What Is The “Burden-Shifting Analysis” In A California Failure-To-Hire Claim?

There are two types of evidence in a California employment discrimination case based on an employer’s decision not to hire a job applicant: direct evidence and circumstantial evidence. Direct evidence consists of evidence clearly illustrating an employer’s discriminatory intent. An example of direct evidence of discrimination would be an email between management, discussing not hiring an employee based on their protected status (race, national origin, sex, age, religion, pregnancy or medical condition, etc.) Of course, employers are usually smart enough to come up with alternate reasons for their discriminatory decisions. This is where circumstantial evidence comes in.

Circumstantial evidence is evidence that relies on one or more inferences to reach the suggested conclusion. For example, an extremely well-qualified applicant, who is pregnant, and who is not hired in favor of a clearly less-qualified man may give rise to an inference of discrimination. When a court evaluates an employment discrimination claim relying on circumstantial evidence, it will use a burden-shifting analysis that was originally announced in the landmark opinion, McDonnell Douglas Corp. v. Green.

The traditional burden-shifting analysis consists of three parts:

1. The initial burden rests with the employee to establish a prima facie case of discrimination.

To establish a prima facie case of discrimination, an employee must prove several elements. First, they must show that they belong to a protected class. Second, they must show that they applied for an open position that they were qualified to fill. Third, an employee must prove that, despite being qualified for the job, they were not hired. Finally, an employee must establish that the position remained open and that the employer continued to recruit applicants with the plaintiff’s same qualifications.

2. If an employee can prove each of these elements, then the burden will shift to the employer must provide some legitimate, non-discriminatory reason for their employment decision.

In an attempt to meet their burden, employers will often present evidence suggesting that they did not hire an applicant for other, legal reasons, such as they were less qualified, overqualified, lacked a particular skill that the candidate ultimately chosen possessed, or did not do well in interviews despite appearing well-qualified. Because employee selection is so subjective, it is relatively easy for an employer to come up with a non-discriminatory rationale in most circumstances. That is why failure to hire is difficult to prove, unless there is direct evidence of discrimination, or statistical evidence (usually available for larger employers) of failure to hire a particular protected class of employee.

3. If an employer can provide a legitimate, non-discriminatory reason for its decision, the burden then shifts back to the employee to show that the employer’s proffered reason was pretext for an employer’s discriminatory intent.

Proving that an employer’s reasons for not hiring an applicant were pretextual involves uncovering the employer’s true motivations. Usually, employers will come up with seemingly legitimate reasons for their decision; however, upon further inspection, these reasons may not be the real reason for their decision.

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