No bias in screening, court rules

Is it OK to conduct job interviews using subjective criteria that may appear to favor one group of people over another? A case associated with this issue was recently decided by the Court of Appeals for the 7th Circuit and may have far-reaching repercussions for private-sector and government employees alike (U.S. Court of Appeals for the 7th Circuit, No. 98-3681, April 23, 1999, Rodney D. Scott vs. Parkview Memorial Hospital).

Scott, a social worker, lost his job at Parkview Memorial Hospital in Indiana when the hospital reorganized. The number of nonsupervisory social workers at the hospital was reduced from nine to six, and survivors were given additional responsibilities - primarily dealing with insurers and health maintenance organizations.

The hospital decided to make the transition by requiring its staff of social workers to apply for the six available positions as if all social work slots had been abolished and new jobs created. Scott could only qualify for the six line jobs because the new supervisory positions required a registered nurse's license, which he did not have.

The hospital based its hiring decisions on a series of interviews with job candidates. Scott lost out during the second phase of interviews after a panel of interviewers scored the candidates' answers and passed those who achieved a score of 39 or higher. Scott scored 32 and was filtered out. Five candidates made it to the third round. Only four passed the third round, the hospital ended up filling two positions from outside. Both of the new hires were women.

Scott filed a suit alleging that he was a victim of both sex and age discrimination. He lost his suit in district court on a summary judgment and took his case to the Court of Appeals.

The appeals court did not find much merit in Scott's allegations. Scott had no direct evidence that sex or age played a role in the decision to drop him. None of the stated criteria for the job Scott applied for was linked to sex or age, and none of the participants in the process said that sex or age mattered.

Although younger women seemed to do better in the interview process - three of the four people who flunked the second round of interviews were men, and all had reached age 40 - too few job candidates were involved for the court to conclude that the numbers had any significance. The age differences also were slight; the candidates who passed the second round of interviews ranged in age from 32 to 46, while those who did not pass spanned from 42 to 48. Scott was 46.

The court ruled that these modest differences did not serve as evidence that the hospital was screening out people on the basis of age, especially because one of those hired from outside was 51 years old. According to the court, an inference of discrimination would be appropriate only if the employer favored "substantially" younger people, a term the court had defined operationally as 10 years or more.

The age discrimination claim was found to be without merit, and the court felt that the sex discrimination claim was only slightly stronger. The court noted that social work is a disproportionately female profession, so it was not surprising that six of the seven members of the interview panel were women.

Scott claimed that the questions posed by the panel signaled favoritism toward women. To prove his contention, he cited one question asked by the panel: "Describe a situation where you went beyond your normal responsibilities in order to meet a patient's needs." Scott said that this question indicated a preference for attitudes that predominate among women. Notes found by the court on another person's interview included "smiles warm," a notation missing from Scott's file. Scott argued that this showed how the panel favored women. He said the interview process was subjective, so biases could be both indulged and disguised.

The court's approach to Scott's suit was quite broad in its scope. It posed the following question: If one believed that women are more likely than men to display caring or generally warm-and-fuzzy attitudes, how would this imply sex discrimination? Scott did not (and could not) deny that caring about others' welfare and an eagerness to assist strangers are appropriate traits for social workers. They are appropriate even when, as at Parkview Hospital, social work is evolving to include more emphasis on negotiations with third-party payors.

The court said questions about engagement with clients' needs are no less appropriate when interviewing applicants for social work positions than questions about aggressiveness toward adversaries would be when hiring trial lawyers. The ruling acknowledged that subjective interviews could be a smokescreen for bias. But it also ruled that in professions such as social work (or law, medicine, architecture and many others), subjective interviews are necessary. "No formulary of approved answers can replace a nuanced evaluation of candidates," the ruling said.

Unless the evidence demonstrates that an open-ended and subjective process was used to evade anti-discrimination laws, the subjectivity could not be condemned, the court said.

And in a case such as this in which the plaintiff had already been hired into his chosen profession, the charges of bias become weaker. Suppose supervisory social workers routinely prefer warm smiles and going the extra mile. If traits such as empathy are distributed unequally by gender, that might lead to unequal representation in the social work profession. But when selecting from among established social workers, one would assume that the candidates have demonstrated these traits ever since they entered the profession, and there should be no further disparate effect.

People enter the field of social work because they want to help others. A selection process limited to social workers therefore can ask about warmth or helpfulness without predictably screening out men, just as law firms can screen their existing trial lawyers for dogged combativeness without discriminating against women.

Ultimately, the court ruled that Scott presented no significant evidence that his gender played any role in the hospital's decision. Whether Scott really deserved the job was irrelevant; employment discrimination laws do not allow judges to second-guess managers. The case focused not on whether the employer's decision was right but on whether the employer was telling the truth when it asserted that gender played no role in that decision. Scott could not disprove that assertion, so the judgment was affirmed.

--Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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