Is this considered retaliation or discrimination?

Anonymous

October 2,2022 at 3:14PM UTC

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Is this considered retaliation or discrimination?

I'm working for this company thru as a contract employee. I'm black and over 40 years of age, I applied for a permanent position with the company after being there for 6 months. I was interviewed, I wasn't selected they stated the other candidate had more experience because he worked for the company before. Also stated I didn't have any drive, not sure what they mean by that because I come to work everyday giving doing my best and going beyond. They offer the position to other candidate who was white and younger, the candidate accepted but ended up not reporting to work due to personal reasons. I'm not sure why they didn't offer me the job afterwards as I was still working as a contract employee.

I couple of months later I applied again and they haven't reached out to me. But I'm training someone that has applied for position and they have hired, they are black. But they don't know how to perform the job and I have the skills and knowledge.

Do I have a potential claim to file with EEOC for age discrimination in 1st example and retaliation or discrimination in hiring sin the 2nd example as they are not the most qualified candidate?

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AnonymousOctober 2,2022 at 3:45PM UTC
I would speak with the EEOC and a labor attorney.
It sounds like the company does not see you as a fit. There is no law anywhere that forces a company to hire a specific person.
AnonymousOctober 2,2022 at 4:52PM UTC
Definitely, I would talk to someone who works in Employment law for free consultation.
Also, sometimes for spaces where we are working, we should ask ourselves, if someone does not want to uplift and give us their very best to make sure we thrive, then why would we draw closer to them? Why would you want to work for them?
Maybe you can do better and someone is smart enough to know that.
My point is, can you ask your agency you are contracted through to get you a job elsewhere paying the same or more? I would start looking for better options if you can do this promoted job, then look for similar role with their competitors and apply.
AnonymousOctober 2,2022 at 5:14PM UTC
But is it retaliation or discrimination?
While you asked for feedback and found the other person had more experience from working there previously, did you ask what else you can learn or do?
To me, the biggest issue is that you are a contract employee, which can have its own stigma.
Sit down with the hiring managers and find out what would make you more attractive for a permanent position.
AnonymousOctober 2,2022 at 5:42PM UTC
You can file with EEOC, and you may win. But realize that the investigation can take months, and you will probably lose your job...for "other reasons" not related to the EEOC. (Of course).
Just be prepared for the fallout.
AnonymousOctober 2,2022 at 5:44PM UTC
The question is could you prove and convince a judge of retaliation or discrimination if you pressed forward with filing an EEO complaint?
Based on what you described, I don't think so. Here is what I suggest:
You should explore the reality of EEO complaints, 97% of them fail and that is even with the most explicit (recorded or documented evidence).
From what you wrote, you do not have evidence and if this goes to an appointed judge, that will be the only thing that stands a chance of moving the needle. And even if you did, most companies have funds to delay discovery until you are down to your last penny, even if you have bonafide evidence. Getting an attorney to represent you for an EEO case for duration of the case can cost you alot of money, sometimes several hundred thousand dollars. With that said, anyone can file a claim, but doing so won't result in you getting the job if that is what you want. And if you moved past that, if your goal is seeking justice and a monetary settlement, if you become one of the 3% that comes close to a settlement, most cases that win only results in the victim winning enough money to cover their attorney fees or even if they do, they end up in debt. So think long and hard before you take that step. I am a black female, and when you get to a certain point in your life, you see it for what it is, but it does not always result in justice. If you feel wronged by the company, don't apply for them, they are not worthy of your time. Agressively apply elsewhere. When they said that you don't have no drive, on the spot I would have questioned them, can you unpack that for me please? Can you give me tangible examples? But being passed up for orthers is a sign that I am not valued, so why go or stay where I am not. I know and feel your anger and frustration and hope you channel your energy into putting your application packages out there in places that are worthy of your bonafide talent. I know it is not the answer you want to hear, but it is the truth and would rather save you time than give you advice that would put you in debt.
