posted on Monday, September 03, 2007 9:45 AM
by
Lou Michels
Solid Job Selection Guidance from the DC Circuit
A very useful and commonsense opinion from the DC Circuit shows how employers should handle job selection criteria in promotion (and presumably hiring) cases.
The case involves an a claim of race discrimination in a promotion decision involving two federal employees. As with many federal employee decisions at this level (a move from a GS-13 to a GS-14 position), there was a formal evaluation of the job applicant's "knowledge, skills, and abilities", as well as an evaluation of the applicant's competence against the new job description. The ultimate choice for the position, a white female, scored significantly better than the black applicant on the knowledge skills and abilities portion of the process, and had substantially more experience in the executive agency's main data management tool, known as the "Key Indicators" system. It was undisputed that there was no specific reference in the new position's job description that called for a Key Indicators expert, or even particular knowledge of the Key Indicators system. However, the generic job description did call for a person with the ability to use statistics to describe and predict trends in the executive agency's performance data.
The court took a very straightforward analytical route in affirming the grant of summary judgment to the employer. The Court first noted that when an employer makes a hiring decision based on relative qualifications of the candidates, the Court assumes that a reasonable juror who might disagree with the employer's decision, but would find a question to be a close one, would not usually infer discrimination on the basis of a comparison of qualifications by themselves. However, if a jury could conclude that a reasonable employer would have found the plaintiff to be significantly better qualified for the job, a jury can properly infer the employer consciously selected a less qualified candidate, a typical marker for something such as discrimination entering into the decision-making process.
In other words, in order to justify an inference of discrimination, the court stated that the qualifications gap between the applicants must be great enough to be "inherently indicative" of discrimination. The Court went on to state that the fact that the Key Indicators were not specifically mentioned in the job description was not significant- reasonable employers do not ordinarily limit the evaluation of applicants to a mechanistic checkoff of qualifications required by a written job description, but take additional credentials into account if those credentials could prove useful in performing the job.
The advice here is fairly clear--the more clarity an employer can use in evaluating applicants' job qualifications, the more likely it will prevail in a discrimination claim if it applies those qualifications consistently. Moreover, it is not necessary for a job description to contain every single attribute sought by the employer; generic skills listings, or even an ability to clearly articulate why a particular qualification or credential would be helpful, can be enough to support a proper choice.