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Was this discrimination, and will it be a valid case for the DFEH / EEOC?

Irvine, CA |

(recent interview process that I had in CA)

- There were not minorities in the Dept, that I saw nor during the panel interview.
- They added an extra step in the application process that was not stated in the position announcement: An additional in person interview with hiring managers who were already part of the panel interview. I don't know if the candidate selected had to do that final step.
- I did very well during the whole interview process, and passed all the steps of the process: completed long application, 3+ hours computer exam, then more than 1 hour panel interview with 9 interviewers , and then the extra interview with 2 hiring managers for less than an hour. - Manager indicated to me that he did not have a degree and that she/he started to go to school to get a degree.

In this case I felt discriminated against because of age (being much younger than managers), being a minority (there were not minorities of my race in that department), for having more education than the manager(s), and for not having a full time employment history. If the person they hired is a person that is more qualified than me, then that would be fair, but if not then that would be very unfair and discriminatory. (I would not be surprised if that happened) They indicated to me that I was the candidate on the top of the list for future opportunities, and recently discovered that they re-posted the same position, which would mean the following: 1) They did not hired anyone for the last position. 2) They are hiring a second person. 3) they hired someone for the last position but the person quit or was terminated. A) My question is what are the chances of winning that case at the DFEH / EEOC? B) what type of proofs will be beneficial in this type of situation?

Attorney Answers 1


My first impression in reading your post is to wonder why this employer would put you through the extensive interview and application process you describe if they were not seriously considering you for the job. It sounds as though you were one of the final candidates.

However, it is certainly possible some unlawful considerations may have been the deciding factor. If the employer decides to hire someone less qualified than you and who is not in the protected classification you are in, you have the basics to make a claim (we call it a prima facie case). This would require the employer to come up with some reasonable justification for why they decided to hire the other person over you. That is usually not very difficult to do. Once they offer a justification, the burden falls on you to prove that reason was merely a pretext to cover for the true discriminatory motive and you must have some evidence to show discrimination based on race, age, or other protected classification.

Proving discrimination in failure to hire cases is very difficult. In addition, establishing damages is speculative because there is no guaranty how long the employment would have lasted.

You can certainly file a complaint with the DFEH within one year of the denial of the job (most California lawyers prefer state law over federal law which the EEOC follows) and ask they conduct an investigation. If they accept the case, there is no way to know what the evidence will show. It will take awhile. But if you feel strongly that you were discriminated against, it is your right to attempt to file a complaint.

They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.

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Michael, Thanks for your help. a) In regards to proofs, what proofs would be beneficial in this situation? emails, voice recordings, proofs that manager does not have a single degree, not even an associate? will that be useful to win that case? b) what will be the benefits and/or shortcomings of sending this case/complaint to the DFEH / EEOC?

Michael Robert Kirschbaum

Michael Robert Kirschbaum


Every case is different, so I cannot speculate what evidence may help you in your case. Obviously, anything that would indicate a bias against your race, if that is the theory, would be relevant. But the fact that the managers are not as educated as you is not relevant and may even backfire against you if you raise it. I'm sorry but I cannot address all you questions and concerns in this kind of forum.

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