By Brad Williams
The Tenth U.S. Circuit Court of Appeals recently affirmed a lower court’s rejection of a job applicant’s discriminatory hiring claim. In so doing, the Court provided guidance on how employers may select the best applicant for a job, without simultaneously inviting a lawsuit.
Facts
In 2004, Susan Turner applied for an entry-level position at the Comanche power plant operated by Public Service Company of Colorado (PSCo). Turner was one of 26 applicants vying for six open positions. Of the 26, only two of the applicants were women. Turner passed a standardized written test assessing her mechanical aptitude, and based on her job experience and relevant skills shown on her résumé, PSCo agreed to interview her for the job.
PSCo’s interview panel, which consisted of four men, asked each applicant an identical set of questions designed to elicit information about relevant job skills. After each applicant’s interview, the panel debated his or her responses, and determined a “consensus score” pertaining to each relevant skill. The panel then totaled such “consensus scores” across each applicant to determine his or her “overall rating.”
Turner, who later acknowledged that she “was definitely befuddled” and “felt like [she] struggled” during the interview, received the second-lowest overall rating. By contrast, the only other woman who was interviewed received the second-highest overall rating. Based on the consensus scores, PSCo extended offers to the six highest-scoring applicants, including the female applicant who received the second-highest consensus score. That female applicant, however, turned down the job offer for personal reasons. Because of her consensus scores, Turner was not one of the six who were offered jobs.
Alleging sexually discriminatory hiring practices under Title VII of the Civil Rights Act of 1964, Turner filed suit in the U.S. District Court for the District of Colorado. Pointing to the fact it had offered one of six positions to the only other female applicant, PSCo argued that its decision not hire Turner was based solely on her low interview score. The trial court agreed and dismissed Turner’s claim without a trial. Turner appealed to the Tenth U.S. Circuit Court of Appeals (which covers Colorado).
Tenth Circuit’s Decision
On appeal, the Tenth Circuit focused primarily upon whether Turner had submitted enough evidence of sex discrimination to bring her discriminatory hiring claim before a jury. Specifically, the Court considered and rejected three types of evidence that Turner claimed showed PSCo’s interview process was tainted by sex discrimination.
First, the Court rejected Turner’s argument that, because PSCo had lost a lawsuit relating to sexual harassment at the Comanche power plant in 1991, a reasonable jury could conclude that PSCo had sexually discriminated against her through its 2004 hiring decision. The Court found that PSCo’s earlier sexual harassment lawsuit was too distant in time to support an inference of sex discrimination in 2004, and additionally noted that the manager in charge of hiring at the Comanche power plant in 2004 hadn’t been a manager at that plant at the time of the earlier sexual harassment.
Second, the Court rejected Turner’s argument that a jury could find PSCo’s hiring practices discriminatory because the interview panel had relied upon “purely subjective” hiring criteria. While acknowledging that subjective hiring criteria may sometimes conceal discriminatory hiring practices, the Court found that PSCo’s criteria were sufficiently concrete to preclude Turner’s argument on this score. Specifically, the Court noted that the interview panel had asked all applicants the same pre-determined questions, and had scored their responses according to pre-determined criteria. Additionally, the Court noted that the lack of any women on the interview panel did not suggest sexually discrimination hiring practices because Turner had not shown that any of the four men harbored discriminatory attitudes.
Finally, the Court rejected a series of “hodgepodge” statistics Turner invoked to suggest that PSCo’s hiring decision had been discriminatory. For instance, the Court found that the vastly larger number of men employed in production positions at the Comanche power plant was irrelevant to PSCo’s 2004 hiring decision because “[w]ithout evidence regarding the number of male and female applicants, interviewees, and the like, [this] employment statistic is nearly meaningless.” Similarly, the Court found the lack of any female hires at the Comanche plant from 1992 to 2005 insignificant because PSCo had been in a hiring freeze for much of this time, and fifty percent of the female applicant pool had been offered employment in 2004. The Court also dismissed Turner’s argument that she had applied for a position at the powerplant three time and been rejected each time, the most recent rejection occurring in 2006. The Court responded to this argument by pointing out that while Turner hadn’t succeeded in getting hired in 2006, three other women were hired for entry-level positions that year. In light of that information and her admittedly poor performance in the interview, none of Turner’s statistics supported a finding that PSCo’s stated reason for not hiring her was a pretext for sex discrimination. The Tenth Circuit therefore affirmed the lower court’s dismissal of the lawsuit. Turner v. Public Service Company of Colorado, 2009 U.S. App. LEXIS 8970 (10th Cir., April 28, 2009).
Lessons Learned
This case illustrates the importance of developing (and then applying) pre-determined hiring criteria that relate directly to relevant job skills. Although a rejected job applicant may always claim that his or her rejection had been discriminatory, the applicant may be hard-pressed to win such an argument if the employer proves that its hiring decision was guided by the dispassionate application of relevant criteria. Similarly, the mere numerical imbalance in an employer’s workforce will not support an inference of discriminatory hiring if spurned applicants cannot point to other data suggesting that this imbalance reflects different (and discriminatory) treatment of comparable job applicants. Finally, even if an employer has been sued for discriminatory practices in the past, it may insulate itself from the future reverberations of such lawsuits by ensuring that subsequent hiring decisions are made by managers untainted by the earlier litigation.
For more information on this case, contact Brad Williams at (303) 295-8121 or bjwilliams@hollandhart.com.
This article is posted with permission from Colorado Employment Law Letter, which is published by M. Lee Smith Publishers LLC. For more information, go to www.hrhero.com.
