When hiring, it is important to establish a hiring process and follow it.
This is the lesson a western Pennsylvania municipality learned when its decision to hire a new Police Chief was challenged by an unsuccessful candidate for the position. After completing an external job search, the municipality hired from within, promoting a woman as the County’s first female police chief. One of the unsuccessful applicants, a retired Pennsylvania State Trooper, filed an age and gender discrimination claim on the basis that he was denied the position because he was an older male despite having more experience in the field of law enforcement. In support of his claim, he pointed to certain alleged procedural irregularities in the hiring process in an attempt to infer that the decision of the Borough Council was discriminatory. While the Borough ultimately prevailed on summary judgment and successfully defended the appeal that followed, the Borough was subjected to over three years of disruptive litigation.
The litigation highlighted a split between federal and state courts. A line of decisions issued by the federal courts hold that an internal candidate is not an appropriate comparator (to an external candidate) for purposes of establishing a prima facie case of discrimination. The state courts had yet to rule on the issue.
In this case, the state trial court agreed with the federal courts when it granted summary judgment in favor of the Borough on the basis that the plaintiff had not demonstrated a prima facie case of discrimination. However, the appellate court declined to follow the trial court (or federal court) reasoning. It held that a plaintiff need not show that internal candidates and external candidates are similarly situated for purposes of evaluating a prima facie case. This did not alter the end result. The Court affirmed dismissal for other reasons; primarily on the basis that the Borough Council had articulated legitimate, non-discriminatory reasons to support its decision to promote a younger, female candidate already employed by the Borough than the older, male candidate from outside the organization. The Court concluded that the plaintiff could not establish pretext for discrimination. The split between federal and state courts should be monitored for further developments. In addition, the split should be considered when determining where to litigate failure to hire cases involving internal and external candidates.
This post was written by Eric M. Brown, Esquire.
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