Inexperienced female bricklayer applicant builds bias case that dissent finds flimsy
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Monday, July 11, 2016

Inexperienced female bricklayer applicant builds bias case that dissent finds flimsy

By Marjorie Johnson, J.D. Finding that the district court impermissibly engaged in a "piecemail approach" to the McDonnell Douglas analysis, a divided Second Circuit revived a female applicant’s lawsuit asserting she was denied a bricklayer job with the New York City Housing Authority because of her gender. Reversing summary judgment on her Title VII and state law claims, the appeals court viewed "as a whole" evidence relating to the lack of female bricklayers, discrepancies in the interview process, and the HR rep’s comment that they wanted somebody "stronger." The dissent, however, believed that no reasonable jury could find that the agency’s assertion that it didn’t hire her due to her inexperience was pretexual (Walsh v. New York City Housing Authority, July 7, 2016, Hall, P.). NYCHA interviewed the applicant and five males for five open bricklayer positions. When asked by the interviews about her experience working with brick and block, she replied that she constructed a glass block shower and had done "little things on her own." Although physical strength did not come up, she claimed that the HR rep told her afterwards that the interviewers wanted somebody stronger. NYCHA chose not to hire her, purportedly due to her lack of experience with brick and block. Evidence viewed as a whole. The majority jumped straight into the pretext analysis and determined that the district court erred by using a "piecemail approach" to determine that summary judgment was warranted. Rather, viewing the evidence as a whole, a jury could reasonably infer that the non-hire decision was based in part on the fact that the applicant was female. Evidence which the district court shouldn’t have individually discounted included the lack of female bricklayers, the interview process itself, and the "stronger" comment. No female bricklayers. The district court recognized that at the time of the interviews, "no women were employed by NYCHA as bricklayers, and as far as the interviewers knew, no woman had ever held the position." However, it concluded that a discriminatory motive couldn’t be inferred due to the absence of additional information about the quantity and quality of any prior female applicants. The appeals court disagreed, declaring that while the weight of this evidence would likely be enhanced if it were coupled with such data, its absence did not "automatically" render the lack of female bricklayers "irrelevant, not probative, or unfairly prejudicial." Thus, the dearth of female bricklayers could be considered as one component of the cumulative inquiry. Qualifications and interview process. Though the applicant argued that she had more tiling experience than at least one of the successful male candidates, the district court found this evidence by itself was not enough to infer a discriminatory motive, again erroneously requiring "a single piece of evidence to bear the full weight" of her burden. While this evidence fell short of establishing a discriminatory motive by itself, it was not devoid of all probative value. She also offered evidence regarding the interview itself that could support a finding of gender bias. Though one of the interviewers testified that he usually asked candidates technical questions on a number of topics, the applicant claimed she was asked only one technical question, which was on the subject of making mortar mix. She was not asked any questions related to brick and block (the area in which her inexperience purportedly prevented her from being hired) or to tile work (which arguably comprised a significant portion of the bricklayer position). The majority found that this evidence could support an inference that the interviewers did not give her the opportunity to demonstrate her technical knowledge because "their minds had been made up before she set foot inside the interview room." "Stronger" remark. The district court also erred by discounting the HR rep’s alleged comment that the interviewers wanted someone stronger because it was "hearsay by an individual with no decisionmaking authority." It was not inadmissible hearsay under the party-opponent exemption since it "related to a matter within the scope of the agency." And though the district court emphasized the HR rep’s "lack of decisionmaking authority," such authority was not required for him to be considered an NYCHA’s agent, which he clearly was at the time. Moreover, stereotyped remarks can serve as evidence of gender bias and it could "hardly be contested that males are widely considered to be stronger than females." The fact that strength was not discussed during the interview did not cut against a finding of discrimination, as the district court indicated. Rather, it could actually support the inference that the interviewers succumbed to a sex-based stereotype because it removed one of the alternative bases on which they could have based their assessment of her strength. Dissent. In a lengthy dissent, Circuit Judge Livingston engaged in an exhaustive review of the evidence—including the multi-step application process, the detailed job requirements, and the applicant’s own specific experience—and concluded that no reasonable jury could find in her favor. Significantly, the applicant admitted during her interview that she had virtually no bricklaying experience. The dissent also disagreed with the majority’s reliance on evidence regarding the lack of female bricklayer’s, finding it of "no appreciable weight" and "devoid of any necessary contextual information." And while the majority found it probative that the applicant had significant tile experience, the dissent emphasized that it was undisputed that NYCHA bricklayers must also be proficient in bricklaying, which the applicant admittedly was not. Finally, the "stronger" comment was susceptible to the meaning that the applicant was not a "strong" candidate, as opposed to referring to her physical strength. In sum, the dissent chastised the majority for coming "close to eviscerating" the plaintiff’s burden at the pretext stage.

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