GAINESVILLE EMPLOYMENT DISCRIMINATION LAWYERS SERVING CENTRAL FLORIDA

For more than two decades, our Alachua County, Florida employment discrimination attorneys have been in the trenches of employment discrimination litigation fighting on behalf of employees. In Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978), the U.S. Supreme Court explained that “it is beyond cavil that the obligation imposed” by the federal anti-discrimination laws is “to provide equal opportunity for each [job] applicant.” Although the federal anti-discrimination statutes seek to assure equality of employment opportunities and to eliminate discriminatory employment practices, discriminatory hiring practices remain a serious problem in the American workplace. Based on Ocala, Florida and representing employees throughout Central Florida, our Gainesville, Florida employment discrimination lawyers are committed to vindicating the rights of job applicants who have been denied employment opportunities because of discriminatory hiring practices.

Laws Prohibiting Discrimination In Hiring

There is a broad array of anti-discrimination laws which make it unlawful for employers to fail or refuse to hire applicants for employment for a discriminatory reason. These anti-discrimination statutes provide job applicants with a cause of action against employers who fail or refuse to hire them for a discriminatory reason. The anti-discrimination laws which prohibit discriminatory hiring practices include:

• * Title VII of the Civil Rights Act of 1964 (Title VII), which is federal law, protects job applicants and employees from discrimination on the basis of race, color, national origin, sex, and religion. Under Title VII, failing to hire a job applicant because of his or her race, color, national origin, sex, or religion is an unlawful employment practice.
• * The Pregnancy Discrimination Act (PDA), which is federal law, prohibits employers from discriminating against applicants for employment and employees on the basis of pregnancy. Under the PDA, an employer’s refusal to hire an applicant for employment because she is pregnant is illegal.
• The Americans with Disabilities Act (ADA), which is federal law, forbids employers from discriminating against job candidates and employees on the basis of disability. Under the ADA, an employer’s failure to hire a job candidate because of his or her disability is unlawful
• * The Age Discrimination in Employment Act (ADEA), which is federal law, protects job applicants and employees from discrimination on the basis of age. Under the ADEA, refusing to hire an individual because of his or her age is illegal.
• * The Florida Civil Rights Act (FCRA), which is Florida law, protects job applicants and employees from discrimination on the basis of race, color, national origin, sex, pregnancy, religion, disability, age, and marital status. Under the FCRA, an employer’s failure to hire an applicant for employment because of his or her race, color, national origin, sex, pregnancy, religion, disability, age, or marital status is an unlawful employment practice.
• * Title VII, the PDA, the ADA, the ADEA, and the FCRA all contain anti-retaliation provisions which protect job applicants and employees from retaliation for opposing an employer’s discriminatory employment practices. Under these employment discrimination statutes, an employer’s refusal to hire a job candidate because he or she opposed an employer’s discriminatory employment practices is unlawful.

Discriminatory Failure To Hire Myth

In the failure to hire context, many applicants for employment mistakenly believe that an employer must tell them that they were not hired because of their race, color, national origin, sex, pregnancy, religion, disability, or age in order bring a discriminatory failure to hire lawsuit. However, it is not necessary that an employer tell a job candidate that he or she was not hired on the basis of his or her race, color, national origin, sex, pregnancy, religion, disability, or age in order for a rejected job candidate to bring a discriminatory failure to hire lawsuit. In Sheehan v. Donlen Corp., 173 F.3d 1039 (7th Cir. 1999), the U.S. Seventh Circuit Court of Appeals explained that “it would cripple enforcement of the employment discrimination laws” to insist that evidence in an employment discrimination case “take the form of an employer’s statement to the effect that ‘I’m not hiring you because you’re in a protected group.’ ” As the U.S. Second Circuit Court of Appeals in Rosen v. Thornburgh, 928 F.2d 528 (2d Cir. 1991) observed, “an employer who discriminates is unlikely to leave a ‘smoking gun,’ such as a notation in a [job applicant’s] file, attesting to discriminatory intent.”

