So a female applicant is offered a job. She rejects the offer. Then she turns around and sues the company, alleging failure to hire and sex discrimination. Whaaaaaaat? Yes, you read that right. Understandably the would-be employer moved to dismiss the claim. After all she can’t prove that she was rejected for the position and she can’t prove circumstances giving rise to a discrimination claim. This defense is known as failure to state a claim. So what’s there even to discuss? Well, here’s the twist. The court denied the employer’s motion to dismiss. That means that the case is still alive and can proceed to trial. Yes, that’s right. This employee-plaintiff, who rejected a job offer has been allowed to go forward with her sex discrimination and failure to hire claim. What court would allow that and why? Read on and you’ll see..
(image from g-enderinequality.weebly.com)
Here’s what went down:
A woman applied for a Spa Manager position with Primland Ltd in 2016. She had owned and operated her own spa for 8 years prior to selling it in 2015. She went through several interviews. During the interview process, the general manager allegedly told her that he preferred to hire a male manager “to control this mostly female staff.” The candidate alleged that she spoke with the H.R. Coordinator after the interview and that the H.R. Coordinator confirmed the general manager’s preference, but encouraged her to continue the interview process. The H.R. Coordinator also allegedly told the applicant that if the general manager did offer her a job, he would continue treating her poorly so that she would quit. The company offered her the job at $48,000 with a $5,000 potential bonus. The candidate did not respond to the offer after unsuccessful attempts to get a response from her, concluded that she had effectively rejected the offer. The company then interviewed and hired a male manager at a salary of $68,000 with a $10,000 potential bonus.
The candidate filed an EEOC charge and then sued under Title VII of the Civil Rights Act. Based on how the general manager treated her during the interview process, she felt that the general manager purposely made an offer that she would reject, so he could go ahead and hire a male manager. She apparently found support of her conclusions from the statements made to her by the H.R. Coordinator. She also argued that accepting the offer would have been a futile gesture, because it seemed clear that she would be subject to poor treatment, designed to cause her to quit the job, so that the general manager could then hire a man.
In denying the company’s motion to dismiss, the court felt that the manager’s alleged preference for hiring a man, the H.R. Coordinator’s statement, allegedly confirming that preference, the allegedly more favorable treatment that the male candidate received during the interview process, along with the significantly higher salary and bonus offered to him, created factual issues for a jury to decide.
So what might we learn from this case?
First: Even when a candidate rejects a job offer, s/he may, under the right circumstances be able to bring a failure to hire discrimination claim.
Second: Don’t make sham job offers. By that I mean don’t make an offer that a reasonable person would likely believe is a cover for discrimination in connection with the hiring process, or that s/he would likely be subjected to discrimination if s/he accepted the offer. In other words, Don’t get cute!
Third: Don’t offer different candidates significantly different salaries and benefits in connection with the same or substantially the same job. This alone is a big red flag — and a basis for a discrimination claim. If you are going to do so have a really, really really good reason — and document it.
Fourth: Train anyone involved in the hiring process to base hiring decisions on job-related issues only. Make sure that managers are trained regarding discrimination, and what practices are and are not legal, and acceptable in your company.
Fifth: If you don’t have anti-discrimination policies and procedures in place now is a great time to create them. If you do, now is a great time to review and update them.
Sixth: Don’t assume that policies and training are enough. Follow up. Check in with managers and with employees and take the pulse. Make sure the policies are being adhered to.
Seventh: Make sure all levels of management set the tone by modeling the behavior they want to see in their employees (and first-line and middle managers). Aim higher than legal compliance, i.e. the bare minimum. Remember whatever you aim for you are bound to fall short every now and again. If you only aim for the bare minimum, you will have problems on those occasions when you miss.
OK, some say seven is a lucky number, so I’ll stop with seven points — for now. See you next week…
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