Tuesday, March 22, 2016

But all three VPs were men . . .

Earlier this month, the Third Circuit issued a non-precedential opinion in Steele v. Pelmor Laboratories, Inc. I don't consider it a huge case, but it does include some interesting analysis, including a breakdown of "statistical evidence."

The employee claimed that she was passed over for a promotion to VP because she is a woman. She asserted claims under Title VII, the PHRA, and the Equal Pay Act. She cited the fact that the rather small employer had three VPs (the position she wanted), and all three were men. That didn't seem to get her very far on the "pretext" prong of the analysis:
Not official use.
Although “[s]tatistical analyses have served and will continue to serve an important role as one indirect indicator” of discrimination, Mayor of City of Phila. v. Educ. Equal. League, 415 U.S. 605, 620 (1974), such raw numerical comparisons as Steele offers here are of limited utility, absent “any analysis of either the qualified applicant pool or the flow of qualified candidates over a relevant time period,” Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 543 (3d Cir. 1992). The usefulness of statistical evidence in proving discrimination “depends on all of the surrounding facts and circumstances,” Int’l Broth. of Teamsters v. United States, 431 U.S. 324, 340 (1977), but the record here says nothing about the facts and circumstances surrounding the hiring of the three past male Vice Presidents. Even if it did, such evidence would be of questionable strength in establishing any sort of pattern of discriminatory conduct. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995 (1988) (“[S]tatistical disparities must be sufficiently substantial that they raise such an inference of causation.”). Without any evidence related to the hiring of three past Vice Presidents, particularly whether there were qualified female candidates who applied for those openings and were denied, we must reject Steele’s argument that there is “statistical evidence of pretext.” (Opening Br. at 18.).
In short: the fact that all three VPs were men did not carry the day for her.

The Court also examined the plaintiff's qualifications in comparison to the man who got the job. To establish pretext, the employee must show that "the qualifications of the person actually promoted were so much lower than those of h[is] competitors that a reasonable factfinder could disbelieve the claim that the employer was honestly seeking the best qualified candidate." Bray v. Marriott Hotels, 110 F.3d 986, 999 (3d Cir. 1997). The Court concluded that, if anything, the man who received the promotion was more qualified.

Finally, we have the EPA claim. To prevail on an EPA claim, the plaintiff must show that she received less compensation for substantially equal work ("work of substantially equal skill, effort and responsibility, under similar working conditions"). She used the guy who was VP as her comparator... umm, I mean obviously he doesn't do the same work, he got promoted to VP, right? Of course I'm right. The Court concluded that the male VP was the plaintiff's boss and paying him more was not discriminatory.