Call The Right Attorney™
No Fee Guarantee

Making The Application Process Harder For Women Is Discrimination

by | Feb 17, 2023 | Employment Discrimination, Employment Law, Federal Law Update, Gender Discrimination |

Sometimes employment discrimination cases do not fit a predisposed pattern of wrongful termination or even refusal to hire cases. Nonetheless, Title VII of the Civil Rights Act of 1964 and related statutes protect employees from discrimination based on their race/color, religion, gender/sex, pregnancy, LGBTQ+ status, national origin, disability, and age.

Let’s consider the unusual circumstances presented in Paugh v. Lockheed Martin Corp., No. 21-50472, 2023 WL 417648 (5th Cir. Jan. 26, 2023), a recent case out of the United States Court of Appeals for the Fifth Circuit. In this case, Kylee Paugh worked for a federal contractor Army’s Fort Bliss. That contractor lost the contract, which was subsequently awarded to Lockheed Martin. Pursuant to an existing Executive Order, Lockheed Martin, as the successor contractor, was required to give preferential hiring privileges to existing workers. As part of the process, Lockheed Martin posted all existing positions for current employees to apply. However, it soon became clear that some of these position postings would be closed out and the jobs never filled. Paugh had applied for nine jobs with Lockheed Martin but was not hired.

She sued Lockheed Martin for gender discrimination asserting three theories. First, she was not hired for jobs that she applied, which went to men. Second, she was not considered for alternative jobs for which she had not directly applied. And third, that was not given a heads-up regarding jobs that would likely be closed out. After discovery, the United States District Court for the Western District of Texas granted summary judgement in favor of the employer, and Paugh appealed.

On appeal the United States Court of Appeals for the Fifth Circuit affirmed the dismissal on two of the argument but reversed on one in favor of the employee. Read on to see how it went down.

How do you prove a failure to hire case under Title VII?

To prove a failure to hire case under Title VII of the Civil Rights Act of 1964, the following elements must be established:

  1. The employee is a member of a protected class, based on race, color, religion, sex, or national origin.
  2. The employee applied for and was qualified for an open position.
  3. The employee was not hired, while similarly qualified individuals outside the protected class were hired.
  4. The employer’s decision not to hire the employee was motivated by discriminatory intent, whether consciously or unconsciously.

Proof of these elements can come from various sources such as the employee’s testimony, witnesses’ statements, employment records, company policies, and internal communications. It is important to note that the burden of proof is on the employee, but the defendant must also show that there was a legitimate, non-discriminatory reason for the hiring decision. If the employer asserts that it simply chose a better qualified candidate, the burden shifts back to the employee to show pretext. The Fifth District explained:

A plaintiff may demonstrate pretext by “showing that the employer’s proffered explanation is false or unworthy of credence.” Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (cleaned up). Alternatively, a “fact finder can infer pretext if it finds that the employee was ‘clearly better qualified’ (as opposed to merely better or as qualified) than the employees who are selected.” EEOC v. La. Off. of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995) (collecting cases). Superior qualifications are probative of pretext when “no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.” Moss, 610 F.3d at 923 (quoting Deines v. Tex. Dep’t of Protective & Regul. Servs., 164 F.3d 277, 280–81 (5th Cir. 1999)). … [A]n employee’s “better education, work experience, and longer tenure with the company do not establish that he is clearly better qualified.” Price v. Fed. Express Corp., 283 F.3d 715, 723 (5th Cir. 2002); see also McDaniel v. Nat’l R.R. Passenger Corp., 705 F. App’x 240, 246 (5th Cir. 2017) (per curiam) (observing “this court has repeatedly stated that an attempt to equate years served with qualifications is unpersuasive”

Id. at *5.

Paugh argued that she had superior qualifications to Saul Padilla. The Fifth District disagreed. Paugh had only been on the job one month longer than Padilla, who had also previously worked on a different occasion with Lockheed Martin on an earlier contract at Fort Bliss. Thus, the Court of Appeals held: “Paugh has failed to raise a genuine dispute of material fact as to whether she was clearly more qualified than Padilla. She therefore has failed to rebut as pretextual Lockheed Martin’s legitimate, nondiscriminatory reason for hiring Padilla over her.”

