Recently, the EEOC lost a lawsuit against an employer, Con-Way Freight, under allegations that the company did not hire an applicant because of her race. In support of these allegations, the EEOC offered evidence that one manager, upon learning of the applicant’s race, made a statement that hiring the woman would “open a can of worms” and the other manager told the applicant that his manager did not want him to hire her because if he did he was just “begging for the NAACP.”
Were these statements inflammatory? Absolutely. Was it stupid for these managers to make these statements? Definitely. Does it make the employer liable for discrimination? Not so much.
See, Con-Way freight had an unwritten, but well established policy of not hiring any person with theft-related criminal convictions. The complaining applicant in this case had two. So, regardless of the moronic statements made by these two managers, she would not have been hired by the employer, anyways. While not discussed in this case, Con-Way’s policy would appear to be reasonable as well. As a company devoted to shipping and carrying products across the country for its clients, theft is probably a top priority.
In addition, neither of these managers actually played a role in deciding not to hire the complaining applicant. Con-Way had a central human resources department. Applicants had to be put forward by a manager to the HR department which would run a background check and then notify the manager whether the applicant was approved. Since Con-Way fired the hiring manager before he put any name forward to the HR department, the complaining applicant never had the opportunity to be approved or disapproved by the company, let alone by any manager with a discriminatory intent.
The EEOC jumped too quickly on this one simply because a couple managers made some incendiary statements. But what the EEOC was missing was a nexus. There was a lack of evidence linking the statements to any decision not to hire the applicant. In addition, the EEOC missed the fact that this applicant would have never been hired, anyways, because of her criminal record. As an agency with a noble cause on a taxpayer-budget, the EEOC would do well to better pick the cases it takes to litigation.
Equal Employment Opportunity Commission v. Con-Way Freight, Inc. (8th Cir. 2010) — F.3d –; 2010 WL 3655999.