Irrelevant No Other Candidate Was Hired
The court of appeals rejected the university’s argument that the researcher did not suffer a “discrete harm,” a basic requirement to state a ripe claim, because the university never hired anyone for the position. While a prima facie case for discriminatory failure to hire typically requires the hiring of another person outside the discriminated class, the appellate court held the district court erred in its prima facie and ripeness analysis.
This case harkens to situations that arose during integration more than 50 years ago. “My mind goes back to the public pool closures in the 1950s and 1960s where the decision was made to close the pool instead of integrating it,” offers David E. Gevertz, Atlanta, GA, cochair of the ABA Litigation Section’s Employment & Labor Relations Committee. “I think a kid denied the opportunity to go into the pool would have a ripe claim and standing to make a claim.”
The court of appeals similarly recognized that the university’s denial of the job to the male researcher constituted the “discrete harm” necessary to make the claim ripe, reasoning that the harm would still exist even if he eventually got the job. As a result, the court of appeals held that the male researcher had standing to bring his claim.
Prima Facie Elements Not Required
The appellate court also found the male researcher’s claim for gender discrimination could proceed despite the fact that he could not make a typical prima facie case for failure to hire. The appellate court recognized “when an employer discriminatorily cancels a position to avoid hiring an applicant of a disfavored class, the applicant need not establish that somebody else filled the position.” The appellate court suggested that the university could have possibly avoided the claim by re-running the search in a non-discriminatory fashion. The court of appeals recognized “that the prima-facie-case requirement is not ‘an inflexible rule’ and instead may vary under particular factual circumstances.”
Although the plaintiff’s failure to make a traditional prima facie case for failure to hire was not fatal to his claim, the question turns on the intent of the employer in deciding to terminate the candidate search. “A fundamental prima facie case requires that the job be filled by someone who is not in the protected category,” explains David B. Seserman, Denver, CO, cochair of the Litigation Section’s Solo & Small Firm Committee. “In this case, the allegations were that the elimination of the job was done with discriminatory intent and discriminatorily motivated, and the plaintiff therefore has the opportunity to go forward and prove his case at trial.”