Shareholder preference for NANA shareholders does not violate state or federal anti-discrimination law
Plaintiff Gregg Conitz (“Plaintiff”), an employee of Teck Cominco Alaska, Inc. (“Teck Cominco”), alleges that he was turned down for two Separate promotions because of Teck Cominco’s hiring preference for NANA Regional Corp. (“NANA”) shareholders. Plaintiff, who is not a NANA shareholder, argues that this shareholder hiring preference is a “surrogate” or “proxy” for race and therefore illegal under state and federal anti-discrimination law.[1]To assert a claim for discrimination and retaliation under federal and state law, a plaintiff-employee must first establish a prima facie case that sets forth facts which raise an inference of discrimination. Only after Plaintiff establishes a prima facie case does the burden shift to the employer to articulate some legitimate nondiscriminatory reason for the employee’s rejection.[2]To establish a prima facie case “the complainant must show that (1) the complainant belongs to a protected class; (2) the complainant applied for and was qualified for a job for which the employer was seeking applications; (3) the complainant was rejected despite the complainant’s qualifications; and (4) after the complainant’s rejection, the position remained open and the employer continued seeking applications from persons with the complainant’s qualifications.”[3] “[I]f an employer has not left the disputed position open, and has instead hired someone else, the fourth element of the prima facie case is the hiring of an individual not within the same protected class as the complainant.”[4]
Defines where disputes must be litigated (state vs. federal), which affects cost, leverage, and practical enforceability for shareholders.