About Us  |  About Cheetah®  |  Contact Us

No females among 1600 drilling rig entry-level jobs hired in two years; EEOC suit proceeds

By Lorene D. Park, J.D.

In the EEOC’s suit alleging that a company discriminatorily failed to hire female applicants to work on its drilling rigs, a federal district court in Oklahoma denied the company’s motion for partial summary judgment as to the claims on behalf of four applicants, finding questions on whether its qualifications-based justification was pretextual given that it had previously given other reasons for not hiring them and that the 1,600 floor hands hired to work on rigs in the two years before the suit were all men. The court also addressed evidentiary issues, ruling that statements that one applicant was “too pretty” to work on the rig and that another could not be hired because male workers “would look at you” and not get their work done were non-hearsay statements by a party opponent under Rule 801(d)(2)(D). However, these statements were not direct evidence of discrimination (EEOC v. Unit Drilling Co., March 24, 2015, Kern, T.).

Unit Drilling operates rigs in various locations in the United States. There are six main positions on rigs: drilling supervisor, rig manager, driller, derrick hand, motor hand, and floor hand. The floor hand is an entry-level job requiring no experience. It mainly involves assisting with equipment maintenance and rig operations, as well as housekeeping. The job description lists three qualifications: reliable attendance, ability to work under stress, and ability to communicate effectively. Floor hands typically work 12.5 hour shifts for seven consecutive days, often living in housing provided by the company. All other rig positions require prior drilling experience.

Hiring process. Hiring for rig hand positions is mainly done from offices in Oklahoma, Wyoming, and Texas. Employment applications state that they will be “active” for 30 days, though there was a dispute on whether this policy was followed. There was no written policy prohibiting the hiring of females for rig hand positions, but only one female was offered such a position in the past several years (in 2005) and that was rescinded when she failed a physical.

Lawsuit. The intervening plaintiff in this suit had prior floor hand experience and applied for rig position in September 2008 through the Wyoming office. She was turned down, allegedly being told that the men on the rig would look at her instead of working. Another rig manager indicated there was no housing for her and a hiring manager said the company could not afford to provide her housing. She filed a discrimination charge, and the EEOC’s investigation became national in scope. The EEOC filed a sex discrimination suit on behalf of the intervening plaintiff, four other claimants who did not intervene, and a class of female applicants (the court noted this is not a class action; the word “class” refers to the agency’s ability to obtain a remedy on behalf of a “class” of individuals). Now before the court was the company’s motion for partial summary judgment as to the claim brought on behalf of the four claimants who did not intervene.

“Guys would look at you.” First, the court addressed whether statements made to three of the applicants by Unit Drilling employees constituted direct evidence of discrimination and whether they could be considered for purposes of the summary judgment motion. As to the rig manager’s statement to the intervening plaintiff that he could not hire her because guys would look at her instead of getting work done and the hiring manager’s statement that he could not provide her with separate housing, the court found these were non-hearsay statements of a party opponent under Rule 801(d)(2)(D). They were made by high-level employees who were involved in the decision-making process, even if they had no authority to make the final hiring decision. That said, the statements were capable of two interpretations, one discriminatory and one benign, and were therefore not direct evidence of discrimination.

“You’re too pretty.” One of the other claimants visited a rig to see a friend and got an application while there. She claimed the “pusher” on the rig, said: “You know I can’t hire you right? You’re too pretty. We wouldn’t get anything done around here.” She submitted her application for a floor hand position through the Oklahoma City hiring office. There were no jobs open at the time, but floor hands were hired in the 30 days after she applied. Although the EEOC did not name the speaker, it provided sufficient evidence for the court to conclude that he was the rig manager, and other testimony indicated that rig managers participate in hiring by recommending applicants, communicating with candidates, and distributing applications. Accordingly, these statements were also non-hearsay statements by a party opponent. However, as with the statement to the intervening plaintiff, this statement was capable of more than one interpretation and therefore was not direct evidence of discrimination.

“Can’t accommodate” a girl on a rig. Another claimant, who applied through the Oklahoma office, listed prior experience loading heavy equipment and rebuilding pumps. She was told by a hiring manager that he would set up a physical but she never heard back. At one point, a female receptionist answered her call and allegedly said she would not be hired because the company “can’t accommodate . . . a girl working on a rig.” Because neither the EEOC nor this claimant identified the receptionist or provided specifics as to the speaker’s role in the hiring process, the court declined to consider this statement on summary judgment.

The remaining two claimants. Gender was never discussed when the last two claimants applied for positions with Unit Drilling. One called the Rocky Mountain division hiring office and was told by an unidentified male that she should apply. She did so and two days later, the same person said the company preferred applicants with experience on rigs (she had experience with an oil and gas company, but not on a rig). The last claimant, who had no prior drilling company experience, applied to that same division and was encouraged to apply for an administrative assistant position in Wyoming. She saw a variety of jobs open on the website, however, and applied, leaving her “position desired” response as “open.” She was informed that there were no positions available for her at that time.

Prima facie case. In seeking summary judgment, Unit Drilling argued that the EEOC failed to make out a prima facie case as to two of the claimants. As to the last claimant, the company argued that she only applied for an administrative assistant job, not a rig position. Disagreeing, the court noted that her application indicated her desired position was “open” and she testified she “would have taken any position available.” A jury could thus find that she applied for a rig hand position. The court also found a prima facie case established for the claimant who was told she was “too pretty.” Although she admitted in deposition that she had a heart murmur and a doctor told her during her high school years that she should avoid lifting heavy weights, the company admitted that it did not know of her heart murmur at the time it made the decision not to hire her and her medical condition therefore had no bearing on the EEOC’s ability to demonstrate her qualifications as part of its prima facie case.

Pretext. While Unit Drilling claimed that it rejected the claimants’ applications because it chose to hire “more qualified candidates with drilling experience,” the court found a question of fact on whether this was pretext. For one thing, the EEOC has demonstrated inconsistencies in the reasons cited by the company for refusing to hire the claimants. For example, it first said that having a woman on a rig would distract male employees, it later told the intervening claimant that it had no housing for women, and now it was asserting that it hires only applicants with the best qualifications, which did not include the claimants. Based on this, a jury could find that the company’s proffered legitimate non-discriminatory reason was simply an after-the-fact justification for discrimination

There was also a triable question on whether men hired for rig positions were more qualified than the claimants. The parties disagreed as to the proper pool of comparators, with the company arguing that the pool should only be limited to individuals who applied at the same location and were hired within 30 days of each claimant’s application. However, the court pointed to evidence that there was no uniform process for removing applications from consideration after 30 days and hiring officials often disregarded the “location where applying” field on the application. In the court’s view, this left the identities—and qualifications—of the comparators uncertain.

The EEOC’s statistical evidence was also probative of pretext because it suggested a “gross disparity in hiring practices” that could ultimately support findings of individual discrimination as to each claimant, explained the court. For example, of the 1,600 floor hands hired during the two-year period across three different divisions, zero were female. “When the numbers are this stark and the job description itself does not render females inherently less qualified, the statistics can be probative of individual discrimination,” concluded the court. For all these reasons, summary judgment was denied.