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Last week, in Charlton-Perkins v. University of Cincinnati, No. 21-3840, 2022 WL 1819628(6th Cir. June 3, 2022), the United States Court of Appeals for the Sixth Circuit made a significant holding that expanded an applicant’s right to sue an employer for discriminatory failure to hire under Title VII of the Civil Rights Act of 1964. Up to this point, Title VII made it unlawful for an employer to not hire a qualified applicant based on race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin, age, or disability but limited those claims to situations where the employer eventually hired a different candidate who fell outside the plaintiff’s protected class. The requirement that a different candidate was hire who was not is a similarly protected class has been the largest impediment in failure to hire cases under Title VII.

In Charlton-Perkins, Mark Charlton-Perkins applied for a position as a professor in response to a job posted by the University of Cincinnati (“UC”). After 62 candidates applied, a designated search committee considered all the candidates and interviewed the top four candidates, which included two females and two males, including Charlton-Perkins. Following the interviews, the committee ranked Charlton-Perkins first, followed by the two women. At that point, the other male candidate was eliminated.

After further consideration, the committee voted by a three to one margin to recommend the hiring of Charlton-Perkins. This is important because under the collective-bargaining agreement (“CBA”) between the faculty and UC, “the appointment of a Faculty Member to an Academic Unit shall normally be based on a recommendation initiated within and approved by the Faculty of that Academic Unit using procedures developed within that Academic Unit … Accordingly, the search committee was vested with the authority to determine the candidate to be selected for the position.” This is when the problems started.

Dr. George Uetz, chair of the Department, pushed back on the recommendation by stating that that Kenneth Petren, who was dean of the College of Arts and Sciences, wanted “to focus on the women candidates first.” Dr. Uetz also informed the committee that Petren “fe[lt] that he might make a case to hire two strong women candidates.” Dr. Elke Buschbeck, the search committee’s chair, responded to Dr. Uetz that “[p]utting two lower ranked candidates up first is not only against the recommendation of the committee but also plain discrimination.” This is a correct statement of gender discrimination laws under Title VII. (Best Law Read: Can I Sue If My Boss Favors Female Employees Over Male Employees?; Top Race Discrimination Lawyer Response: What Is Reverse Discrimination?). Shortly thereafter, Dean Petren informed the faculty that he “was cancelling the search in its entirety.”

Charlton-Perkins then filed a failure to hire based on gender discrimination.

As we discussed at the beginning of this employment discrimination blog, the big problem facing Charlton-Perkins was that because the employer knew that hiring either of the two women candidates would satisfy the requirement of having a replacement of a different gender, it opted to cancel the search in order to preclude Charlton-Perkins from being able to state a prima facie case of gender discrimination failure to hire under Title VII. (Best Law Read: What does prima facie mean?).

The United States District Court for the Southern District of Ohio approved this tactic and dismissed the case:

Indeed, looking to principles from Title VII, the district court reasoned that no de facto injury occurs unless the plaintiff (1) is a member of a protected class, (2) was qualified for and applied for the job, (3) was denied it, and (4) an individual of similar qualifications not in the plaintiff’s protected class got the job. Id. at *5. Because Charlton-Perkins could not plausibly plead element (4), he suffered no “discrete harm,” in the district court’s view, and would suffer none until the contingent event of some third party’s hiring.

Id. at *4.

But on appeal, the United States Court of Appeals for the Sixth Circuit eliminated this loophole for employers by pointing to the United States Supreme Court instruction that the prima-facie-case requirement for a case of discrimination under Title VII is not “an inflexible rule” and instead may vary under particular factual circumstances. Id. at *9 (quoting Young v. United Parcel Serv., Inc., 575 U.S. 206, 228 (2015); Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575 (1978)). The Sixth Circuit Court of Appeals further held:

Charlton-Perkins did plausibly plead a prima facie case of employment discrimination. Indeed, the district court erred in concluding that Charlton-Perkins was required to establish that someone else filled the position to state a prima facie case. That is the default rule, true, because it helps give rise to an inference that the failure to hire was discriminatory. See Lindsay v. Yates, 578 F.3d 407, 415 (6th Cir. 2009); see also White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 241–42 (6th Cir. 2005). Yet as courts have recognized, when an employer discriminatorily cancels a position to avoid hiring an applicant of a disfavored class, the applicant need not establish that somebody else filled the position. See, e.g., Moore v. Abbott Labs., 780 F. Supp. 2d 600, 613 (S.D. Ohio 2011) (“Cancellation does not bar a discrimination claim, however, if the plaintiff can establish that the defendant cancelled the position specifically to unlawfully discriminate against the plaintiff.” (citing Storey v. City of Sparta Police Dep’t, 667 F. Supp. 1164, 1169–70 (M.D. Tenn. 1987)); see also Evans v. Sebelius, 716 F.3d 617, 620 (D.C. Cir. 2013) (recognizing that an employer may engage in pretextual cancellation of a position to avoid hiring a racial minority).

Id. at *6. The Sixth Circuit Court of Appeals recognized that other courts have held differently but flat out rejected them: “True, those decisions seem to suggest that when an employer fails to hire a plaintiff and yet never hires anyone for the position, no adverse employment action occurs. In our view, however, those cases are distinguishable at best and wrongly decided at worst. …

When the plaintiff alleges that defendants canceled the position itself as a pretext to conceal a discriminatory failure to hire, it would be nonsensical to say the plaintiff suffered no adverse employment action unless he could also show that someone else was hired for the nonexistent position.” (Best Law Read: Employment Discrimination Question: What Is Pretext? ).

So, the lessons to be learned moving forward is that an employer cannot avoid liability for a discriminatory failure to hire by cancelling the search (at least in the Sixth Circuit); and that plaintiffs should specifically plead that the cancellation of the job search was an independent act of discrimination as well as a pretext for covering up its discrimination.

How do I find out if I have a failure to hire case?

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