Dive Brief:

• The 11th U.S. Circuit Court of Appeals has rejected the claim of an executive at Johnson & Johnson Vision Care (JJVC) that she was passed over for a promotion because she is a woman (Pittman v. Johnson & Johnson Vision Care, Inc., No. 3:17-cv-13485 (11th Cir. June 12, 2020)).
• Mary Ann Pittman, who has held various roles with the Johnson & Johnson subsidiary since 1983, sued for gender-based discrimination under Title VII of the Civil Rights Act of 1964 after she was denied a promotion to vice president of product management. JJVC said it didn't offer her the position because she lacked the necessary skills and experience and because another candidate was more qualified for the position.
• The federal trial court granted the employer's request for summary judgment. The 11th Cir. affirmed. The appeals court noted that Pittman did not meet the employer's listed criteria for the job and rejected Pittman's assertion that JJVC modified the criteria during the lawsuit to explain why she was not selected. The court also rejected Pittman's dependence on an unwritten criterion — outside experience — to prove her case. The court said that, at most, a jury could find that the unwritten criteria was an additional, but undisclosed, reason for the decision but that it didn't show pretext.

Dive Insight:

Federal anti-discrimination laws prohibit employers from factoring protected characteristics such as age, race, and sex, including sexual orientation and gender identity, into employment decisions.  

If taken to court, employers may prevail when claims of bias, harassment, discrimination or retaliation are made if they can justify an adverse employment action. In this instance, the courts agreed that the employer had shown a legitimate, non-discriminatory reason for not offering Pittman the job/. The appellate court noted that "Pittman has failed to show that JJVC's proffered reasons for failing to promote her to Vice President of Product Management is so weak, implausible, inconsistent, incoherent, or contradictory that a reasonable factfinder could find the reasons unworthy of credence."

Similar instances include Lowe's defeating a worker's allegations of age and disability bias because it was able to show legitimate business reasons for an employee's transfer to a new store and investigations into his conduct, and the U.S. Forest Service's prevailing in a lawsuit because it was able to show that a worker's reassignment was the result of budget cuts, not gender and age bias.

To prevent accusations of discrimination in hiring and promotions, employers may want to establish written criteria tied to business needs for evaluating candidates and consistently apply the requirements to all candidates. Experts also recommend that HR maintain diverse hiring panels, standardize interview questions and even consider removing identifying information such as candidates' names from job applications. Similarly, some have suggested that HR standardize performance reviews and set up mechanisms to assist with feedback and promotions.

Employers should also be aware that the definition of sex-based discrimination was recently expanded when the U.S. Supreme Court ruled that that the protected category of sex provided by Title VII of the Civil Rights Act of 1964 includes sexual orientation and gender identity.