Indeed, “smoking gun” evidence attesting to discriminatory intent almost never exists in today’s sophisticated employment world. As the U.S. District Court for the Southern District of Ohio observed in Barr v. Smith & Wollensky Rest. Group, 2006 WL 3391156 (S.D. Ohio Nov. 22, 2006), “one would hardly expect an employer in the [2000’s] to tell a female applicant she was not being hired because of her sex.” Thus, as pointed out by the U.S. First Circuit Court of Appeals in Hodgens v. General Dynamics Corp., 144 F.3d 151 (1st Cir. 1998), “ ‘smoking gun’ evidence is [ ] not required to prove discrimination.” Because an employer will rarely admit to a discriminatory motive or leave a paper trial illuminating a discriminatory motive when failing to hire a job applicant, discriminatory failure to hire cases are almost always proven by circumstantial evidence.

Proving A Discriminatory Failure To Hire

To establish a prima facie case of discriminatory failure to hire, as determined by the U.S. Eleventh Circuit Court of Appeals in Schoenfeld v. Babbitt, 158 F.3d 1257 (11th Cir. 1999), an individual must show that he or she: (1) is a member of a protected class; (2) applied for and was qualified for the job; (3) was not hired despite being qualified for the job; and (4) the position remained open or was filled by a person outside the protected class.

Even when the position is filled by a person who is a member of the job applicant’s protected class, courts, such as the U.S. Tenth Circuit Court of Appeals in Anaeme v. Diagnostek, Inc., 164 F.3d 1275 (10th Cir. 1999), have determined that a rejected job candidate can still establish a prima facie case of discriminatory failure to promote by showing that: (1) he or she applied for an available position; (2) he or she was qualified for the position; and (3) he or she was rejected under circumstances giving rise to an inference of unlawful discrimination.

As observed by the U.S. District Court for the Southern District of New York in Taylor v. Local 32E Service Employees Intern., 286 F.Supp.2d 246 (S.D. N.Y. 2003), in determining whether a job candidate’s rejection occurred under circumstances which give rise to an inference of unlawful discrimination, courts look to “factors such as the employer’s continued solicitation of applications from people with qualifications similar to those of [the rejected job applicant], [discriminatory] language used to criticize the [rejected job applicant], disparaging comments about people in the [rejected job applicant’s] protected class, more favorable treatment of others not in the protected group, and the circumstances” surrounding the employer’s rejection of the job applicant.

As explained by the Eleventh Circuit in Walker v. Mortham, 158 F.3d 1177 (11th Cir. 1998), “a valid prima facie case creates a presumption that discrimination has occurred.” In other words, as the U.S. Sixth Circuit Court of Appeals in Rose v. Nat’l Cash Register Corp., 703 F.3d 225 (6th Cir. 1983) observed, “to say that an [individual] has established a prima facie case is simply to say that he has produced sufficient evidence to present his case to the jury.” Once a job applicant establishes a prima facie case of discrimination, the employer must articulate a legitimate, non-discriminatory reason for its failure to hire the job applicant. If the employer demonstrates that it had a legitimate, non-discriminatory reason, the job applicant must show that the employer’s proffered reason for the hiring decision is actually a pretext for discrimination. The job applicant may prove pretext by showing that a discriminatory reason more likely motivated the employer or by showing that the employer’s proffered explanation is unworthy of belief.

Applicant’s Qualifications For Job

To demonstrate that he or she was qualified for the job, an applicant for employment need only show that he or she satisfied the employer’s minimum qualifications for the job. Thus, as explained by the U.S. District Court for the Northern District of Alabama in Miller v. Bed, Bath & Beyond, Inc., 185 F.Supp.2d 1253 (N.D. Ala. 2002), a job applicant is not required to establish that he or she “possessed all of the qualities that the employer might prefer, but did not absolutely require, a candidate to have.” In determining whether a job applicant met the minimum qualifications for the job, courts focus on the individual’s skills and background, including education, experience, and training.

To demonstrate that he or she was qualified for the job, a job applicant is only required to show that he or she satisfied the employer’s minimum objective qualifications and does not have to show that he or she satisfied the employer’s subjective qualifications. In Aka v. Washington Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998), the U.S. D.C. Circuit Court of Appeals explained that “although employers may take subjective considerations into account in their employment decisions, courts traditionally treat explanations that rely heavily on subjective considerations with caution” because “an employer’s asserted strong reliance on subjective feelings about the candidates may mask discrimination.” Subjective criteria include the employer’s evaluation of a job applicant’s interpersonal skills, organizational skills, management style, initiative abilities, judgment capabilities, and enthusiasm. Because employers often use such subjective factors to camouflage discrimination, they cannot rely on them to demonstrate that a rejected job applicant was unqualified for the position.

