Sex Discrimination--No debate. Decision to hire male professor not gender discrimination

by Kirton McConkie PC
Contact

Famous college football player and coach Bear Bryant is credited with saying, “I didn’t have a thing to do with picking a coach, and didn’t want to. But I didn’t think they’d pick one I didn’t like.” Bryant’s statement highlights the fact that when  someone makes a hiring decision, we are not in a position to second-guess it, regardless of whether we like it. That was the case when a part-time debate coach at Oklahoma City University (OCU) was passed over when the position was made full-time. The coach felt she was the most qualified candidate and concluded that the decision to hire a male coach was gender discrimination. Read on to see why the U.S. 10th Circuit Court of Appeals (whose rulings apply to all Utah employers) concluded that the hiring decision was devoid of discrimination.

Debaters who make the grade

OCU’s debate team had been in a slump for some time. In 2006, the university hired Dr. Anna Hamilton as a part-time adjunct professor to coach the debate team. Hamilton coached the team from 2006 to 2008, and she claimed the debate team experienced “some successes” under her coaching.

In late 2008, OCU started planning to restore its debate team to prominence. The university decided to hire a full-time professor to coach the team. The coach would be an assistant professor of rhetoric and director of forensics in the philosophy department. OCU intended the position to be a full-time tenure-track professorship.

Picking a winner

OCU posted a job announcement emphasizing that it was “especially interested in candidates who [had] extensive debate and forensics experience.” Further, the announcement stated that a PhD was required for tenure-track appointment, and candidates were expected to hold a PhD in a related discipline at the time of hire.

OCU formed a “search-and-selection” committee to determine which criteria would be used to evaluate applicants. The committee consisted of five faculty members and a nonvoting member who was a student on the debate team. OCU’s policy required the hiring criteria to match the announcement and job description.

Hamilton applied for the position, and OCU interviewed her several times. After an initial round of telephone interviews, the university selected Hamilton as one of three finalists. Hamilton was the only finalist who worked at OCU or possessed a PhD, which was in communications. She had 16 years of experience teaching higher education and 2½ years of debate team experience, which she obtained at OCU.

The two other finalists, Jacob Stutzman and Monica Flippin-Wynn, were doctoral candidates who had completed everything except their dissertations. They were allowed to continue with the hiring process because they were expected to complete all the requirements for their PhDs.

When he applied, Stutzman was a doctoral student at the University of Kansas, where he taught courses in public speaking and rhetoric. He also had a debate team background. In fact, he won a national collegiate debate championship and worked as an assistant debate coach at Truman State University. Stutzman taught courses in communications and served as an assistant director of forensics at Texas State University. He had four years of full-time college teaching experience and eight years of experience coaching and competing in college debate competitions.

Flippin-Wynn had four years of debate and forensics experience at the collegiate level plus 11 years of college teaching experience. When she applied, she was a communications doctoral candidate at the University of Oklahoma.

OCU interviewed each of the finalists in person. The finalists were required to give a teaching demonstration to faculty and students and participate in a luncheon with the committee members and OCU students.

OCU decided to hire Stutzman. The individuals who made the hiring decision testified that they selected Stutzman because of his extensive experience in college debate competitions, his impressive performance during interviews and teaching demonstrations, and his rapport with OCU students. The decision makers were not troubled by the fact that Stutzman did not have his doctorate because they expected him to “finish reasonably soon.”

Hiring debate

In November 2010, Hamilton sued OCU, alleging gender discrimination in violation of Title VII of the Civil Rights Act of 1964, disability discrimination in violation of the Americans with Disabilities Act (ADA) and Oklahoma law, and a tort (personal injury) claim for wrongful employment actions in violation of Oklahoma public policy.

OCU asked for summary judgment (pretrial dismissal) on all of Hamilton’s claims. The university defended its hiring decision by arguing that Stutzman was thoroughly qualified and a better fit for the position. After OCU filed its motion for summary judgment, Hamilton voluntarily dismissed her tort claim. The district court granted OCU’s motion and dismissed Hamilton’s gender and disability discrimination claims.

Hamilton appealed, but she voluntarily abandoned her disability discrimination claim. As a result, the 10th Circuit reviewed only the district court’s decision to dismiss her gender discrimination claim.

Legitimate reason for decision

Hamilton did not provide any direct evidence of gender discrimination. Consequently, the 10th Circuit had to determine whether there was indirect or circumstantial evidence of gender discrimination. Courts review gender discrimination claims by requiring employees to establish a prima facie (minimally sufficient) case of discrimination.

To establish a prima facie case, Hamilton had to show that she (1) belonged to a protected class, (2) applied for an available position for which she was qualified, and (3) was rejected under circumstances that lead to an inference of discrimination. The court concluded that Hamilton met those requirements and satisfied her initial burden.

Next, the burden shifted to OCU. The university had to offer a legitimate nondiscriminatory reason for its hiring decision. OCU argued that Stutzman was sufficiently qualified and the best fit for the debate team position. The 10th Circuit determined that the university satisfied its burden.

No gender discrimination

The burden shifted back to Hamilton to prove that OCU’s reason was a pretext (cover-up) for gender discrimination. To satisfy this portion of the analysis, Hamilton had to show that the university’s reason “was not the true reason for the employment decision.” She argued that she provided sufficient evidence to avoid dismissal of her claim and go to trial.

