For employers, one of the challenges with which they must deal is creating and following a process for making new hire and promotion decisions. The need to appear impartial and fair may lead an employer to create a metric that is standardized and objective. The key, though, is that, once an employer creates such a system, it becomes important to follow that system or, if deviating from those results, to document a clear reason why. If your employer doesn’t do this, these facts may actually work to strengthen your Georgia employment discrimination case, according to a recent 11th Circuit Court of Appeals ruling.
In the case recently decided by the 11th Circuit, a white sheriff’s deputy was pursuing a promotion to sergeant within the Broward County, Florida Sheriff’s Office. In 2012, the deputy took the sergeant’s exam, a tool for assessing promotion candidates that included “a multiple-choice test, a structural interview, and an oral presentation.”
Although the department made 30 promotions, and the deputy finished 20th on the exam, he did not receive a promotion. He had the second-highest exam score among those not promoted. By contrast, the 47th- and 50th-highest scoring candidates did receive promotions to sergeant. Both of those candidates were African-American.
Based upon these facts, the deputy sued for race discrimination. He had more law-enforcement experience than the 47th- and 50th-placed finishers, and he had a much higher score on the exam, but the department passed over him, a white employee, in order to promote the two lower-qualifying African-American employees, he argued.
The trial court granted a summary judgment in favor of the employer, but the 11th Circuit reversed that ruling and allowed the deputy’s case to go forward. The appeals court explained that, in order for an employee’s case to survive an employer’s request to end the case via summary judgment, an employee needs only to show that he was qualified for the job he sought, not that he was equally or more qualified than those from a different class (in this case, race) who did receive the job he sought. The department’s giving promotions to lower-performing employees was sufficient to show that the plaintiff was qualified for the job (sergeant) that he sought.
As an employer, a key part of successfully defending a discrimination case is articulating a legitimate, non-discriminatory reason for the action taken (and having evidentiary support). This was a problem for the sheriff’s office in this case. The plaintiff had proof that he finished 20th on the exam and was denied a promotion and that two African-American co-workers placed 47th and 50th but received promotions. No one from the sheriff’s office was able to provide any reason why, of those three candidates, the plaintiff was not promoted, and the other two men were.
Another Case of No Documentation Yields Another Defeat for an Employer
A similar problem yielded a similar result recently in the Third Circuit Court of Appeals. Two men were allowed to pursue an age discrimination case based, in large part, upon the scored metric the employer used to make new hires. In 2012, the men, both over the age of 50, received the fifth- and sixth-highest scores but were passed over. The seventh-, eighth-, and ninth-placed scorers, who were all in their 20s and 30s, were hired. Since the employer in that case did not have a clear and contemporaneous explanation for its deviation in bypassing the higher-scoring older candidates, the court allowed the age discrimination case to go ahead.
Standardized or scored protocols for rating candidates for promotion or hire can be useful tools, allowing an employer to demonstrate fairness and transparency in the process. Most systems, though, give employers the freedom to deviate from the numerical results. This can present a problem for an employer and turn these numerical metrics from helpful to harmful, if the employer fails to document clear and non-discriminatory reasons for its deviations. Whether you’re an employer facing a discrimination claim or an employee who believes you’ve been a victim of discrimination, you need knowledgeable employment counsel working on your behalf. The experienced Georgia race discrimination attorneys at Parks, Chesin & Walbert have been effectively representing both employees and employers in their discrimination and other employment cases for many years.
To speak with one of our lawyers about your case, call 404-873-8048.
More blog posts:
Untangling Employer-Mandated Grooming Policies: What Title VII Does and Does Not Allow, Atlanta Employment Attorneys Blog, April 26, 2017
African-American Workers Pursue Case Alleging Rampant Racism at Georgia Farm, Atlanta Employment Attorneys Blog, March 28, 2017