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Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employment based on race/color, religion, gender, gender identity, sexual orientation, and national origin. When it comes to failure to promote claims under Title VII, if an employer asserts that other candidates were better qualified, the standard for evaluating such claims involves a combination of factors and legal principles. To establish a failure to promote claim under Title VII when the employer asserts that other candidates were better qualified, the aggrieved employee generally needs to show either direct evidence of discrimination (“we wanted a man for the position”), or prove the case the following evidentiary process:

  1. Prima Facie Case: Employees must initially establish a prima facie case (initial set of required evidence) of discrimination by showing that they belong to a protected class, were qualified for the position, experienced a job denial or adverse action, and that those outside the protected class were either treated more favorably or secured the position. In cases of wrongful termination, this last element can be demonstrated by indicating that the employee was replaced by someone from outside the protected class.
  2. Presumption of Discrimination: When employees meet this initial burden, courts temporarily assume that discrimination was a motivating factor. The burden then shifts to employers, who must provide a clear, specific, and non-discriminatory reason for their employment decision.
  3. Pretext and Burden Shifting: Once the employer offers a reason, the burden returns to the employee to demonstrate that the given reason is a pretext for unlawful discrimination. If the employer cites a higher level of qualification or skills that fit the job, the employee must present evidence their credentials are so markedly superior to the selected candidate’s qualifications that no reasonable person, impartially assessing the situation, could reasonably have chosen the selected candidate over the employee for the relevant position.

In a recent case out of the United States Court of Appeals for the Second Circuit, the New York City Transit Authority’s Capital Programs had two successive openings for senior director positions. The Capital Programs was led by Marva Brown, an African American female of Caribbean descent. The job selection process for both openings required the candidates to interview before a panel of three Transit Authority employees. In evaluating the openings, the Transit Authority elected to emphasize a technical background as being important to the job.

Let’s look at three of the candidates:

  • Joseph DiLorenzo is a white man and was in his early 50s at the time. DiLorenzo had previously worked for the Transit Authority since 1989. He had a technical background.
  • Jennifer Berkeley Carr is an African American female of Caribbean descent born in 1955 and worked for the Transit Authority since 2000. Carr holds a bachelor’s degree in economics and a master’s degree in public administration.
  • David Chan is Asian man, who was a 55-year-old at the time. Chan had worked at the Transit Authority since 1987 and had a background in electrical engineering and business administration.

All three are in a protected class for age. Two of the candidates are in a protected class for race and national origin. All the candidates were long term employees. In fact, the parties stipulated that all the candidates were qualified for the job.

Is any one of these candidates “so markedly superior” to the others? Not likely. Would it be reasonable to choose any one of these candidates? Probably. As a result, a failure to hire claim will fail, and it did.

In Carr v. New York City Transit Auth., No. 22-792-CV, 2023 WL 5005655 (2d Cir. Aug. 7, 2023), the United States Court of Appeals for the Second Circuit held:

As proof of pretext, Carr points to perceived inconsistencies in the hiring criteria and changes to the hiring process, such as that the original job descriptions did not specify a technical background was required and the panel of interviewers changed between the first and second openings she applied for. The district court concluded that no reasonable juror could find that the reasons the NYCTA provided for selecting the other candidates for promotions were pretextual. … We agree. The NYCTA adduced evidence that DiLorenzo or Chan were equally, if not more, qualified for the positions than Carr, and there is no allegation that any impermissible promotion criteria were used. See Burdine, 450 U.S. at 259, 101 S.Ct. 1089 (“[T]he employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria.”). While “entirely ignor[ing]” explicit hiring criteria or an “unprecedented” departure from an employer’s established hiring practice can show pretext, Carr’s allegations regarding minor variations in the hiring process and the emphasis on the other candidates’ technical backgrounds are not the sorts of “departures from procedural regularity” that could allow a jury to infer pretext. Stern v. Trs. of Columbia Univ., 131 F.3d 305, 310, 314 (2d Cir. 1997) (quotation omitted).

Id. at *3.

Hiring an employment law firm for a failure to promote claim under Title VII is essential due to the complex legalities involved. Spitz, the Employees Law Firm, is your best choice because of their specialized focus on employee rights, track record of success, and unique No Fee Guarantee. (Read: What is the Spitz No Fee Guarantee?). This guarantee ensures that you only pay if they win your case, demonstrating their confidence and commitment to clients’ interests. With a focus on employee representation, Spitz offers personalized attention and a strong legal strategy tailored to your situation. Call our attorneys in Ohio, Michigan, North Carolina, and Kentucky to get help now.

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The race, national origin, and age discrimination information provided in this blog is intended for general informational purposes only and should not be construed as legal advice. The content of this failure to promote blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. The Title VII content may not reflect the most current legal developments, verdicts, or settlements and should not be considered an indication of future results. Each legal matter is unique, and the information contained in this blog may not be applicable to your particular situation. You should not act upon any information contained in this blog without seeking professional counsel from an attorney licensed in your jurisdiction. The authors and contributors of this blog make no representations or warranties concerning the accuracy or completeness of the information provided and shall not be liable for any damages incurred as a result of reliance on the information contained in this blog.

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