In 2017, Mark Charlton-Perkins (Plaintiff), a male research scientist, applied to be a professor at the University of Cincinnati (University). A designated search committee considered all of the applicants and interviewed the top four candidates, which included two females and two males, including the Plaintiff. The committee took a final vote on the candidates, and rated Plaintiff as the favorite by a vote of three to one, followed by the two women. The other male candidate was eliminated.
Under the Collective Bargaining Agreement between the faculty and University, the search committee was vested with the authority to determine the candidate to be selected for the position.
Dr. George Uetz, the Department Chair, told the search committee that Kenneth Petren, the Dean of the College of Arts and Sciences, wanted “to focus on the women candidates first.” Dr. Uetz also conveyed that Dean Petren “felt that he might make a case to hire two strong women candidates.” The search committee chair responded to Dr. Uetz by stating that “putting two lower-ranked candidates up first is not only against the recommendation of the committee but also plain discrimination.” Shortly after, the Dean informed the faculty that he was canceling the search in its entirety.
Plaintiff sued the University claiming they failed to hire him due to his gender. Plaintiff alleged that he was the most qualified candidate for the position but was passed over for the position because University officials preferred the two lower-ranked female finalists for the position.
The trial court dismissed Plaintiff’s complaint, finding that Plaintiff did not suffer harm because no one else got the position. Looking to principles from Title VII, the trial court reasoned that no injury “in fact” occurs unless the plaintiff (1) is a member of a protected class, (2) was qualified for and applied for the job, (3) was denied it, and (4) an individual of similar qualifications not in the plaintiff’s protected class got the job. Here, because Plaintiff could not plausibly plead element (4), he suffered no “discrete harm,” in the trial court’s view, and would suffer none until someone else got the job. Plaintiff appealed.
On appeal, the U.S. Court of Appeal for the Sixth Circuit disagreed with the trial court. The Sixth Circuit relied on Supreme Court precedent that the prima facie case requirement for a case of discrimination under Title VII is not an “inflexible rule,” and may vary under particular factual circumstances. The Sixth Circuit stated that Plaintiff suffered an injury when the University did not select him for the position, and this injury had nothing to do with whether or not someone else got the job. The Sixth Circuit concluded that Plaintiff also adequately alleged that the University’s cancellation of the job search was itself discriminatory. The University not only failed to hire him because of his gender, but they then canceled the search itself as a pretext to conceal the discriminatory reason for the failure to hire.
Charlton-Perkins v. University of Cincinnati (6th Cir. 2022) 35 F.4th 1053.
NOTE: This is a case from the Sixth Circuit and therefore not binding authority in California. However, this case provides educational institutions with insight into a federal court’s reasoning involving failure-to-hire cases and warns employers that it cannot avoid liability for discriminatory failure-to-hire by canceling a job search as a pretext to cover up its discrimination.
