In Rogers v. Pearland Independent School District, No. 14-41115 (June 28, 2016), the Fifth Circuit held that the plaintiff failed to establish that he was subjected to race discrimination when he was rejected on two separate occasions for hire as a master electrician. While not particularly interesting on its own merits, this case coincidentally involves a criminal records policy, the topic of yesterday's post, and one within the same state that has sued the EEOC, no less.
In Rogers, the defendant contended that it refused to hire the plaintiff on the first occasion because he had failed to disclose his felony convictions, which the defendant discovered through a background check. On the second occasion, the plaintiff disclosed his convictions, but the defendant again rejected him, this time for having failed to disclose his convictions the first go-around and also for the serious nature of the convictions themselves.
The plaintiff alleged that the defendant's policy of "excluding from consideration for employment all persons who have been convicted of a felony" had an unlawful disparate impact. However, the court concluded, based on the record, that the defendant's policy did not automatically exclude applicants with felony convictions. Indeed, the defendant had recently hired several employees with felony and misdemeanor convictions.
The court also rejected the plaintiff's disparate treatment claim on the grounds that he had not identified a similarly situated comparator. The court rejected the plaintiff's attempt to compare himself to a white male who was hired even though he had failed to disclose a felony conviction. The court concluded that the white male was not similarly situated because the defendant's criminal records policy did not automatically bar all felons, and instead took account of the seriousness of an applicant's convictions. The white male's offenses were less serious than the plaintiff's, so the plaintiff could not compare himself to the white male to establish a prima facie case.
The dissent disagreed with the majority's analysis of the plaintiff's disparate treatment claim, reasoning that the white male was an appropriate comparator since the plaintiff was rejected for failing to disclose his criminal record, not the criminal record itself.
Here, I think the dissent has the better argument, at least with respect to the first rejection. If the plaintiff was allegedly rejected for lying about having a felony conviction, then evidence that a white male was hired, even though he had lied about a felony record, would tend to discredit the employer's asserted reason.
blog reflects the views solely of its author. It is not intended, and
should not be regarded, as legal advice on how to analyze any particular
set of facts.