How does a convicted drug-dealing felon get a trial on his failure-to-hire discrimination claim?


The same drug dealing felon Human Resources claimed said in his job interview that he would “do it all again” but ensure that he was not dealing with an undercover officer.

I won’t bury the lede here. This will be a lesson in consistency. If your business takes a legitimate, discriminatory adverse action against an individual, whether a job candidate or an employee, stick with that decision. Taking shifting and inconsistent positions later will all but guarantee a trial on any subsequent claim(s) of discrimination.

Let’s use the drug dealing felon example.

A black man interviews for a job. During the job interview, the black man admits to HR (the ultimate decisionmaker) that he has a drug dealing felony. The company does not hire him but does hire three white men instead for the same position. The black man sues for discrimination.

In its EEOC Position Statement, the respondent stated that:

  1. The charging party was less qualified than the hired workers “due in part to [his] criminal conviction for dealing narcotics,”
  2. HR did not attend any of the earlier interviews, and
  3. While investigating the EEOC charge, it learned that the charging party never disclosed his previous employment with the company.

So far, so good.

Fast forward to the litigation. At various points, the defendant argued:

  1. HR was present for a majority of the other interviews,
  2. HR decided to hire the other candidates before interviewing the plaintiff and learning about his criminal conviction/previous employment with the company, and
  3. HR also decided not to hire the plaintiff because he supposedly said he would deal drugs again (a statement the plaintiff denied) and because HR later uncovered the application omission.

Somehow, the defendant got summary judgment.

On appeal to the Seventh Circuit, the story changed yet again. This time, the appellee argued the appellee did not consider the appellant’s criminal history. Instead, the appellee claimed it did not hire the appellant because of his “inappropriate” comments about dealing drugs and his failure to disclose his previous employment at the company.

The Seventh Circuit had enough of this, reasoning that the “inappropriate remark” reasoning is a “non-starter” because the plaintiff denied saying it. The application excuse had evolved from a late explanation to the only purported nondiscriminatory reason that could earn the appellee summary judgment.

There were so many inconsistencies in HR’s hiring decision, or whether HR ever considered hiring the appellant, that the lower court should have never entered summary judgment.

And that, my friends, is how a convicted drug-dealing felon gets a trial on his failure-to-hire discrimination claim.

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