- The City of Akron’s alleged preselection of a white, male candidate for a landscaper position did not amount to discrimination because the employer demonstrated he was chosen for his qualifications, according to a recent ruling from the 6th U.S. Circuit Court of Appeals (Harris v. City of Akron, Ohio, No. 19-4101 (6th Cir., Dec. 15, 2020)).
- A long-time seasonal employee for the city sued, claiming race and gender discrimination, after she was turned down for a job as a landscaper and a white male was hired. A district court granted the employer summary judgment.
- On appeal, the 6th Circuit said the city showed that the other applicant scored higher on an exam and had experience working for a landscaping company. These reasons supported a legitimate, non-discriminatory reason for the city’s decision, the appeals court said. Moreover, the plaintiffs’ performance reviews were "mediocre or negative, not unfailingly positive." The court also rejected Harris’ argument that the interview was "subjective and perfunctory" and that city officials had already chosen the other candidate. Preselection can be evidence of discrimination but here, the alleged preselection based on qualifications does not create a Title VII problem, the court said, noting that the process in this instance was not subjective. "What’s more," the court said, "using subjective criteria is not illegal."
This case and many others illustrate that employers have a strong defense when they can show a nondiscriminatory reason for an adverse employment action. The 5th U.S. Circuit Court of Appeals ruled that a Mississippi deputy clerk was fired because of a budget shortfall, not bias. Lowe's similarly defeated a worker's allegations of age and disability bias because it was able to show legitimate business reasons for an employee's transfer to a new store and investigation into his conduct. And the U.S. Forest Service prevailed in a lawsuit because it showed that a worker's reassignment was the result of budget cuts, not gender and age bias.
While the Harris court noted that use of subjective criteria is allowed when hiring, employment experts have long recommended that employers standardize hiring processes and focus on objective factors. A Mississippi federal court ruled this summer that a teacher’s age discrimination claim could move forward because her employer’s explanation for failing to promote her — that another candidate was a "better fit" — wasn’t specific enough. The federal district court denied the school district’s request for summary judgment, explaining that while the hiring manager’s subjective beliefs about the woman’s fitness for the positions may be true, the employer failed to offer a sufficiently clear, nondiscriminatory reason for failing to promote her.
To avoid accusations of discrimination in hiring and promotions, HR may want to develop written criteria for evaluating candidates closely tied to business needs and ensure the standards are consistently applied to all applicants, experts previously told HR Dive. They also recommend that HR create diverse hiring panels, develop standardized interview questions and even consider removing information such as candidates' names from job applications.