A male job seeker’s allegation of gender bias regarding a canceled position has been revived by the 6th Circ.

(Reuters) – Rejected job seekers who suspect discrimination can sue their potential employer even if no one is ultimately offered the job they were denied, according to a ruling by the US 6th Circuit Court of Appeals on Friday. United.

The appeals court ruled in Charlton-Perkins v. University of Cincinnati that scholar Mark Charlton-Perkins met the constitutional requirements to sue the university for refusing to offer him an assistant professorship in 2018. Charlton-Perkins , a man, claimed he was the first choice of a faculty search committee appointed to select the best candidate, but was ignored because university officials preferred two lower-ranking female finalists for the job. of teacher.

As soon as Charlton-Perkins was denied a job because of his gender, 6th Circuit Judge John Bush wrote for a panel that also included Judges Eugene Siler and Eric Murphy, he suffered an injury and therefore stood to continue.

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That’s right, the 6th Circuit said, even though none of the women who would have passed Charlton-Perkins got the job he wanted. In fact, no one was hired for the professorship. After university administrators attempted to override the search committee, the head of the committee criticized their “outright discrimination”. The trustees, in turn, said the search committee chair’s previous work with Charlton-Perkins tainted the selection process (even though the search chair revealed the conflict and was given permission to proceed). In the end, the university canceled the search and did not appoint anyone for the position.

That result, according to university lawyers at Taft Stettinius & Hollister, means Charlton-Perkins was not injured. He didn’t get the job, the university said, but neither did anyone else – so he couldn’t claim the discrimination led to an adverse job outcome. And without that adverse result, the university argued, Charlton-Perkins lacked standing to sue.

University attorneys found an unreported 6th Circuit case, Reeves v. Tennessee Farmers Mutual Insurance Co in 2014, which presented apparently analogous facts. A supervisor told a job applicant that he wouldn’t promote her to become an adjuster because he didn’t think women should do those jobs. She protested to company executives when he chose a male candidate instead. Almost immediately, the company reversed the initial screening, restarted the search process, and hired another woman for the position. The original contestant filed a discrimination lawsuit based on the original search process, but the 6th Circuit said the company’s swift action to quash the tainted search meant her discrimination claim “did not never matured into adverse employment action”.

“In other words,” the university argued in its 6th Circuit brief in the Charlton-Perkins case, “the Reeves court held that there was no adverse action in employment for a non-hiring claim until the job search is complete and a hiring decision has actually been fabricated.

The university’s arguments worked in the trial court. U.S. District Judge Timothy Black of Cincinnati cited the Reeves case and other unpublished opinions – including the unpublished 11th Circuit decision in Terrell v. “All candidates were treated the same; all applicants were denied the position,” Black wrote.

But in reviving the Charlton-Perkins case, the 6th Circuit said that, for purposes of establishing a right to sue, the alleged maturity issue was “a red herring.” Yes, the appeals court acknowledged, to allege discrimination under civil rights law, plaintiffs generally must prove that someone else got the job to which they would have been entitled but for it. of discrimination. Nevertheless, the appeals court said the demonstration is not actually necessary to adequately allege injury under Article III.

“Charlton-Perkins suffered the de facto injury that he was not selected for the job,” the 6th Circuit said. “This de facto injury has nothing to do with anyone else ever getting the job.”

Additionally, according to the 6th Circuit, Charlton-Perkins also correctly alleged that the university’s cancellation of the job search was itself discriminatory. So even though the default rule is that rejected applicants must show that someone else was hired for the job in order to establish employment discrimination, the appeals court said it was agree with other courts that have recognized an exception when employers cancel job searches to avoid hiring. a candidate from a disadvantaged group.

“Thus,” Bush wrote in the 6th Circuit ruling, “not only did Charlton-Perkins allege mature and de facto injury under Article III, but he also plausibly pleaded adverse action in employment on the merits.”

I emailed University of Cincinnati attorney Evan Priestle of Taft Stettinius, but got no response.

I also asked Charlton-Perkins attorney Marc Mezibov whether the 6th Circuit had created a split over the maturity issue. The Court of Appeal itself did not seem concerned about the unreported cases of its own court and others: “It is true that these decisions seem to suggest that where an employer does not hire a plaintiff and does not hire never anyone for the job, no adverse employment action occurs,” Bush wrote. “In our view, however, these cases are distinguishable at best and ill-decided at worst.”

Mezibov agreed in an email response to my query. “I don’t believe there is a split in the circuits,” he said. “The cases cited by the UC were either district court cases or stood out on their facts.” All the 6th Circuit did in the Charlton-Perkins case, Mezibov said, was clarify “what it takes to state a prima facie case of discrimination when a search is canceled and no one is hiring”.

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Alison Frankel

Thomson Reuters

Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A graduate of Dartmouth University, she worked as a journalist in New York covering the legal industry and law for more than three decades. Before joining Reuters, she was an editor and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.

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