Employee claims bias when employer failed to hire an inferior candidate.


“Uh, Eric, don’t you mean the superior candidate?”

You’d think I would, but I’m reading what the Seventh Circuit Court of Appeals wrote in this recent opinion.

The plaintiff, a black woman, applied for a job. The company conducted two rounds of interviews, with separate panels in each round, to consider five candidates, including the plaintiff. Each candidate was asked the same questions, and each panel agreed on the same top candidate.

The plaintiff did not get the job. Instead, it went to the consensus choice: a white woman. The plaintiff then claimed sex (?) and race discrimination.

One of her supporting arguments for race discrimination was that the company did not follow its internal anti-discrimination procedures, which allowed it to hire an inferior candidate, and the company crafted a second-round interview question tailored to one of the other candidates.

Ah, yes, the ol’ conspiracy theory. Not usually a winner in a courtroom, and not a winner here because conspiracy theories usually have gaping holes and lack supporting evidence. And this one was no different.

The problem with the plaintiff’s argument about the second panel lobbing softballs to other candidates is that the evidence showed that they drafted the questions before it knew the identities of the second-round candidates. Therefore, how could it have rigged the interviews and shown bias against the plaintiff?

While you ponder the answer to that question — spoiler alert: they weren’t biased — the plaintiff further speculated that this employer scripted a question for another candidate because the other candidate could answer it well based on her experience.

The plaintiff’s evidence?

Just her say-so, which isn’t evidence but speculation.

Still, the plaintiff wasn’t done yet.

She claimed that the company should have stuck to a 100% objective scoring system, the absence of which allowed the panel to “manipulate the process” to her disadvantage and in favor of the selected candidate.

While objective metrics mitigate the risk/perception of bias, employers need not score job interviews according to some objective criteria to avoid triggering Title VII liability. Indeed, nothing in Title VII bans using subjective evaluation criteria outright. Instead, employers find trouble when they diverge from their standard hiring practices, mainly when applied differently between protected-class and non-protected-class members.

But when employers treat all candidates the same way — as this one did here — there is no discrimination, only hard feelings.

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