AnonymousOctober 2,2022 at 7:51PM UTC
One of the most thoughtful responses I’ve ever seen on this board.
AnonymousOctober 2,2022 at 9:02PM UTC
thanks Anon!
SandraOctober 3,2022 at 2:21PM UTC
Love this!
Felicia EnuhaOctober 2,2022 at 6:53PM UTC
First you need to find a new company. You clearly are not valued and you haven’t played into their company culture, built the right relationships and you have no advocates. Do they have a policy of having a diverse slate of candidates to interview for roles. You may have been used to meet their diversity criteria for the interview slate and they never were ever going to give you the role. I would never train someone for a job that I applied for. Get out. Best EEOC attorney is Attorney Anitra K. Brown. If you feel discriminated against, you probably were, even if the intention was not to discriminate the impact can very well be discrimination.
NepetaOctober 3,2022 at 5:55PM UTC
Having worked in the legal field (for litigators) for many years, I would not suggest attorney consultation as the first course. Seeking redress through legal means is a long, tedious, gruelling, expensive -- and often unsatisfying -- undertaking. It's especially unwise if the aggrieved party does not have a lot of convincing data to back up her suspicions.
AnonymousOctober 2,2022 at 11:36PM UTC
You do not sound like you are a claim.
You cannot force a company to offer you a permanent job. They don't see the fit and have explained why. It doesn't matter if you agree with their opinion or not.
AnonymousOctober 3,2022 at 1:58PM UTC
Neither.
AnonymousOctober 3,2022 at 2:08PM UTC
I am sorry you are having this experience. I can’t offer response to your direct questions, but I think they are exploiting you, with a permanent job as a carrot dangling. They don’t plan to give it to you..”no drive” is a really crap thing to say to an existing employee. Personally I would begin to search for opportunities at a company that values my skills and competencies enough to give me a permanent position. You’re clearly competent.
SandraOctober 3,2022 at 2:24PM UTC
From one sister to another....please don't waste your time with this company. Start looking for employment elsewhere, where you feel valued and appreciated for the work that you do.
AnonymousOctober 3,2022 at 2:25PM UTC
On the surface of the information provided, it does sound like you might have a potential claim, but you may also not have all of the details. When you applied the first time and the person did not report, did you go to the hiring manager to inquire if you would then be considered for the position? When they said you did not have enough drive, did you ask them to define what they meant by that and were you given measurable goals to meet to prove your drive? Now that you have applied the second time and you are training the person who will take the position, did you ask the hiring manager at that time why you were not considered? I would also ask why, if you are not being considered for the position, you are good enough to train the person who is good enough. It is possible that the person has more experience in the position, but not in the company so they are asking you to train for the company specifically. That would be a bad business practice, but would not necessarily be discriminatory. It's taking advantage of an employee because they are willing to do it and they are "needed in their position," which is not fair. It is also entirely possible that it is discriminatory, but you will have a stronger claim if you find out the answers to these questions first to eliminate the other possibilities.
JoAnna BlackOctober 3,2022 at 2:47PM UTC
Buying a contract employee out of their contract can be very expensive. This might be the key factor and even if it's not, they can argue that it is.
NepetaOctober 3,2022 at 5:44PM UTC
True, but they could tell her as much. Since they didn't, I'm guessing that buy-out cost was not the issue.
AnonymousOctober 5,2022 at 12:16AM UTC
My thoughts as well. If this were the reason, the employee should
know it as well since it impacts their employment.
tamara hurwitzOctober 3,2022 at 2:53PM UTC
I would agree that you probably do not have a claim but also, you should find another company to work for. Perhaps if there is some good to get out of this. I would try to talk to the hiring manager and ask for specific feedback. What would need to look different for me to be considered for the role? When you say "drive" are there examples that they can give that others have exhibited?
Perhaps there is a way to help them better understand what you do that is proactive, but sounds like you would be better off going somewhere where they are invested in your success. Those places do exist.
AnonymousOctober 3,2022 at 3:23PM UTC
