The Supreme Court of Hawaii has issued an important opinion that offers a new way to think about the McDonnell Douglas test. Adams v. CDM Media USA, Inc., 2015 WL 769745, No. SCWC-12-00000741 (Hawaii Feb. 24, 2015).
In Adams, the plaintiff alleged she was subjected to age discrimination when a company refused to hire her for a telephone sales position. The Hawaii Supreme Court found that the plaintiff established a prima facie case under McDonnell Douglas. The question in the case was whether the defendant met its burden in step two of that test, to articulate a legitimate, non-discriminatory reason for its action.
In support of its motion for summary judgment, the employer proffered several reasons for not hiring the plaintiff. The employer asserted the plaintiff lacked sales experience in the last five years, her prior sales experience was in other fields and involved face to face communication, she had little or no sales experience with corporate executives at Fortune 1,000 companies, and the decisionmaker was told the plaintiff disliked tedious work.
The Hawaii Supreme Court held that the employer failed to meet its burden of production under the second step of the McDonnell Douglas test. The Court emphasized that the second step in the test requires the employer’s decision to be “legitimate.” The Court interpreted the word “legitimate” through the lens of Hawaii discrimination law to require that the refusal to hire an individual must relate to the ability of the individual to perform the work in question.
The Court held that summary judgment in the employer’s favor was inappropriate because the reasons provided by the employer either were properly contested by the plaintiff, were based or inadmissible hearsay or did not relate to her ability to do the job. Importantly, the Court held that the employer could not use the lack of sales experience in the last five years as a legitimate reason if the plaintiff could perform the sales job adequately without recent experience. In this case, the employer admitted that the decisionmaker did not rely on the published criteria for the job in his decision to not hire the plaintiff, and the Court expressed concern that this “recent job experience” criteria was only being applied to the plaintiff and that it was not a legitimate reason to disqualify a person for the job in question.
This case represents an important new way of looking at the second step of the McDonnell Douglas test and shows the further separation of state discrimination law from federal law. Also, the majority and dissenting opinions illustrate how confusing McDonnell Douglas still is, even though the test has been mulled over by courts for more than 40 years.