Does favoring subjective impressions over objective criteria in the hiring process risk a discrimination lawsuit?


Lanora has worked for your organization for more than 12 years. She recently applied for a position that would be considered a promotion. However, because the panel of interviewers considered the general tone of her interview to be “negative and depressing,” she was not selected for that position. Instead, Todd, a male applicant, was hired. Although Lanora had significantly more technical experience than Todd in several key areas, the interviewers considered him more “enthusiastic.” Lanora filed a lawsuit against your company claiming that it discriminated against her because of her sex when it denied her the promotion. Will she be successful?


It has long been recognized that subjective criteria, such as how confident or personable an applicant is in an interview, can generally be a legitimate reason for making a hiring decision. However, relying solely on subjective perceptions of personality can increase the risk of an expensive discrimination suit if a “friendlier” person is hired or promoted over a minority (or other protected) applicant who is significantly more qualified but did not make as good of an impression. That is not to say that a jury will necessarily find that an employer who makes a decision based on personality has discriminated. However, courts are less likely to grant summary judgment in instances where the unsuccessful minority applicant was clearly more qualified.

For example, in a case with similar facts as the example above, a federal district court allowed an employee’s sex discrimination claim to proceed where the employer did not promote a female employee whom the panel of interviewers found “negative” and instead hired a more enthusiastic male applicant. The position required the ability to design, build, and move museum exhibits, as well as to supervise others doing the same. The fact that the female employee had significantly more technical experience than the successful male applicant in several key areas could raise an inference of sex discrimination, determined the court. Significantly, from the court’s point of view, the male applicant failed to meet some of the minimum qualifications even though the panel (comprised of three women and two men) had unanimously concluded otherwise. According to the court, a jury could find that the employer’s decision was pretext for discrimination because “the disparities between the successful applicant’s and [the female employee’s] qualifications were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the [employee].”

By contrast, the Eighth Circuit upheld summary judgment against an applicant for a police officer position who alleged that he was not hired because of his race. Although the applicant was qualified, the city asserted that he was not hired due to concerns about his temperament. Specifically, an interviewer reported that when the applicant was asked about a police report listing him as a suspect in a 12-year-old case, as well as some reprimands by a previous employer, he became “defensive, agitated and argumentative.” An even temperament was an important requirement for the job, particularly when considering responses in an arrest situation. Since there was no evidence that the city failed to consider temperament with respect to other applicants, the trial court’s decision in favor of the city was affirmed.

Thus, an employer may generally rely on subjective criteria such as impressions of an applicant’s personality or how well he or she does in an interview, particularly if the nature of the job requires a certain type of personality. However, the employer is well-advised not to rely too heavily on subjective impressions of personality at the expense of considering the objective qualifications for the job.

Source: Pierce v Bd of Regents of the Univ Sys of Georgia (MDGa 2011), 2011 US Dist LEXIS 95369 and Amini v City of Minneapolis (8thCir 2011) 2011 US App LEXIS 13641.

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