Hiring Hiccups in Discrimination Cases: When Gut Feelings Aren’t Just Gas

In a recent decision from the United States Court of Appeals for the Seventh Circuit involving a claim of sex discrimination in hiring, the court offered some lessons for employers that may “use their gut” to decide between two qualified candidates.

The plaintiff, a Black woman, had a long career with the Department of Defense, rising to a GS-12 supervisor position. She applied for a newly created GS-13 supervisor role but was not selected. Instead, the position went to another candidate with extensive experience and perceived strategic thinking and leadership skills.

1. Subjective Evaluations Can Be Legitimate

One of the central issues in the case was whether the employer’s reliance on subjective assessments during the hiring process was a pretext for discrimination. The court clarified that subjective evaluations are often a necessary and legitimate part of the decision-making process. The hiring manager’s belief that another candidate’s vision and skillset were better suited for the job was deemed a legitimate, nondiscriminatory rationale. This underscores that subjective criteria, such as interview performance and perceived strategic thinking, can be valid grounds for employment decisions, provided they don’t mask discrimination.

2. Evidence of Pretext Requires More Than Personal Belief

The court emphasized that to prove pretext, a plaintiff must show that the employer’s stated reason for the employment decision was a lie or phony, allowing an inference of discriminatory intent. In this case, the plaintiff’s heartfelt belief that the hiring manager preferred to work with a man was insufficient. The court noted that the plaintiff’s own admissions during her deposition undermined her claim of pretext, as she acknowledged that the hiring manager likely believed the selected candidate was more suitable for the job. This highlights the importance of concrete evidence over personal convictions in establishing pretext.

3. Policy Deviations Must Indicate Discriminatory Intent

The court also addressed the issue of policy deviations during the hiring process. While deviations from standard hiring practices can suggest pretext, they must indicate discriminatory intent to be relevant. In this case, the employer’s decision to delay the hiring process to allow the new division chief to participate impacted all candidates equally, thus not supporting an inference of sex discrimination. This illustrates that not all policy deviations indicate pretext; they must be coupled with evidence of discriminatory intent.

Final Thought.

For employers, this decision reinforces the importance of maintaining transparent and well-documented hiring processes. Although objectivity is like discrimination’s Kryptonite, subjective evaluations, when used appropriately, do not necessarily create pretext. However, employers must ensure that their hiring decisions are based on genuine, nondiscriminatory reasons and that deviations from standard practices are justified or applied equally to all candidates.

By following these principles, organizations can avoid employment discrimination claims and promote a fair and equitable workplace.