United States: Employer´s Manipulation Of Hiring Process Proves Discriminatory Intent

Establishing and maintaining objectivity in the hiring process is often key to defending claims of unlawful discrimination. Earlier this year, the U.S. Court of Appeals for the Sixth Circuit (which covers Tennessee) demonstrated what can happen when an otherwise apparently objective hiring process is manipulated to subjectively achieve a desired result. When that result is the exclusion of a qualified African-American applicant, it may lead to liability under Title VII of the Civil Rights Act of 1964.

Facts

David Dunlap, a 52-year-old African-American man, worked as a boilermaker for 20 years, including nearly 15 years' experience as a foreman responsible for a crew of boilermakers. Most of his experience came from working at various Tennessee Valley Authority (TVA) facilities throughout Tennessee as a contract or temporary worker through his union. Over the years, he received his boilermaker training through TVA's training program. He claimed that before applying for the job at issue in this case, he had been trying to obtain a boilermaker position with TVA for more than 20 years but had never even been offered an interview.

In 2000, Dunlap once again applied for a boilermaker position with TVA, this time at its Cumberland facility. He timely submitted his application and resume, which outlined his experience at TVA facilities, his TVA training, his supervisory experience, and his 27,000 hours of experience in the field. There were 21 applicants for the 10 available jobs, all of whom were referred by the union as being qualified for the position.

The selection committee at the Cumberland facility consisted of five members; only one of them was African-American. Despite the fact that TVA policy required that "merit and efficiency form the basis for the selection of job candidates" and "education, training, experience, ability and previous work experience serve as a basis for appraisal of merit and efficiency," the selection committee decided before the interviews began that the interview would account for 70 percent of an applicant's final score and technical expertise would account for only 30 percent.

After each interview, the committee "score-balanced" the individual score sheets as a group, which resulted in the final scores varying widely from the initial scores, even on the most basic and objective questions. Dunlap's scores on specific issues differed inexplicably from those of white candidates.

After the interviews, the 21 applicants were ranked in order of most to least qualified and then divided into three groups: outstanding, well-qualified, and qualified. Again, despite instructions that those categories be defined before the interviews started, the committee placed the candidates into the categories after the interviews were finished and after the applicants had been ranked, which followed the score-balancing of their interviews. Not surprisingly, the number of "outstanding" applicants equaled the number of open positions. Dunlap was ranked in 14th place. Although his score on the technical part of the application was the same as five of the selected applicants, his lower scores on the interview cost him one of the jobs.

No Proof Of Unlawful Disparate Impact . . .

Dunlap filed suit, alleging that the manipulated selection process had a disparate impact on minority candidates and that he was the victim of intentional disparate treatment. Both actions violate Title VII.

In short, the disparate impact theory requires an employee or a job applicant to demonstrate that an apparently neutral employment practice affects one group more harshly than another and that the practice isn't justified by business necessity. Although the district court concluded that TVA's interview process had been manipulated to exclude African-American candidates in general, the court of appeals disagreed, citing the lack of statistical proof demonstrating that a protected group was adversely affected. Dunlap couldn't prevail on this claim by only challenging the process used in his own interview.

. . . But Discriminatory Intent Motivated The Hiring Process

Dunlap also alleged that TVA intentionally discriminated against him individually based on his race. The district found, and the court of appeals agreed, that he was able to establish a prima facie, or minimally sufficient, case of disparate treatment by showing that he is African-American, he was qualified for the position he sought, and white applicants with less experience were hired for the open jobs.

Once a job applicant establishes a prima facie case, the employer may rebut the inference of discrimination by articulating a legitimate, nondiscriminatory reason for rejecting him. In an effort to do that, TVA offered the selection matrix used during Dunlap's interview to show that his interview scores didn't place him in the top 10 applicants.

After that evidence was offered, Dunlap had the burden of showing that it was merely a pretext to hide discriminatory intent. The district court determined, and the court of appeals agreed, that he met his burden by demonstrating that his matrix score was manipulated to keep him out of the top 10. The courts noted that the increased weight given to the interview created a more subjective process (despite TVA policy to the contrary), and the lack of an objective evaluation of the interview questions allowed the alteration of scores to produce a racially biased result.

In addition to the wide variation of scores on apparently objective questions, there was proof that some of the score sheets were changed as many as 70 times without evidence of any legitimate reason to support the revisions. Ultimately, the court of appeals concurred with the district court that "[b]ecause of these irregularities, the hiring matrix score offered by TVA as a legitimate reason for Dunlap's rejection cannot be relied upon" and that "discrimination motivated the committee's decision-making." Dunlap v. Tennessee Valley Authority, ___ F.3d ___, 2008 WL 746217 (C.A.6 (Tenn.)).

Bottom Line

This case clearly demonstrates that the best-laid plans can go awry when an employer seeks an artificial result that isn't supported by the objective evidence. Unlawful intent becomes apparent when established policies and other corporate directives are ignored for the sake of a desired result. TVA's selection committee's manipulation of the applicants' scores effectively stripped the company of what would have otherwise been an effective defense to Dunlap's disparate treatment claim. Hiring the most qualified applicants is a very sensitive process. To ensure its effectiveness and lawfulness, you'd be well advised not to stray far from objective measures of applicant evaluation.

This article is posted with permission from Tennessee Employment Law Letter, which is published by M. Lee Smith Publishers LLC. For more information, go to www.hrhero.com.

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