Employer Will Keep Application On File

In a discriminatory failure to hire case, employers sometimes argue that the unsuccessful job applicant was never “rejected” for the position even though another job candidate was chosen for the position. Instead, employers disingenuously claim that the unsuccessful job applicant was simply “not hired” and remains eligible for hire because they kept his or her job application on file. Knowing applicants for employment must prove that they were “rejected” by the employer to establish a prima facie case of discriminatory failure to hire, employers conjure up this argument in hopes they can mislead courts into believing that the unsuccessful job applicant was simply not hired yet and could be hired in the future because they kept his or her application on file.

In Banks v. City of Albany, 953 F.Supp. 28 (N.D. N.Y. 1997), the U.S. District Court for the Northern District of New York rejected this type of employer argument and determined that the employer’s definition of “rejection” is “clearly not the law.” The Banks court explained that were it to adopt the employer’s “definition of ‘rejection,’ this would completely eviscerate Title VII and most other state and federal statutes dealing with employment discrimination.” Under the employer’s “nonsensical definition of ‘rejection,’ ” the Banks court reasoned, “a job applicant would only be ‘rejected’ if the employer actually said ‘you are rejected.’ ” Under such circumstances, the Banks court pointed out, “rejection would never occur and an employer could perpetually insulate itself from [the federal anti-discrimination laws] so long as the employer kept the candidate’s application on file.”

Failure To Interview Job Applicant

In a discriminatory refusal to hire case, an employer’s failure to interview the rejected job applicant is potentially significant if the applicant chosen for the position was given the job based in large part on his or her interview. Without an interview, the rejected job applicant was never given the opportunity to demonstrate any qualities which qualified him or her for the position that could not be determined from his or her paper qualifications. When the applicant chosen for the position was given the opportunity to strengthen his or her paper credentials, the question becomes why the rejected candidate was not given the same opportunity. As explained by the U.S. Supreme Court in Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978), the “central focus of the inquiry in a [discriminatory failure to hire] case [ ] is always whether the employer is treating some people less favorably than others because of their race, color, religion, sex, national origin, [age], [or disability].” Thus, as determined by the U.S. Sixth Circuit Court of Appeals in Kline v. Tenn. Valley Authority, 128 F.3d 337 (6th Cir. 1997), an employer’s failure to interview the rejected job candidate can be evidence of discriminatory intent.

Job Applicant Rejected As “Overqualified”

In the discriminatory failure to hire context, employers often claim that they did not hire the rejected job applicant because he or she was “overqualified” for the position. Courts have acknowledged that reliance on “overqualification” as a disqualifying factor in the hiring context can easily be used to mask discrimination. In Taggert v. Time, Inc., 924 F.2d 42 (2d Cir. 1991), the U.S. Second Circuit Court of Appeals reversed the dismissal of a job applicant’s claim that he was not hired because of his age where the employer’s proffered reason for rejecting the job applicant was concern that he was “overqualified.” The Taggert court found that an employer’s rejection of an older job applicant because he or she is “overqualified” is tantamount to age discrimination. The Taggert court reasoned that “denying employment to an older job applicant because he or she has too much experience, training, or education is simply to employ a euphemism to mask the real reason for the refusal, namely, in the eyes of the employer the applicant is too old.” Thus, as determined by the U.S. District Court for the District of Columbia in EEOC v. D.C. Dept. of Human Serv., 729 F.Supp. 907 (D. D.C. 1990), “overqualified” and “overspecialized” are often “buzzwords” for a job applicant being too old for the position.

Qualifications Of Job Applicant Hired

In the discriminatory refusal to hire context, the qualifications of the applicant chosen for the position are highly relevant in determining whether the employer’s hiring decision was motivated by discriminatory animus. As the U.S. District Court for the Middle District of Alabama observed in Alexander v. Chattahoochee Val. Comm. Col., 326 F.Supp.2d 1274 (M.D. Ala. 2004), “the appointment of a person who is unqualified for a position instead of a person who is qualified is evidence of [discrimination].” Likewise, as observed by the U.S. Eleventh Circuit Court of Appeals in Bass v. Bd. of Cty. Com’rs, Orange Cty., Fl., 256 F.3d 1095 (11th Cir. 2001), “hiring a less qualified person can support an inference of discriminatory motive.” Thus, when an employer contends that the rejected job applicant was not as qualified as the applicant chosen for the position, showing that the rejected job applicant was more qualified than the applicant chosen for the position is evidence of discrimination.

