Discriminatory Hiring/Promotion

 

It Happened to Me: Discriminatory Hiring/Promotion

 

What does the law in Mississippi say about sex discrimination in hiring and promotion?

 

There are no specific state laws in Mississippi forbidding discriminatory hiring and promotion practices on the basis of sex.

 

However, there are federal laws that protect women by prohibiting sex discrimination in hiring and promotion. The law is called Title VII of the Civil Rights Act of 1964.

 

Under the law what is illegal?

 

Under Title VII of the Civil Rights Act of 1964 it is illegal to "fail or refuse to hire...any individual...because of [her] sex..."

 

The law goes on to forbid discrimination "against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of [her] sex..."

 

Finally, the law states that it is illegal "to limit, segregate, or classify... employees or applicants for employment in any way which would deprive...any individual of employment opportunities or otherwise adversely affect [her] status as an employee, because of [her] sex..."

 

Who does the federal law cover?

 

Any employee who works for an employer with 15 or more employees and has been denied a job or a promotion because she is woman can bring an action under the law.

 

Who enforces the federal law?

 

The Equal Employment Opportunity Commission (EEOC) and the courts enforce Title VII.

 

I think I wasn't hired or promoted because I am a woman. What do I do now?

 

If you feel you have been denied a job or a promotion because you are a woman, you can file a complaint with the Equal Employment Opportunity Commission (EEOC). They will complete an investigation on your behalf. If the commission finds "reasonable cause" to believe that discrimination has occurred, they will attempt to work with your employer to remedy the situation. The commission has 30 days to reach an agreement with your employer. If, within this time, the EEOC's efforts do not fix your employer's discriminatory behavior, you will then be able to file a lawsuit. You are also able to file a lawsuit even if, after its investigation, the EEOC does not find "reasonable cause" to believe discrimination has occurred.

 

For specific next steps, see How do I File a Claim.

 

Does it matter when the discrimination occurred?

 

Yes. Title VII of the Civil Rights Act of 1964 has a very strict time limit. You must file your charge with the Equal Employment Opportunity Commission (EEOC) within 180 days of being discriminated against.

 

Determining distinct acts of discrimination can be difficult because you may not know right away that you have been discriminated against or you might think there isn't strong enough evidence. Also, discrimination may not occur at one distinct time. Nevertheless, it is very important that you file your charge with the EEOC as soon as you suspect discrimination. If you wait to file your claim longer than 180 days after the discrimination occurred, it will be invalid.

 

How do I prove that I wasn't hired or promoted because I am a woman?

 

If Equal Employment Opportunity Commission (EEOC) remedies prove ineffective, you can file a lawsuit in federal or state court. There is a three-part test to prove discrimination to the courts.

 

The first part has four sub-parts that you have to prove:

(1) You are a member of a protected class. Women are a protected class.

(2) You were qualified for the position you sought and the position was available.

(3) You suffered an adverse employment action. In this case the adverse employment action would be not being hired or not getting promoted.

(4) A man with your same qualifications got the job or promotion.

 

Once you have done this, your employer will have a chance to defend itself by proving to the court that it had a legitimate, non-discriminatory reason for not hiring or promoting you.

 

Then you have to prove that the reason your employer gives is not true or what the court calls pretexual.

 

For more information on the steps involved in proving discrimination under Title VII at trial, see Disparate Impact/Treatment.

 

Does it count if I didn't get a lateral transfer within my company that I really wanted because of my sex?

 

The court may count a denial of a lateral transfer as an adverse employment action akin to not being promoted if you can prove that the position you didn't get is a better position than the one you have, even though it is not technically considered a promotion.

 

To prove the position you did not get is better than the one you have, you must use objective standards rather than a subjective feeling of preference. In other words, the position has to be viewed generally as a better position. It will not count if you merely preferred the other job.

 

Objective standards the court might consider include pay increases; increased responsibility or "better job duties; increased opportunities for advancement; greater skill, education or experience requirements; objective prestige; and the complexity or competitive nature of the process for obtaining the position.

 

How do I prove that I was qualified for the position?

 

The court will consider your experience and job skills in light of the requirements of the job in determining if you are qualified for the position.

 

How might my employer respond to my complaint?

 

Your employer may deny your allegations and tell the court that you weren't hired or promoted because of your skills or the job requirements. Your employer may also tell the court it has set requirements regarding hiring, promotion, etc. that you did not fulfill.

 

If, once you file your complaint with the Equal Employment Opportunity Commission (EEOC) or after your lawsuit begins, your employer begins to act hostile to you or you suffer further adverse employment actions, you may be able to file another claim for retaliation.

 

How do I prove that my employer's reasons for not hiring or promoting me are "pretextual" (not valid)?

 

The court tends to react well to statistics.

 

EXAMPLE: In one case a woman who was not promoted was able to show statistically that she scored lower on the subjective interview portion of the hiring process than men, but she scored higher on the objective written portion of the hiring process.

 

EXAMPLE: In the same case, the employer did not offer specific or factual reasons for the woman's interview score. The court found that without express reasons for the subjective score it was equally likely that there was and was not discriminatory intent. Without any reasons for the score, there was no proof that discrimination had not occurred. While the court allows the consideration of subjective evaluations in hiring and promoting decisions, employers must be able to back up these subjective assessments with "a clear and reasonably specific basis." In other words, employers have to give some reasons as to why and how applicants received their given interview scores. If your employer cannot do this, it will be more difficult for it to defeat your charge.

 

What happens if the Equal Employment Opportunity Commission (EEOC) or the court doesn't think I was discriminated against?

 

If, once the EEOC has completed its investigation of your discrimination complaint, it finds that no discrimination occurred, they will dismiss your complaint and notify you and your employer promptly. At this point, you may initiate a lawsuit despite the EEOC's findings.

 

If the court finds that you have not suffered sex discrimination, they may dismiss your case and award attorney's fees to the other party at your expense.

 

If I prove my case and the court finds in my favor, what can I get?

 

The court may order your employer to stop any discriminatory practice and to hire or promote you. The court may also award back pay that accrued within two years of the filing of your claim. The court may reduce this award by any wages you did or could have earned during this time. And finally, the court may also award you attorney's fees.

 

For more information, see What do I Get if I Win.

 

There may have been valid reasons for the hiring decision, but I also think I was not hired or promoted because I am a woman. Can I still bring a claim?

 

When there may be two motives for the employer not hiring or promoting you — a legitimate one (lack of qualification) and an illegitimate one (sex discrimination) — the court calls this a mixed-motive case.

 

The law says that as long as sex was a motivating factor, you have a claim against your employer, regardless of other factors that may be legitimate. What may be different is what you win. If there were legitimate reasons for you not being hired or promoted along with the discriminatory motives, the court cannot give you damages or order that you be hired or promoted. However, you can get a declaration from the court stating you suffered discrimination and the court can order your employer to pay your attorney's fees.

 

The court recently clarified that in mixed-motive cases, you do not have to have stronger evidence or what the court calls a "heightened showing" of discrimination as compared to a case where sex discrimination was the only motive.

 

 

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