26 April 2023

Since When Do Courts Get To Second-Guess An Employer's Hiring Decisions? Since Last Monday.

Fisher Broyles


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On April 10, 2023, Sixth Circuit Court of Appeals Judge Amul R. Thapar offered his two cents on the role the federal courts should have in second-guessing the business judgment of companies making hiring...
United States Employment and HR
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On April 10, 2023, Sixth Circuit Court of Appeals Judge Amul R. Thapar offered his two cents on the role the federal courts should have in second-guessing the business judgment of companies making hiring decisions:

Ignoring decades of precedent, the majority opinion imposes a rule requiring employers to favor credentials over relevant work experience in hiring. In so doing, the majority misunderstands Title VII, summary-judgment burdens, and the role of our court. The result? Everyone loses: The new rule will hurt employers, undermining the longstanding principle that businesses are free to choose between qualified candidates. And it will also hurt employees, especially workers who never had the chance to get a college degree.

Sadly, some companies may get their money's worth – just two cents — if they rely on Judge Thapar's pragmatic, albeit dissenting, opinion. It comes from a lawsuit involving a plaintiff who claimed that her race motivated the defendant not to promote her.

Did the employer say or do anything overtly racist?

No. The plaintiff's evidence was, effectively, "I'm more qualified for the promotion. Take my word on it, not my employer's."

And the two judges who wrote the majority opinion agreed with the plaintiff.

Was the plaintiff qualified for the promotion? Sure, she was. She had a bunch of degrees, while the individual who got the promotion had only a high school education.

And on the application form section requesting the applicant identify "Special Skills/Associations," the plaintiff highlighted seven awards and honors she had received during her career with the employer. Meanwhile, the person who got the promotion noted that she was "involved with all [her] children's field trips."

In the defendant's opinion, education and awards were secondary to the successful candidate's superior, relevant supervisory experience. Plus, according to the defendant, the one who got the promotion had a better job interview.

So, why did two Sixth Circuit judges decide the plaintiff's failure-to-promote Title VII claim had the legs to get to trial?

If a factfinder can conclude that a reasonable employer would have found the plaintiff to be significantly better qualified for the job, but this employer did not, the factfinder can legitimately infer that the employer consciously selected a less qualified candidate—something that employers do not usually do, unless some other strong consideration, such as discrimination, enters into the picture.

Here, the majority felt that the plaintiff submitted evidence demonstrating that her better education, overall general experience, and superior professional accomplishments made her better qualified for the promotion. Plus, there was evidence that the defendant asked the plaintiff to train the employee it promoted over her. And because a court must draw all inferences in the light most favorable to the plaintiff when the defendant moves for summary judgment on a discrimination claim, the plaintiff gets to have a jury decide her case.

How can employers avoid having a court scrutinize their hiring decisions? Well, don't hire in the Sixth Circuit for starters. Too snarky? Probably. So, how about this?

  • Establish and utilize objective hiring criteria for an open position.
  • Source candidates based on the hiring criteria
  • Train interviewers to stick to script (and, for the love of Pete, don't inquire into protected class information)
  • Ask interview questions based on the hiring criteria
  • Document the bases for hiring decisions

By removing as much subjectivity as possible from the process, companies avoid inviting folks with black robes and gavels to make their hiring decisions for them.

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.

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