A manager continued to consider “Alexandra” for a new customer-service position, despite misgivings from his boss about her race. However, when the company hired someone else, Alexandra filed suit.

What happened. Alexandra heard about a part-time customer service representative position that was expected to be created at Con-Way Freight Inc.’s office in Poplar Bluff, Missouri. “Rudy,” the branch’s service manager, told Alexandra that he still needed approval to create the position, but he interviewed her and gave her an application to complete. On the application, she disclosed that she had two misdemeanor shoplifting convictions.

When discussing the new position with his boss, Rudy said Alexandra was the “ideal candidate.” However, when his boss learned that Alexandra was black, he cautioned Rudy against “opening up a can of worms” by hiring her and suggested that Rudy “probably [didn’t] want to go that route.”

Once Rudy got the go-ahead for the new position, he interviewed Alexandra again. He also asked how she would handle derogatory racial comments at work and told her, “When I told my boss about you, he told me not to hire you because if I hired you that I was just asking for the NAACP.”

Under Con-Way’s hiring policy, the personnel department runs a criminal background check and approves a chosen candidate before a manager is permitted to send a candidate for a drug test or to make a conditional offer of employment. The personnel department automatically disqualifies any job applicant who has a theft-related conviction on her application or background check.

Alexandra was Rudy’s preferred candidate, but he also was impressed with a white woman who had applied. Without obtaining approval from the personnel department, Rudy asked the two applicants to take a drug test, and he was terminated for doing so. Both applicants later claimed that Rudy had told her individually that she had the job.

Alexandra learned about Rudy’s termination after calling to inquire about the results of the drug test. His boss said he was not hiring but would look into her claim that Rudy had already hired her. She never heard back from the boss.

After Rudy’s replacement was hired, another applicant contacted him and told him that Rudy had promised him the job of part-time customer service rep. The new supervisor interviewed and hired that applicant.

Alexandra filed a complaint with the Equal Employment Opportunity Commission (EEOC), which resulted in a lawsuit against Con-Way, alleging that the company had failed to hire Alexandra on the basis of race discrimination under Title VII of the Civil Rights Act of 1964, Section 1981, and Missouri state law. A district court granted summary judgment in favor of Con-Way, and EEOC appealed to the U.S. Court of Appeals for the 8th Circuit, which includes Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

What the court said. The appeals court affirmed the decision on the federal claims and remanded the state-law claim with directions to dismiss it without prejudice.

The court said Alexandra did not demonstrate a causal link between discriminatory comments made about her race and the company’s failure to hire her. That’s because, even if Rudy had attempted to hire her as she claimed, the personnel department would have automatically rejected her application because of her theft-related convictions. Equal Employment Opportunity Commission v. Con Way Freight, Inc., U.S. Court of Appeals for the 8th Circuit, Nos. 09-2926, 09-2930, (9/22/10).

The Law

Under Title VII of the Civil Rights Act of 1964, it is unlawful for an employer of 15 or more employees to refuse to hire, discharge, or take action affecting an employee’s compensation, terms, conditions, or privileges of employment because of race or color.

Section 1981 (42 USC 1981) prohibits discrimination based on race in the making of private and public contracts, including employment at will. This law applies to all public and private employers, regardless of size.

What to Remember

Enforce policies consistently. Con-Way’s policy of automatically rejecting applicants who have theft-related convictions was not in writing, but the court noted that there was evidence that it existed and was enforced. “Con-Way produced evidence that within the span of eighteen months it had disqualified 28 applicants solely because of theft-related convictions; that no employees working at the Poplar Bluff service center had convictions on their record; and that its designated corporate representative had personally disqualified ‘dozens and dozens’ of applicants because of theft-related convictions.”

Educate supervisors on hiring protocol. In this case, it is unclear whether Rudy had received training on the company’s hiring procedures. However, this case demonstrates the importance of training supervisors and managers on this topic.