Was He Promoted Because of His Religion?

HR.BLR.com/August 6, 2007

An employee in a recruiting firm's California office was laid off after 10 years. But that wasn't her problem. She sued because a promotion she wanted 3 years earlier went to someone else. She was better qualified--and she believed her co-worker was chosen because he was of the same religious faith as the decision maker.

What happened. Lynn Noyes was a Kelly Services' manager whose title for most of her career was software developer. Her boss and a number of her co-workers belonged to a religious sect called the Fellowship of Friends. It has only 2,000 members, so it's surprising that so many of them worked for Kelly Services. Noyes had seen evidence that her boss preferred members of the sect over other employees.

In 2001, the job of software development manager was posted, and Noyes applied for it. Her boss later testified that three people were considered for the job--Noyes, Donna Walker, and Joep Jilesen, a Fellowship member. Two of Noyes's co-workers testified that her boss told them Noyes wasn't interested in the job. He offered the position to Walker, who turned it down. So it went to Jilesen. Noyes sued, charging reverse religious discrimination. But a federal district court judge said she had to prove not only that Kelly Services' stated reason for promoting Jilesen was a pretext for bias but also that the boss had actually discriminated against her.

Additionally, the judge believed religion played no part, because the promotion was initially offered to Walker, who is not a Fellowship member. When he dismissed her claims, Noyes appealed to the 9th Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

What the court said. That Noyes's boss had lied about her interest in the position to other employees weighed heavily with appellate judges. And they noted that the district judge asked her to prove that her boss had discriminated against her--a question a jury should have considered. They also looked at statistical evidence about promotions at Kelly Services: Between 1997 and 2001, Fellowship members had won three out of the four available promotions to management.

Finally, Noyes was objectively more qualified than Jilesen for the 2001 job--she had 6 years more experience at Kelly than he and an MBA, which he did not. So judges ruled that her case must be presented to a jury in district court. Noyes v. Kelly Services, U.S. Court of Appeals for the 9th Circuit, No. 04-17050 (5/29/07).

Point to remember: Title VII can cover employment discrimination even if the plaintiff is not a member of the protected class--in this case a religious sect--that's at issue.