Labor & Employment Law Daily Performance Food willing to pay $5M+ to end class allegations of hiring discrimination against women
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Tuesday, December 15, 2020

Performance Food willing to pay $5M+ to end class allegations of hiring discrimination against women

By Pamela Wolf, J.D.

The settlement resolves allegations that the company failed to hire women into physically demanding selector and truck driver positions at its warehouses.

The EEOC has reached an agreement with Performance Food Group, Inc., under which the food products distributor would pay $5 million to settle allegations that it violated Title VII by engaging in a pattern or practice of gender discrimination in its selection of “operative” positions in its warehouses, according to a proposed consent decree filed with a Maryland federal court. The company would also pay $75,000 and provide other relief to resolve a charge that it discriminated against an employee based on her sex when it did not promote her to a training supervisor position.

Summary judgment denied. In March 2020, the court denied cross-motions for summary judgment. The specific job titles at issue were truck drivers, selectors, forklift operators, transportation or warehouse supervisors, and an “other warehouse” category of miscellaneous non-selector warehouse jobs. The selector position, an entry-level position, is a physically demanding job with a high turnover rate. Truck drivers are generally required to have a CDL Class A license and driving experience. Some experience is also generally required for the forklift and supervisor applicants.

In finding that the EEOC made out a prima facie case on its pattern or practice claim, the court observed that the agency’s “statistical analysis shows statistically significant disparities in the hiring of male and female applicants, adverse to female applicants, across operative positions and OpCos (wholly owned subsidiaries of Performance Food Group), even when controlling for experience.” There was also statistical evidence showing some OpCos did not hire any female applicants for certain positions during the relevant time period.

In addition, a media recruitment plan circulated at the end of 2006 and beginning of 2007 identified the target demographic for radio ads for drivers and warehouse workers as “male”; 2011 job order forms submitted to a staffing agency indicated that an OpCo sought males for warehouse positions and females for a receptionist position; and the EEOC submitted various emails such as a 2014 email indicating reluctance to interview a female applicant for a helper position because it was not a good idea to put a female in a truck with “these guys.”

Injunctive relief. In addition to the monetary relief, the proposed five-year consent decree would require Performance Food Group, among other things, to:

  • Hire a Vice President of Diversity and Inclusion who will serve as the organizational leader to drive the vision, strategy, and execution for the company’s national diversity, equity, and inclusion initiatives, including promoting employment opportunities for females into the selector and driver positions;
  • Meet certain applicant offer and hiring goals and give hiring preference to class members interested in selector and driver positions;
  • Conduct affirmative recruitment activities towards qualified female applicants for its selector and driver workforce;
  • Put in place for all selector and driver positions in the OpCos a written, predetermined hiring procedure to ensure that applicants are evaluated objectively based on their qualifications and interest in open positions and not their sex, and expressly prohibit hiring decisions based on sex;
  • Engage in good faith efforts to ensure that the workplace environment in the OpCos is free of harassment and sex bias;
  • Provide Title VII training to managers, HR professionals, and employees who have any responsibility for hiring selectors and/or drivers at any of the OpCos; and
  • Comply with specified EEOC monitoring and reporting requirements.

Although it entered into the proposed agreement, Performance Food Group denies that it has engaged in a pattern or practice of sex discrimination and that it failed to promote the employee because of her sex.

The EEOC filed its lawsuit in the District of Maryland; the case is No. 1:13-cv-01712.

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