Employment Decision Based on Person’s Performance in Interview was Not Excessively Subjective, Tenth Circuit Decides

By Ted Olsen

A Tenth Circuit case, Turner v. Pub. Serv. Co. of Colo., Case No. 07-1396, --- F.3d --- (10^th Cir. April 28, 2009), recently reaffirmed that hiring and promotion decisions based on interviewers' assessments of candidates during interviews are lawful, despite the fact that the assessments have subjective elements. The decision is helpful to employers in two respects. First, the Court deemed that the employer's interview system was properly structured so that the decision-makers' subjectivity was properly checked. Second, the Court rejected a myriad of arguments often made by plaintiffs in discrimination cases.

In Turner, an unsuccessful applicant for a "Plant Specialist C" position at Public Service Company of Colorado's Comanche Power Plant claimed sex discrimination. She successfully passed the first two stages of the application process, first passing a standardized written test for mechanical aptitude and then passing the company's screening of resumes for relevant work experience and skills. However, after she performed (by her own admission) very poorly in a job interview with four male PSCo employees, no job offer was extended. She was unsuccessful in her Title VII sex discrimination case at both the district court and the appellate court levels.

In the interview, the panel asked each applicant an identical set of pre-selected questions. The questions were designed to elicit information that would reveal if the candidates' "competencies" were appropriate for the position being filled. The "competencies" for the "Plant Specialist C" position were "initiative and risk taking," "adaptability and dealing with ambiguity," and "team building." Each interviewer took notes of the candidate's answers to questions, and then assigned numerical ratings to the applicants on each "competency." The interviewers then decided on consensus scores for each "competency" for each applicant and these consensus scores were then used to reach an overall rating. The Manager of Operations offered positions to the candidates with the highest overall ratings.

Of the 15 interviewees who passed the first two stages of the selection process, only two were women. Ms. Turner received the second-lowest score of all the candidates in the interviews. The other woman who was interviewed received the second-highest overall rating, and was offered a job.

On various grounds, the Tenth Circuit rejected Ms. Turner's theory that the interview process was discriminatory because it was "purely subjective" and "lacking any relationship to actual job tasks or skills." Most importantly, the Court ruled that the process was not "excessively subjective," because each candidate was asked the same questions, the applicants' responses were ranked by the interviewers under predetermined criteria, the interviewers were required to consider the applicants' performance under the "competencies," and the "competencies" were important indicators of a person's likelihood of succeeding in the position.

A variety of other arguments were also repudiated by the Court.

The absence of women from the interview panel did not prove sex discrimination; there was no evidence that any interviewer had discriminatory attitudes or participated in past discrimination.
Evidence that PSCo was found liable for sexual harassment in a federal court lawsuit 15 years earlier did not prove pretext. The litigation related to a different type of discrimination, by different individuals, at a remote point in time.
Statistics on the imbalance of men and women in non-traditional positions at the Comanche plant (only one of 115 such workers were women, and no women were hired into such positions over a 13-year period, while 20 men were hired) were of no significance without evidence of applicant flow data and other circumstances. For instance, during approximately six of those years, the Comanche plant was under a hiring freeze, and after the freeze was lifted, 50 percent of the two women who applied for positions (Ms. Turner and her fellow interviewee) received an offer.
While PSCo produced thousands of pages of documents in the case, including hundreds of pages of documents related to Ms. Turner's interview and non-selection, it could not locate the notes of the four interviewers who met with Ms. Turner. (The notes had been packed and shipped from Colorado to Minnesota before Ms. Turner filed her EEOC sex discrimination charge.) The Tenth Circuit ruled that, absent evidence of bad faith on PSCo's part, Ms. Turner was not entitled to any adverse inference from the absence of the documents.

Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.

