Employment discrimination cases based upon a failure to hire theory are often difficult to prove because unlike the discriminatory termination of an employee with a good performance record, in a failure to hire case, there is no record of a work performance history. In Gonzalez v. Molded Acoustical Products of Easton, 2013 U.S. Dist. LEXIS 43107 (E. D. Pa. March 27, 2013)(Stengel, J.), the Court recognized the importance of a good performance record in a failure to re-hire case. In Gonzalez, three Hispanic floor managers filed race discrimination claims based upon a re-failure when their former employer failed to re-hire the employees after they were laid off from their jobs. Four months after the managers were terminated; the employer hired 3 new Caucasian managers and within about one year of their termination, hired two more new Caucasian managers. None of the newly hired five Caucasian managers ever worked for the employer before.
While the employer claimed the reason the three Hispanic employees were not hired was due to previous poor work performance, the Court denied summary judgment and concluded that the Plaintiffs produced evidence from which a jury could reasonably disbelieve the employer’s proffered reason because the Plaintiffs were never disciplined for poor work performance and at the time of layoff, the employees were advised that the plan was to bring back the employees who were laid off when financial conditions improved.
One other interesting note from Gonzalez is the Court’s acknowledgment that the Third Circuit Court of Appeals has identified several situations where the failure to formally apply for a job will not bar a plaintiff from establishing a prima facie case of discrimination. The fact that an employee did not formally apply for an open job is not determinative as long as the plaintiff made every reasonable effort to convey interest in the job to the employer, was deterred from applying by the employer’s discriminatory practices and would have applied for the position but for those practices, or had a genuine and real interest in the position but reasonably believed that a formal application would be futile. See Lula v. Network Appliance, Inc., 245 F. App’x 149, 152 (3d Cir. 2007).
For more information on race discrimination and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126519.html