In Cook v. Mississippi Department of Human Services, the U.S. Court of Appeals for the Fifth Circuit rejected plaintiff’s claim of reverse discrimination that the plaintiff based upon her alleged superior qualifications for the position of Director of the Chickasaw County Department of Human Services (MDHS), a position for which she was passed over. In so ruling, the Fifth Circuit upheld an employer’s use of subjective employment criteria for promotion.
Out of the fourteen applicants for the position, the Mississippi State Personnel Board selected five candidates who met the minimum qualifications for the position. Of the five qualified candidates, two were white, including Cathy Cook, and three were black, including Samuel Buchanan, the individual hired for the position. The Board ranked the candidates and submitted their top three choices to the governor. All three top candidates were black.
Cook sued, alleging reverse race discrimination. The district court granted the employer’s motion for summary judgment, and Cook appealed on the grounds that she was “clearly” better qualified than the individual hired and that the Board’s reliance on subjective criteria during the hiring process was inherently suspect.
In 1973 with McDonnell Douglas Corp. v. Green, the U.S. Supreme Court set forth a three-step burden-shifting framework that must be satisfied by an employee to overcome an employer’s motion for summary judgment. Under that framework, the employee must first show the following evidence: (1) that she was a member of a protected class; (2) that she was qualified for the position sought; (3) that she experienced an adverse employment decision; and (4) that she was replaced by someone outside the protected class. If the employee can provide sufficient evidence meeting these requirements, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the underlying employment action. If the employer offers such a legitimate rationale for the employment action, the burden shifts back to the employee to show that the employer’s reason was a pretext for discrimination (in this case, racial discrimination).
The Fifth Circuit held that Cook failed to establish the last step in the McDonnell-Douglas framework; that is, Cook failed to show that the reasons stated by MDHS for hiring Buchanan were a pretext for discrimination. MDHS claimed to have hired Buchanan because of his high level of education, his work experience, his interview responses, and the way he presented himself to the interview panel. Cook claimed that her experience with MDHS, her educational background, and her familiarity with the position should have earned her the position. Cook further claimed that the Board put too much emphasis on intangible qualities rather than on qualities that could be objectively measured. Therefore, she argued, their decision was suspect and evidenced discrimination.
The Fifth Circuit disagreed, holding that employers are free to determine which type of experience is more relevant to an available position and that the court should not question MDHS’s decision to value certain skills more highly than other experience a candidate might possess. Furthermore, the mere fact that an employer uses subjective criteria in evaluating candidates for a particular position is not sufficient evidence of pretext.
The court further noted that Cook’s qualifications simply did not demonstrate that she was “clearly” more qualified than Buchanan and, therefore, Cook could not establish that MDHS’s reasons for hiring Buchanan were a pretext for discrimination.
Employer Notes: This case evidences how careful employers must be in all employment decisions, even in those situations where the decision results in the hire or promotion of an individual in a protected classification. Although reliance on subjective determinations alone will not result in liability, employers must be careful not to overlook more easily measured objective criteria. In the best hire and promotion decisions, a mix of objective and subjective criteria will be used. The creation of good and clear documentation of what experience, talents, and skills are needed for a position, done before the hiring or promotion process begins, will aid employers in avoiding liability.
Submitted by Beth Hinsdale, Principal, Grotta, Glassman & Hoffman P.A. You can contact Ms. Hinsdale at hinsdaleb@gghlaw.com.
Reprinted from Council’s Public Sector Personnel Law Update newsletter. To subscribe or order a free trial subscription, click here.
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