In defending against discriminatory failure to hire cases, employers frequently argue that the challenged hiring decision was not discriminatory because they maintain a policy of hiring the most qualified candidate. Although employers have the legal right to select the most qualified candidate, employers cannot prove they have in fact done so by a general statement that they hire the best qualified candidate. Instead, as explained by the U.S. Eighth Circuit Court of Appeals in Cross v. United States Postal Service, 639 F.2d 409 (8th Cir. 1981), “if an employer wishes to rely on the applicants’ qualifications” to show that the challenged hiring decision was free from discrimination, they must “produce legally sufficient proof that the person hired was in fact more qualified than the other applicants.”

Employer’s Unwritten Hiring Criteria

In a discriminatory failure to hire case, employers often maintain that the challenged hiring decision was based on unwritten employment policies or hiring criteria. In some cases, the purported unwritten employment policies or hiring criteria were unilaterally created by the person who made the hiring decision in order to camouflage discrimination. As explained by the U.S. Eleventh Circuit Court of Appeals in Howard v. BP Oil Co., 32 F.3d 520 (11th Cir. 1994), when hiring practices or criteria are unwritten, courts should apply “greater scrutiny” to the challenged hiring decision. In Carter v. Three Springs Residential Treatment, 132 F.3d 635 (11th Cir. 1998), the Eleventh Circuit determined that an employer’s “failure to promulgate hiring and promotion policies can be circumstantial evidence of discrimination.” Thus, an employer’s use of unwritten employment policies or hiring criteria, especially when interpreted according to subjective considerations, can be evidence of discriminatory intent in the employer’s hiring practices.

Employer’s Subjective Hiring Criteria

Although employers cannot rely on subjective criteria to establish that a rejected job applicant was unqualified for the position, courts have determined that employers are permitted to base hiring decisions on subjective factors. “Although employers may [ ] take subjective considerations into account in their employment decisions,” as explained by the U.S. D.C. Circuit Court of Appeals in Hamilton v. Geithner, 666 F.3d 1344 (D.C. Cir. 2012), courts “have repeatedly expressed concern about the ease with which heavy reliance on subjective criteria may be used to ‘mask’ or ‘camouflage’ discrimination.” “Subjective criteria,” the Hamilton court recognized, “lend themselves to [ ] discriminatory abuse more readily than do objective criteria.” In fact, the U.S. District Court for the Middle District of Alabama in LaFleur v. Wallace State Comm. College, 955 F.Supp. 1406 (M.D. Ala. 1996) stressed that the “lack of objective evaluation methods creates a fertile environment for [ ] discriminatory practices and can raise an inference of discrimination.” Thus, as the U.S. Seventh Circuit Court of Appeals observed in Perfetti v. First Nat. Bank of Chicago, 950 F.2d 449 (7th Cir. 1991), “in order to prevent employers from masking discrimination behind an incantation of subjective factors, [courts] have held that, under many circumstances, subjective factors may be insufficient to justify the employer’s hiring decision.”

Sexual Harassment Of Job Applicants

Tragically, some job applicants are subjected to quid pro quo sexual harassment. In the hiring context, quid pro quo sexual harassment occurs when an employee with hiring authority explicitly or implicitly conditions the job upon the receipt of sexual favors from the job applicant. In Nichols v. Frank, 42 F.3d 503 (9th Cir. 1994), the U.S. Ninth Circuit Court of Appeals characterized quid pro quo sexual harassment as the “most oppressive and invidious type of workplace sexual harassment.” As the Nichols court observed, “there can be no justification for requiring a [job applicant] to engage in sexual acts in order to obtain a job,” and most job applicants “subjected to sexual pressure in the workplace have little means of defense—other than the law.”

Under Title VII, employers are held automatically liable when an employee with hiring authority conditions a job upon the receipt of sexual favors from the job applicant and the job applicant is not hired after refusing to engage in sexual acts as a condition of being hired. For example, in EEOC v. Draper Development, LLC, 2018 WL 3384427 (N.D. N.Y. July 11, 2018), the U.S. District Court for the Northern District of New York found that a job applicant had presented sufficient evidence to establish that she was subjected to quid pro quo sexual harassment in violation of Title VII when she was not hired after refusing to submit to the hiring supervisor’s demand that she engage in sexual acts in order to get the job. Similarly, in Figueroa v. RSquared N.Y. Inc., 89 F.Supp.2d 484 (E.D. N.Y. 2005), the U.S. District Court for the Eastern District of New York ruled that an individual seeking to be rehired by a former employer had stated a quid pro quo claim of sexual harassment where a supervisor told her she could have her old position if she would “hook up” with him.

