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Pre-Employment Examinations Without Disparate Impact May Still Serve As Basis For Disparate Treatment Claims

In EEOC v. Upstate Niagara Coop., Inc., the U.S. District Court for the Western District of New York denied Defendant’s motion to dismiss finding that the EEOC stated claims for discrimination based on sex in violation of Title VII.

The EEOC filed suit against Defendant alleging that it discriminated against female applicants by hiring less qualified male applicants for production-related positions despite a pool of qualified female candidates. A female applicant who was not hired, despite passing the physical exam upon which her offer was contingent, filed a charge with the EEOC in 2010 alleging the pre-employment physical examination had a disparate impact on female applicants. Although evidence suggested that the physical examination did not have a disparate impact on women, the EEOC nonetheless alleged the company engaged in a pattern or practice of disparate treatment in hiring on the basis of sex.

Defendant disputed the that the alleged failure to hire qualified female applicants gave rise to an inference of discrimination, a requirement in order to establish a prima facie case of sex discrimination under Title VII. The Court held, however, that because the company hired someone outside the aggrieved employees’ protected class, the Complaint supports a minimal inference of discrimination. The Court also cited statistics regarding the disparity between male and female employees and that qualified female applicants were passed over for employment in favor of male applicants, some with no relevant past work experience.

Employers should continuously monitor their hiring practices to ensure that they are hiring qualified applicants and that their hiring practices do not – even unintentionally – result in a disparate impact on a protected class.

Jackson Lewis P.C. © 2019

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About this Author

Associate

Alyssa J. Calabrese is an Associate in the Long Island, New York, office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

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New York 2018
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