125.2 Hire

It was not discrimination based upon race to tell a Native American job applicant that he would need to cut his long hair if hired. There was no reason to believe that applicants of other races were permitted to have long hair, and another Native American applicant was hired when he agreed to cut his hair. Breu v. Guardsmark, LLC (LIRC, 03/28/14). (not available on LIRC's website)

The fact that two minority candidates were ranked first and second on a certification list but were not selected for further consideration following the interview process, did not establish race discrimination. A candidate’s pre-certification ranking did not carry over into the post-certification process, i.e., all candidates on the certification list were considered to be competing on an equal basis. There was no showing of any bias in the interview process. In particular, the record showed that the interview panel was balanced as to race, that there was consistency among the interviewers as to the scoring of the interviews, that there was consensus among the panel members as to the ranking of the top two candidates, and that the interview questions and scoring criteria were reasonably job related. Martin v. Milwaukee Bd. of Sch. Dir. (LIRC, 02/26/03).

The Wisconsin Department of Corrections announced an opening for a Regional Chief position. It invited candidates with career executive status to submit applications, and it further indicated that candidates without career executive status could submit an application and examination materials. The Complainant, an African-American man who previously had been certified for other career executive positions in state service, submitted application materials. Another individual, a white male who held a career executive position in the Department of Corrections, also applied. He was the only career executive to apply. The supervisor of the Regional Chief position had known the white male candidate for over 20 years and was well acquainted with his work record. Upon learning of the white male candidate’s interest, the supervisor inquired whether he could be hired for the Regional Chief position. A human resources employee who (unlike the supervisor) was aware of the racial identity of all of the candidates, informed the supervisor that the reassignment of the white male candidate to the Regional Chief position would be acceptable. The supervisor then approved the career executive reassignment of the white male individual without reviewing the application materials of any of the non-career executive candidates. The Complainant argued that the Department of Corrections had a duty to examine all of the applicants before making a hiring decision, pursuant to its delegation agreement from the Division of Merit Recruitment and Selection. However, that delegation agreement applies only to competitive hiring processes, and the successful right candidate was hired through a career executive reassignment rather than through a competitive process. Moreover, even assuming that there was anything irregular about the cancellation of the competitive hiring process, the Complainant failed to show that the motive for canceling the hiring process was to discriminate against minority candidates. It was undisputed that the supervisor who made the hiring decision was African-American himself, and that he had no knowledge of the race of any of the non-executive candidates. Oriedo v. Wis. Pers. Comm’n (Ct. App., Dist. IV, unpublished opinion, 04/25/02).

When an employer seeks to interpose a federal consent decree against claims of reverse discrimination, the employer must prove that consideration of race was: (1) justified by the existence of a manifest imbalance that reflected under-representation of minorities in traditionally segregated jobs; and (2) the decree did not unnecessarily trammel the rights of non-minority employees or create an absolute bar to their advancement. Samolinski v. Milwaukee County (LIRC, 01/05/90).

Asking a black applicant whether he is comfortable supervising white female workers when that question was not asked of other candidates established that the Complainant’s race was a factor in his not being selected. Jenkins v. DHSS (Wis. Pers. Comm’n, 06/14/89).

The Respondent’s hiring procedures were designed to maintain a segregated workforce. The Respondent deliberately screened blacks out of the application process by voice identification over the phone. Jones v. Dy-Dee Wash (LIRC, 11/04/88).

Where the Complainant, a white man, was not ranked among the top candidates by any of the interviewers, and where other white candidates were ranked higher than the Complainant by all the interviewers, the Complainant’s point by point comparison of himself to the successful black candidate was not relevant. Whether or not the successful candidate’s race was a factor in his being awarded the position (a question not dealt with in the decision) the evidence showed that the Complainant’s race was not a factor in his failing to get the position. Strickland v. Milwaukee Bd. of Sch. Dir. (LIRC, 10/13/88).

Where the Administrative Law Judge concluded that the Respondent did not know of the Complainant’s race at the time he failed to consider his application for employment, she also appropriately rejected the argument of the Complainant that official notice could be taken of the fact that the Complainant spoke with a recognizable “black dialect” and that therefore it could be inferred, based on his telephone conversation with the person who made the hiring decision, that the person must have known he was black. This was not a proper subject for official notice under sec. 227.45(3), Stats. Ealy v. Roundy’s (LIRC, 03/12/87).

A Complainant who made out a prima facie case of race discrimination in hiring failed to prove that the Respondent’s reason (that the hired candidate was most qualified) was pretextual, where the Complainant argued that the selection process utilized subjective criteria. Criteria of a subjective nature are sometimes necessary in hiring, especially in hiring supervisory personnel, and there is nothing discriminatory per se about the use of such criteria. However, the use of such criteria will be closely scrutinized where applied by a non-minority decision-maker to a minority candidate. Howard v. City of Madison (LIRC, 02/24/87).

Evidence that an employer had marked an application with a “B” does not show that its stated reason for failing to hire a black applicant was a pretext for discrimination. Ewing v. James River-Dixie Northern (LIRC, 10/19/84).

Although a Complainant established a prima facie case, he did not prevail after the employer showed strong reasons for preferring another applicant, because the Complainant’s own Statistical evidence was weak and there was no evidence of race discrimination in the hire of three other white applicants. Long v. DILHR (Wis. Pers. Comm’n, 11/24/82).

A black applicant for a Bicentennial Aide position established a prima facie case of discrimination by showing better qualifications than the four white persons hired, and the employer’s claim of her inferior writing ability was found to be a pretext for race discrimination. Kirck v. Bicentennial Comm’n (LIRC, 11/23/77), aff’d sub nom. City of Milwaukee v. LIRC (Dane Co. Cir. Ct., 02/06/79).

There was no race discrimination where the employer hired a white male who agreed to give a two year commitment to the job over a black male who refused to make such a commitment. Cooper v. LIRC (Youth Services Bureau), (Dane Co. Cir. Ct., 10/22/79).

Where a black person and a white person applied on the same day, at the same place and to the same person for a welding job, the black person established race discrimination in his failure to be hired by showing that the white person with less welding experience was hired with the promise to be trained later and was assigned to jobs for which he had no previous experience. Buchanan v. Barkow (DILHR, 03/11/77).

Although the practice of permitting appointment from among the top three candidates on a promotional exam without establishing selection criteria creates ample opportunity for subjective hiring decisions, discrimination must still be proven. Green v. DOA (DILHR, 09/21/76).