To the extent employers can, they should keep a record of objective criteria used when choosing one employee over another in the context hiring and promoting employees.  Keeping an accurate record of the reasons for employment-related decisions can be useful to protect employers against discrimination claims.

A federal district court in Virginia recently found that an employer failed to present a sufficient nondiscriminatory reason for choosing a male interviewee for a promotion over the female plaintiff in order to dismiss a summary judgment motion.  The employer did not give enough explanation as to why it chose the male employee, providing only two brief interview summaries, one of which was prepared after the female employee filed this lawsuit, which reflects only one subjective hiring standard and did not defeat plaintiff’s allegations of pretext.

Plaintiff, Pamela Hill, sued under Title VII of the Civil Rights Act of 1964 for sexual discrimination, saying her employer of more than 15 years failed to promote her because she is female.  Her employer, the Virginia Department of Transportation (VDOT), filed a motion for summary judgment in response.

Hill is an engineer and worked at VDOT as a senior engineer.  She applied for the position of Assistant District Administrator for Construction & Preliminary Engineering in 2010.  She interviewed with a two-member panel.  VDOT hired Christopher Blevins, instead of Hill because, VDOT explains, Blevins performed better in the interview.

The court decided that Hill met the preliminary test to show discrimination, and therefore VDOT was required to provide a “legitimate, nondiscriminatory reason for the adverse employment action.”  Op. at 3 (quoting Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4^th Cir. 2004).  The burden then shifted back to Plaintiff to show that the employer’s stated reasons were not true, but merely a pretext for discrimination, “by showing that she was better qualified or by amassing circumstantial evidence that otherwise undermines the credibility of the employer’s stated reasons.”  Op. at 4 (quoting Heiko v. Colombo Sav. Bank, 434 F.3d 249, 259 (4^th Cir. 2006).

VDOT claimed that its employment decision was based solely on the candidates’ responses during their interviews.  VDOT offered a three-sentence summary of Hill’s interview, which stated her answers to the interview questions failed to reveal her knowledge in construction, were vague and unclear, and failed to provide examples of leadership.

Hill argued that the evidence was sufficient to support a finding that she was more qualified than Blevins.  The job posting required a college degree in civil engineering or a similar field.  Hill has an engineering degree, while Blevins does not possess a college degree.  Hill argued that she has more than 3 years of experience as Acting Area Construction Engineer, but Blevins has only 6 months of experience in that position.

The court held that VDOT’s single, entirely subjective criterion for the hiring decision (Hill’s interview) failed to adequately support the defendant’s motion for summary judgment.  It found that Hill had sufficiently raised a genuine question of fact as to the veracity of VDOT’s justification.  “Hill’s discussion of her relevant qualifications is sufficient in this respect, particularly because VDOT’s explanation of its nondiscriminatory reason –that Blevins performed better in the interview –is both entirely subjective and meagerly explained.”  Op. at 7.

The court pointed out that in other Circuits, the use of subjective criteria alone in the hiring process, such as interviews, may give rise to an inference of pretext.  However, within the Fourth Circuit, “cases condoning the use of subjective criteria as evidence of nondiscriminatory hiring justifications have also cited additional, objective explanations for the employers’ decisions.”  Op. at 8.  Specifically, in another Fourth Circuit case titled Hux v. City of Newport News, Virginia, the employer relied on the plaintiff’s poor interview performance as only one of many factors when it explained why it didn’t promote a particular candidate.  451 F.3d 311, 319 (4^th Cir. 2006).  Other factors were poor work performance, lack of experience, and significant leave time usage.  Op. at 8 (citing Hux, 451 F.3d at 318-19).

The presentation of two short interview summaries was insufficient in this case, due to their subjective nature.  It is very difficult to evaluate the truthfulness of subjective justifications.  Therefore, employers finding themselves in the Fourth Circuit, which includes Virginia, should be prepared to thoroughly explain how its employment decisions are made.  In providing this explanation, employers should give enough justification for their employment decisions by presenting more than a single, subjective hiring criterion (i.e., more than an interview), and support for their criteria, such as, for example, an explanation of how the interview was indicative of job performance.