Regarding the first situation. I would have asked for clarification on the lack of drive part. Also, just because the first candidate no-showed does not mean you would automatically receive an offer.
Second situation, follow-up with HR as to what the status of your application is (even if you know it's filled) and ask for any additional feedback as to why you weren't considered.
Lastly, you statue that you are a contract employee. Not knowing what sort of industry your employer is in, but I will tell you, once upon a time, I was working for an employee that provided contract services to another employee (a hospital). I applied for a position with the hospital I knew full well I was very qualified for (and worked side by side with their employees doing that work on occasion). I wasn't even considered for the position as I was not aware of an agreement between my employer and the hospital where the hospital could not 'poach' the employees of the contractor.
AnonymousOctober 3,2022 at 4:38PM UTC
I am white and in the same situation. I did checks on the people who were hired and they all came within the company. I know that nepotism is very strong at the company. I've applied a out 8 times to different positions. I got one interview and honestly I am pretty sure it is because I lied about my race. You can claim discrimination but I guarantee they will find a problem with your work ethic. Maybe ask HR to explain why you didn't get the position. Contract is at will and they get away with not giving us benefits and usually less pay, it is cheaper for them. I wonder if we work for the same company? All the people saying to get another job it isn't that easy, I've applied over a hundred companies and have only 3 interviews. It's tough out there.
AnonymousOctober 3,2022 at 4:44PM UTC
From Deptartment of Labor:
“Retaliation occurs when an employer (through a manager, supervisor, administrator or directly) fires an employee or takes any other type of adverse action against an employee for engaging in protected activity.”
From your description, I didn’t see where you engaged in a protected activity, which can include things like inquiring about salary or worker rights, asserting worker rights or complaining when rights are violated.
As for racism or ageism, it’s possible they acted with illegal intent, but for any chance to win a claim you need hard proof, either written (or recorded, where allowed by law) communication clearly showing racism or ageism or you need to show a trend over time of several people being discriminated. It seems like you don’t have either of these.
Consider that additionally, as a contractor employed by another company, the company in question has extra protection against any claims you might submit. You don’t even technically work for them! This is one driver for why so many companies hire out through contracts, to protect against firing and hiring complaints and litigation.
One last note, remember that only certain explicit kinds of discrimination are illegal (skin color, age, religion, sex, etc), basically anything else is legal even if the person harbors discriminatory feelings under the surface. A company can legally choose to not hire or to fire someone for anything else like, “Bad attitude” or “Not a team player”. “Lack of drive” is an example of a legal reason to not hire someone and it makes it tough to argue is illegally discriminatory. It is value judgement about the quality and or quantity of work and no where mentions any of the protected reasons.
In summation, filing a complaint to EEOC is almost certainly a waste of your time. That time can be much better spent researching which companies might actually be a good fit and applying there.
AnonymousOctober 3,2022 at 4:57PM UTC
There is no hard proof here. Even if we assume illegal intent, which again, can not be proven, another possibility is that EEOC finds in favor of the company. Then the company feels confident in their ways and doubles down in the future. Filing a complaint without hard evidence and a lawyer is a lot of work and is unlikely to lead to positive change.
AnonymousOctober 3,2022 at 5:38PM UTC
Honestly, I don't know the law, and unless anyone else on the thread is a lawyer, they don't either. If it were me I would call the EEOC and see what they say. I don't see a downside for you in at least discussing it with the EEOC. Best of luck to you.
AnonymousOctober 3,2022 at 9:12PM UTC
Filing a claim is not the first place I'd go. I'd see if you can have a conversation with the hiring manager and tell them you are looking to improve your interview skills, could they possibly share what you could have done better in order to demonstrate your skills? Probably they won't, but at least you will have shown that you are REALLY interested in the position. In the meantime, start looking elsewhere, apparently this company doesn't really value your contributions.
Dr. Patty GrossOctober 3,2022 at 10:14PM UTC
