Sixth Circuit Reverses Dismissal of Discriminatory Hiring Claim Where No Candidate Was Ever Hired

 

Earlier this month, the Sixth Circuit Court of Appeals reversed the dismissal of a reverse sex discrimination complaint brought under §1983 and Title IX when the college cancelled the faculty search instead of hiring the top-rated candidate because of the Dean’s alleged preference to hire female candidates.  Charlton-Perkins v. Univ. of  Cincinnati, No. 21-3840 (6^th Cir. 6-3-22).  A plaintiff need not have a valid claim in order to have standing to assert it, so it was irrelevant to a ripeness inquiry whether the position had ever been filed or not.  The plaintiff suffered a concrete injury when he was not hired.  The plaintiff also need not have alleged that less qualified female candidates had been hired instead of him when other evidence of discrimination was present.  “Instead, to state an employment discrimination claim, [the plaintiff] only needed to plead sufficient facts from which we could plausibly conclude that defendants failed to hire him because of his gender.”  In this case, the plaintiff alleged that the job requisition was cancelled to avoid hiring him because he was male and that was sufficient to allege unlawful discrimination.   

According to the Court’s decision, after considering 62 applications, the plaintiff had been the top-rated candidate in a faculty search conducted by the department.  However, the Dean insisted that both next ranked female candidates be hired instead.  When the committee chair objected, the Dean cancelled the faculty requisition altogether claiming that the process had been tainted by a potential conflict of interest that the Diversity Officer had earlier approved.  The plaintiff sued and the trial court dismissed the complaint on the grounds that his claims were not ripe because he could not have been legally “injured” when the position had never been filled after the Dean cancelled the process and so the plaintiff could not prove that female candidates had been treated better.  

On appeal, the Court found that the trial court had conflated a ripeness inquiry with an analysis of the merits of the claims presented.  It was enough that the plaintiff did not get the posted job to show that he had suffered an injury sufficient to assert a ripe claim. “Ripeness is really, or at least paradigmatically, a doctrine about pre-enforcement challenges. That is why the relevant factors—whether the claim “concerns a dispute that is likely to come to pass” and whether there would be “hardship to the parties of withholding court consideration”—sound so out of place in the context of [this] claim.”  Indeed, the plaintiff “himself could later get the job and it would not erase the fact that he was denied the opportunity to get it in the first instance in 2018. So his injury is not speculative or even imminent; it is instead “actual” because the denial has undisputedly already occurred.” 

The Court also rejected the university’s argument that his claim could not be ripe if he suffered no adverse employment action.  “That reasoning is erroneous, again, because whether the plaintiff suffered an injury in fact does not necessarily hinge upon the substantive requirements of any particular cause of action.”

The Court also rejected the argument that the plaintiff had failed to plead a prima facie case sex discrimination. “Instead, to state an employment discrimination claim, [he] only needed to plead sufficient facts from which we could plausibly conclude that defendants failed to hire him because of his gender.”  While alleging that someone else was given the position is a default rule for proving employment discrimination, it is not the only manner in which unlawful discrimination can be proved or alleged. “Instead, to state an employment discrimination claim, [the plaintiff] only needed to plead sufficient facts from which we could plausibly conclude that defendants failed to hire him because of his gender.”

We understand [the plaintiff] to make such a claim here—that defendants not only failed to hire him because of his gender, but they then canceled the search itself as a pretext to conceal the discriminatory reason for the failure to hire.

In particular, the plaintiff alleged “that defendants canceled the search to facilitate their allegedly unlawful gender discrimination against [him]. There was thus no need for him to additionally allege that somebody else filled the (canceled) position.”