According to Hamilton, Stutzman was not qualified for the job because he did not have a PhD when he was hired. She also argued that OCU’s hiring committee was created to make discriminatory hiring decisions because it had only one female member. She claimed that the fact that no woman had ever been a tenured professor in OCU’s philosophy department showed that the university favored men. Hamilton asserted that the evidence showed that she was not hired because of her gender.

The 10th Circuit rejected Hamilton’s argument. The court explained that when it evaluates allegations of hiring discrimination, it “will draw an inference of pretext where the facts assure [it] that [one candidate] is better qualified than the other candidates for the position.” The court, however, added, “Minor differences between [one candidate’s] qualifications and those of a successful applicant are not sufficient to show pretext.” In light of those principles, the court declined to conclude that the differences in Hamilton’s and Stutzman’s qualifications showed that the OCU’s reasons were pretextual.

The 10th Circuit noted that in light of “OCU’s paramount interest in hiring a skilled, legacy-building debate coach,” it could not conclude that the disparities in Hamilton’s and Stutzman’s qualifications were “overwhelming.” The court noted that Stutzman had eight years of experience competing and coaching in college debate contests. By contrast, Hamilton had 2½ years of part-time coaching experience. Hamilton conceded that Stutzman was qualified for the position; she simply felt that she was more qualified. In the absence of evidence that Stutzman’s qualifications were “overwhelmingly inferior” to Hamilton’s, the court refused to determine that OCU’s reasons were pretextual.

Next, Hamilton argued that Stutzman’s lack of a PhD when he was hired showed pretext. Specifically, she claimed that the job posting unequivocally stated that candidates must have a PhD before they would be hired. OCU argued that the job announcement meant candidates were required to have a PhD by the time they were considered for tenure. According to the school, because Stutzman was a PhD candidate, he was qualified. The 10th Circuit agreed with Hamilton’s interpretation. The court explained:

We think it entirely reasonable that an application for a tenure-track faculty position—looking only at the hiring requirements listed within the four corners of the announcement—would understand that the stated requirement of a “Ph.D. prior to tenure-track appointment” meant applicants for the position must earn that degree before being considered for the job.

The 10th Circuit, however, did not find OCU’s failure to adhere to the standards in the announcement evidence of pretext. Because the court was evaluating whether the hiring decision was discriminatory, it had to look at the facts as they appeared to the person who made the decision. An employee’s subjective evaluation of the situation is not determinative. According to the court, “The relevant inquiry is not whether the employer’s proffered reasons were wise, fair or correct but whether it honestly believed those reasons and acted in good faith upon those beliefs.”

The 10th Circuit added that mistakes in hiring decisions are not evidence of discrimination. The court stated, “In order ‘to support an inference of pretext, to suggest that something more nefarious might be at play, a plaintiff must produce evidence that the employer did more than get it wrong.’” The court explained that although OCU did not strictly adhere to the job posting’s requirements, Hamilton did not provide any evidence that the university’s proffered reason for its decision was intended to conceal a discriminatory motive. At most, OCU failed to follow its written hiring standards. Without more evidence, the court declined to find that a failure to adhere to a job announcement’s requirements is evidence of discrimination. The court noted:

The record is replete with evidence that OCU honestly believed it was following its own hiring guidelines and that, more specifically, it believed [a PhD] candidate like Stutzman was qualified for the position.

The fact that the philosophy department did not have a tenured female professor was not evidence that OCU discriminated against Hamilton by hiring Stutzman. Also, the fact that two of the three finalists for the position were women was evidence that OCU did not have a discriminatory motive in selecting Stutzman.

Finally, the court rejected Hamilton’s argument that the fact that there was only one woman on the six-member hiring committee showed OCU had a discriminatory motive. The court rejected that argument partly because the female committee member felt she had an opportunity to meaningfully participate in the committee’s selection. The court concluded that without more evidence, the ratio of women to men on the committee did not establish pretext. In the end, the 10th Circuit determined there was not enough evidence of gender discrimination to allow Hamilton’s claim to go to trial. As a result, the court ruled in favor of OCU and dismissed Hamilton’s claim. Hamilton v. Oklahoma City University, 2014 WL 2210674 (10th Cir).

Lessons learned

Employers are often concerned that courts will second-guess their employment decisions. Fortunately, courts don’t consider that their role. As this case makes clear, courts do not act as “super-personnel departments” that call employment decisions into question. A court’s role is to determine whether there is evidence of discrimination, not doubt an employer’s decision on which candidate is more qualified. Typically, an employer hires a candidate because it believes she is more qualified than other applicants Courts tread lightly when comparing one candidate’s qualifications to another’s. Unless there is an overwhelming disparity in applicants’ qualifications, a court will not presume that an employer’s determination that one candidate is more qualified than another is not genuine. Employers can take comfort in the fact that courts are reluctant to find that minor differences in candidates’ qualifications constitute evidence of pretext.

Further, mistakes in the hiring process do not constitute evidence of a discriminatory motive. Employers should attempt to avoid making mistakes in employment decisions, but mistakes will not necessarily support a discrimination lawsuit. Unsuccessful candidates must provide proof that the employer’s stated reason for its decision was a cover-up for discrimination.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Kirton McConkie PC | Attorney Advertising

Written by:

Kirton McConkie PC
Contact
more
less

Kirton McConkie PC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.