Failure To Hire & Discriminatory Remarks

Although not required to prove a discriminatory failure to hire case, discriminatory remarks by an employee involved in the challenged hiring decision are the most powerful evidence of a discriminatory failure to hire. Generally, a discriminatory remark by an employee involved in the challenged hiring decision is sufficient, by itself, to establish that the challenged hiring decision was based on prohibited discriminatory animus and permit a jury to return a verdict in favor of the rejected job applicant.

For purposes of illustration, set forth below are examples discrimination comments made by employees involved in the employer’s hiring process from actual discriminatory failure to hire cases filed by rejected job applicants in federal courts. The rejected job applicant claiming a discriminatory failure to hire used the discriminatory remark(s) to prove that his or her race, color, national origin, sex, pregnancy, religion, disability, or age played an impermissible role in the challenged hiring decision.

• * Company president informed human resources officials that “he did not want to hire older workers.”
• * Person making the hiring decision told the rejected job applicant that she “wouldn’t be worth as much as men to the company.”
• * Manager with hiring authority referred to African-Americans using racial slurs and stated that African-Americans “were meant to be slaves.”
• * Hiring official remarked to the job applicant during his interview, “you’re 64, how much longer are you going to work.”
• * Employee involved in decision-making process told the rejected job applicant that she “did not like pregnant women working for her.”
• * Hiring manager told another job applicant that he was looking to hire a “mature man.”
• * Decision-maker who rejected the job applicant said that he “did not want to deal with another female.”
• * Applicant for employment was informed that she was not being hired because she “was too old” for the job.
• * Manager with hiring authority told other employees, “I don’t like working for a woman and I don’t want one working for me.”
• * Decision-maker told the rejected job candidate, “I don’t need minorities.”
• * Manager, who ultimately had to approve the hiring decision, told another employee that the rejected job applicant was qualified for the job, but “he is an old man.”
• * Company president said that “women were simply not tough enough” to do the job and that “it would require a man to do the job.”

Retaliatory Failure To Hire

The federal anti-discrimination laws protect employees from retaliation when they engage in statutorily protected activity under the federal anti-discrimination laws by opposing an employer’s discriminatory employment practices. Generally, employees engage in statutorily protected activity for purposes of the federal anti-discrimination laws when they make an internal complaint about an employer’s discriminatory employment practices, when they file a charge of discrimination against an employer with the U.S. Equal Employment Opportunity Commission (EEOC) alleging employment discrimination, and when they file an employment discrimination lawsuit against an employer.

In the hiring context, job applicants are protected against retaliation from prospective employers for having engaged in statutorily protected activity under the federal anti-discrimination laws while employed by another employer. This means that a prospective employer cannot refuse to hire an applicant for employment because he or she complained about discriminatory employment practices while employed by another employer, filed a charge of discrimination with the EEOC alleging employment discrimination against another employer, or filed an employment discrimination lawsuit against another employer. For example, the U.S. Sixth Circuit Court of Appeals found in Christopher v. Stouder Mem’l Hosp., 936 F.2d 870 (6th Cir. 1991) that a prospective employer’s repeated references to the job applicant’s sex discrimination lawsuit against a former employer while interviewing her was evidence that the prospective employer refused to hire her because of her statutorily protected activity under the federal anti-discrimination laws.

Employment Law Blog

As part of our commitment to assist and educate employees in protecting themselves against abusive employment practices, our Alachua County, Florida employment discrimination lawyers offer more information about discriminatory hiring practices in our employment law blog.

Consult With Gainesville Discrimination Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, our Alachua County, Florida employment discrimination attorneys have been fighting for the rights of employment discrimination victims for more than twenty years. If an employer has refused to hire you because of a discriminatory reason or you have questions about your protection against discriminatory hiring practices, please contact our Gainesville, Florida employment discrimination lawyers for a free initial consultation. You will receive personalized and individual attention from our Alachua County, Florida employment law attorneys. Our employees’ rights law firm takes employment discrimination cases on a contingency fee basis and if we fail to recover on your behalf, we do not get paid. Our Gainesville, Florida employment discrimination attorneys are ready to take your discrimination case and fight for your rights.