The Court also rejected the argument that cancelling the hiring process purged any discrimination because other court decisions in which such purging had occurred resulted in new job searches without the taint of discrimination.  In contrast, the university here never re-opened the job search which would have given the plaintiff another opportunity to apply and be hired. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects Cat's Paw Theory for Discriminatory Job References in Hiring Cases

 Last month, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on an age discrimination claim based on its failure to interview or hire an applicant with 30 years of experience, but who had poor job references.  Flowers v. WestRock Services, Inc., No. 20-1230 (6^th Cir. 2020).  The plaintiff admittedly could not satisfy certain qualifications for the job established in the job description and was not entitled to override the employer’s ability to establish its own job criteria.  The plaintiff also could not show pretext based on a generic, automated message about preferring more candidates who more closely matched the job requirements.  Interestingly, the Court held that the cat’s paw theory of discrimination did not apply to hiring decisions because the employer could not independently investigate the basis of a negative job reference from a prior employer. “If every reference comes with a federal duty to investigate, hiring will become exceedingly tedious, especially with the volume of applications submitted through today’s digital platforms.”

According to the Court’s opinion, the plaintiff had 30 years of pipefitting experience prior to his 2013 retirement.  He had been told about an open pipefitting position with the defendant employer, which required the ability to read blueprints, to select the type and size of appropriate pipe, and to weld, etc.  He applied online and did not reveal his age.  However, he was not interviewed when a former supervisor now working for the defendant employer reported on his poor work ethic and this was confirmed by another former supervisor contacted by the employer.  He was informed through an automated message that the employer had decided to pursue other candidates whose skills more closely matched the desired requirements and qualifications.   The employer apparently hired two temporary contractors at a higher billing rate.  After the plaintiff heard that a younger candidate with less pipefitting experience, but extensive welding experience, had been hired, this lawsuit followed.  

During his deposition, the plaintiff admitted that he was unable to read blueprints and lacked experience selecting the type and size of pipe appropriate for a job.  He also was not certified in welding because he did not like welding.  The successful candidate was an extremely experienced welder, but there is no discussion of whether he met the other qualifications.  Accordingly, the trial court granted the employer’s summary judgment motion because the plaintiff could not show that he was qualified for the position due to his failure to satisfy the basic requirements for the position.   The trial court also found it was common sense that the employer would prefer to interview a candidate about whom it knew nothing over a candidate with poor job references.

Flowers’s failure to show he was “otherwise qualified” for the job of Journeyman Pipefitter dooms his claim. From the summary judgment record, Flowers has not demonstrated that his “qualifications are at least equivalent to the minimum objective criteria required for employment in the relevant field,” as set out in the job description. . . . Noting Flowers’s admission that he does not know how to select the size and type of pipes or read blueprints, two of the listed job requirements, and aware of Flowers’s disinterest in welding, another job duty, the district court held that Flowers failed to show he was otherwise qualified for the position. We see no error in that conclusion. Requiring a plaintiff to establish a prima facie case under the ADEA framework serves to eliminate the most common nondiscriminatory reasons for an employer’s action. . . .  One such reason is an applicant’s lack of qualifications. WestRock desired a pipefitter who could read blueprints and select pipes, and who also had an interest in welding. Flowers missed the mark in each respect, the first two by his own admission, and the third due to his lack of interest in welding as much as “seven days a week, twelve hours a day.”

Rather than challenging those conclusions, Flowers instead challenges the premise that these skills are necessary for the position. To his mind, pipefitters do not need to read blueprints, nor should they be required to make pipe selections. But as the one who creates the position in question, the employer largely enjoys the right to decide the qualifications it prefers in one who holds the position and, it follows, whether an applicant lacks the necessary knowledge or experience.. . . And given an employer’s superior knowledge of its workplace and industry, the employer’s stated job requirements will typically be the objective criteria by which we measure a fail-to-hire claim. . . . Who, after all, better understands the relevant field and the corresponding skills necessary to succeed than the employer? Not a federal court, one reason why we do not “substitute [our] judgment for that of management” when it comes to business decisions like setting necessary job qualifications.

The Court also agreed that the plaintiff could not show that the employer’s explanation was pretextual based on the poor job references he received.   The plaintiff did not and could not dispute that he had received poor job references.   He also failed to show that his age was a factor.  His age was never indicated on his job application, in any of the negative job references, and, even considering his 37 years of work experience, he could have been as young as 55 (instead of his actual age of 71).

