The case is Dougboh v. Cisco Systems, Inc. decided on 10/24/16 by Judge William J. Martini of the District Court of New Jersey. The ruling may be read here.
The facts of the case are that Pascal Doughboh applied online for hundreds of jobs at Cisco over several years, was interviewed for four of those jobs, and was hired for none of them. The critical issue in this case is that Cisco asked applicants to volunteer EEO group data (e.g., race, sex, and other protected classifications) to satisfy OFCCP data collection requirements. The key question is can a company collect the classification data without being vulnerable to losing a discrimination lawsuit (in this case Title VII), and the answer is affirmative, as long as the decision makers are unaware of the classification data when deciding who to interview, and there is no subsequent evidence of bias during or after the interview. Judge Martini favored Cisco on both issues.
The case was analyzed using the McDonnell-Douglas disparate treatment framework. According to Judge Martini, absent direct evidence, a prima facie circumstantial case is established showing that the (1) plaintiffs belongs to a protected class, (2) is qualified for the at-issue job, (3) suffers an adverse employment action and (4) the search continues for qualified applicants similar to the plaintiff. Judge Martini ruled that the plaintiff satisfied the first three requirements, but not the forth. Although he was deemed qualified (#2) based on possessing requisite minimal qualifications (MQs) for the various positions, and he was not hired (an adverse employment action) (#3), Judge Martini found that the reason given by Cisco (that his qualifications were weak relative to others) was unrebutted. In other words, a literal interpretation of the way Judge Martini laid out his ruling is although the search continued, it was for more qualified applicants than Doughboh.
Judge Martini ruled further that even if a prima facie cases was established[1], Cisco provided a legitimate, nondiscriminatory reason for not hiring Doughboh that he could prove as pretext for discrimination; that the hiring staff “perceived Plaintiff to possess less technical skill and relevant experience than other applicants.”
The moral of the story is that Cisco did it the right way; it obtained race/ethnicity by OFCCP requirements, kept these data from the hiring managers, and provided legitimate nondiscriminatory reasons for finding the plaintiff insufficiently qualified to perform the jobs he applied for.
By Art Gutman, Ph.D., Professor, Florida Institute of Technology
[1] Based on the run of case law on McDonnell Douglas type cases, most judges, in my opinion, would have granted the prima facie claim and decided the case based on whether the plaintiff could prove that a reason offered by the defendant for the non-hire was a pretext for discrimination.
