Cisco’s OFCCP Data Collection Not Proof of Hiring Bias

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By Patrick Dorrian

Oct. 24 — A black man who applied for hundreds of jobs at Cisco Systems but wasn’t hired failed to link the company’s collection of federal-contractor-applicant data to race discrimination, a federal court ruled ( Dougboh v. Cisco Sys., Inc. , 2016 BL 349793, D.N.J., No. 2:13-cv-04267, 10/20/16 ).

The case illustrates how a federal contractor can comply with both federal job bias laws and its obligation to ask applicants and employees to self-identify by race, sex and other protected classifications.

The Labor Department’s Office of Federal Contract Compliance Programs, which oversees companies that do business with the federal government, requires employers to try to collect the information as part of their “ organizational profile” under OFCCP affirmative action regulations.

Federal contractors need to keep workers’ self-identification data “separate and confidential” from the packets of information used by hiring managers, management attorney Susan Schaecher, a partner in Fisher & Phillips LLP’s Denver office, told Bloomberg BNA Oct. 24. “That’s a ‘best practice’ for all employers,” she added.

Could Have Been a Different Story

Pascal Dougboh didn’t come forward with evidence showing the Cisco hiring managers who decided not to interview him for positions he applied for in 2012 were aware of his race, the U.S. District Court for the District of New Jersey said in an Oct. 20 decision.

Dougboh had voluntarily disclosed the information when he established his “online profile” with Cisco in 2007 so he could search and apply for jobs over the company’s website. Between 2007 and November 2012, he “applied for hundreds” of jobs with the communications and technology company, the court said.

But Cisco argued that it kept the information regarding Dougboh’s race and gender away from hiring managers, and Dougboh didn’t show otherwise, Judge William J. Martini ruled. As a result, Dougboh “fails to raise an inference of discriminatory intent,” the judge wrote in dismissing Dougboh’s Title VII of the 1964 Civil Rights Act claim.

The court’s analysis in finding there was no basis to infer race bias was pretty straightforward, Schaecher said. However, if the plaintiff had been able to connect the employer’s collection of his race and gender status to his failure to be hired, it may have been a different story, she said.

“It would have at least prevented the court from granting Cisco’s motion for summary judgment” on that basis, and it might have been enough for the case to be sent for trial, Schaecher said.

She said she’s seen situations in which self-identification data are collected as part of a worker’s application and then included in the packet of information handed over to hiring managers. Here, “the employer did the right thing” by keeping the information separate, Schaecher said.

Number of Applications Undermined Claim

Dougboh also failed to refute the company’s explanation that he wasn’t hired—or even granted an interview—in 2012 because his skills and experience were lacking when compared with other applicants, the court added.

Managers who interviewed Dougboh for other jobs in 2010 and 2011 similarly found his “technical skillset” underwhelming, and Dougboh had gaps in his employment, Martini said. In addition, “Defendant was understandably alarmed that Plaintiff had applied for literally hundreds of positions at the company,” the judge wrote.

This last point shows that workers can undermine their ability to show an employer’s qualifications-based justification for not hiring them was a pretext by applying for so many jobs that they couldn’t realistically be qualified for all of them, Schaecher told Bloomberg BNA.

Dougboh of Edison, N.J., represented himself. Littler Mendelson P.C. represented Cisco.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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