The plaintiff could not show pretext on the basis that he passed the initial review of his application as “generally qualified” because it was undisputed that he received negative evaluations of his work ethic at the next stage.   The Court also refused to find pretext from the employer’s automated message that the employer was pursuing more qualified candidates instead of bluntly telling him that he had poor references.    (This part of the decision is confusing because it indicates that the employer did not in fact consider other, more qualified candidates, despite the factual summary indicating that a candidate with welding experience was hired).  

Accepting Flowers’s contention, moreover, seemingly would impute a legal duty on employers to reject applicants in blunt, precise terms. Some employers may have no objection to telling someone like Flowers that he was not hired because two people, including a prior coworker, thought he had a bad work ethic. Yet many others surely would prefer to respect social etiquette, avoiding hard truths when possible. Either way, certainly the ADEA does not require the former, nor does it suggest that the latter is evidence of age discrimination.

The Court also found that the plaintiff failed to show that the negative references were insufficient to justify the hiring decision because the plaintiff did not show that any other candidates were considered with similarly poor references.

Flowers says there are three such WestRock employees. Yet of the three, WestRock provided evidence that one was hired before Flowers applied, and another was already employed by the company before being moved into a pipefitting apprenticeship. And as to the third, Flowers provides no evidence that the employee received negative references or lacked required skills as did Flowers.

As a final salvo, Flowers invokes an economic rationality argument to justify his age claim. Noting that WestRock paid two contractor pipefitters substantially more than he would have been paid as an employee, Flowers paints this purported “irrational economic decision” as evidence of age discrimination. True, in some circumstances we may consider the reasonableness of an employer’s decision to the extent it explains whether an employer’s proffered reason for an employment action was its actual motivation. Wexler, 317 F.3d at 576. Whether WestRock relied on temporary contractors, however, has little bearing on whether the company was motivated by the negative references.

Finally, the Court rejected the plaintiff’s attempt to prove discrimination through a cat’s paw theory.  Indeed, the Court found that the cat’s paw theory should not apply in hiring decisions because HR could never independently investigate whether a prior employer held a discriminatory animus.  In any event, the Court found that the plaintiff failed to show that the individuals – inside and outside the employer – held an age bias against him when they recommended against hiring him.

Cat’s Paw.  Failing on these fronts, Flowers embraces a novel understanding of what has come to be known as the “cat’s paw” theory of discrimination. The customary application of that theory involves a supervisor who “performs an act motivated by [prohibited] animus that is intended by the supervisor to cause [the formal decisionmaker to take] an adverse employment action.” Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011). Where a supervisor engages in that type of conduct, and where the supervisor’s “act is a proximate cause of the ultimate employment action, then the employer is liable.” Id. This theory of liability serves to prevent the ultimate decisionmaker—for example, a middle manager—from being a shield for a supervisor’s discriminatory intent.

While this theory has been applied to purported discrimination against a company’s current employees, it is quite another thing to extend it to mere job applicants as well. Doing so would place a tremendous burden on human resources employees in culling through applications. After all, a disgruntled applicant could always allege that those employees did not do enough diligence in considering an applicant’s references, both positive and negative, and that one reference or another had some impermissible bias. If every reference comes with a federal duty to investigate, hiring will become exceedingly tedious, especially with the volume of applications submitted through today’s digital platforms. That is unlike the narrower focus of a cat’s paw claim asserted by a current employee or group of employees.

To the same end, whereas the relevant job history for a current employee is likely internal to the company, in the hiring context the relevant history will often lie with another employer. That makes those matters difficult to investigate. Nor, it bears emphasizing, should an employer be liable for the bias of an outsider. Take this case, for example, where one of the negative reviews of Flowers came not from a WestRock supervisor but rather from an employee of another company. While the cat’s paw theory might apply to root out supervisory employees who attempt to shield their discriminatory motives through an internal third-party, it makes little sense to apply that same theory to an allegedly impermissible motive that stems from one who does not even work for the company in question. In the district court’s words, extending the cat’s paw theory as Flowers urges is simply “beyond the pale.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Atlanta Jury Awards $500K in EEOC Lawsuit Against Westerville Company Alleging Sex Discrimination

