiff and the male employee applied and interviewed for the job. The company selected the male employee, purportedly based on his education and experience, job performance, and answers to the interview questions. The plaintiff resigned and filed this lawsuit.

Similarly qualified. The plaintiff established a prima facie of discrimination in her failure-to-promote case since she and the male employee were arguably similarly qualified, despite the employer’s assertion that his skill set and the requirements of the position made him indisputably the better pick. Notably, the position stated that a bachelor’s degree in accounting or like field was preferred and the male employee had an associate’s degree in business administration and a bachelor’s degree in business. Conversely, the employee held only a GED. Noting that prior management or staff oversight was also required, the employer pointed out that the plaintiff had only served as a team lead for a few years while the male employee had over eight years of managerial experience, including director or management-level positions. Thus, the employer argued, based on both experience and education, the male candidate was indisputably more qualified for the assistant manager position than the employee.

However, the plaintiff correctly pointed out that the job posting failed to address the other skills and attributes ostensibly sought by the employer. Though education and managerial experience were “preferred” and “required” categories, respectively, there were a host of other competencies that were to be considered. Additionally, the plaintiff had been performing all the prescribed tasks of the position prior to its creation and would not need additional training. Indeed, in her April 2015 email requesting that the employee rescind her resignation, her supervisor noted that she would be an excellent fit for the newly created position. Finally, though the male employee had a stronger educational background, both he and the employee had managerial or staff oversight experience. Whether his external managerial experience or the employee’ supervisory experience at the company was to be weighed more heavily was not clear from the record. Thus, a reasonable jury could conclude that the two were similarly qualified for the assistant manager position.

No pretext. Yet the plaintiff failed to cast doubt on the employer’s assertion that it chose the male candidate because it believed he was the better choice since he was more educated and possessed more managerial experience, and because all the individuals who interviewed them both unanimously agreed that he was more qualified. It was not enough that she could show that she was similarly qualified, or that he had worked under her and was still a probationary employee, since she needed to cast doubt on the honesty of the employer’s explanation rather than its validity or reasonableness.

Here, none of the evidence demonstrated that the employer’s stated reasons for hiring the male employee over her were lies. While she may have been a similarly skilled candidate given her qualifications, this factored into her prima facie case and not her showing of pretext. Moreover, the fact that he may have been told prior to the interview that the job was his did not negate the employer’s reason for choosing him in the first place, as it was undisputed he had two more degrees and eight years of managerial experience. The record indicated that the employer valued this skill set and experience over the employee’s tenure, and there was simply no evidence indicating the decision was made due to her gender.

Equal Pay Act. The court also tossed the employee’s Equal Pay Act claim because she forfeited it by failing to properly include it in her pleadings. Moreover, the claim failed on the merits since, as discussed, she couldn’t refute the employer’s bona fide, gender-neutral reason for paying the male candidate more than her: his stronger educational background and considerable work and managerial experience. She argued that she had more responsibility than her male comparator; however, under the Equal Pay Act, differences in education and experience may be considered factors other than sex and she undisputedly had only a GED compared to his two degrees. Moreover, even though he had a shorter tenure, the male employee had significantly more work experience. These were adequate, gender-neutral grounds for paying him more.

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