Sex Discrimination--No debate. Decision to hire male professor not gender discrimination

Utah Employment Law Letter

Famous college football player and coach Bear Bryant is credited with saying, “I didn’t have a thing to do with picking a coach, and didn’t want to. But I didn’t think they’d pick one I didn’t like.” Bryant’s statement highlights the fact that when  someone makes a hiring decision, we are not in a position to second-guess it, regardless of whether we like it. That was the case when a part-time debate coach at Oklahoma City University (OCU) was passed over when the position was made full-time. The coach felt she was the most qualified candidate and concluded that the decision to hire a male coach was gender discrimination. Read on to see why the U.S. 10th Circuit Court of Appeals (whose rulings apply to all Utah employers) concluded that the hiring decision was devoid of discrimination.

Debaters who make the grade

OCU’s debate team had been in a slump for some time. In 2006, the university hired Dr. Anna Hamilton as a part-time adjunct professor to coach the debate team. Hamilton coached the team from 2006 to 2008, and she claimed the debate team experienced “some successes” under her coaching.

In late 2008, OCU started planning to restore its debate team to prominence. The university decided to hire a full-time professor to coach the team. The coach would be an assistant professor of rhetoric and director of forensics in the philosophy department. OCU intended the position to be a full-time tenure-track professorship.

Picking a winner

OCU posted a job announcement emphasizing that it was “especially interested in candidates who [had] extensive debate and forensics experience.” Further, the announcement stated that a PhD was required for tenure-track appointment, and candidates were expected to hold a PhD in a related discipline at the time of hire.

OCU formed a “search-and-selection” committee to determine which criteria would be used to evaluate applicants. The committee consisted of five faculty members and a nonvoting member who was a student on the debate team. OCU’s policy required the hiring criteria to match the announcement and job description.

Hamilton applied for the position, and OCU interviewed her several times. After an initial round of telephone interviews, the university selected Hamilton as one of three finalists. Hamilton was the only finalist who worked at OCU or possessed a PhD, which was in communications. She had 16 years of experience teaching higher education and 2½ years of debate team experience, which she obtained at OCU.

The two other finalists, Jacob Stutzman and Monica Flippin-Wynn, were doctoral candidates who had completed everything except their dissertations. They were allowed to continue with the hiring process because they were expected to complete all the requirements for their PhDs.

When he applied, Stutzman was a doctoral student at the University of Kansas, where he taught courses in public speaking and rhetoric. He also had a debate team background. In fact, he won a national collegiate debate championship and worked as an assistant debate coach at Truman State University. Stutzman taught courses in communications and served as an assistant director of forensics at Texas State University. He had four years of full-time college teaching experience and eight years of experience coaching and competing in college debate competitions.

Flippin-Wynn had four years of debate and forensics experience at the collegiate level plus 11 years of college teaching experience. When she applied, she was a communications doctoral candidate at the University of Oklahoma.

OCU interviewed each of the finalists in person. The finalists were required to give a teaching demonstration to faculty and students and participate in a luncheon with the committee members and OCU students.

OCU decided to hire Stutzman. The individuals who made the hiring decision testified that they selected Stutzman because of his extensive experience in college debate competitions, his impressive performance during interviews and teaching demonstrations, and his rapport with OCU students. The decision makers were not troubled by the fact that Stutzman did not have his doctorate because they expected him to “finish reasonably soon.”

Hiring debate

In November 2010, Hamilton sued OCU, alleging gender discrimination in violation of Title VII of the Civil Rights Act of 1964, disability discrimination in violation of the Americans with Disabilities Act (ADA) and Oklahoma law, and a tort (personal injury) claim for wrongful employment actions in violation of Oklahoma public policy.

OCU asked for summary judgment (pretrial dismissal) on all of Hamilton’s claims. The university defended its hiring decision by arguing that Stutzman was thoroughly qualified and a better fit for the position. After OCU filed its motion for summary judgment, Hamilton voluntarily dismissed her tort claim. The district court granted OCU’s motion and dismissed Hamilton’s gender and disability discrimination claims.

Hamilton appealed, but she voluntarily abandoned her disability discrimination claim. As a result, the 10th Circuit reviewed only the district court’s decision to dismiss her gender discrimination claim.

Legitimate reason for decision

Hamilton did not provide any direct evidence of gender discrimination. Consequently, the 10th Circuit had to determine whether there was indirect or circumstantial evidence of gender discrimination. Courts review gender discrimination claims by requiring employees to establish a prima facie (minimally sufficient) case of discrimination.

To establish a prima facie case, Hamilton had to show that she (1) belonged to a protected class, (2) applied for an available position for which she was qualified, and (3) was rejected under circumstances that lead to an inference of discrimination. The court concluded that Hamilton met those requirements and satisfied her initial burden.

Next, the burden shifted to OCU. The university had to offer a legitimate nondiscriminatory reason for its hiring decision. OCU argued that Stutzman was sufficiently qualified and the best fit for the debate team position. The 10th Circuit determined that the university satisfied its burden.

No gender discrimination

The burden shifted back to Hamilton to prove that OCU’s reason was a pretext (cover-up) for gender discrimination. To satisfy this portion of the analysis, Hamilton had to show that the university’s reason “was not the true reason for the employment decision.” She argued that she provided sufficient evidence to avoid dismissal of her claim and go to trial.