 Yesterday, the EEOC announced that a jury had awarded $500K against a Westerville, Ohio based company for failing to promote a female employee to a supervisory position in violation of Title VII of the Civil Rights Act as alleged in a lawsuit filed  by the EEOC against Excel, Inc. in federal court in Georgia (N.D. Ga. Case No. 1:10-CV-03132).  The award consisted of $25K in compensatory damages and $475K in punitive damages and the court will also be awarding back pay to the female employee (on top of the damage award).   According to the EEOC, it presented evidence during the four-day trial that male employees were routinely promoted after expressing only verbal interest in positions, while the female employee was passed over despite recommendations from her supervisor and her superior qualifications.  The EEOC presented testimony that “the general manager informed [the supervisor] that he would never put a woman in that position.”  Moreover, the EEOC claimed that the company attempted to hide its discrimination from the female employee:

[W]hile [the female employee] was told the inventory supervisor position would not be filled, the male selected for the position was told by a management and human resources official that the position would be filled, but that he would be selected only if he kept it a secret. The selectee, Michel Pooler, testified that [the female employee] was later required to train him because he had no inventory experience whatsoever.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC: Requiring High School Diploma Can Violate the ADA

The EEOC recently published additional “guidance” concerning an issue it raised last Fall while addressing a question about GED testing. In November, the EEOC published a letter in response to a question which indicated that an employer could violate the ADA by requiring job applicants to have a high school diploma if that requirement screened out individuals with learning disabilities who could not obtain the diploma and if the employer could not demonstrate that the requirement was job related and consistent with business necessity:

Under the ADA, a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation. . . .

Thus, if an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.

Even if the diploma requirement is job related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job, with or without a reasonable accommodation. It may do so, for example, by considering relevant work history and/or by allowing the applicant to demonstrate an ability to do the job’s essential functions during the application process. If the individual can perform the job’s essential functions, with or without a reasonable accommodation, despite the inability to meet the standard, the employer may not use the high school diploma requirement to exclude the applicant. However, the employer is not required to prefer the applicant with a learning disability over other applicants who are better qualified.

In 1971, the Supreme Court similarly held that it would violate Title VII to require a high school diploma for janitorial positions if such a requirement disproportionately screened out otherwise qualified African-American applicants (some of whom had been unable to obtain a diploma during school segregation when some counties closed all public schools rather than integrate them). The EEOC is taking the same position under the ADA and in 2003 found an employer to have discriminated against a nurse aide who had been performing the job successfully for four years, but then was terminated after she could not meet the employer’s new diploma/GED requirement because of her learning disability. The employer settled the dispute rather than litigate it.

In the 2012 guidance, the EEOC sought to clarify its November letter as follows. First, it is not illegal for an employer to require a high school diploma. “However, an employer may have to allow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrate qualification for the job in some other way.” Second, the employer may still select the best and most qualified individual for the job; the ADA does not create a hiring preference. Finally, individuals who choose (for personal or other reasons) to not get a high school diploma are not automatically protected by the ADA; only individuals whose mental or physical impairments made it impossible to get a diploma would be protected.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Announces $50,000 Settlement with Auto Parts Retailer Over Failure to Hire Applicant with Cerebral Palsy Who Successfully Completed Internship.

Yesterday, the EEOC announced that it had reached a settlement with an auto parts retailer – Advance Stores Company, Inc. – where the store agreed to pay $50,000 and “to provide training on an annual basis to all of its managers, supervisors, and employees in its Norton, Va., store; post an employee notice regarding this settlement; and report any allegations of disability discrimination by job applicants at the company’s Norton location to the EEOC.” According to the allegations made in the EEOC’s lawsuit, the store violated the Americans With Disabilities Act when it refused to hire an applicant for a part-time sales position “because he has cerebral palsy. . . . The EEOC said that [the applicant] had successfully completed an internship as a salesperson at Advance Auto’s Staunton, Va., store through a training program in which he participated. The EEOC further charged that despite Sanders’ qualifications and experience obtained through the internship, Advance Auto did not hire him but did hire at least one other person who was less qualified than Sanders.” (EEOC v. Advance Stores Company, Inc. d/b/a Advance Auto Parts, Civil Action 02-08CV00011).

