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How Do You Prove An Unlawful Failure To Hire Claim?

Published By | Jan 25, 2022 | Age Discrimination, Employment Discrimination, Employment Law, Religious Discrimination |

Best Employment Discrimination Attorneys’ Answers: How do I prove religious discrimination? What should I do if an employer lies about why I was not hired? Can an employer legally hire less qualified and less experienced employees just because they are younger?

Title VII of the Civil Rights Act of 1964 prohibits employers from refusing to hire an individual based on religion. EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 135 S. Ct. 2028, 2031, 192 L.Ed.2d 35 (2015). Of course, Title VII (and state laws like Ohio Revised Code § 4112.01, et al.) also makes it illegal for employers to refuse to hire an applicant because of his or her race/color, gender/sex, national origin, age, or disability. A violation of Title VII can be proved through direct evidence where there is clear evidence that the employer acted with illegal motive – i.e., a smoking gun. But, when that smoking gun is not there (which it rarely is), the employee can prove the case through indirect evidence by showing a what is called a prima facie case, which is essentially the first steps that a plaintiff (either the fired employee or the rejected applicant) must show to move forward with a case. “To establish a prima facie case for a failure to hire, the plaintiff must show that, after she was rejected, the employer either (1) filled the position with someone outside of the plaintiff’s protected class (or, for the ADEA, with a substantially younger person), or (2) kept the position open and continued to seek other applicants.” George v. Youngstown State Univ., 966 F.3d 446, 470 (6th Cir. 2020). After that, the employer must state a legitimate business reason for its decision. At that point, the plaintiff gets the opportunity to show that the alleged business reason was a lie or did not actually motivate the employer, which is called showing pretext. (See Employment Discrimination Question: What Is Pretext?).

Today, I’m discussing a couple lessons that we can learn from a religious discrimination failure to hire lawsuit that was just filed in Utah. The facts of the case take place in Gunnison Valley, Utah, “where the Church of Jesus Christ of Latter-Day Saints is the overwhelmingly dominant religion.” Gunnison Valley posted for a new police chief. In the posting, the Gunnison Valley Police Board stated that a bachelor’s degree was required for the position – not a preference but a requirement. All three full-time officers that were currently in the department applied for the position. Let’s look at the three:

  1. Candidate 1: Has a bachelor’s degree; had 30 years of law enforcement experience; was in his 50s; and had left the Church of Jesus Christ of Latter-day Saints and converted to evangelical Christianity.
  2. Candidate 2: Does not have a bachelor’s degree; had 14 years of law enforcement experience; was in his 40s; and was a member of the Church of Jesus Christ of Latter-day Saints.
  3. Candidate 3: Does not have a bachelor’s degree; had seven years of law enforcement experience; was in his 30s; and was a member of the Church of Jesus Christ of Latter-day Saints.

Given that this is an employment discrimination blog, I’m sure you can guess how this one went. The City hired Candidate 3 and Candidate 1, Carl Wimmer, filed a discrimination claim against the City alleging religious discrimination. His case is bolstered by the fact that in Utah, government entities, including the police board, are required to record all meetings; and that the tapes in this case show that religion was considered. So … there is that. Lesson number one for the employer is do not record yourself engaging in an illegal hiring process. Let’s call this the Richard Nixon rule.

Even if Wimmer had to go the indirect evidence route, the City hired someone of a different religion and substantially younger (if he wished to also pursue an age discrimination claim). Moreover, the person that was hired was both less experienced and not only less qualified, but completely unqualified based on the job posting. Lesson number two for the employer is that if you post a job requirement, hiring a candidate inside the chosen religion (or other protected class) that does not meet the stated basic minimum requirements to avoid hiring a candidate outside of the protected class looks really bad.

Maybe this City knew it was going to have a problem with the prima facie elements because it had a very solid justifiable business reason to rely on, right? Nope. The City’s stated justifiable business reason was that they did not like how Wimmer investigated, arrested and prosecuted a high school student for sexual assault after he repeatedly had other students hold down another high school boy and rubbed his exposed genitals on his face because the boy was part of an evangelical congregation, and not Church of Jesus Christ of Latter-day Saints. The City’s position was that Wimmer was to rough on the high schooler, who plead guilty in juvenile court to eight counts of forcible sexual assault, because – in their opinion – “the incidents amounted to ordinary roughhousing among boys.” Um, no it is not. Lesson number 3 for the employer is to make sure that you don’t look absolutely insane when coming up with a purported justifiable business reason. I mean, what is its attorney going to tell the jury – “the City just preferred a Police Chief that was willing to let larger teens slap their penises in the face of smaller boys”?

This one is going to end badly for the employer.

If you feel that you are being discriminated or harassed based on your religion or religious beliefs or that you were wrongfully terminated because of you are Jewish, Muslim, Mormon, Hindu or any other religion, the best course of action you can take is to call the right attorney to schedule a free and confidential consultation. At Spitz, The Employee’s Law Firm, you will meet with a religious discrimination attorney, who will be able to tell you what your legal rights are and the best way to protect them. Call our top attorneys in Cleveland, Columbus, Cincinnati Toledo, Youngstown, and Detroit.


The materials available at the top of this religious discrimination blog and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “How do I sue if I was told my religion was why I did not get a job”, “What should I do if I was asked what god I believe in during a job interview,” “Can my boss discriminate against me because I’m (Jewish/Muslim/Mormon/Hindu)?” or “I was fired for my religious beliefs. The answer to “What can I do?”, is to contact an Ohio attorney to obtain advice with respect to any particular religious discrimination or other employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.

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