According to Hamilton, Stutzman was not qualified for the job because he did not have a PhD when he was hired. She also argued that OCU’s hiring committee was created to make discriminatory hiring decisions because it had only one female member. She claimed that the fact that no woman had ever been a tenured professor in OCU’s philosophy department showed that the university favored men. Hamilton asserted that the evidence showed that she was not hired because of her gender.

The 10th Circuit rejected Hamilton’s argument. The court explained that when it evaluates allegations of hiring discrimination, it “will draw an inference of pretext where the facts assure [it] that [one candidate] is better qualified than the other candidates for the position.” The court, however, added, “Minor differences between [one candidate’s] qualifications and those of a successful applicant are not sufficient to show pretext.” In light of those principles, the court declined to conclude that the differences in Hamilton’s and Stutzman’s qualifications showed that the OCU’s reasons were pretextual.

The 10th Circuit noted that in light of “OCU’s paramount interest in hiring a skilled, legacy-building debate coach,” it could not conclude that the disparities in Hamilton’s and Stutzman’s qualifications were “overwhelming.” The court noted that Stutzman had eight years of experience competing and coaching in college debate contests. By contrast, Hamilton had 2½ years of part-time coaching experience. Hamilton conceded that Stutzman was qualified for the position; she simply felt that she was more qualified. In the absence of evidence that Stutzman’s qualifications were “overwhelmingly inferior” to Hamilton’s, the court refused to determine that OCU’s reasons were pretextual.

Next, Hamilton argued that Stutzman’s lack of a PhD when he was hired showed pretext. Specifically, she claimed that the job posting unequivocally stated that candidates must have a PhD before they would be hired. OCU argued that the job announcement meant candidates were required to have a PhD by the time they were considered for tenure. According to the school, because Stutzman was a PhD candidate, he was qualified. The 10th Circuit agreed with Hamilton’s interpretation. The court explained:

We think it entirely reasonable that an application for a tenure-track faculty position—looking only at the hiring requirements listed within the four corners of the announcement—would understand that the stated requirement of a “Ph.D. prior to tenure-track appointment” meant applicants for the position must earn that degree before being considered for the job.

The 10th Circuit, however, did not find OCU’s failure to adhere to the standards in the announcement evidence of pretext. Because the court was evaluating whether the hiring decision was discriminatory, it had to look at the facts as they appeared to the person who made the decision. An employee’s subjective evaluation of the situation is not determinative. According to the court, “The relevant inquiry is not whether the employer’s proffered reasons were wise, fair or correct but whether it honestly believed those reasons and acted in good faith upon those beliefs.”

The 10th Circuit added that mistakes in hiring decisions are not evidence of discrimination. The court stated, “In order ‘to support an inference of pretext, to suggest that something more nefarious might be at play, a plaintiff must produce evidence that the employer did more than get it wrong.’” The court explained that although OCU did not strictly adhere to the job posting’s requirements, Hamilton did not provide any evidence that the university’s proffered reason for its decision was intended to conceal a discriminatory motive. At most, OCU failed to follow its written hiring standards. Without more evidence, the court declined to find that a failure to adhere to a job announcement’s requirements is evidence of discrimination. The court noted:

The record is replete with evidence that OCU honestly believed it was following its own hiring guidelines and that, more specifically, it believed [a PhD] candidate like Stutzman was qualified for the position.

The fact that the philosophy department did not have a tenured female professor was not evidence that OCU discriminated against Hamilton by hiring Stutzman. Also, the fact that two of the three finalists for the position were women was evidence that OCU did not have a discriminatory motive in selecting Stutzman.

Finally, the court rejected Hamilton’s argument that the fact that there was only one woman on the six-member hiring committee showed OCU had a discriminatory motive. The court rejected that argument partly because the female committee member felt she had an opportunity to meaningfully participate in the committee’s selection. The court concluded that without more evidence, the ratio of women to men on the committee did not establish pretext. In the end, the 10th Circuit determined there was not enough evidence of gender discrimination to allow Hamilton’s claim to go to trial. As a result, the court ruled in favor of OCU and dismissed Hamilton’s claim. Hamilton v. Oklahoma City University, 2014 WL 2210674 (10th Cir).

Lessons learned

Employers are often concerned that courts will second-guess their employment decisions. Fortunately, courts don’t consider that their role. As this case makes clear, courts do not act as “super-personnel departments” that call employment decisions into question. A court’s role is to determine whether there is evidence of discrimination, not doubt an employer’s decision on which candidate is more qualified. Typically, an employer hires a candidate because it believes she is more qualified than other applicants Courts tread lightly when comparing one candidate’s qualifications to another’s. Unless there is an overwhelming disparity in applicants’ qualifications, a court will not presume that an employer’s determination that one candidate is more qualified than another is not genuine. Employers can take comfort in the fact that courts are reluctant to find that minor differences in candidates’ qualifications constitute evidence of pretext.

Further, mistakes in the hiring process do not constitute evidence of a discriminatory motive. Employers should attempt to avoid making mistakes in employment decisions, but mistakes will not necessarily support a discrimination lawsuit. Unsuccessful candidates must provide proof that the employer’s stated reason for its decision was a cover-up for discrimination.

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