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- The Inbox: March 7, 2014
- A Look at the Concurring and Dissenting Opinions in the Supreme Court's Sarbanes-Oxley Whistleblower Decision
- Supreme Court Allows Employees of Private Contractors to Bring Sarbanes-Oxley Whistleblower Retaliation Claims
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- E-mailing Work Documents to Your Personal Account Looks Fishy, Says NY Appeals Court in New Non-Compete Opinion
- Whistleblower or wrongfully terminated employee? California Supreme Court says: whistleblower
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- Vanterpool v. Cuccinelli: Threading the Needle to Preserve a Free Speech Claim Against a Government Employer without Admitting to Lying Earlier About Who Spoke
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Is A Bad Job Interview Evidence Of Discrimination? (Part 1)
A necessary part of life that no one particularly enjoys is the job interview: it’s tricky for the interviewee and taxing for the interviewer. Unless the interviewer gets a thrill out of asking why manhole covers are round or testing the applicant’s knowledge of medieval saints.
We’ve written about questions that shouldn’t be asked on interviews, because they can suggest a discriminatory basis for the employer’s failure to hire the job applicant. But can an interview that doesn’t include potentially discriminatory questions – just the failure to hire the applicant after the interview itself – provide the basis for the rejected applicant to allege discrimination?
Hiring executives may be interested to know the answer to this question, which was the central issue in an opinion in Hill v. Virginia Department of Transportation, released by a federal court in Virginia at the end of January.
That opinion includes several significant facts for our story. It informs us that the plaintiff, Pamela Hill, is a licensed engineer with a bachelor’s degree in mining engineering, and tells us that she worked for Virginia’s Department of Transportation – VDOT – from 1993 to 2010. The opinion also relates that while at VDOT, “Ms. Hill was promoted at least twice, and received regular salary increases.”
In 2010, Hill was one of seven applicants who interviewed for a promotion. The position required a bachelor’s degree in engineering or equivalent field experience. Needless to say – otherwise, we wouldn’t be writing this – Hill didn’t get the job. Another candidate, Blevins, was the winner – even though he didn’t have a college degree, and he had less than half the field and management experience that Hill had.
So, why was Blevins chosen over Hill? VDOT’s only reason for its decision was that Blevins aced the interview, and Hill did not. Indeed, Blevins was the unanimous choice of the interview panel.
Hill left VDOT, and then sued the agency in federal court for the Western District of Virginia. She alleged that VDOT’s failure to promote her was based on her gender, in violation of Title VII of the Civil Rights Act.
Regular readers know that allegations of discrimination in hiring fall under the back-and-forth test of McDonnell Douglas Corp. v. Green, which we’ve written about here, here and here. To make a long story short, McDonnell Douglas requires that a person alleging job discrimination has to win a tennis-court volley to move forward with the case. First, the plaintiff has to make out a “prima facie case,” by serving up information showing that he or she: 1) is in a protected class; 2) suffered an “adverse employment action” – like being fired; 3) was doing a good job at the time, and 4) can show “circumstances giving rise to an interference of unlawful discrimination.”
With that over the net, the company has to respond with a valid reason for its employment action. The ball (technically here, the burden of production) is then back in the plaintiff’s court, who has to respond by showing that the company’s reasons are not real, but are only a “pretext for discrimination.” If the plaintiff wins this tennis match, the case moves toward trial. If not, the company wins, and the case is over.
Whether or not Pamela Hill won this tennis volley was the first issue before the court hearing her case.
Do you think she was able to make out a case? The answer may surprise you if you’re a hiring executive or manager – or serve on interview panels – but either way, you should know what the answer is.
I’ll tell you whether Pamela Hill won in Part 2 of this series.