Insomniacs can read the full press release at http://www.eeoc.gov/press/3-9-09.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

Trucking Company Pitt-Ohio Agrees To Pay $2.43M To Settle EEOC Sex Discrimination Class Action Lawsuit

On Thursday, the EEOC’s Cleveland office announced that the interstate trucking firm, Pitt-Ohio Express, Inc., “has agreed to pay $2.43 million and provide other remedial relief to a class of women to settle” a sex discrimination class action lawsuit brought by the EEOC. The EEOC had alleged in this lawsuit “that Pitt Ohio Express Inc. denied a class of qualified female applicants employment as truck drivers or dockworkers since 1997, while men were placed in these positions during the same period. The comprehensive relief obtained by the EEOC includes $2.43 million for the class of women denied employment. Non-monetary relief includes offers of employment to women who should have been previously hired as drivers and dock workers and equal employment opportunity training to all supervisors and managers, as well as reporting and monitoring provisions.”

According to the EEOC, “[t]he consent decree settling the suit was approved by the court following a fairness hearing held [Thursday] morning. . . . Pitt-Ohio Express Inc. is a regional carrier specializing in short-haul transporting, providing direct service to over seven states in the northeastern United States. The company is headquartered in Pittsburgh and has terminals in Cleveland, Columbus, Cincinnati and Toledo.”