Have you asked if the company has a policy not to hire contract employees? If you work for a consulting firm, they may have an agreement with the firm you are contracting work for that disallows them to hire contractors.
Annetta MosesOctober 4,2022 at 3:54AM UTC
In your post, you mentioned 2 areas in which the company indicated you were not the candidate they want. They said you didn't have enough experience because they made an offer to a candidate with more experience. Did the person who receive the offer have more total work experience than you in a specific area that is of interest to the company? If so, you need to demonstrate that you have the skills in this area. If you don't, you may not get the job until you do. The company also said you don't have drive. I suggest that your definition of drive e.g. coming to work every day is not the drive the company is looking for. While you may be doing extra work, is it the right work to be considered for having drive?
Good luck.
Laverne HeiserOctober 4,2022 at 1:10PM UTC
Agree with statement that the company might have an agreement not to hire from an agency because they they have to pay a large fee for them to hire. I have experienced both after months for temping and not getting hired.
AnonymousOctober 4,2022 at 1:12PM UTC
The way you're assuming it's either retaliation or discrimination makes me think you may not be a great employee. The people I see jumping to these conclusions are typically middle of the road at best.
I had an employee like this who would talk about how they went above and beyond and always did their best work. But they were making countless errors, people who had to work with them would complain because things would get mixed up, all sorts of things. When this would get brought up, she would blame others. But no one else in the same role had these issues.
They lacked the initiative their colleagues had to take time to proofread their communication or think about how to make things easier for the people she was working with.
My advice:
1. Take honest assessment of where you are. If they said you lack drive, ask why and what you'd need to do to show you have drive. Say you want a permanent position and ask what they need to see in the next few months to hire you for the next opening.
2. Make sure you're actually going above and beyond. Deliver on the things they're asking for and then a bit more. Make sure the work isn't just done but it's done well.
3. Look for other jobs. It's not a great sign that they've passed you up twice and might not be a match. They are under no obligation to hire you full time. Instead of putting your energy into a lawsuit, focus on finding a permanent role with a similar company so you can build on the experience you've gained.
AnonymousOctober 4,2022 at 7:56PM UTC
I am saying this as nicely as I can. They are telling you why they are not hiring you so why are you confused? Why did you feel the need to bring your skin color into it? Sometimes things do not work out how we want them to and it’s not because of age, skin color or anything else that falls under discrimination.
I think it would be beneficial to take a class to help you understand what true discrimination is. I would hate for you to accuse someone of discrimination and put them through the wringer all because you misunderstood what discrimination is.
It may also help if you did a little digging from within and try to accept what you are being told and work to improve it. You are being given a gift, graciously take it instead of taking everyone down with it.
AnonymousOctober 4,2022 at 8:06PM UTC
It is your responsibility to ask the right questions so you know what you need to do to get hired.
if you were not good enough to hire then I would think you should not be training your replacement. If possible step away.
Bringing color into it makes you unappealing so I cannot help but wonder how many other times you have done the same or similar. Possibly they view you as drama.
take this as a learning opportunity and grace another company with your skills. You will love how it feels to be where you are appreciated.
AnonymousOctober 4,2022 at 10:37PM UTC
Bringing color into it is what I believe the reason to be, of course you don't have the full details to say it's not. Also, I haven't brought this to management or HR.
AnonymousOctober 5,2022 at 2:59AM UTC
First I want to commend you for your ability to stand strong and keep on trying.
A lot of people in your situation would wilt and just give up, so for your attitude and perseverance alone you deserve to get some place good.
There are many people in positions to decide who gets the job and who does not who show TERRIBLE judgement and don't know how to size up people at all.
I don't have any good advice on EEOC claims as this is not an area I am knowledgeable about, but I am going to wish for you that find a position that is intellectually engaging and progressive career wise for you because you really, really sound like you've earned it. Also hope it pays a lot more than you are making now.