Recruitment and selection law for local government employers - Page 134 |
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118 | Recruitment and Selection Law for Local Government Employers
the preferred qualifications. He had a PhD in communication theory and research and had taught at a number of four-year colleges, as well as at community colleges. The selected candidate was an African American woman. She met the required qualifications for the position, but she had only a master’s degree in communication studies and had taught only at a community college. The rejected candidate sued for reverse race and gender discrimination. After the rejected applicant made his prima facie case,10 the college gave as its legitimate, nondiscriminatory reason for selecting the other candidate her enthusiasm for the position, her familiarity with the institution and with the type of students at the institution, and the fact that she would command a smaller salary. The plaintiff challenged those reasons as pretextual. The court, however, found that a reasonable fact-finder could conclude that the college was not motivated by discriminatory intent but had chosen a candidate that better fit the institution, impressed the president more, and cost less than the rejected candidate.11
Employers should therefore identify as required only those qualifications that are necessary and for which the employer cannot make an exception. If the employer could conceivably make an exception, then it should probably describe the qualification as preferred. Such a designation will not tie the employer’s hands, nor will it leave the employer open to an inference of discrimination if it chooses someone without the preferred qualification over someone with it. But note that an employer who lists a qualification as preferred but not required cannot then later claim that it rejected an applicant merely because he or she did not have the qualification. The employer has already said in that case that the qualification was not necessary.12
10. Because Title VII prohibits discrimination based on a person’s race and gender, rather than on the fact that a person is a member of a group underrepresented in the workforce, such as African Americans or women, a white male is covered by Title VII to the same extent as is an African American man, an African American woman, or a white woman. To establish the first element of a prima facie case, the plaintiff here would have only to show that he was white and was male.
11. See Emanuel v. George C. Wallace Cmty. Coll., 2008 WL 4767727 (M.D. Ala. Oct. 27, 2008).
12. See EEOC v. City of Greensboro, 2010 WL 5169080 (M.D.N.C. 2010) (rejecting employer’s motion for summary judgment on grounds that plaintiff did not have the necessary qualifications).
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| Title | Recruitment and selection law for local government employers - Page 134 |
| Full Text | 118 | Recruitment and Selection Law for Local Government Employers the preferred qualifications. He had a PhD in communication theory and research and had taught at a number of four-year colleges, as well as at community colleges. The selected candidate was an African American woman. She met the required qualifications for the position, but she had only a master’s degree in communication studies and had taught only at a community college. The rejected candidate sued for reverse race and gender discrimination. After the rejected applicant made his prima facie case,10 the college gave as its legitimate, nondiscriminatory reason for selecting the other candidate her enthusiasm for the position, her familiarity with the institution and with the type of students at the institution, and the fact that she would command a smaller salary. The plaintiff challenged those reasons as pretextual. The court, however, found that a reasonable fact-finder could conclude that the college was not motivated by discriminatory intent but had chosen a candidate that better fit the institution, impressed the president more, and cost less than the rejected candidate.11 Employers should therefore identify as required only those qualifications that are necessary and for which the employer cannot make an exception. If the employer could conceivably make an exception, then it should probably describe the qualification as preferred. Such a designation will not tie the employer’s hands, nor will it leave the employer open to an inference of discrimination if it chooses someone without the preferred qualification over someone with it. But note that an employer who lists a qualification as preferred but not required cannot then later claim that it rejected an applicant merely because he or she did not have the qualification. The employer has already said in that case that the qualification was not necessary.12 10. Because Title VII prohibits discrimination based on a person’s race and gender, rather than on the fact that a person is a member of a group underrepresented in the workforce, such as African Americans or women, a white male is covered by Title VII to the same extent as is an African American man, an African American woman, or a white woman. To establish the first element of a prima facie case, the plaintiff here would have only to show that he was white and was male. 11. See Emanuel v. George C. Wallace Cmty. Coll., 2008 WL 4767727 (M.D. Ala. Oct. 27, 2008). 12. See EEOC v. City of Greensboro, 2010 WL 5169080 (M.D.N.C. 2010) (rejecting employer’s motion for summary judgment on grounds that plaintiff did not have the necessary qualifications). |
