Friday, October 29, 2010

Failure to Fill a Position Does Not Give Rise to an Inference of Discrimination

Earlier this week in my weekly Employment Case Law Update, I made mentioned of a case out of Connecticut where a district court judge held that being placed on paid administrative leave does not amount to an adverse employment action. The same district court judge this time has held that a company's failure to fill a posted position with any employee does not give rise to a discrimination claim.

From the Connecticut Employment Blog which has the story on the case:

The case, Roncallo v. Sikorsky Aircraft Corp. (download here) is not your typical Title VII case. Indeed, the plaintiff is a white male who claims, in part, that the company chose not to fill a posted position (which would have given him a promotion) because there were not enough diverse candidates that either applied or were qualified.

Ultimately, the court concluded that:

Although the fact that the company decided to close the position following [a manager's] recommendation of four white male candidates may be sufficient to give rise to "speculation and conjecture," it is not sufficient to defeat Sikorsky's lawful explanation for its action or to support an ultimate inference of unlawful discrimination.

Indeed, while the court's final decision rested on this ground, it pointed out other issues with the Plaintiff's case too. For example, of the twenty similar-level positions posted in the plaintiff's division in 2008, seven were also left unfilled and twelve were filled with white males. Those statistics, obviously, hardly show a bias against white males.
The plaintiff in this case is a white male which means he was essentially alleging what has been termed "reverse discrimination." You may recall that the Supreme Court dealt with this issue in Ricci v. DeStefano where it was held that an employer can invoke fear of "disparate impact" litigation by minority applicants as a defense to a charge that discarding the results was itself an act of unlawful discrimination. The lead opinion written by Justice Kennedy announced that the defense is only available where the employer has a "strong basis in evidence" for fearing disparate impact liability. However, this was not at issue in Roncallo because the employer in this case closed the position and did not hire anyone. This, Roncallo alleged, was done in discrimination against white male applicants.

Courts in this jurisdiction have considered whether closing a position may serve as an adverse employment action and have held that it may constitute an adverse employment action for the purposes of Title VII. However, the district court judge here found Roncallo distinguishable.

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