A well-tied tie is the first serious step in life...
Oscar Wilde
Recently we argued a case before the Eleventh Circuit Court of Appeals that the Court considered so important that it was heard en banc; in other words, all eleven judges who serve on that court heard the appeal (instead of the usual panel of just three judges). The case was Chapman v. AI Transport, 229 F.3d 1012 (11th Cir. 2000) and the key issue was whether employers can rely on "subjective criteria" when defending personnel decisions.
Subjective criteria are ones that require the decision-maker to use his judgment (e.g., which candidate had "better communication skills"). For example, can you defend a hiring decision on the ground that the 20 year-old you hired made a "better impression" during his interview than the 50 year-old plaintiff? Or, do you have to stick to "objective criteria," such as who had more years of experience or better credentials (e.g., a degree).
Historically, many courts have treated all subjective criteria with skepticism. Everyone knows that employers routinely use such criteria, but when a discrimination lawsuit is filed, courts fear that such criteria can easily be used to mask discrimination. In Chapman, the Eleventh Circuit overruled all of its prior cases that expressed such a concern. It rejected the view that subjective criteria are the "red-headed stepchildren" of potential reasons for a hiring decision. Rather, they are normal, common and necessary, particularly when it comes to professional and managerial positions, along with most jobs in a service-oriented business.
The Chapman court held that a subjective reason is a legally sufficient, non-discriminatory reason, provided there is specific factual basis upon which it based:
[I]f the defendant employer said, 'I did not like his appearance because his hair was uncombed and he had dandruff all over his shoulders,' or 'because he had his nose pierced,' or 'because his fingernails were dirty,' or 'because he came to the interview wearing short pants and a T-shirt,' the defendant would have articulated a 'clear and reasonably specific' basis for its subjective opinion -- the applicant's bad (in the employer's view) appearance.
Chapman, 229 F.3d at 1034. Thus, employers cannot rely on a purely conclusory statement, such as "plaintiff interviewed poorly." Rather, employers must explain what he did that made a bad impression: e.g., he arrived late, avoided eye contact, used vulgar language, etc. In Chapman, the plaintiff failed to ask questions during his interview, which led the decision-makers to conclude that he wasn't very enthusiastic about the job.
As long as your explanation identifies the specific facts underlying your subjective judgment, the plaintiff has a fair opportunity to rebut those explanations. That is all that our discrimination laws require.
Practical Considerations
When a discrimination lawsuit is filed, your managers usually don't testify until several years after the events in question. Often, due to the passage of time, all they can remember are their general, subjective impressions (e.g., plaintiff's sales presentations "weren't very good"); they cannot remember any specific facts that led them to form these opinions. This is a significant pitfall in defending against a discrimination lawsuit.
There is no perfect solution because -- as the Chapman court recognized -- "body language, tone of voice, eye contact, facial expressions and other non-verbal cues significantly affect the impression an applicant makes...such things are hard to quantify and articulate with any precision." Chapman, 229 F.3d at 1033. However, the following advice can help reduce the risk:
Train managers to take notes during job interviews (or immediately afterwards) and ensure that those notes include specifics. If the candidate was "unprofessional," the notes should reveal why -- e.g., he talked about weekend exploits ad nausea; he wore a big black velvet tie with Elvis on it; etc.
In comments on performance reviews, don't just say that an employee is a "better worker" or is not "a team player"; rather, explain that observation by providing a small anecdote that led you to your judgment -- e.g., she tried to take credit for an idea or a success that wasn't hers; she routinely refuses to share information or sales leads; etc.
In the reduction in force context, the Human Resources Manager or in-house lawyers who review proposed layoffs should ensure that decisionmakers have concrete facts to support their ratings and recommendations. For example, if a 60 year-old employee was rated low on "computer skills," did the manager just assume that 60 year-olds are not good with computers (an unlawful age-based stereotype)? Or did the employee offer to give his computer to his secretary because he never used it, or frequently need to ask for help in order to use it effectively (specific facts supporting the conclusion)?
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
