When complaints of discrimination rise, it gets confusing for many HR professionals to determine what really constitutes discrimination versus simple bad acts or an employee's misinterpretation of a situation. Does an errant statement rise to the level of discriminatory behavior? Is boorish behavior likewise discriminatory behavior? Is the employee making hay of nothing? As the investigation continues, the HR professional has to decide whether the overall behaviors would give rise to discrimination to the reasonable person. Or, is the complainant extra sensitive and taking these behaviors in an unintended way?
In the case of Rita Walsh, she alleged that she was discriminated against in the hiring process because of her gender. The type of job she was applying for was a bricklayer position, in which there were currently no women employed. She was the only woman candidate, and there were five male candidates.
There were four interviewers including one woman. However, the group deferred to one interviewer, James Lollo, Technical Advisor to the NYCHA’s Technical Services Department, to determine if the candidate being interviewed had sufficient knowledge of bricklaying and the masonry trades. Each interview lasted from ten to thirty minutes and was immediately followed by a discussion among the interviewers of the candidate they had just interviewed. The hiring decisions were made collectively.
HR was involved in the interview process, mostly as an administrator explaining the process to the candidates and letting them know who had been selected. HR also met with the interviewers to discuss, among other things, the types of questions they should avoid asking and attended each interview (although not a decision maker).
Walsh was the fifth interview. Her resume stated that since May 1995, she had been a tile mechanic with Local 7 Tile, Marble & Terrazo, a division of the Bricklayers and Allied Crafts Union. The interviewers asked Walsh about her experience working with brick and block. She informed them that she had once constructed a glass block shower at a Home Depot Expo, and that she had done “little things on her own.” According to Walsh, the interviewers did not ask about her experience with tile, and Lollo asked her only one technical question: how to make a mortar mix.
In the course of the interview one of the interviewers remarked that some people have family obligations that interfere with their ability to work overtime, and asked Walsh if she was in that situation. Walsh replied that she had no such restrictions.
She was not hired, but the five male candidates were. The HR representative took her aside to tell her that she did not get the job, and stated that the interviewers wanted somebody stronger. As a result, Walsh filed her charge.
In the course of discovery, Lollo testified that he asked Walsh questions about tile and that she answered them all correctly. Additionally, Gilliam testified that the interview revealed that Walsh was not familiar with the tools used for bricklaying or with the task of boiler overhaul, which he considered to be the most significant part of a bricklayer’s job in his borough. Further, Akugbe denied making any statement saying they wanted someone stronger. At summary judgement the trial court dismissed Walsh’s claims.
The federal 2nd Circuit Court of Appeals reversed the trial court. The court started by identifying the steps for proving a gender discrimination case: “(1) she was within the protected class; (2) she was qualified for the position; (3) she was subject to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination.”
Next the Appellate Court discussed that the view of the evidence must be holistic, not by piecemeal. In other words, viewing each piece of evidence individually is not appropriate for making a decision. In this case, there was a history of no female bricklayers. Although the title was bricklaying, the job also included tiling. Furthermore, the testimony showed that two of the hires primary worked in tiling jobs, and a jury comparing the qualifications of Walsh and the hires might find that Walsh was a more qualified candidate. In addition, a jury might find the questioning of Walsh to be discriminatory - specifically, the question of how to mix mortar. They never asked about tiling experience, although it appears that some employees would primarily be doing tile work. Finally, Akugbe’s statements regarding strength were also considered part of the picture by the Appellate Court.
The Appellate Court reinstated the lawsuit.
For HR, investigations are a process and an art. The key is to put all the acquired pieces of the puzzle together and determine from a holistic vantage whether any bad acts occurred and to what extent they reach. HR has to be aware of the overall canvas. Most of the time, HR can figure it out, but in those times where it is unclear, HR should take a step back and holistically re-review the information before making any determination one way or another.
Source: Walsh v. NYCHA, No. 14-181 (2nd Circuit Court of Appeals, 7/7/16)