Employment/Labour – USA.

In Equal Employment Opportunity Commission v Target Corporation the Seventh Circuit Court of Appeals reversed a federal district court's grant of summary judgment in favour of Target, finding that triable issues existed as to whether the retailer failed to hire African-American applicants for managerial positions based on their race. The defendant argued that its recruiter could not have discriminated on grounds of race because most applicants were not interviewed, and that therefore the recruiter could not have known their race. The court rejected this defence because the applicants' curricula vitae (CVs) and distinctive characteristics of their voices could have led the recruiter to believe that they were African-American. In addition, the court ruled that issues of fact existed in relation to whether Target violated the recordkeeping requirements of Title VII of the Civil Rights Act 1964.

Race Issues.

Target's hiring process for the managerial positions at issue included:

• screening applicants' CVs to determine whether they met the minimum requirements for the position; 
• scheduling an initial interview; and 
• inviting applicants who performed well in the initial interview to attend an 'elite' interview, which included a written test and three rounds of personal interviews.

Four African-American applicants reached different stages in the process. One, a man, secured an elite interview. Despite scoring highly in the written test, he was not hired. Target claimed that, based on his elite interview, the applicant did not meet certain minimum requirements for the position. The other three African-American applicants, all women, were rebuffed in their efforts to schedule even an initial interview. In one instance, Target's recruiter claimed that he was too busy to schedule an interview. Suspicious of the recruiter, the applicant submitted a fictitious CV from a less-qualified white applicant; the fictitious candidate was invited to interview. The district court granted summary judgment in Target's favour, concluding that the retailer provided legitimate, non-discriminatory reasons for its failure to hire the applicants. With specific regard to the female applicants, the district court concluded that the recruiter's heavy workload was sufficient to explain why he failed to call them for interviews. As to the male applicant, the Seventh Circuit reversed the district court's decision, finding that Target had not met its burden of producing a legitimate, non-discriminatory reason for its decision.

It stated that: "Target should have articulated which requirements [the male candidate] failed to meet; Target presented an ostensibly objective, non-discriminatory reason, but failed to articulate  which criteria informed this reason. Target's proffered reason is insufficient to satisfy its burden to frame an issue of fact so that the court and the [commission] can identify what evidence might rebut that reason." The court ruled that the commission's action should survive summary judgment without the agency having to refute the proffered justification as a pretext. It also ruled that triable issues existed as to whether Target's reason for not interviewing the female applicants was a pretext for racial bias. The fact that the recruiter scheduled an interview with a fictitious white applicant 15 minutes after telling an African-American applicant that he was too busy to schedule her interview supported a reasonable inference that his allegedly busy chedule was not his true motivation. The court also rejected Target's defence that the recruiter could not have discriminated against the female applicants because he did not know their race. It accepted evidence presented by the commission which showed that the applicants' CVs contained information which suggested that they might be African-American. The commission also"proffered expert testimony... that certain individuals can determine a speaker's race based on his or her voice or name".  Therefore, a factual issue existed as to whether the recruiter was able to determine the candidates' race before meeting them and whether his failure to schedule interviews was motivated by a belief  about their race.

Record Retention.

The Seventh Circuit also revived the commission's claim that Target had violated the Title VII recordkeeping requirements, which oblige employers to retain (i) applications and other documents related to hiring for a period of one year, and (ii) all relevant personnel records if a discrimination charge has been filed until the final disposition of such a charge. Target submitted evidence to show that it had revised its record retention policy by using a nationwide employment recruitment website to store job applicants' documents in an effort to comply with Title VII. However, the commission presented evidence that company recruiters and administrative personnel continued to destroy records which should have been retained. In particular, the recruiter charged with refusing to meet the three female applicants admitted that he had destroyed records, including the applicants' CVs. This presented a triable issue of fact as to whether Target had violated the Title VII recordkeeping requirements and whether the recruiter had destroyed the CVs in bad faith.

The case illustrates that employers must take care to instruct employees involved in the hiring process that decisions based on race will not be tolerated and that disciplinary action will be taken against them if they make hiring decisions based on  assumptions about a candidate's race. Moreover, the case  demonstrates that companies should examine their record retention policies to ensure that such policies satisfy the Title VII requirements.

Contributed by Kramer Levin Naftalis & Frankel LLP