Thursday, September 10, 2009

Contradictory explanations buys an employer a jury trial on sex discrimination claim

There is nothing inherently wrong with an employer having more than one reason for making an employment decision. For example, you could fire an employee because she is insubordinate and because she has poor attendance. Or, you can not hire someone because she is unqualified and she dressed sloppily at the interview. However, when reasons cannot logically co-exist, you might get yourself in trouble. Peck v. Elyria Foundry Co. (6th Cir. 9/9/09) [PDF] provides a good example.

Elyria Foundry refused to hire Carolyn Peck for any of the positions for which she applied. In support of its decision, the Foundry offered five different reasons:

  • Based upon a supervisor’s account of Peck’s prior work performance at another foundry, she had the beginnings of carpal tunnel syndrome.
  • Peck had attendance issues at a prior job because of her children and car trouble.
  • One of the positions Peck applied for had already been filled.
  • The Foundry kept Peck’s application open but did not consider her for other positions because there were no available women’s facilities.
  • Once the Foundry received a threatening letter from Peck’s attorney, it took no further action on her application.

The court took issue with these various explanations, but focused its attention on the timing. If Peck’s carpel tunnel and prior attendance issues barred her from employment, why did the Foundry keep her application open for other positions that were ultimately filled by men?

The next time you give more than one reason for an employment decision, run them through the common sense test to make sure that they cannot be folded back on themselves and create pretext where it might not otherwise exist.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or