Distinctive Voice Characteristics Sufficient To Support Race Claims

Monday, January 1, 2007 - 00:00

In Equal Employment Opportunity Commission v. Target Corp., 460 F.3d 946 (7th Cir. 2006), the Seventh Circuit Court of Appeals reversed a federal district court's grant of summary judgment in favor of Target, finding that triable issues existed as to whether the retailer failed to hire African American job applicants for managerial positions based on their race. The defendant argued that its recruiter could not have discriminated because most applicants had not even been interviewed, and the recruiter therefore could not have known their race. The court rejected this defense because the applicants' resumes and distinctive characteristics of their voices could have led the recruiter to believe that they were African American. In addition, the court ruled that genuine issues of fact existed concerning whether Target violated Title VII's recordkeeping requirements.

Race Issues

Target's hiring process for the managerial positions at issue included: (i) prescreening applicants' resumes to determine if they met the minimum requirements for the position, (ii) scheduling an initial interview, and (iii) inviting applicants who performed well during 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 hiring process. One, a black male, secured an ELITE interview. Despite scoring high on the written test, he was not hired. Target claimed that based on his ELITE interview, the applicant did not meet minimum requirements for the position. The other three applicants, all African American females, were rebuffed in their efforts to schedule even an initial interview. In one case, Target's recruiter claimed that he was too busy to schedule the interview. Suspicious of the recruiter, that applicant submitted a fictitious resume from a less qualified Caucasian applicant; the fictitious candidate was invited to interview.

The district court granted summary judgment in Target's favor, 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 burdensome 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 did not meet its burden of producing a legitimate, non-discriminatory reason for its decision:

Target should have articulated what requirements [the male candidate] failed to meet; Target presented an ostensibly objective nondiscriminatory reason but failed to articulate what 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 EEOC can identify what evidence might rebut that reason.

The court thus ruled that the EEOC's action should survive summary judgment without the agency having to refute the preferred justification as pretext.

The court also ruled that triable issues existed as to whether Target's reason for not interviewing the female applicants was pretext for racial bias. The fact that the recruiter scheduled an interview with a fictitious Caucasian applicant fifteen minutes after telling one of the African-American applicants that he was too busy to schedule her interview supported a reasonable inference that his alleged busy schedule was not his actual motivation. The court also rejected Target's defense that the recruiter could not have discriminated against the female applicants because he did not know their race. The court accepted evidence presented by the EEOC showing that the applicants' resumes contained information suggesting they might be African-American. The EEOC also "proferred expert testimony reflecting that certain individuals can determine a speaker's race based on his or her voice or name." Thus, a factual issue existed as to whether the recruiter was able to distinguish the candidates' respective races prior to meeting them in person and whether his failure to schedule interviews was motivated by his belief as to their race.

Record Retention

The Seventh Circuit also revived the EEOC's claim that Target violated Title VII's recordkeeping requirements. Those requirements compel employers to: (i) retain applications and other documents related to hiring for a period of one year, and (ii) retain all relevant personnel records if a charge of discrimination has been filed, until the final disposition of the 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 EEOC presented evidence that company recruiters and administrative personnel continued to destroy records that were supposed to be retained. In particular, the recruiter charged with refusing to meet with the three female applicants admitted that he destroyed records, including the applicants' resumes. This presented a triable issue of fact both as to whether Target violated Title VII's record keeping requirements, and whether the recruiter destroyed the resumes in bad faith.

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

Please email the authors at kleblang@kramerlevin.com or rholtzman@kramerlevin.com with questions about these articles.