Best Lawyer Blogs On Point:

Can you sue for wrongful failure to hire when you have not applied for the position?

No. You cannot sue for wrongful failure to hire when you have not applied for the position. In order to bring a failure to hire claim under Title VII, the employee must have applied for and been qualified for the position in question. If an individual has not applied for a position, that person has not met the first essential element and further, has not been denied the opportunity to be considered for the job and therefore cannot bring a claim for wrongful failure to hire.

The United States Court of Appeals for the Fifth Circuit further held:

a plaintiff asserting adverse employment action based on a failure-to-hire must show that she “actually applied for” the position sought. Thomas v. Tregre, 913 F.3d 458, 463 (5th Cir. 2019). When a plaintiff does not apply, she must show “an application would have been a futile gesture.” Id. at 464 n.6 (quoting Jenkins v. La. Workforce Comm’n, 713 F. App’x 242, 245 (5th Cir. 2017) (per curiam)).

Id. at *4.

Indeed, because the employer admitted that it would have hire Paugh “in a heartbeat” for the lesser job position that she did not apply for, the Fifth District reasoned that her application would not have been a futile gesture – dooming the claim.

Best Lawyer Blogs On Point:

Is there a claim for gender discrimination based on giving critical information to male applicants only?

As her third argument, Paugh asserted that, unlike her male counterparts, the employer kept her in the dark about which positions it actually intended to fill, which caused her to apply for seven positions that Lockheed Martin ultimately cancelled. This is where the United States Court of Appeals for the Fifth Circuit reversed the District Court’s dismissal. It held:

Paugh’s case presents a particular factual scenario, one that does not fit the ordinary mold of employment discrimination cases. With such cases, it is important to recall that the McDonnell Douglas framework for establishing a prima facie case of discrimination ”was not intended to be an inflexible rule.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575 (1978). Indeed, “[t]he facts necessarily … vary in Title VII cases,” and the elements of the prima facie case are “not necessarily applicable in every respect to differing factual situations.” McDonnell Douglas, 411 U.S. at 802 n.13.

The point of the McDonnell Douglas framework is to require Title VII plaintiffs to demonstrate that the complained-of adverse employment action “did not result from the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977). Neither of these legitimate reasons dooms Paugh’s claim as to the cancelled positions for which she applied: She was qualified, and there were vacant positions to which she, as an incumbent, was entitled to preference pursuant to EO 13495—but Paugh, unlike her male counterparts, simply did not know which vacancies were real and which were illusory. This, she suggests, was the fruit of sex discrimination in the hiring system. As our sister circuits have done in comparable situations, we hold that Paugh has establish a prima facie case of employment discrimination even though she did not apply for an “available” position.

Id. at *4.

And this makes sense. Putting hurdles in front of woman to make the hiring process more slanted in favor of men, which in turn would result in more men being hired plainly looks like discrimination.

Do I have a claim for gender discrimination?

Gender discrimination claims under Title VII can be very complicated. There is no one size fits all answer that you can find online regarding your potential sex discrimination claims. If you are even looking online to determine whether you might possibly have a wrongful termination or failure to hire claim because men were treated more favorably than woman, you need to call the right attorney to discuss your particular situation. When you call Spitz, The Employee’s Law Firm you will receive a free and confidential consultation with an employee’s right attorney and you will never be charged any money out of your pocket to pursue the claim. (Read: What is the Spitz No Fee Guarantee?).


The gender discrimination and failure to hire materials presented at the top of this employment law page and on this employment law website are for informational purposes only and not for the purpose of providing direct legal advice. If you need legal advice, your best option is to contact an experienced, well established employee’s rights law firm to obtain advice with respect to gender discrimination questions or any particular employment law issue. 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.

"" "