May 2001

Last month, a federal appellate court ruled that a "failure to hire" discrimination case could go to trial because the employer did not retain the application materials and other documents containing hiring criteria and rankings. In Byrnie v. Town of Cromwell et al., the Cromwell Board of Education determined to hire a part time art teacher for Cromwell High School. All applicants were required to submit an application, resume, transcripts, letters of reference, and proof of teaching certification. 41 persons applied for the position. A Search Committee pre-screened the applications, narrowing the pool to 21 applicants. The 21 applicants were then rated on a scale of 1 to 5 on ballot forms prepared by the High School Principal. Interviews were granted to 4 applicants receiving the highest cumulative score, of which the Plaintiff -- Byrnie, a male over the age of 40 -- was one. The remaining 3 candidates chosen for the interview were female (although the majority of the 41 original applicants were also female), 2 of which were over the age of 40. After two rounds of interviews, the Search Committee determined to hired one of the female candidates. Byrnie subsequently sued on the grounds that he believed his qualifications were superior to the female hired and believed that he was discriminated against on the basis of his age and gender.

During discovery, Defendants admitted that, in accordance with an internal policy, they destroyed all application materials as well as the ballot and other forms on which the Search Committee recorded their hiring preferences. The United States Court of Appeals for the Second Circuit, however, in ruling on Defendants' Motion for Summary Judgment (a motion asking the court to throw out the case prior to trial) held that based on Defendants' destruction of the hiring documents, a reasonable jury could determine that Byrnie was not hired due to his age and/or gender. In other words, the court concluded that Defendants' failure to retain the hiring documents could be evidence that the reasons given for not hiring Byrnie -- that he "failed to demonstrate familiarities with the basic competencies of effective teaching" -- were merely a pretext for unlawful age and/or gender discrimination. This case teaches employers that it may be wise to keep all documents regarding new hires and the interviewing process for some time after hiring decisions are made. This case begs the question, however, as to how long those documents should be maintained. The Office of Federal Contract Compliance Programs (OFCCP) requires that employers with government contracts keep these documents for at least 4 years. If you are not a government contractor, it would probably be wise to keep the documents for at least 2 years. Even though the statute of limitations is 180 days (PHRC) or 300 days (EEOC), sometimes the investigating agency does not serve a Complaint on the employer for many months after the case is filed.