According to the terms of the consent decree, “neither this Decree nor the fact of a settlement are an admission or concession by Pitt Ohio of any violation of Title VII or of any liability or wrongdoing whatsoever.” Nonetheless, the consent decree contains the following terms:
• Pitt Ohio, its officers, agents, employees and all others in active concert with them are enjoined from discriminating in hiring based on sex in violation of Title VII against female applicants for driver and dockworker positions in its Ohio terminals, and from failing to create and maintain records as required by Title VII or regulations issued pursuant to Title VII.
• Pitt Ohio, it officers, agents, employees and all others in active concert with them shall not retaliate against any female applicants for driver and dockworker positions at its Ohio terminals for participating in this proceeding or otherwise asserting any rights under Title VII in this proceeding.
• The payments to Claimants are for compensatory damages. Based on the lack of any prior employment relationship between Pitt Ohio and the Claimants, the absence of any adjudication of issues raised in the Complaint and Pitt Ohio's payment to the Claim Fund according to the procedures herein as a step in resolving all claims and issues, each Claimant, to whom a payment was made will be provided by the Claim Fund, an IRS Form 1099-MISC for the year in which payment is made, as required by law, directed to the same address to which the check was sent.
• Within 60 days after the entry of this Decree, EEOC shall provide Pitt Ohio the name of each Offer Eligible Claimant who has expressed interest in employment with Pitt Ohio and whom it contends should receive "priority hiring consideration" as defined in paragraph 23, and at the same time it will provide Pitt Ohio the current qualifications information received from each such Offer Eligible Claimant. As used herein, "priority hiring consideration" refers to Pitt Ohio's obligation to make employment offers for driver and dockworker positions to Offer Eligible Claimants who meet the hiring criteria in effect for such positions at the time the offer for such position would be made. . . . Absent disagreement or once any disagreement about whether an Offer Eligible Claimant should receive "priority hiring consideration" has been resolved, such Offer Eligible Claimant entitled to "priority hiring consideration" shall be placed on a "Job Offer List" according to her stated Ohio terminal preference for employment. When a job vacancy for a driver or dockworker position becomes available at an Ohio terminal, Pitt Ohio will consult the Job Offer List for that terminal, invite as many Offer Eligible Claimants to interview as it deems appropriate and make offers of employment to Offer Eligible Claimants on the Job Offer List before considering the application of any other person. . . . Pursuant to these "priority hiring consideration" provisions, Pitt Ohio shall extend at least 40 offers of employment, 26 for driver positions and 14 for dockworker positions. If at least 30 hires do not result from the initial offers, EEOC will provide Pitt Ohio the names of additional Offer Eligible Claimants and Pitt Ohio shall in good faith make additional offers until 30 hires are achieved or until the termination of this Decree, whichever is earlier. Each Offer Eligible Claimant hired pursuant to the "priority hiring consideration" provisions will receive "rightful place instatement." "Rightful place instatement" shall mean that, when an Offer Eligible Claimant is hired into a driver or dockworker position, she shall be hired into the vacant position at the then existing hiring rate for the position with seniority rights and accompanying benefits, based on the position and her earlier date of application. Rightful place instatement shall not extend to bumping Pitt Ohio employees who occupy jobs, displacement of drivers from current route and shift assignments, or vacation preference rights.
• Pitt Ohio will appoint from its human resources department an ombudsperson to resolve informally issues arising from or which result from women entering driver and/or dockworker positions pursuant to the terms of this Decree. To the extent necessary, Pitt Ohio will issue procedures for submission and handling of issues by the ombudsperson. The ombudsperson will not be the person in the human resources department responsible for responding to EEO charges or other EEO compliance.
• Within 30 days after the date of this Decree, Pitt Ohio shall provide a training proposal to EEOC for approval. The proposal shall include: format of the training; name(s) and qualifications of the instructor(s); content and topics to be covered; length of the program; and estimated training dates and locations. The training shall include at least the following topics: Title VII recordkeeping requirements (retention requirements, prohibition against destruction of records, etc.); hiring practices and procedures which comply with Title VII; the interview process and types of questions to be asked of applicants; and personnel policies and procedures which comply with Title VII. Pitt Ohio shall conduct EEO training to be attended by its executives, managers, supervisors, human resources staff and recruiters from its corporate headquarters and Ohio terminals, and any other employees at corporate headquarters and the Ohio terminals coming in direct contact with prospective applicants or involved in the recruitment, selection and hiring process. This training shall be completed within 90 days of the date of this Decree. Pitt Ohio shall train all newly-hired and newly-promoted management or supervisory staff, and other staff involved in the application and hiring process at its corporate headquarters or Ohio terminals on equal employment opportunity law, including the topics listed in paragraphs 34, within 90 days after their hire, promotion or transfer for the duration of this Agreement. To satisfy this requirement, Pitt Ohio may substitute viewing of a video presentation of the original training session, provided a qualified trainer attends to answer questions.
• In addition to the steps of training and appointment of an ombudsperson, identified elsewhere in this Decree, Pitt Ohio will help assure management and supervisory accountability in effecting the terms of this Decree in its Ohio facilities by: (a) directing managers and supervisors to carry out their supervisory responsibilities so as to achieve compliance with Pitt Ohio's policy or policies prohibiting unlawful employment discrimination and/or retaliation; (b) taking corrective action, which may include discipline up to and including discharge of any supervisor or manager who violates Pitt Ohio's policy or policies prohibiting unlawful employment discrimination or retaliation; (c) directing managers and supervisors to report incidents of unlawful discrimination and/or retaliation to Pitt Ohio's human resources group.
• Pitt Ohio will incorporate into the performance evaluations of its supervisors and managers an equal opportunity component.
• Within 14 days after the date of this Decree, Pitt Ohio shall post the Notice attached as Exhibit C at its Ohio terminals and corporate headquarters, and keep it upon those premises in places where bulletins and notices to employees and applicants for employment customarily are posted. Such Notice shall remain for the five-year duration of this Decree. If such Notice becomes defaced, marred or otherwise unreadable, Pitt Ohio will ensure that new readable copies are posted in the same manner as heretofore specified.
• With the first reporting period starting on the first day of the month immediately after the date of this Decree, Pitt Ohio shall submit to the EEOC's Cleveland Field Office a written report for each preceding six-month period for three years and then for each preceding one-year period for the remaining term of the Agreement, regarding recruitment and hiring of women in driver and dockworker positions in Ohio, which shall include: (a) for each Ohio terminal for the reporting period, a list of driver and dockworker hires, including name, sex, date of hire, job title, rate of pay, and status as full-time or part-time employee; (b) for each Ohio terminal for the reporting period, a list of the names of driver and dockworker applicants, their sex, and for each their address, social security number (if available), job applied for, date of application and an indication of the status of the applicant (i.e., hired or disposition code information); and (c) for each Ohio terminal, copies of the applicant logs for the preceding reporting period.

