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EEOC to get trial on alleged effort to change racial ‘face’ of recruiting department

By Brandi O. Brown, J.D.

In the EEOC’s suit alleging that Scion Dental repeatedly passed over an African-American temp for a permanent job as part of a plan to change the racial “face” of the department responsible for recruiting dentists to join the network for which the company administered benefits, a federal district court in Wisconsin denied the employer’s motion for summary judgment. Evidence that it moved the goalposts on qualifications required for the job and ultimately hired only white applicants supported the agency’s claim. In a separate order, the court granted the EEOC partial summary judgment on the employer’s planned use of an after-acquired evidence defense based on the temp forwarding emails to her personal account to support her discrimination charge (EEOC v. Scion Dental Inc., January 4, 2018, Jones, D.).

Departmental changes made. In 2014 the temp began working for the defendant, a benefits administration company, as a temporary network development representative. Just prior to her assignment, the employer had decided to restructure the department and had hired a new manager. At the time she was hired six of the eight network development representatives in the department were African American. Around this time the employer also reworked the job description for the network development representative position to take on more of an outward facing, recruitment role and created a separate position to assume the administrative functions the representatives had formerly performed. The employer added a bachelor’s degree requirement to the representative’s job description.

Required a degree, then didn’t. Later that year the employer planned to hire seven permanent network development reps. The temp applied but was rejected, purportedly because she did not have a college degree. Other minority candidates were likewise passed over, allegedly for that reason. However, the employer ultimately hired two Caucasian applicants who did not have college degrees. Around the same time, the employer removed the degree requirement. A few months later the employer posted a revised job opening with five positions to fill. The revised posting did not require a degree. The temp was interviewed this time but was not offered a job. According to the employer the temp performed poorly in the interview and did not have the sales-focused mindset and analytical skills they were looking for. Ultimately four people were hired—three Caucasian applicants and one Hispanic internal applicant.

Manager did not like hair or “ghetto” talk. According to the temp and a witness, the manager’s vision for the department and the comments she made about it suggested that she believed that African-American workers did not possess the characteristics she was looking for. For example, she criticized the witness and charging party for having afro-textured hairstyles and complained about the witness’s “ratched” and “ghetto” way of speaking. And, indeed, by the time all the hiring was completed, no African-American applicants were hired.

Less than a year after the new manager was hired, the department went from one where six out of eight representatives were African American to one in which none of the representatives were African American. The temp filed a charge of discrimination with the EEOC in 2017 and six days later she was fired. The EEOC found reasonable cause to believe the employer had violated Title VII and ultimately sued. After the parties resolved the retaliation claim the employer filed a motion for summary judgment.

First opening. It was not difficult for the court to conclude that the EEOC had met its prima facie burden, demonstrating that the temp, who was African-American and had worked as a temporary representative, was denied a permanent position, while non-African-American individuals were hired, some of whom did not have degrees. With regards to the first opening, the only dispute was whether the temp was qualified for the position. The employer argued that she was not because she did not have a degree, but the court explained that a reasonable factfinder could conclude that the real reason was her race. All four of the temps applied for the permanent job and three of the four were denied. The only Caucasian temp, who happened to be the only temp with a degree, was hired. A reasonable factfinder could infer that the degree requirement was added to single her out and the requirement was “particularly suspect” given it was “promptly discarded” once the employer found a non-degreed Caucasian applicant it wanted to hire. The undisputed facts, moreover, showed that the requirement “was not an absolute disqualifier” with regards to a Caucasian male who was hired.

Second opening. As for the second opening, the employer argued that even with the removal of the degree requirement, the temp was not qualified based on her skillset and interview. The EEOC argued that the employer’s reason was pretextual, however, in light of the manager’s goal “to change the face of the department,” i.e., to change it from black to white. This was born out by the numbers—when the manager started six of eight representatives were black and by the next year none were. Alone this “rudimentary statistical analysis” might not be sufficient to defeat the motion, the court acknowledged, but alongside evidence about the manager’s comments about hair and manner of speech, as well as her stated goal “to change the face” of the department, it was sufficient to raise an inference of discrimination. Although there was evidence that the employer wanted to hire one African-American applicant, that evidence did not conclusively disprove this theory—there was evidence that her name, her speech, and her hair (straightened) “conformed to a European aesthetic” sought by the employer.

No after-acquired evidence defense. In a second order issued by the court, it granted the EEOC’s motion for summary judgment on after-acquired evidence that the temp, prior to departure, took emails that contained sensitive business information. The emails were copied by the temp because she believed they showed her qualifications and job performance. The employer did not present any evidence suggesting that she misused the information or that the company was harmed, and it failed to establish that the after-acquired evidence would have led to her discharge. It did not produce evidence that it had previously fired any employees for engaging in similar conduct.