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Employers that favor subjective impressions over objective criteria in the hiring process risk discrimination suits

September 1st, 2011  |  Lorene Park

It has long been recognized that subjective criteria, such as how confident or personable an applicant is in an interview, can generally be a legitimate reason for making a hiring decision. However, relying solely on subjective perceptions of personality can increase the risk of an expensive discrimination suit if a “friendlier” person is hired or promoted over a minority (or other protected) applicant who is significantly  more qualified but did not make as good of an impression. That is not to say that a jury will necessarily find that an employer who makes a decision based on personality has discriminated. However, courts are less likely to grant summary judgment in instances where the unsuccessful minority applicant was clearly more qualified.

For example, in Pierce v Bd of Regents of the Univ Sys of Georgia (August 25, 2011, Land, C), a federal district court refused to grant an employer summary judgment on a sex discrimination claim where the employer did not promote a female employee whom the panel of interviewers found “negative” in her interview.  Instead, it hired a male applicant whom the interviewers considered enthusiastic. The position required the ability to design, build, and move museum exhibits, as well as to supervise others doing the same. The fact that the female employee had significantly more technical experience than the successful male applicant in several key areas could raise an inference of sex discrimination, determined the court. Significantly, from the court’s point of view, the male applicant failed to meet some of the minimum qualifications even though the panel (comprised of three women and two men) had unanimously concluded otherwise. According to the court, a jury could find that the employer’s decision was pretext for discrimination because “the disparities between the successful applicant’s and [the female employee’s] qualifications were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the [employee].”

By contrast, in Amini v City of Minneapolis (July 5, 2011, Wollman, R), the Eighth Circuit upheld summary judgment against an applicant for a police officer position who alleged that he was not hired because of his race. Although the applicant was qualified, the city asserted that he was not hired due to concerns about his temperament. Specifically, an interviewer reported that when the applicant was asked about a police report listing him as a suspect in a twelve-year-old case, as well as some reprimands by a previous employer, he became “defensive, agitated and argumentative.”  An even temperament was an important requirement for the job, particularly when considering responses in an arrest situation. Since there was no evidence that the city failed to consider temperament with respect to other applicants, the trial court’s decision in favor of the city was affirmed.

The moral of this story is simple. An employer may generally rely on subjective criteria such as impressions of an applicant’s personality or how well he or she does in an interview, particularly if the nature of the job requires a certain type of personality. However, the employer is well-advised not to rely too heavily on subjective impressions of personality at the expense of considering the objective qualifications for the job.