Fourth Annual Public Employment Law Seminar

1. Fourth AnnualPublic Employment Law Seminar Title VII – Promotions & Hiring November 7, 2013 Eugene H. Matthews 803-771-4400 gmatthews@richardsonplowden.com www.richardsonplowden.com

2. Title VII – Hiring and Promotion • 42 U.S.C. § 2000e-2(a) – Unlawful Employment Practices • It shall be an unlawful employment practice for an employer-- • (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or www.richardsonplowden.com

3. Title VII – Hiring and Promotion • SHRD Regulation Basics • 19-703.03 INTERNAL POSTING AND DISTRIBUTION OF ANNOUNCEMENTS • The agency must notify employees where the vacancy exists. If the vacancy is a promotional opportunity that requires work experience within the agency to qualify for the promotion, notice of the vacancy must be posted for five workdays, and the notice does not have to be sent to [SCDEW] or to the Office of Human Resources. • 19-703.04 EXEMPTIONS TO POSTING JOB ANNOUNCEMENTS • A. If an emergency situation exists requiring the vacancy to be filled immediately, certification of the emergency must be made to and approved by the agency head or his designee waiving the posting requirement at the agency and State level. • B. When an agency decides to promote an employee one organizational level above the employee’s current level, the posting requirement may be waived. www.richardsonplowden.com

4. Title VII – Hiring and Promotion • Title VII Basics - Prima facie case of discriminatory failure to hire • Plaintiff must first show that • (1) she is a member of a protected class; • (2) she applied for the position in question; • (3) she was qualified for the position; and • (4) she was rejected for the position in favor of someone outside the protected class under circumstances giving rise to an inference of unlawful discrimination. • Mackey v. Shalala, 360 F.3d 463, 468 (4th Cir. 2004). www.richardsonplowden.com

5. Title VII – Hiring and Promotion • Title VII Basics - Prima facie case of discriminatory failure to promote • Plaintiff must first show that • (1) he is a member of a protected group; • (2) he applied for the position in question (unless futile); • (3) he was qualified for the position; and • (4) he was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. • Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005). www.richardsonplowden.com

6. Title VII – Hiring and Promotion • Defenses to the prima facie case of discriminatory failure to hire or promote • You didn’t apply as required. • You didn’t meet minimum qualifications. • Another person from the same protected category was selected. • The position was not filled. • IDENTITY OF DECISION-MAKERS - impact on later discrimination actions www.richardsonplowden.com

7. Title VII – Hiring and Promotion • Legitimate Non-Discriminatory Reasons for Failure to Hire or Promote • WE SELECTED A BETTER CANDIDATE www.richardsonplowden.com

8. Title VII – Hiring and Promotion • Legitimate Non-Discriminatory Reasons for Failure to Hire or Promote – Rebutting Pretext • Plaintiff’s self-assessment of his qualifications relative to those of his competitors does not matter. Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005). • “[A]bsentevidence of retaliatory motive, we leave to the employer’s discretion the method of evaluating an employee’s job performance.” Beallv. Abbott Labs., 130 F.3d 614, 620 (4th Cir. 1997). www.richardsonplowden.com

9. Title VII – Hiring and Promotion • Legitimate Non-Discriminatory Reasons for Failure to Hire or Promote – Rebutting Pretext • Plaintiff’s argument that her “extensive training, knowledge and experience” and the “subjective nature of the interview scores” are “insufficient to cast doubt on the validity of the interview scores, or the sincerity of City in claiming reliance thereupon” where “the relevant question is not what experience, knowledge and skills Hall possesses, as an absolute matter, but whether she was more qualified for the various positions relative to the successful candidates who were hired based on their superior interview scores. • Hall v. City of Chicago, 52 Fed. Appx. 259, 263-264 (7th Cir. 2002) www.richardsonplowden.com

10. Title VII – Hiring and Promotion • Legitimate Non-Discriminatory Reasons for Failure to Hire or Promote – Rebutting Pretext • “[I]t is not within our authority to dictate the factors that employers must weigh in making a promotion.” Hux v. City of Newport News, Va., 451 F.3d 311, 318 (4th Cir. 2006). • Favoritism, pre-selection and cronyism – not themselves evidence of unlawful discrimination. Holder v. City of Raleigh, 867 F.2d 823 (4th Cir. 1989). • Retaliation not based on a protected category. Lightner v. City of Wilmington, N.C.,545 F.3d 260, 262 (4th Cir. 2008). www.richardsonplowden.com

11. Title VII – Hiring and Promotion • Evidentiary Matters • Following your policy on hiring and promotion. • Who is conducting your screening? • Who is conducting your interviews? • Who is making the selections? • What records are being kept? • Interview notes • Resumes and applications • Post-Decision – • Who is communicating the decision to applicants? www.richardsonplowden.com

12. Title VII – Hiring and Promotion • Evidentiary Matters • HOW CAN YOU SHOW THAT YOU PICKED THE BEST CANDIDATE? • Think about – • Your records • Your witnesses www.richardsonplowden.com

13. Title VII – Hiring and Promotion • Hunnicuttv. SCDOR, 2010 WL 1344352 (D.S.C. March 31, 2010) (Anderson). • Hunnicutt interviewed for promotion, then deployed for two weeks with SCNG. • Another candidate selected while he was on duty – he claims he was much better qualified. • SCDOR provides unrefuted evidence that it would have selected successful candidate regardless of Hunnicutt’s military status. • Court refuses to act as “super-personnel department,” deferred to SCDOR judgment re: promotion. www.richardsonplowden.com