Recently, the 10th U.S. Circuit Court of Appeals reviewed a company’s testing and interview procedure for new hires, and decided that certain subjective hiring criteria did not necessarily create a mechanism for excluding female applicants. That review occurred in the context of a lawsuit brought by a female applicant who alleged gender discrimination when the Public Service Company of Colorado (PSCo) refused to hire her for an entry level position at its power plant. Turner v. Public Service Co. of Colorado, 10th Cir., No. 07-1396, April 28, 2009.

Susan Turner applied for a “Plant Specialist C” position at PSCo’s Comanche Power Plant in 2000, 2004, and 2006. To evaluate applicants for this position, PSCo used a 3-step process. First, it gave a written test related to mechanical aptitude. Applicants who passed that test moved to a second stage, in which candidates’ resumes were reviewed for relevant experience and skills, for which points were awarded. The applicants with the highest number of points advanced to the third stage, which consisted of an interview with a panel of four PSCo employees. The interview consisted of a set of pre-selected questions — used for each interviewee — which addressed skills like initiative and risk taking, adaptability, dealing with ambiguity, and team building. Each interviewer assigned a numerical rating to each candidate. After the interviews, the panel decided on consensus scores for each applicant’s competencies.

During the hiring process in 2006, Turner reached the interview stage, but was not hired. She received the second lowest rating of any interviewee, and later testified that she felt that she had “struggled” throught the whole thing. The only other female applicant received the second highest rating, but refused the offer of employment from PSCo. After Turner was unsuccessful in her 2006 attempt for the Plane Specialist position, she brought a lawsuit, alleging that PSCo’s hiring process was discriminatory. The lower court granted summary judgment for PSCo, and Turner appealed.

On review, the Tenth Circuit affirmed that decision, largely on the basis that Turner was unable to show that the company’s hiring criteria were simply a pretext for discrimination. Under the now-familiar McDonnell Douglas mechanism, Turner was required to set forth a prima facie case, including the facts that she is a member of a protected class, she suffered an adverse employment action, she was qualified for the position, and that she was treated less favorably than others outside her protected class. Once that prima facie case is established, PSCo had to articulate some legitimate, non-discriminatory reason for its decision not to hire Turner. In order to successfully substantiate her claim of discrimination, Turner was then required to show that PSCo’s legitimate, non-discriminatory reason for not hiring her was merely a pretext, and that the actual reason was discrimination.

The lower court found that Turner did, in fact, establish a prima facie case, and the Tenth Circuit agreed. Further, PSCo was found to have proffered a legitimate non-discriminatory reason for not hiring Turner: she “performed poorly in her interview.” Although Turner argued that the interview process was a sham meant to hide the company’s discriminatory hiring practices, the court disagreed, stating that although “the presence of subjective decision-making can create a strong inference of discrimination,” the use of subjective criteria is “not unlawful per se.” The court pointed out that each applicant answered the same questions during PSCo’s interviews, and that the criteria used for ranking the candidates was predetermined in a written company document. Further, the company was able to link the substance of the questions to job-related competencies. According to the court, Turner provided no evidence that the interviewers injected their own additional subjective criteria into the process, and therefore, was unable to carry her burden of showing some discriminatory animus.

The key to this decision was the standardization of the company’s interview process. The questions were pre-set, written, job-related, and asked consistently of each applicant, and the interviewers were not given the discretion to determine the scope of the interview. Because the same questions were used for all applicants, and because the evaluations were based upon pre-discussed criteria and not “whims or unguided opinions,” the company prevailed.