Subjectivity and Process

By Bill Wright

The Tenth Circuit has reviewed several of the most common attacks on hiring and promotion decisions and provides words of comfort to employers. Conroy v. Vilsack, No. 11-4091 (10th Cir. Feb. 11, 2013). Here, both a female candidate and a male candidate were qualified for a promotion to a manager position. Giving priority to leadership and management skills over technical skills, a panel reviewed the applications, spoke to references and recommended the male candidate. The decision-maker checked with the female’s supervisor and the supervisor also recommended the male candidate. The decision-maker then followed the panel’s recommendation.

The female candidate argued the employer hid its discrimination by (a) falsely saying it gave priority to leadership and management skills; (b) diverging from its standard practice when the decision-maker called the female candidate’s supervisor; and (c) relying on subjective criteria – leadership and managerial skill. The court disagreed on all points. All the promotion panel members agreed that leadership and management skills were weighed more heavily than technical skills. The panel reviewed the candidates’ references, and the decision-maker did nothing improper by collecting additional information about the female candidate from her supervisor. Finally, the court noted that “some subjectivity is to be expected in every hiring decision.”

This court understood employment decisions. Even if leadership and management are somewhat subjective, its fair and transparent system protected the employer from the plaintiff’s claims.

Leave a Reply

Your email address will not be published. Required fields are marked *