Insomniacs may read the full EEOC press release at http://www.eeoc.gov/press/1-22-09.html and the full terms of the consent decree at

Affirmative Action Employer Agrees to Pay $1.5M to Settle OFCCP Allegations of Discriminatory Hiring Process

Today, the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) announced that Dallas-based Vought Aircraft Industries Inc. would be settling “allegations of hiring discrimination based on race and gender and agreed to pay $1.5 million in back wages to 1,045 applicants. . . . OFCCP investigators found that Vought's hiring process disproportionately eliminated African American and Asian males, as well as all females, applying for the assembly trainee/aircraft assembly beginner jobs. OFCCP concluded that two steps in Vought's hiring process — an application screening and a test — were primarily responsible for the discrimination. Under the terms of the consent decree, Vought will pay the 1,045 rejected applicants $1,377,500 in back pay with interest. The company also will pay about $70,000 for applicants interested in participating in a four-week aircraft assembly training program, and from that program 35 applicants will be hired into assembly trainee/aircraft assembly beginner positions. Additionally, in lieu of retroactive seniority salary, the new hires will be paid $1,500 each.”

According to the OFCCP, “Vought, a manufacturer of aircraft parts and auxiliary equipment contracts with the U.S. Department of Defense, has discontinued its use of the test and modified its screening procedures, and will undertake extensive self-monitoring measurements for two years to ensure that all hiring practices fully comply with federal law. Additionally, the company will ensure compliance with recordkeeping requirements.”

The OFCCP is an agency within the United States Department of Labor's Employment Standards Administration and enforces Executive Order 11246 and other laws that prohibit employment discrimination by federal contractors. The agency monitors contractors to ensure that they provide equal employment opportunities without regard to race, sex, color, religion, national origin, disability or veteran status.

Insomniacs can read the OFCCP’s full press release at http://www.dol.gov/opa/media/press/esa/esa20080418.htm.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

When Failing to Preserve Employment Records Constitutes a Separate Claim for Spoilation of Evidence.

Last month, the Ohio Court of Appeals ruled that an employer’s failure to preserve evidence of its hiring/promotion process (including rating sheets, job applications, interview notes, etc.) which began less than two years before the initiation of litigation could give the disappointed plaintiff a separate claim for spoliation of evidence. This was particularly true when the employer was a government entity required by the Ohio Public Records laws to preserve such records for a longer period than required of private sector employers. Mitchell v. Lemmie, 2007-Ohio-5757 (10/24/07).

In that case, the plaintiff was, without explanation, denied a promotion to divisional manager even though he had the recommendations of his superiors in mid-1999 and even after he was the only remaining candidate from the short list recommended to the city manager in late 1999. After he was passed over twice for the promotion, he ultimately retired and then filed suit in December 2001 within two years of the denial of the promotion after an African-American female with arguably lesser qualifications was hired for the position in a non-competitive process. The original lawsuit was voluntarily dismissed by the plaintiff in early 2004 and then refiled in April 2004 with discovery requests. In these and later discovery requests, he sought information about all of the candidates which had applied and been considered for the position through four different searches to fill the position. He also sought information about the City Manager’s computer outlook calendar. However, the employer denied that these records had been preserved.

The plaintiff pursued many motions to compel discovery and pointed out that the employer had maintained the same sort of records for another job search conducted during the same time period, but claimed that it could not find the relevant documentation involving the position he had sought. The employer contended that it had produced all relevant documentation, but then produced new evidence only a week before trial that contradicted prior deposition testimony by a witness. When the employer failed to produce the requested documents, the plaintiff moved to amend his complaint to add a claim for spoliation of evidence (since the missing evidence could support his claims of discrimination).

Ohio recognizes a claim for spoliation of evidence, which is based on statutory and common laws prohibiting willful or negligent destruction of evidence. The employer argued that it had no duty to maintain any of the requested documents after filling the divisional manager position. However, a duty arises once litigation becomes probable or has actually been initiated. (In addition, various employment statutes require the preservation of these types of records for one to two years after they are created and/or the position is filled). Fatal for the defendant employer’s explanation is the fact that its explanation was not consistent with Ohio’s public records laws.

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