Most employers know that it is unlawful to discriminate on the basis of gender when hiring employees. What they may not realize is that an employer can still be sued for discriminatory hiring even if the employee was ultimately hired. In Fisher v. Town of Orange, the court held just that.
The plaintiff, Rebecca Fisher, applied for a position as a full-time firefighter for the town of Orange, Massachusetts (“the Town”) in August 2007. The plaintiff alleges in her complaint that the hiring process was put on hold in response to her application. On or about October 1, the plaintiff was contacted about participating in an independent assessment process for the position. She alleged that the Town had no intention of using such a process until it received her application, and that the Town implemented the process only because Fisher is a female. Fisher received a top rating in the assessment, and on October 15, she was one of three applicants interviewed for the position. Just prior to her interview, a male interviewee informed Fisher that he was hired for the position during his interview. Fisher alleged that the male applicant was less qualified than she was based on the independent assessment ratings.
Fisher also alleged that during her interview with two deputies, she was asked whether she thought she “[would] be accepted by the other firefighters.” The second deputy stated that the town was “not ready for a female firefighter.” A day after her interview, the chief of the fire department contacted Fisher and told her that the town administrator said he “could not see a way around” hiring her. On that same day, Fisher was hired for the position. According to Fisher, once she was hired, she was subject to harassment at work forcing her to resign from the position in May 2008. Fisher subsequently filed a lawsuit against the Town for gender discrimination both during the hiring process and during her employment.
Generally, to establish a prima facie case of hiring discrimination under federal law, a plaintiff must demonstrate that: (1) she is a member of a protected class; (2) she is qualified for the position she seeks; (3) she was not hired; (4) and that someone with the same or lesser qualifications was hired instead. The Town moved to dismiss Fisher’s failure to hire claims on the grounds that she was, in fact hired by the Town and she therefore could not demonstrate that someone with the same or lesser qualification was hired instead of her.
The court pointed out, however, that the above standard is not always applicable to differing factual situations and that, in any gender discrimination case, the central focus must be on whether an individual was treated less favorably than others on the basis of her sex. In this case, the court found that the allegations of substantial delay in the hiring decision because of Fisher’s gender could constitute a discriminatory practice under Title VII, even though the plaintiff was ultimately hired.
The court went on to hold that, in order to meet the fourth requirement of the prima facie case, Fisher needed only to demonstrate that the Town sought to replace her. Fisher met this requirement by alleging that the chief offered a position to another male individual; that a deputy stated that the town “was not ready for a female firefighter;” and that the plaintiff was only offered the job because the town “did not see a way around it.”
This case demonstrates that employers need to be cautious not only with respect to their ultimate hiring decisions, but with the way they conduct the hiring process. If you have any concerns about whether your hiring practice could expose you to liability under anti-discrimination laws, please feel free to contact any of the attorneys at Skoler Abbott.