December 3, 2015
December 3, 2015
By Bullard Law,
Portland law firm
By Michael G. McClory
Sometimes it seems like EEOC tests its theories on the fly rather than thinking about them first. This week’s (fictional) mailbag is filled with questions from HR managers wondering if they could get in trouble for hiring the most qualified candidate. The Bullard Edge wishes that “no” was the simple answer. That is not the case though, as illustrated by our response to a mailbag question from Shae Watt, Mid-Town Bread Company’s HR Manager.
I think the “HR” in my title means “Having Regret.” Some days I wonder why I got into this game. You are awfully lucky at The Bullard Edge – sitting back with a Pepsi and pontificating while those of us in the trenches do the real work.
Anyway, niceties aside, I need your help. Here’s the situation.
Mid-Town Bread is a fairly stable company. You have probably heard of our “Sliced Bread” brand that you see on store shelves throughout the region. While not formalized, MTB effectively has a no-growth strategy – 73.5 FTE for as long as I can remember – and our employees stay here forever (two more hit the 30-year mark over the summer). That is a long way of saying that positions come open infrequently.
Well, due to a recent retirement one is open now – a logistics coordinator position; it is the first open position at MTB since late 2012. There seem to be three contenders for it. Let me describe them for you (using made up names) and then you can tell me who to hire.
Candidate One is Tre Best. Tre currently works as the logistics coordinator at Uptown Bread, a role he has held for 12 years. (Did you notice my bread pun?) Tre impressed everyone in interviews and we know by reputation that he is an absolute fit for this position.
Candidate Two is Earl Prone. Earl is a current MTB warehouse employee. However, he hurt his back trying to walk a tightrope in his backyard (did not plan on wind gusts) and is subject to significant lifting and carrying restrictions for the indefinite future. In fact, Earl was planning to resign until the logistics coordinator position opened. Earl may not be a rocket scientist, but he knows bread and we think he could perform the duties of this position.
Candidate Three is Lucy Doer, who also is a current employee. Before joining the MTB team five years ago, Lucy was a logistics assistant at a shoelace company and has been in the workforce since the Carter Administration. She probably has a bit more experience than Earl, but less than Tre. Also, it is worth noting that Lucy is a protected class miracle. She is an age-protected Hispanic female, a disabled military veteran, a former union organizer, and she takes Thursday afternoons off for religious reasons.
It is tough to know who should get the job. Our two internal candidates, Lucy and Earl, seem awfully close, with Lucy maybe a loaf or two better. Tre is far more qualified than either of them, but he is not holding any legal aces (not seeking reasonable accommodation for disability or in any other protected class).
I think MTB has to offer the job to Tre. We always hire the best qualified. Cold water on that, though. Our company president recently attended a law firm’s annual employment law briefing and came away believing that EEOC does not support a “best qualified” approach. The agency instead would require that MTB offer the position to Earl.
Can that possibly be right? It makes no sense to me. Thanks.
The Bullard Edge‘s Response:
You ask a great question, Shae. It is a mixed-up playing field at the moment and we understand your frustration with it.
First, let’s begin at the beginning. All of the civil rights laws (Title VII, ADA, ADEA, FMLA and the rest) have one thing in common – they are intended to level the playing field. In other words, these laws are supposed to prevent employment decisions from being made because of gender and disability and age and other statuses (except, in those rare circumstances, where an otherwise protected status might be a BFOQ). The goal is equal opportunity (see the name of the enforcement agency).
The Bullard Edge can get behind the idea of equal opportunity. It is fair and makes sense. It is not that a protected characteristic gives an advantage; rather, it is simply to prevent the protected characteristic from being a disadvantage in the job market.
Second, it is unfortunate that EEOC, at least in regards to ADA enforcement, has lost its bearings. It is not for a lack of caring about the issue; rather, EEOC’s passion for equality has led it to the point where it does not know when to step back and allow for competition on a leveled playing field.
Third, in the case of Mid-Town Bread there are three qualified candidates for the logistics coordinator position. A true civil rights approach would say that the company should offer the position to Tre, just as you want to do, Shae. Tre is by far the most qualified. It is not that MTB is not willing to consider Earl or Lucy; the company has considered them and found them both qualified, just less qualified that Tre.
Fourth, EEOC would say, though, that MTB must offer the position to Earl. Late last week EEOC filed a federal lawsuit against a Texas hospital that selected the better qualified candidate over an employee seeking reasonable accommodation. EEOC’s press release lays out the agency position clearly:
“EEOC asserts that employees who are no longer able to perform their jobs due to a disability should not have to compete with non-disabled employees when seeking the accommodation of job reassignment.”
Fifth, the agency could not be more misguided or lost in its attempts to implement the ADA. Like other civil rights statutes, the ADA is intended to allow for a merits-based decision and to prevent a person from not being selected because of disability. There is nothing in the statute that says a disabled candidate should be preferred over a non-disabled candidate.
Sixth, in fact, the EEOC’s enforcement stance appears to be inconsistent with the enforcement position that the EEOC has published on its website. The EEOC website informs employers that the ADA allows for the selection of the most qualified candidate.
“Q. Does an employer have to give preference to a qualified applicant with a disability over other applicants?
A. No. An employer is free to select the most qualified applicant available and to make decisions based on reasons unrelated to the existence or consequence of a disability. For example, if two persons apply for a job opening as a typist, one a person with a disability who accurately types 50 words per minute, the other a person without a disability who accurately types 75 words per minute, the employer may hire the applicant with the higher typing speed, if typing speed is needed for successful performance of the job.”
The answer is NO. The ADA is not a preference statute. This statement remains on the EEOC’s website (see The ADA: Questions and Answers) and is inconsistent with position argued by EEOC in the lawsuit filed last week in Texas.
Seventh, the EEOC’s position has no theoretical grounding. The press release describes the hospital’s failure to give a preference as “not fair or reasonable” to the employee seeking accommodation. If we apply that same reasoning to Mid-Town Bread’s dilemma, it is difficult to see why EEOC would not require that the position be offered to Lucy. While Earl falls into one protected class, Lucy falls into at least seven protected classes. If the law requires fairness, and EEOC interprets fairness as getting a preference based on protected status, then Lucy ought to get the nod over Earl.
And by the way, under the EEOC approach, we long-ago stopped talking about Tre, the best qualified for the position by a country mile. The EEOC approach only allows for an Earl versus Lucy debate.
Eighth, as practical matter when facing requests from current employees for transfer as a form of reasonable accommodation, the EEOC has put employers like Mid-Town Bread in a bind. EEOC is forcing a Hobson’s choice on employers: (a) select the best candidate and risk facing an EEOC lawsuit or (b) select the less qualified candidate, which diminished the company but avoids the lawsuit risk.
I hope this helps you to evaluate the situation, Shae. Good luck and best regards,
The Bullard Edge
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