In a recent case in which our firm was involved as an expert witness, a clear job posting system was the key to the employer’s defense of a discrimination lawsuit. 

In Allen v. Raley’s (July 2010) the employer convinced a Yolo County jury that it acted appropriately when it failed to promote an employee who had not properly accessed and made his interest known through a well promulgated job bidding system. 

Anthony Allen, the plaintiff who had worked for Raley’s over twenty years with an unblemished work record as a Checker at a Raley’s supermarket.  He allegedly expressed verbal interest in a variety of positions to his managers over the years, most notably Head Produce Clerk. Allen wrote a letter asking for help in career development to Raley’s human resources department.  Although the employer addressed the letter, Allen, who continued to work for Raley’s, believed that he was not promoted based on his race (African American). Allen did not however, apply for numerous open positions (including Head Produce Clerk) which were offered over the years on Raley’s well promulgated job bidding system.  As the employer has over 47 facilities, the job postings have been presented online since 2003. The company was able to demonstrate that it offered training and assistance for those who were not comfortable with technology.

Further, Allen’s position was covered by a collective bargaining agreement and Allen was a member of the Retail Clerks.  The labor contract also included specific language on seniority and job bidding and referenced the employer’s online system.  The employer’s motion for summary judgment was denied and the case went before a jury in state court including almost a three week trial involving multiple experts and witness testimony.

By a vote of 9-3, the jury ultimately accepted the employer’s position. The jury, made up of no managers, concluded that while there may have been many discussions about promotions and positions by the plaintiff, an employee has a responsibility to affirmatively make a showing of interest in specific positions.  Only then can an employer be required to apply a “non- discriminatory” selection process. The jury found that there was a clear job bidding system, supported by the consistent practice, as well as explicit language in the collective bargaining agreement – all of which the plaintiff chose not to access.

Significance

The lesson for all employers who have tiered positions is to establish some sort of a logical, well promulgated, bidding or job selection procedure.  In this case, had Raley’s not had a clear and consistently followed job bidding system, it would have been unable to defend a claim of discrimination.  This requirement would be the same for virtually any employer who has promotional opportunities, higher pay rates, or even multiple shifts and schedules.  It is a rather simple matter for a plaintiff to claim discrimination and favoritism, and it is often difficult, if not impossible for an employer to prove that objective criteria were used in the absence of a well thought out job posting or notification and selection system.  In our practice, we have often heard claims such as employees did not know a position was open, or that the employee would have applied for another position had she only known that the shift was available because childcare had changed.  Unfortunately, employers often make well intentioned, but erroneous assumptions about employees want or will accept. The only “fair” (and defensible) way to address this is with a clear and well thought out system which requires the employee to take responsibility for making a clear showing of interest and then applying reasonable and non- discriminatory selection criteria. 

In the real world, particularly for smaller employers, documentation is often weak in these areas.  (At a minimum, we recommend consistent use of payroll change notice forms.)

SharedHR believes these types of claims will be on the rise and the EEOC as well as the Department of Labor is showing signs that they are interested, more so than the past two administrations, in pursuing these types of cases. SharedHR has several model systems that work well for bidding and job posting.