Regarding how CCSLLC denied both Leath and Ackermann new positions in its restructured call center, the aspect of discrimination is at least partially relevant. Both women had been employed by the company previously, just as both completed the mandatory training program required for placement in the new center. If in fact Leath and Ackermann perceive that gender and/or age discrimination is behind the company’s choosing to not rehire them, they have a legal recourse, and one based on disparate impact. This provision of the law varies from disparate treatment in the workplace, which rests on more overt and negative policies and behaviors in practice during employment. Disparate impact does not require that the women prove discriminatory motivation on the part of CCSLLC; rather, it goes to the employer’s obligation to prove that any disadvantage to women or older persons in terms of employment is dictated by business needs (Gregory, 2003, p. 58). This being the legal reality, and if the women are intent on litigating, it is then advisable that they determine how other women and former employees who are older have as well been denied new positions.
It must be understood that disparate impact is generally defined as based upon one group of employees not performing at least 80 percent as well as another group (Kolb, 2007, p. 710). This in itself, however, offers support for a discrimination suit, in terms of how the company defines groups themselves, or assesses employees and candidates by age and gender. It is then all the more important that Leath and Ackermann learn how the company has rehired for the call center, and if a more broad evidence of gender and age bias appears to have been a factor. Also, a lawsuit would be reinforced by determining if the two women had experienced discrimination in their earlier positions, and how their performances were evaluated by the company then. It is also advisable, if not necessary, that the two women, if choosing to turn to legal recourse, gain a more defined sense of precisely what generated the bias. More exactly, they must assess whether gender or age was most impactful in the alleged discrimination, or if in fact both circumstances were relevant.
The law also offers opportunities for the women to legally pursue CCSLLC in terms of the increased sensitivity to potential discrimination currently in place in the courts. Interestingly, the Anti-Discrimination Law of 2007, replacing the earlier law of 2003, contains an important element going to supporting a discrimination suit charged by Leath and Ackermann, in that such discrimination may be indirect as well as direct (Del Ray, Mignin, 2008, p. 88). On face value, certainly, it appears that the company likely practiced some degree of bias, unless the earlier performances of the women were consistently unsatisfactory. Such a possibility, however, is questionable, and if only by virtue that Leath and Ackermann were permitted to take the new training. This then reinforces the potential of indirect discrimination, as the company is obligated to explain why the women were denied positions when they had prior employment with CCSLLC, had clearly performed their jobs with degrees of competence sufficient to retain them in those jobs, and had, again, invested in the new training with the obvious intent of being rehired. As noted, other realities of how the company actually rehired would be extremely helpful here. If older people and women were rehired on an adequate scale, the case of Leath and Ackermann is weakened. At the same time, and perhaps most relevant to the situation, CCSLLC is still responsible for explaining exactly why these women were not rehired.
- DelRay, S., & Mignin, R. J. (2008). Hiring the Best Qualified and Most Talented Employees: Handbook on Global Recruiting, Screening, Testing, and Interviewing Criteria. New York: Kluwer Law International.
- Gregory, R. F. (2003). Women and Workplace Discrimination: Overcoming Barriers to Gender Equality. Piscataway: Rutgers University Press
- Kolb, R. W. (2007). Encyclopedia of Business Ethics and Society. Thousand oaks: Sage Publications.