“There are three kinds of lies: lies, damned lies, and statistics.” This quip has often been used by attorneys and others to disparage those who rely on statistics to bolster weak arguments or those that do not support their positions. However, statistics gleaned from a recent survey of 118 federal appellate court employment-related decisions provide insight into what factors juries and courts consider when deciding claims of hiring and promotion discrimination. The case survey confirmed that liability for discriminatory hiring and promotion practices comes from avoidable mistakes made before and during the interview and selection process. Factors most likely to sway juries and courts in hiring or promotion discrimination cases include:

  • Direct evidence of an employer's intent to discriminate, including statements or references by decision-makers about protected characteristics or activity engaged in by an individual
  • Inconsistent application of hiring and selection criteria
  • Inconsistent hiring practices Inconsistent evidence pertaining to the employer's reasons for the hiring or promotion decision
  • Perceived legitimacy of the employer's reason for the hiring or promotion decision

The data from the case survey substantiate the need for employers to implement the following recommendations as part of their interview and selection processes when making hiring and promotion decisions:

  • Job descriptions that detail background qualifications and experience for all positions should be published and updated as positions evolve before consideration of any candidate for an available position
  • Clear and legitimate criteria pertaining to background, qualifications, and experience needed for selection for each job position should be established and communicated to decision-makers before consideration of any candidate for an available position
  • Decision-makers should objectively evaluate applicants for hire and employees seeking promotion based on the established criteria
  • Decision-makers should be trained to avoid making negative statements about protected characteristics or protected activity of an applicant or employee Decision-makers should articulate and document legitimate and non-discriminatory reasons for each hiring and promotion decision
  • Human resources or other authorized representatives should monitor hiring and promotion decisions for disparate impact and to ensure legitimate, non-discriminatory reasons for each hiring and promotion decision

Implementation of these recommendations might not eliminate altogether the prospect that an applicant or employee adversely affected by a selection decision will not seek to legally challenge the decision. However, based on the statistics from the case survey, it may be possible for an employer to minimize risk by implementing the recommendations.

Hostile Work Environment Can Follow End of Consensual Relationship

Under most circumstances, having a consensual relationship with a coworker, even a supervisor, makes it difficult later for an employee to establish a claim of hostile work environment that involves the same coworker. But, in Turner v. The Saloon, LTD, the United States Court of Appeals for the Seventh Circuit Court of Appeals said it was possible to make a plausible hostile work environment claim based on events occurring after a consensual relationship had ended.

In this case, the employee was a waiter and had a nine-month relationship with one of his supervisors. After the relationship ended, the employee identified five incidents in a period of more than a year — three of which involved unwelcome touching (including the supervisor's grabbing the employee's crotch, grabbing his buttocks, and pressing her chest against him)—that constituted a hostile work environment. In allowing the claim to proceed, the court relied heavily on the fact that there were multiple incidents involving unwelcome touching of “intimate” body parts. The court also noted that the traditional gender of harasser and victim were reversed here — it was a male employee complaining about a female harasser — but commented that if a woman had been victim to similar incidents it would be clear that the incidents could form the basis of a hostile work environment claim.

The court also mentioned that the former consensual relationship did not affect the result in this case even though the former relationship was generally relevant to the question of whether such conduct was unwelcome and whether it resulted in a workplace that was subjectively offensive to the complaining employee. In this case, the appeals court thought the incidents described were sufficient to support a claim of hostile work environment but also mentioned the lower court might still decide in favor of the employer based on a defense it did not previously consider, since the supervisor's conduct stopped after the employee complained.