Pretext Analysis Key to Beating Discriminatory Hiring Claims
A failure-to-hire case recently decided by the U.S. 7th Circuit Court of Appeals (which covers Wisconsin employers) demonstrates the importance of the pretext analysis in defeating discrimination and retaliation claims. In such cases, the 7th Circuit requires employees to prove pretext (i.e., a cover-up for discriminatory or retaliatory motives). The court focused its entire discussion on the pretext issue, finding it was determinative of the outcome of the employee’s timely discrimination and retaliation claims.
Mildred Chatman is a 63-year-old African-American woman who worked in the Chicago Public Schools for more than two decades. From 1988 to 1996, she worked as an instructor assistant. From 1997 to 2009, she served as a library assistant.
In August 2009, the Chicago Board of Education laid off Chatman because it said her position had been eliminated. Later, she learned the board had actually replaced her with a younger, non-African-American employee.
Chatman filed a discrimination charge with the Illinois Department of Human Rights (IDHR) and the Equal Employment Opportunity Commission (EEOC) and then sued in Illinois state court. The case settled in February 2015.
As part of the settlement, the school district agreed to set up interviews for vacant positions for which Chatman was qualified, from the date of the settlement through December 31, 2015. The former employee began identifying available jobs shortly after the settlement agreement was reached. She interviewed for five positions, including for library assistant jobs at three schools:
First interview. Chatman interviewed for the first job in June 2015. She learned the position had been filled by another candidate on September 9, 2015.
Second interview. Chatman stated she interviewed for another library assistant job on September 10, 2015, although she couldn’t remember the details and the board denied any position was open during the time she claimed to have been interviewed.
Third interview. Chatman’s third interview for a library assistant job was in November 2015. In her deposition (pretrial testimony), she said the principal who interviewed her referred in some manner to previous involvement in a lawsuit. She admitted, however, the principal never discussed the specifics of her previous discrimination case or the settlement.
The principal extended an offer to another candidate, who was under the age of 40, around November 30, 2015. The individual never actually started working, however, before the position was eliminated for budgetary reasons in February 2016.
Fourth interview. Chatman’s fourth interview on December 2, 2015, was for two open special education classroom assistant positions. She wasn’t hired. Instead, the school’s principal hired an African-American male who was under age 40 and a non-African-American female who was over age 40.
Final interview. Chatman’s final interview was on December 17, 2015, for three open special education classroom assistant positions at another school. The principal didn’t hire her. Instead, the jobs went to two African-American females over age 40 and a non-African-American female under age 40.
New EEOC charges, lawsuit. When Chatman didn’t receive a job offer during the interview period provided by the settlement, she lodged a new charge with the EEOC and later filed suit in federal court. She alleged discrimination and retaliation under Title VII of the Civil Rights Act of 1964 as well as discrimination under the Age Discrimination in Employment Act (ADEA).
The district court granted the school board’s request for summary judgment (dismissal without a trial), concluding:
- The statute of limitations barred Chatman’s claims regarding the first two positions for which she interviewed;
- She couldn’t show she was qualified for the remaining jobs for which she interviewed;
- She failed to prove the board’s reasons for not offering her the positions were a pretext for discrimination; and
- Her retaliation claim also came up short because she couldn’t show she was denied a job because of her previous protected activity.
The 7th Circuit affirmed the district court’s judgment.
7th Circuit’s Decision
Timeliness. The 7th Circuit first analyzed the timeliness issues, citing the 300-day limitations period applicable to Title VII and ADEA discrimination and retaliation claims. All agreed the statutory deadline for Chatman’s claims was in November 2015.
Chatman conceded the claims she made about the first interview were untimely, but she argued the claims regarding the second interview in September 2015 were timely, asserting the timeliness analysis should focus on the date she learned she hadn’t been selected for the job.
The 7th Circuit disagreed, finding the board had met its burden for the affirmative defense by pointing to the absence of any evidence in the record about the position within the statute of limitations period. Chatman could point to nothing beyond her assertion that she interviewed for the job in September 2015, more than a month before the statutory deadline.
Discrimination. The appellate court went on to analyze Chatman’s discrimination claims. At the summary judgment stage, the critical question was whether she had produced enough evidence to permit a reasonable factfinder to conclude that her race, age, or other protected factor caused the adverse employment action. The court answered the question by looking at the evidence holistically, evaluating all the proof as a whole, “in a single pile.”
The 7th Circuit (without discussing) agreed with the district court that Chatman had established a prima facie (minimally sufficient) discrimination case:
- She was a member of a protected class;
- She applied and was qualified for a position;
- She was rejected for the job; and
- The employer hired someone outside the protected group who wasn’t better qualified.
The court also agreed the board had established legitimate, nondiscriminatory reasons for its actions. The court limited its discussion to whether the board’s decisions for not hiring Chatman for the jobs at the latter three schools were a pretext for discrimination.
Library assistant position. The 7th Circuit found the board’s budgetary reason wasn’t a lie. The evidence showed the individual offered the job never started in the role because the position really was eliminated. There was no evidence the decision to eliminate the position was driven by discriminatory animus. The individual offered the position was much younger than Chatman and hadn’t engaged in protected activity.
Two special ed classroom assistant positions. Regarding the jobs Chatman interviewed for in December 2015, the 7th Circuit likewise found no pretext for discrimination. After hiring someone who was under 40, the principal explained the individual was a graduate of the school and had volunteered, working with the specific special ed student for whom the classroom assistant position was designed to assist.
The 7th Circuit found that sort of valuable experience is a perfectly legitimate consideration during hiring. In addition, Chatman had offered nothing to suggest consideration of the experience was phony or intended to cover up more nefarious motives.
Remaining positions. The younger, non-African-American candidate was hired for one of the jobs because she had volunteered at the school and came highly recommended by the teacher in whose classroom she had worked. Chatman attacked the board’s reason, arguing one of the prerequisites for the job was a state paraprofessional license, which the successful candidate didn’t have at the time of the interview.
Again, the 7th Circuit found Chatman had failed to establish pretext. She was correct that the younger, non-African-American candidate didn’t possess the paraprofessional license at the time of her interview. Nevertheless, she obtained it before starting in the position. Moreover, Chatman had done nothing to undercut the principal’s explanation that the candidate’s familiarity with the school and strong recommendation from one of the teachers were considered in making the hiring decision.
Retaliation. For Chatman to prevail on her retaliation claims, she had to show her protected activity (filing a discrimination claim in 2009) was a “but for” cause for not being hired. She failed. The court stated no reasonable factfinder could conclude her protected activity was the reason she wasn’t hired for the library assistant position. Again, the evidence indicated the job had been cut for budgetary reasons even though the successful candidate hadn’t engaged in any protected activity.
For the remaining jobs, the evidence was even more clear-cut. Neither of the decision-makers for the hiring decisions for those positions even knew Chatman had engaged in protected activity. Absent evidence of knowledge on their part, no reasonable factfinder could conclude the principals’ decisions not to hire her were retaliatory.
Chatman’s case reinforces the importance of being prepared to document and explain the reasons for your hiring decisions. When applicants are arguably equally qualified, recent, relevant experience with your organization can be the legitimate, nondiscriminatory, and nonretaliatory deciding factor.
The case also demonstrates the significant burden placed on employees claiming discrimination or retaliation to prove the employer’s explanation is not only false but also a pretext for discriminatory or retaliatory animus.
This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.