Experts warn of legal liability, recommend next steps
MARFA — After three Marfa City Council members were caught on tape discussing the need to hire a male for the available city administrator position, prompting citizen outrage, employment lawyers contacted by The Big Bend Sentinel are weighing in on the legality of the exchange and what it may mean for the hiring process moving forward.
Council members Eddie Pallarez, Mark Morrison and Raul Lara spoke openly in a public meeting on July 3 about their intent to focus on male candidates in the ongoing city administrator search. Morrison and Lara have since apologized for participating in the exchange, with Morrison, who is on the hiring committee, stating it was an inappropriate joke and he does not actually intend to discriminate against any candidates based on sex.
Whether or not it was truly said in jest, legal experts said the conversation is evidence of illegal conduct and could open the city up to legal liability.
Kyla Cole, president of the Texas Employment Lawyers Association, a group of independent employment lawyers who primarily represent employees in legal cases, said deciding whether or not to hire someone based on their sex is “completely illegal,” and the council members’ statements are evidence of discriminatory bias.
“You should never make an employment decision based upon one of the protected characteristics — race, sex, age, disability or national origin,” Cole said. “It violates multiple federal laws as well as Texas Chapter 21 under the labor code.”
Matt Bachop, a partner at Deats Durst & Owen P.L.L.C, an Austin-based law firm specializing in employment and civil rights law, agreed that while the conversation itself is not necessarily illegal, it is evidence of illegal conduct. Both lawyers said it is rare to have such an exchange captured on a public audio recording, due to the fact that these types of conversations typically occur in private.
“It’s not illegal to make bigoted, ignorant comments. I do think the discussion is strong evidence of illegal conduct, which would be making employment decisions because of sex. It’s the kind of direct and smoking gun type evidence that we almost never have in employment cases,” Bachop said. “Almost all [of the time] we’re making these cases based on circumstantial evidence, but here you’ve got decision makers stating pretty clearly the intent to make these decisions based on sex.”
The city’s top administrative role has been vacant since last October barring the one-and-a-half month stint the city’s initial hire, Andrea Walter, served before being fired this April. One council member alleged she was terminated after discovering hundreds of inoperable water meters across the city, while others stated her personality wasn’t a good fit with existing staff and council. The July 3 discussion indicated that some council members believe a male city manager will be better at managing “all these women” at City Hall.
Cole argued that if there’s something wrong with the city’s culture, it should not be a hiring factor, and even if it was, gender should not be the characteristic that hiring decisions are based on. “There’s men and women that could figure out how to make a better and more inclusive culture at their City Hall,” Cole said. “Maybe concentrating on finding a candidate who’s a uniter.”
“It’s certainly something that every city and county in rural Texas has to deal with is: how do you find somebody who’s qualified and can bring innovative ideas but also understands the culture and can build a bridge?” she added.
Cole and Bachop said qualified city administrator applicants that are not male-identifying could have a legal case — referred to as a failure to hire claim — against the city based on the July 3 discussion if they are not interviewed or hired. A woman could present a “prima facie” case using the recording as evidence to support the claim that she was not hired based on her gender, at which point the burden would shift to the city to prove there was a legitimate business reason for their decision to hire a male candidate.
“Any woman who applies and is not hired would be able to make out their prima facie case, and then it’s going to come down to the candidates,” Cole said. “On paper, whoever they hire, if that person is truly, obviously more qualified than the female applicant, then I think the city wins. If it’s very close or the female looks to be more qualified, then I think it could certainly open the city up to legal liability.”
Even if the discussion had taken place in closed, rather than in open, session council members should not have made the discriminatory remarks that they did, Cole said, but now that it’s out there the situation should be addressed in order to regain public trust.
“The thing about it happening in the public forum is everyone knows and this is now something that has to be dealt with, whereas often these types of employment discriminatory decisions and biases happen behind closed doors,” Cole said. “It makes it very, very hard for an applicant or an employee to prove that discrimination was the motivating factor, whereas now, it’s going to put it on the city to prove that they would have made the same decision anyway, regardless of their stated bias.”
Cole suggested removing the three council members involved in conversation from the hiring process entirely in order to protect the city from any potential claims; Bachop agreed that would be the bare minimum and hiring a third party search firm may even be a better route.
“I think it’s going to be difficult for them to come up with a process to make this decision in a way that’s not tainted by this discussion, even if all three recuse themselves from taking any part in it,” Bachop said.
Several citizens spoke out against the three council members’ actions and called for them to resign in a July 8 council meeting, stating that their positions of power to represent the interest of Marfa’s citizens had been compromised.
But council members involved in the conversation have yet to resign or recuse themselves from the city administrator hiring process, according to Interim City Administrator Kelly Perez and Council Member Travis Acreman, who initially called for the resignations of his fellow council members in the wake of the July 3 meeting.
“My understanding is that no one on the council currently perceives that there is a need to change — either the composition of the hiring committee or the council or recusal from this specific decision that we’re going to have to make,” Acreman said. “So, unfortunately, at this point I don’t see that anything is likely to change. We just have to run the rest of this process as best we can, and we’ll have to look to the people of our community to hold the council to account as we make these decisions.”
Perez confirmed this week that the city intends to carry on with the hiring process as planned and is not currently considering reposting the job and starting anew or hiring an outside firm. All 14 applicants — four of which are women — are still being considered for the job, she said.
The planned process involves the hiring committee, established on July 3, of Baeza, Morrison and Acreman reviewing all 14 applicants and calling references before bringing five to six top candidates back to the full council at a later meeting. At that point, the full council has the choice to accept the recommendations of the hiring committee or move in another direction, Perez said.
Acreman said he appreciated that Morrison and Lara apologized to the community for their part in the conversation, stating that their acknowledgement puts everyone on “a path to healing,” but Pallarez’s refusal to admit to any wrongdoing is still a concern.
“Council Member Pallarez knows what he said was wrong, otherwise he wouldn’t have framed it as a secret ‘between us men.’” His unwillingness to apologize for the damage he caused is troubling and amplifies doubts about the council’s judgement,” Acreman said. “I hope that he will set aside his bias, if he can, and step down if he can’t.”