- Two female doctors working for the Alabama Department of Education (DOE) were unable to prove sex bias after a male doctor was hired at a higher initial salary than they were (Reddy v. Department of Education, No. 18-14433 (11th Cir. April 2, 2020)).
- The male doctor received a higher initial salary because of his clinical work, past work experience, communication skills and overall medical knowledge, along with his salary at the time he applied for the position. Additionally, he specialized in a field (psychiatry) that the DOE had difficulty recruiting, whereas the two female doctors did not.
- "When considered with other relevant facts," said the 11th U.S. Circuit Court of Appeals, "these assertions could not lead a reasonable juror to conclude that DOE’s justification is 'unworthy of credence.'" Because the female doctors presented no evidence that would lead a reasonable juror to "believe that the proffered non-sex based factors that were the basis for the salary appointment difference were pretextual," the 11th Circuit affirmed a lower court's ruling of summary judgment in favor of the DOE.
Employers are generally free to make personnel decisions as they see fit, so long as they are motivated by non-discriminatory, legitimate reasons. Pretext occurs when a legitimate-sounding rationale is deemed to be an excuse for bias.
Oftentimes, there is not one single problematic statement or action. In one recent case, for example, a female running coach's sex and age bias claims were allowed to proceed because the court felt a jury should be able to weigh in on the "overall likelihood of discrimination."
Employers should also be aware that employment policies and practices that appear to be neutral but have a disproportionately negative impact on protected employees or applicants can be legally problematic, unless the polices or practices are job-related and necessary to the operation of the business. This is a difficult standard for employers to meet.
Additionally, in a U.S. Equal Employment Oppotunity Commission enforcement guide, the agency noted that employers cannot rely on the discriminatory preferences of co-workers, customers or clients as the basis for adverse employment actions. In fact, an employment decision based on the discriminatory preferences of others is itself discriminatory.
HR should ensure that all disciplinary actions are legitimate, justifiable and supported by solid documentation. This is particularly true when a disciplinary action occurs close in time to protected activity, such as filing a complaint with the EEOC.