Irregularities in a college's hiring interview process could allow a reasonable jury to conclude that the employer's reason for choosing a white applicant over a Black applicant was false, the 1st U.S. Circuit Court of Appeals ruled.
In 2015, a university interviewed candidates for the position of equal opportunity/Title IX of the Education Amendments of 1972 investigator. The minimum qualifications for the position were a master's or bachelor's degree in psychology, counseling or a related field; three years' experience in complaint investigation and resolution; experience in conducting sensitive and confidential discrimination investigations; and knowledge of federal and state laws regarding discrimination, harassment and equal opportunity.
Preferred qualifications included a law degree or advanced degree; over three years' experience in complaint investigation; experience in a higher-education setting; experience with affirmative action, conducting mediation, reasonable accommodation requests, Title IX, Title VI of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA); and a background in human resources.
As part of a comprehensive interview process, five finalists were chosen. Each made a presentation on race and national origin discrimination and harassment, engaged in a mock investigation of a potential Title IX complaint, and was interviewed by three search committee members. The finalists' performances during the presentation and mock investigation were evaluated by five university administrators. They were rated on their familiarity with Title IX procedures—such as indicating that retaliation is prohibited, discussing available interim measures and addressing confidentiality concerns—and treating the parties fairly. Each candidate's performance was assessed with the same evaluation form, with scoring ranging from 1 (poor) to 5 (exceptional).
The plaintiff, a Black woman, was chosen as one of five finalists. She held a bachelor's degree in history, a master's degree in health care administration and a law degree, and she had work experience investigating complaints related to Title IX and equal employment opportunity. She had spent over five years investigating student and employee grievances, first as associate director for equal opportunity/affirmative action programs and ADA coordinator at a college, and then as equal employment compliance officer at a company. Overall, her experience corresponded with nearly all the preferred qualifications as well as some secondary responsibilities.
Four of the finalists were Black. All members of the search committee, as well as the evaluators, were white. The fifth finalist, a white woman, had a bachelor's degree in psychology and public management and was working toward a master's in psychology. She had worked as a "student employee" with her university's police department for three years, assisting with preliminary criminal investigations on campus. As a graduate student, she had worked as coordinator of student accountability for the dean's office, investigating alleged university code-of-conduct violations.
The white applicant, who received higher ratings than the plaintiff for her presentation and overall performance, was offered the job.
The plaintiff brought a claim of race discrimination. The university filed for summary judgment, stating that it hired the white applicant because she was better qualified than the plaintiff. The judge found the university had articulated a legitimate, nondiscriminatory reason for hiring the white applicant, and that the plaintiff had failed to prove its reason was pretextual and motivated by race.
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On appeal, the 1st Circuit found the plaintiff had established an initial case of racial discrimination by meeting her evidentiary burden under the McDonnell Douglas framework: establishing that she was a member of a protected class, that she was qualified for the position, that she applied for the position and wasn't hired, and that the position was filled by someone with similar or inferior qualifications. The court also found that the university had articulated a neutral, nondiscriminatory reason for selecting the white applicant, thus meeting its burden of proof under McDonnell Douglas.
Proceeding to the third inquiry under the framework—whether the plaintiff can show by a preponderance of the evidence that the articulated reason for not hiring her is pretextual and that the actual reason is discriminatory—the court found the plaintiff had raised trial-worthy issues precluding summary judgment.
According to the university, the plaintiff had demonstrated her unfamiliarity with Title IX procedures in her mock interview when she failed to mention that retaliation is prohibited—one of the factors on which each applicant was to be judged.
However, the plaintiff produced an e-mail received from an assistant to the university's director of equal opportunity three days before her interview instructing her that she did "not need to cover retaliation" nor tie her presentation to university policies or procedures because the evaluators would be told that this was not expected. "There is no evidence in the record that [the university] similarly instructed [the white applicant]," the court said.
Further, no one had told the evaluators that the plaintiff had been instructed not to tie her presentation to any university policies. Several evaluators who had given the plaintiff low scores criticized her for failing to mention retaliation and focusing only on federal law. In contrast, the white applicant had been praised for discussing retaliation and tailoring her presentation to the university's policies. Further, two of the white applicant's evaluations were not signed; one of these "was by far the most positive form received," the court noted, adding that a reasonable jury could infer that the director's assistant had prepared this "glowing evaluation."
The court also found that a reasonable jury could conclude that the university had not given the white candidate the same instructions as the plaintiff and had not told the evaluators that the two applicants had received different sets of instructions. "Moreover, a reasonable jury could conclude that since [the assistant] worked for the Office of Equal Opportunity and none of the evaluators … knew about the different set of pre-interview instructions, the hiring process was arguably rigged by the Office of Equal Opportunity in favor of [the white applicant]," the court said.
The plaintiff "points to evidence demonstrating she was penalized for not discussing retaliation or tailoring her presentation to the university as instructed by [the assistant], whereas [the white applicant] was rewarded for doing just the opposite," the court found. If the university had followed its own procedures, the plaintiff argued, the differences in her interview performance were not so drastic as to make the white applicant the only clear choice. The court found that a reasonable jury could conclude the university's reason for choosing the white applicant was pretextual.
The court also found sufficient evidence from which a reasonable jury could infer discriminatory motive: The university gave the plaintiff a distinct set of instructions, and when she followed them, it penalized her. Further, the university "invited four Black finalists but hired the only white finalist, who, in turn, arguably had less experience than at least one Black finalist"—the plaintiff.
Finding adequate evidence for a reasonable jury to find that the plaintiff had carried her burden of proof, the court vacated the lower court's grant of summary judgment and remanded the case for further proceedings.
Taite v. Bridgewater State University, 1st Cir., No. 18-1229 (June 2, 2021).
Professional Pointer: An objective rating system is only possible when all applicants can be fairly judged based on the same criteria. Even the most thorough hiring process can be undermined when applicants are given varying sets of pre-interview instructions for no apparent reason. Employers should take every precaution to ensure that all employees in the hiring process, from the final decision-maker to the administrative assistant, are aware of their obligation to present a level playing field to applicants.
Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.
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