Employers Decide Who’s Best Qualified in Maryland “Failure to Hire” Cases

You’ve probably heard the old (clichéd) saying, “those who cannot do, teach.”

A recent case in the Maryland Court of Appeals disposes of that sentiment rather neatly in favor of those who (allegedly) cannot do, and therefore teach.  Essentially when it comes to youthful academic achievement versus hard-earned experience, an employer can decide which job candidate is the better “fit” without significant concern about age discrimination liability.

The plaintiff in Dobkin v. University of  Baltimore School of Law is a lawyer who practiced immigration law for many years before he decided to seek an academic position.  The School of Law at UB advertised a search for tenure-track professors for the 2009-2010 school year in several fields, one of which was immigration law.  The plaintiff, Dobkin, applied.

But Dobkin was not interviewed or hired.  Instead, a significantly younger woman with much less practical immigration law work experience was hired.  When Dobkin was informed of the decision, he emailed the school to complain:

It’s simply amazing how law schools choose newbies like [the successful applicant] and don’t even bother to interview candidates with a world of experience.  Something is seriously wrong here.

An EEOC complaint and then a private lawsuit followed.  The trial court entered summary judgment in favor of the university.

The Court of Appeals found both that Dobkin presented a prima facie case of age-based employment discrimination and that the university presented evidence of valid, non-discriminatory reasons for its refusal to hire him: that he had no clinical teaching experience, had not graduated from a top-tier law school, and had never worked as a judicial clerk.

At that point, under the McDonnell Douglas classic burden shifting analysis, the burden shifted to Dobkin to prove that the reasons offered by the university for its decision not to hire him were merely pretextual.  No previous Maryland cases concerned similar “failure to hire” scenarios, so the Court reviewed federal and other states’ cases.

The difficulty, the Court noted, is that otherwise qualified candidates may not be hired for a position based on purely subjective determinations about what characteristics make for the “best” candidate.  In one case discussed by the Court, for example, an applicant for a staff attorney job had more experience (and was older) than the candidate who was hired, but came across as arrogant and hadn’t previously worked at a private law firm.  The court in that case refused to substitute its own judgment about which person would be the better hire for the employer’s.  The Maryland Court of Appeals agreed:

We cannot thereby demand or require U.B. to hire applicants with practical experience as opposed to academic training, as it has a right to choose what qualifications address their needs.  [Dobkin] must understand that his and the successful applicant’s qualifications were not equivalent like the applicants in

[another case].   Instead, they were different types of skills and

training.  Accordingly, because qualifications are relative, as it depends on the preference of the employer, we cannot deem appellant’s qualifications as superior than the successful

applicant’s in this case.

The Court’s analysis of pretext in Dobkin will probably weigh heavily in cases alleging other kinds of employment discrimination going forward.  Where an employer’s hiring criteria are facially reasonable, the plaintiff who fails to meet the criteria will face a significant obstacle to proving discrimination.  On the other hand, though, the Court did not consider whether criteria not reasonably related to a position to be filled would justify an adverse employment decision and did not determine what a “reasonably related” analysis – assuming that there should be such an analysis – would entail.  These are important questions, but they will have to await a future decision.

 

Reasonable Accomodation in Maryland: A Shifting Burden

While the local media is focusing on legislative efforts to overturn the Maryland death penalty and reconcile competing pit bull liability statutes, an important decision on housing discrimination has recently been issued by the Court of Appeals.

Under Maryland law (and, in many circumstances, under federal law), it is unlawful “[t]o refuse to make reasonable accommodations in rules, policies, practices, or services when the accommodations may be necessary to afford a handicapped individual equal opportunity to use and enjoy a dwelling[.]”  Md. Code Ann., Art. 49B § 22(a)(9).  The language in the state statute correlates closely with language in the federal Fair Housing Act.  See 42 U.S.C. § 3604(f)(3)(B) (stating that “a refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling” is housing discrimination).

Under either statute, housing discrimination will only be found if the particular accommodation requested is “reasonable.”  Reasonableness in this context means that a support can be provided at reasonable cost without excessively burdening other people.  Among many questions that typically arise in proving housing discrimination is which party – the plaintiff or the defendant – bears the burden of proving reasonableness. 

