We didn’t refuse to promote them because of their age. They were less qualified than the younger candidate. Well, OK, they were more qualified, but their application was incomplete. Well, OK, the missing items weren’t really important, but performance in the current job was deficient (which we have documented nowhere).
Shifting stories in a discrimination case is a sure way to lose the case.
Let’s see how that plays out in a real-life example, shall we?
Our real-life case example, handed down about two weeks ago, is Bartoszek v Delta College. Here, in a nutshell, is what went down:
Edward Bartoszek, a dentist, began in 2010 as an adjunct part-time professor at Delta College, teaching many classes, including pharmacology and anesthesia in the Dental Hygiene and Nursing Dept and Bio 101, 130, 140, 150, and 153. Between 2010 and 2019 the College asked and he agreed to teach Biology full-time on 7 occasions. The “Dr” part, as well as the classes he taught, are actually important here.) He did so for a number of years, without any performance issues or complaints, receiving high ratings from his students.
In 2019, the College posted a full-time, tenure-track position for an anatomy and physiology instructor (also classes he’d taught). The qualifications were: Master of Science in Biological Science or related field, with an emphasis on anatomy and physiology, at least 2 years of teaching experience, and demonstrated currency in the field of anatomy and physiology. Dr. Bartoszek clearly — and easily–met, and in some cases, exceeded those requirements.
Dr. Bartoszek applied for the position and wasn’t even interviewed. The College hired a 38-year-old candidate, who had been teaching at the College for 2 years. Dr. Bartoszek was 68 years old.
He received no response to his inquiries about the hiring process, so he filed an age discrimination charge with the EEOC.
In response to the charge, the College said he wasn’t qualified because he didn’t have a Masters degree in Biological Science or a related field. They later admitted that his doctorate in dentistry met the educational requirement. (I would say it exceeded the requirement, but whatever.) The College also claimed that his experience was “limited to working as an adjunct at Delta College in the Dental Hygiene Program.” That clearly wasn’t true, as he had taught several Biology classes, performing the same job for which he was applying.
Let’s pause here: The College’s initial response to the EEOC charge consisted of inaccurate if not false statements.
Dr. Bartoszek sued in federal court. The College abandoned the defenses it asserted to the EEOC. In support of its summary judgment motion, it argued that his application was incomplete, first citing his failure to submit transcripts. He had advised them that HR already had the transcripts.
They then admitted that the lack of transcripts wasn’t the problem. They said that his cover letter emphasized his private sector experience as opposed to relevant teaching experience. Do you see the problem here? It is undisputed that Dr. Bartoszek clearly had at least two years of relevant teaching experience. His experience exceeded that requirement.
Not surprisingly, the court denied the College’s motion for summary judgment. The court noted that the College, to date, couldn’t seem to give a straight answer as to why it rejected Dr. Bartoszek’s application — for a job that he was already performing, and, apparently, performing well.
Putting aside the shifting story issue for a moment, if you don’t even interview an internal candidate already performing well at a job for which you are seeking to make full-time, at best, you already have some explaining to do.
The College then said that it wanted to give outside candidates a fair chance, which I understand. The problem is that it appears it didn’t give its own arguably most qualified employee a fair shake. The statement about his cover letter being deficient is laughable given that very often an employer either doesn’t read the cover letter and when it does, likely does not give it greater weight than the information it has about the candidate’s actual experience.
Its inability to provide an appropriate, consistent explanation along with Dr Bartoszek’s age is at best suspicious. Moreover, the explanations it did offer were weak at best. I also feel compelled to point out that the failure to even give him an interview helped seal the College’s fate.
While this was an age discrimination claim, the points here also apply to any type of discrimination claim.
So, if you can’t give a straight (let alone credible) answer for your employment decisions and they adversely impact someone in a protected class, you may have to face a jury.
Of course, you could also not discriminate. Your call.
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