U.S. Appeals Court Says It’s No Longer Enough to “Merely” Claim A Candidate Is More Qualified

The U.S. Court of Appeals for the District of Columbia has adopted a set of legal principles to assess a notoriously thorny issue in discrimination law – the role of “qualifications” in hiring and promotions.

Henceforth, the court held, it is no longer sufficient for an employer to defend a charge of discrimination by merely stating it hired the ‘best qualified’ applicant.

Employers must “articulate specific reasons for that applicant’s qualifications such as ‘seniority, length of service in the same position, personal characteristics, general education, technical training, experience in comparable work or any combination’ of such criteria,” the court ruled.

The D.C. circuit adopted a test that was initially enunciated by the U.S. Court of Appeals for the Eleventh Circuit and has also been adopted by federal courts of appeal in the Fifth, Sixth and Seventh circuits. The test is intended to prevent employers from circumventing federal discrimination laws by asserting vague subjective criteria that a plaintiff cannot rebut.

Pro Se Litigant

The ruling came in a case filed by Richard A. Figueroa, formerly a Hispanic foreign service officer, who alleged he was a victim of intentional national-origin discrimination by the U.S. Department of State in Puerto Rico when he was denied promotion, and accompanying pay hikes, from 2001 to 2009.

A lower court judge dismissed Figueroa’s pro se lawsuit after the state department argued “that the candidates who were promoted were better qualified.”

The appeals court reinstated Figueroa’s claim of intentional discrimination claim after finding the state department had failed to offer “clear and reasonably specific” evidence to support its claim that other candidates were more qualified.

The court said subjective standards may constitute a legitimate reason for non-promotion but “we also perceive an intolerable risk that a nefarious employer will use them as a cover for discrimination.” The court noted that Plaintiffs “lack the resources (and the clairvoyance) to guess at how their respective decision-makers interpreted the criteria and to explain away each standard at trial.”

Additionally, the court said it doubted that a  “reasonable jury would accept a vague and slippery explanation.”

The appeals court said the State Department set forth a list of promotional criteria – almost all of which was subjective – to justify its failure to promote Figueroa.  The department also provided “declarations” from managers stating they followed the criteria in considering Figueroa’s file.

The court examined a case where a white employee was chosen over a black employee who was deemed less qualified. The court said such a decision could be justified if a hiring panel found both equally qualified in several criteria but the white worker had better scores in management, leadership, sales or knowledge of the customer-service process.

The appeal court notes that a  Plaintiff in a discrimination lawsuit typically has to rebut an employer’s so-called legitimate non-discriminatory reason for its employment action. The Court said employers must present evidence that is sufficient to provide the employee with a full and fair opportunity for rebuttal.

“When the reason involves subjective criteria, the evidence must provide fair notice as to how the employer applied the standards to the employee’s own circumstances. Failing to provide such detail – that is, offering a vague reason – is the equivalent of offering no reason at all,” the appeals court concluded.

The case is Richard A. Figueroa v. Michael R. Pompeo, Secretary, U.S. Department of State, No. 1: 16-cv-00649 (May 10, 2019).

Is “Poise” a Qualification or a Subjective Assessment Prone to Bias?

Qualifications normally are an  important consideration in discrimination cases.

In recent weeks, however, the EEOC has ruled in two age discrimination cases that subjective assessments  outweigh objective qualifications.

In both cases, Carlton M. Hadden, Jr. director of the EEOC’s Office of Federal Operations, held that federal agencies did not engage in age discrimination when they ignored the superior qualifications of older applicants and hired younger, seemingly far less qualified workers. The EEOC, which has declined to comment, upheld both decisions.

In one of the cases, Hadden ruled that an African-American female in her 20s was more qualified for the position of lead police officer at a veteran’s center in Dallas than a 48-year-old white male who was then serving as lead police detective at the center.  The male had 20 years of high-level experience in policing; the female had served a stint in the Army military police.

Hadden said the female candidate “arguably has more experience in the intangible areas sought by the (hiring panel), such as poise, compassion, leadership, and the ability to cope with stress…” But are “poise” and “compassion” really “qualifications” or are they subjective assessments that are subject to cultural bias? And why doesn’t an officer who is in a leadership position show more leadership potential than an individual who is not? These decisions raise questions about whether the EEOC is implementing its own vision of affirmative action rather than federal law.

In the past, courts have looked skeptically at subjective assessments in hiring  because research shows that hiring managers often harbor subconscious bias.

An older candidate may not seem poised if members of the hiring panel harbor bias that older people are ugly, sickly or lacking in enthusiasm.

The issue is important because today there is rarely direct evidence of  discrimination. Plaintiffs must show that the employer’s non-discriminatory explanation for a negative employment action was a pretext for discrimination.  It’s hard to disprove an employer who says the other candidate had more poise and compassion.

The U.S. Supreme Court in 2006 discussed how courts should assess  “plainly superior qualifications”  in the  case of  Ash, et al. v. Tyson Foods, Inc. The U.S. Supreme Court clearly was not talking about  the employer’s subjective assessment of the candidates – that’s what the Court was concerned about.

In the Ash case, the plaintiffs, two African-Americans, argued that Tyson used job qualifications that were not required by company policy to exclude them and justify promoting two white males. The 11th Circuit Court of Appeals in Atlanta dismissed their complaint, ruling they had ailed to raise an inference of discrimination.

The 11th Circuit ruled that a plaintiff must show the disparity in qualifications was “so apparent as virtually to jump off the page and slap you in the face.”  The Supreme Court rejected this standard, calling it “”unhelpful” and “ambiguous.”

In the Ash decision, the U.S. Supreme Court referred approvingly to far less stringent standards than the one articulated by the 11th Circuit. The Court noted a federal appeals court in California ruled  that a pretext of discrimination can be found where a candidate was not hired despite  “clearly”superior qualifications.” The Court cited a ruling by a federal appeals court in the District of Columbia that a fact-finder might infer pretext if a “reasonable employer would have found the plaintiff to be significantly better qualified for the job.”

Hadden did not cite any legal authority to justify equating subjective assessments with objective qualifications. The EEOC has declined to comment.

The EEOC routinely rejects subjective assessments in race and sex discrimination cases. Why is there a different standard for age discrimination?

The other age discrimination case dismissed by the EEOC in August condoned hiring workers based on “cultural fit.” This concept is so widely regarded as an invitation for bias that it is now considered taboo even in the business community.

The bottom line is that the EEOC is locked in a time warp, despite the fact that it was designated by Congress to implement the Age Discrimination in Employment Act and should be in the forefront on the issue of equal rights. And, since EEOC cases are secret, we have no way of knowing how many older workers have had their cases dismissed on the basis of reasoning that follows no legal precedent and appears to be the equivalent of a whim.