In Board of Directors of Cameron Grove Condominium, II, et al. v. State Comm’n on Human Relations, issued on March 28, 2013, the Court of Appeals decided the question in favor of plaintiffs.  The Court held that in order to prove a housing discrimination case under the state statute, a plaintiff must make a prima facie showing of reasonableness;  once that showing has been made, the burden of proof then shifts to the defendant to prove that the requested accommodation is not reasonable.

This is a win for the disabled, since a prima facie showing is a pretty low bar to meet.  Cameron Grove is interesting for another reason, also.  The Fourth Circuit Court of Appeals, which is the federal appeals court responsible for Maryland among other states, has taken the opposite position in adjudicating housing discrimination cases under the federal statute.  See Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597 (4th Cir. 1997) (stating that “[b]ecause the [Fair Housing Act]’s text evidences no intent to alter normal burdens the plaintiff bears the burden of proving each of these three elements by a preponderance of the evidence”).

The Maryland Court of Appeals is, in almost every case, the final arbiter of the meaning of state statutes, while the federal court system is responsible for interpreting federal statutes.  While it’s not unheard of for courts to reach different conclusions on similar statutory language, it’s quite striking when the language in the state statute so closely mirrors the federal statute.  It’s worth pointing this out, too, because concepts like “the burden of proof” are rarely dealt with on television or in movies, yet the allocation of the burden can be determinative of the outcome of a case.  The plaintiff in Bryant Woods Inn, for example, lost its case, while the plaintiffs in Cameron Grove won theirs.  I’m not accounting for differences in facts here, so the comparison isn’t necessarily fair, but it is interesting.

What was at issue in Cameron Grove?  Two individuals in a condominium complex who suffered from unnamed medical conditions filed suit to require that the condominium association provide them with keys to back and side doors to their respective buildings.  Apparently these doors were closer to a retail area within the complex and the plaintiffs wanted to be able to use those doors when they brought in their groceries.  The condominium argued that it shouldn’t have to give copies of the keys for security reasons and that installing a security code pad at each door would be prohibitively expensive at $19,000.  The association was ordered to pay both plaintiffs a combined total of $35,000, in addition to a civil penalty of $5,000.

Most hardware stores sell keys for something like $4.00. 

 

Toys ‘R’ Us Doesn’t Wanna Grow Up or Comply With the ADA

It seems that (my local) Toys ‘R’ Us store has been sued by the Equal Employment Opportunity Commission.

According to the Complaint filed by the EEOC in the United States District Court for Maryland, Toys ‘R’ Us- Delaware, Inc. discriminated against a job applicant because she is deaf.

In October 2011, Shakirra Thomas (“Thomas”) applied for a job with Toys ‘R’ Us at their Columbia, Maryland location. Thomas communicates through sign language and writing and reads lips. She was asked to attend a “group interview” at the store but when she requested an interpreter she was told that she would have to provide one at her own expense. Accordingly she attended the interview with her mother, who interpreted for her. She was not hired.

The EEOC investigates, on an administrative basis, claims of discrimination such as Thomas’. In most cases at the conclusion of the investigation it issues a “right to sue” letter, which means that the EEOC itself will not prosecute the claim and permits the complainant to file a lawsuit. The failure of the EEOC to prosecute a case does not mean the case is not meritorious; many more complaints are filed than can be dealt with administratively.

When the EEOC does determine to prosecute an action, it usually means that it has found an employer’s conduct to be particularly egregious or widespread. The agency often seeks an injunction to forbid the employer from engaging in certain conduct in the future.

In Thomas’ case, the EEOC claims that Toys ‘R’ Us violated the Americans with Disabilities Act because it refused her a reasonable accommodation – an interpreter – during the hiring process, and because it did not hire her. The EEOC will have to establish that Thomas’ disability was the basis for the company’s failure to employ her, but again, the fact that the EEOC is prosecuting the claim suggests that strong evidence exists.

Toys ‘R’ Us has not yet responded to the complaint. I assume, though, that they will not argue that it would have been difficult to provide an interpreter, since the Columbia campus of the Maryland School for the Deaf is about ten minutes from the Toys ‘R’ Us store involved.

The case is Equal Opportunity Employment Commission v. Toys ‘R’ Us – Delaware, Inc., Case No. 1:13-cv-00756-CCB, filed on March 12, 2013.