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© 2014 Zuckerman Spaeder LLP

Is A Bad Job Interview Evidence Of Discrimination? (Part 2)‎

Interview In ProgressIn Part 1 of this series, we relayed the case of Pamela Hill, an engineer with the Virginia Department of Transportation.  Hill was passed over for promotion.  Another applicant, a man, who has less experience than Hill and doesn’t have a college degree like she has, got the job.  VDOT’s only reason for the decision is that the man did better in the interview. 

Hill sued VDOT, alleging sexual discrimination in violation of Title VII of the Civil Rights Act.  VDOT moved for summary judgment – an early resolution in its favor – and at the end of this post, I’ll tell you if Hill won or not. 

But first: broadly speaking, can losing a job based on a job interview be enough evidence of prohibited discrimination for an employment discrimination case to get through the McDonnell Douglas tennis-court volley we looked at in the first post? 

The imprecise answer is: maybe, if the interview process was very subjective, and was part of a subjective hiring or promotion process. 

The case of Turner v. Public Service Co. is a good example.  There, the Tenth Circuit held that an unsuccessful job applicant’s claim alleging sexual discrimination didn’t meet the McDonnell Douglas test, and so the company was rightly awarded summary judgment.  The company had interviewed 26 candidates for six spots, using rather rigorous and documented criteria.  Those included an identical set of interview questions for every applicant (derived from an employment manual) designed to find out if the interviewee had specific “core competencies” needed for the precise job and score sheets ranking the candidates on all of the questions, among other things.  The company simply hired the top-ranked candidates.  On that record, the Tenth Circuit was able to hold that while no job interview can ever be completely subjective, the company’s process had been objective enough to mean that declining to hire the plaintiff wasn’t a pretext for discrimination – the company really did have a basis to objectively say she wouldn’t make the cut. 

On the other hand, in Duckworth v. Mid-State Machine, a federal court in Maine held that a 60-year-old man’s allegations of age discrimination in hiring survived the McDonnell Douglas volley, holding that the employer’s much less regulated interview practices were too subjective to allow it to win the case on a motion for summary judgment.

So, what happened to Pamela Hill?  VDOT moved for summary judgment, again arguing that its one and only reason for not promoting her – that she had not done well in the interview – would be enough to enable it to beat back her claim of sexual discrimination.  Not so fast, a judge in the federal court for the Western District of Virginia held: VDOT’s reliance on the interview, without anything more – no numerical scoring of candidates, no identifying core competencies of the candidates and seeing if each applicant met them – meant it was using a “single, entirely subjective criterion.” 

That meant Hill had raised a material issue of fact (enough to defeat VDOT’s motion) about whether VDOT’s statement that she flubbed the interview was a pretext for gender discrimination.  In other words, her case went forward to trial – she lived to fight another day. 

But not for too many days.  Shortly after the court released its opinion, Pamela Hill’s case went before a jury.  In its verdict, the jury found that while VDOT had discriminated against her, the agency would have made the same decision not to promote her even if it hadn’t acted in a discriminatory manner.  So, while she can claim a partial victory on principle – she proved VDOT made a decision based on gender – Pamela Hill didn’t win any sort of damages or other relief. 

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