© 2009 Sherman & Howard L.L.C. June 5, 2009

	Contact Us Services Attorneys News and Events Publications About the Firm Inclusiveness Careers In the Media Events and Registration Press Releases Speaking Engagements Articles Client Advisories Subscriptions History Offices Pro Bono Interlaw Contact Us Culture Legal Opportunities Summer Associates Support Staff Publications Client Advisories Home > Publications > Client Advisories > View Employment Decision Based on Person’s Performance in Interview was Not Excessively Subjective, Tenth Circuit Decides By Ted Olsen A Tenth Circuit case, Turner v. Pub. Serv. Co. of Colo., Case No. 07-1396, --- F.3d --- (10^th Cir. April 28, 2009), recently reaffirmed that hiring and promotion decisions based on interviewers' assessments of candidates during interviews are lawful, despite the fact that the assessments have subjective elements. The decision is helpful to employers in two respects. First, the Court deemed that the employer's interview system was properly structured so that the decision-makers' subjectivity was properly checked. Second, the Court rejected a myriad of arguments often made by plaintiffs in discrimination cases. In Turner, an unsuccessful applicant for a "Plant Specialist C" position at Public Service Company of Colorado's Comanche Power Plant claimed sex discrimination. She successfully passed the first two stages of the application process, first passing a standardized written test for mechanical aptitude and then passing the company's screening of resumes for relevant work experience and skills. However, after she performed (by her own admission) very poorly in a job interview with four male PSCo employees, no job offer was extended. She was unsuccessful in her Title VII sex discrimination case at both the district court and the appellate court levels. In the interview, the panel asked each applicant an identical set of pre-selected questions. The questions were designed to elicit information that would reveal if the candidates' "competencies" were appropriate for the position being filled. The "competencies" for the "Plant Specialist C" position were "initiative and risk taking," "adaptability and dealing with ambiguity," and "team building." Each interviewer took notes of the candidate's answers to questions, and then assigned numerical ratings to the applicants on each "competency." The interviewers then decided on consensus scores for each "competency" for each applicant and these consensus scores were then used to reach an overall rating. The Manager of Operations offered positions to the candidates with the highest overall ratings. Of the 15 interviewees who passed the first two stages of the selection process, only two were women. Ms. Turner received the second-lowest score of all the candidates in the interviews. The other woman who was interviewed received the second-highest overall rating, and was offered a job. On various grounds, the Tenth Circuit rejected Ms. Turner's theory that the interview process was discriminatory because it was "purely subjective" and "lacking any relationship to actual job tasks or skills." Most importantly, the Court ruled that the process was not "excessively subjective," because each candidate was asked the same questions, the applicants' responses were ranked by the interviewers under predetermined criteria, the interviewers were required to consider the applicants' performance under the "competencies," and the "competencies" were important indicators of a person's likelihood of succeeding in the position. A variety of other arguments were also repudiated by the Court. The absence of women from the interview panel did not prove sex discrimination; there was no evidence that any interviewer had discriminatory attitudes or participated in past discrimination. Evidence that PSCo was found liable for sexual harassment in a federal court lawsuit 15 years earlier did not prove pretext. The litigation related to a different type of discrimination, by different individuals, at a remote point in time. Statistics on the imbalance of men and women in non-traditional positions at the Comanche plant (only one of 115 such workers were women, and no women were hired into such positions over a 13-year period, while 20 men were hired) were of no significance without evidence of applicant flow data and other circumstances. For instance, during approximately six of those years, the Comanche plant was under a hiring freeze, and after the freeze was lifted, 50 percent of the two women who applied for positions (Ms. Turner and her fellow interviewee) received an offer. While PSCo produced thousands of pages of documents in the case, including hundreds of pages of documents related to Ms. Turner's interview and non-selection, it could not locate the notes of the four interviewers who met with Ms. Turner. (The notes had been packed and shipped from Colorado to Minnesota before Ms. Turner filed her EEOC sex discrimination charge.) The Tenth Circuit ruled that, absent evidence of bad faith on PSCo's part, Ms. Turner was not entitled to any adverse inference from the absence of the documents. Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation. © 2009 Sherman & Howard L.L.C. 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