DEBORAH KELLY, Complainant
COULEECAP INC, Respondent
An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed
January 15, 2014
kellyde_rsd . doc : 164 : 630 631
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
In her petition for commission review the complainant argues that the administrative law judge focused solely on the issue of intentional discrimination and did not discuss the complainant's evidence of disparate impact. The complainant contends that she demonstrated that the respondent's administrative and family services positions are predominantly held by females, with a mean age at the time of hire of 32 years, while the crews and skilled trades are almost exclusively male, with a mean age at the time of hire ranging from 23 to 54 years. The complainant contends that this evidence supports her position that the respondent engages in patterns and practices that result in disparate impacts for females and those over the age of 40 years. The complainant's argument fails.
Under the disparate impact theory, an employment practice which is neutral on its face can be found to be discriminatory if in practice it has a disproportionately adverse impact on a protected group. Bartel v. Greater Madison Convention & Visitors Bureau, ERD Case No. CR201003444 (LIRC Dec. 19, 2013). To make out a prima facie case of disparate impact, a complainant must show that an employment practice or selection device (for example, a passing score on a certain test, or a high school diploma requirement) selects employees or applicants in a pattern which is significantly different from the pattern of a particular minority in the applicant pool. Thoma v. LJ's Bad Penny Bar & Cafe, ERD Case No. CR200600641 (LIRC Aug. 27, 2009), citing Moncrief v. Gardner Baking Company, ERD Case No. 9020321 (LIRC July 1, 1992) and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Disparate impact must be proved by actual statistical evidence, significant (in the statistical sense) to the confidence level required by law, comparing the effect of an employer's selection device or standard on employees in the different groups being compared. Kaczmarek v. City of Stevens Point, ERD Case No. 200200370 (LIRC Aug. 12, 2003). Disproportionality of a distribution of one group of employees is proven in disparate impact cases almost exclusively by some kind of expert statistical analysis. Moncrief v. Gardner Baking Company, ERD Case No. 9020321 (LIRC July 1, 1992).
In this case, the complainant has not identified any employment practice or selection device utilized by the respondent that is claimed to have a disparate impact on females or individuals in the protected age group. The complainant's evidence consists solely of a chart indicating that a total of four individuals have been hired for the job of quality assurance inspector (the only job at issue in this case), all of them males, with a "mean" age of 41. The complainant has failed to present any competent statistical analysis showing a disproportionality of a distribution of a group of employees, nor any reason to believe that such disproportionality, if it existed, would be the result of a neutral selection device or procedure. Her disparate impact claim, therefore, fails.
The complainant also contends that her qualifications for the job of quality assurance inspector were superior to those of the individuals who were hired. She states that, unlike one of the successful candidates, she has weatherization experience and, further, that she is the only one who has formal training in a carpentry apprenticeship program. The complainant asserts that, in spite of her superior credentials, there was no chance, based upon the age and sex distribution of the work force, that she was going to be hired for the position. Again, this argument fails.
Contrary to the complainant's contentions, the respondent actually expanded the number of applicants to whom it granted interviews from ten to thirteen in order to bring the complainant (the thirteenth-ranked applicant) into the pool of interviewees. The respondent did so specifically because the complainant was female. The reason that the complainant was not ultimately selected for the position was not related to her sex or age, but was because she was not as qualified as the two top-rated candidates. While the complainant may have had training in a carpentry program, she had only limited experience performing professional carpentry and construction work, and had not done so since approximately 1987. Similarly, the complainant's weatherization experience lasted less than a year and occurred most recently in 1985. By contrast, one of the two successful candidates, Mike Molley (age 47), had extensive carpentry and weatherization experience, all of it more recent than the complainant's, while the other successful candidate, Jacob Robertson (age 31), had extensive carpentry experience and had been working as a licensed contractor for several years immediately prior to applying for the position in question. Moreover, a member of the interview panel testified that at the interview the two successful candidates talked about their relevant experience and responded to interview questions by relating their current experience to the requirements of the job, whereas the complainant focused primarily on her legal experience and other matters not directly relevant to the job. Based on a process that was not shown to favor males or individuals outside of the protected age group, the complainant was rated number seven of the eleven candidates interviewed. (1)
The commission has considered the remaining arguments raised by the complainant in her petition for review, but finds them similarly unpersuasive. Because the commission agrees with the administrative law judge that the complainant failed to demonstrate her sex or age played a role in the hiring decision at issue, the dismissal of her complaint is affirmed.
cc:
Attorney Michael E. Ehrsam
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