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Tabor v. Hilti, Inc., No. 11-5131 (10th Cir. Jan. 15, 2013)

Two women sales representatives who were denied promotions by hardware giant Hilti get a renewed opportunity to prove at trial that they were denied promotions because of sex, thanks to a Tenth Circuit decision on Tuesday. Among other evidence in the record: the male manager evaluating one plaintiff allegedly told her that tools "are like guns for men" and using them is "almost like second nature."

Tabor v. Hilti, Inc., No. 11-5131 (10th Cir. Jan. 15, 2013): The two employees, Tabor and Gray, wanted to move up from inside sales positions to Account Manager. The employer used a process called the "Global Develop and Coach Process" ("GDCP"), which assigned ratings of P1 (best) to P5 (worst), to evaluate candidates for fitness to promote.

Nevertheless, the summary judgment record indicated that Hilti did not use the GDCP process consistently (between 2005-08, "282 individuals were promoted . . . but fewer than 24% had been assigned a P rating at the time of promotion)," and used subjective criteria to calculate the rating (skills assessments such as "Functional Expertise," "Understanding the Business," "Getting Things Done," "Working with Others," and "Living Our Values."). Evidence also indicated that men, but not women, could get on the promotion list even if they did not achieve a top rating.

Moreover, during an interview of Tabor for a prospective promotion (which did not materialize, ultimately), hiring manager Teel allegedly made a string of discriminatory comments:

"During the interview, Mr. Teel made a number of statements related to Ms. Tabor's gender. He told her that tools 'are like guns for men' and using them is 'almost like second nature,' Aplt. Appx. at 2816, and that it would take more work for her, as a woman, to learn the tools well enough to demonstrate them for customers or she would be 'chewed up and spit out,' Aplt. Br. at 10. Mr. Teel also suggested that as a woman, Ms. Tabor might have some 'advantages' in getting men to talk to her even if they were reluctant to talk to a salesman. Aplt. Appx. at 2816. Mr. Teel expressed concern about whether Ms. Tabor should travel as much as the job required because she was a wife and mother. He stated that he would personally not want his wife to hold a job that required travel, and he advised Ms. Tabor to ask her husband about whether she should pursue this type of work."

Tabor was not promoted into positions in Arkansas and Oklahoma City; men were hired instead. And while Gray submitted to the GDCP process, she was never assigned a P1 rating and did not apply for a promotion.

The district court dismissed all of the plaintiffs' Title VII claims, but the Tenth Circuit reverses in part. It holds that Tabor was entitled to a trial on her promotion claim on theories of disparate treatment (intentional discrimination) and disparate impact (a practice that otherwise tends to affect women negatively). The panel holds that the manager's comments provided sufficient direct evidence of sex bias for a jury to find unlawful sex bias:

"Here, Mr. Teel explicitly stated a view that women have inferior knowledge of tools and inferior ability to sell tools. These statements spoke directly to central requirements of the job for which Ms. Tabor was interviewing, and he made them during a discussion about her fitness for the position. The content of his statements, the interview context, and the temporal proximity to the adverse employment decision directly link the discriminatory statements to his decision not to promote Ms. Tabor."

The panel also held that Tabor was entitled to a trial even solely based on the circumstantial McDonnell Douglas method of proof, because there was evidence that the ratings assigned to Tabor were tainted by sex bias: "A reasonable jury could infer that the negative ratings the interviewers assigned Ms. Tabor did not represent objective individualized assessments of her qualifications but rather a reflection of the discriminatory views Mr. Teel expressed during the interview."

The panel also reverses summary judgment on the two plaintiffs' disparate-impact claims, holding that there was sufficient evidence that the GDCP rating process excluded far more women than men. In particular:

"Ms. Tabor alleges that managers and supervisors at Hilti exercise discretion under the GDCP system in a discriminatory fashion. She alleges that Hilti supervisors choose to assign (or sometimes not assign) the subjective GDCP ratings, in particular P ratings, differently for male and female employees. She also alleges that Hilti managers used their discretion to waive GDCP minimum requirements to promote male employees with low or no P ratings, while requiring female employees to obtain a P1 rating before applying for promotion."

The statistical evidence presented by the plaintiffs' expert revealed that "the rate of promotion for women (5.5 percent) was only about half the rate of promotion for men (10.8 percent)," which more than met the four-fifth/80% rule-of-thumb used by the Equal Employment Opportunity Commission to evaluate disparate-impact claims. Likewise, using another recognized test of statistical significance, the expert found the disparity statistically significant at 2.777 standard deviations.

The district court erred, holds the panel, in requiring the plaintiffs' expert to limit the applicant pool to "qualified" applicants, as the factors used by the GDCP were themselves suspect, lacking an objective basis:

"The GDCP system allowed supervisors and managers such broad discretion that there was no such thing as a true 'qualified' subgroup for promotion. Hilti management exercised discretion in choosing whether to assign a P rating, in determining what the P rating would be, in allowing or not allowing employees to apply for promotions based upon or in spite of their P ratings, and in selecting employees for promotion either because of or irrespective of P ratings. Even under its own subjective definition of what made an employee 'qualified.'"

Because Hilti did not point to "objective factors that genuinely limited the pool of employees from which Hilti selected its promotes," the panel holds that the plaintiffs' expert used the appropriate pool in running his study.

(The outcome of the appeal was not entirely in the plaintiffs' favor: the panel affirmed the grant of summary judgment in Hilti's favor on Tabor's claim of retaliation, as well as Gray's individual claim of disparate-treatment discrimination. It also refused to reverse denial of class certification on the promotion claim.)

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