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Decision, Decisions: Choosing the Better Applicant

AHI Manager's Legal Bulletin

When you have the opportunity to hire or promote someone, you’d feel lucky to have numerous qualified applicants from which to choose. But you may not feel so lucky once you make your decision, if a passed-over applicant believes that he/she was the best person for the job. And then goes to court to prove it.

One federal circuit court defined equally-qualified candidates as those who possess the objective qualifications for a position when neither individual is clearly better qualified. Which means subjective criteria typically come into play to help you make a hiring decision — and to help an applicant file discrimination charges.


Luke Timmons inquired about an open position, which would be a promotion from his current status. Manager Kelly Walsh explained that candidates would be ranked according to written responses to various questions based on job duties and would also be required to provide written explanations of their ability to communicate orally and in writing, deal positively with co-workers, work without direct supervision, and meet deadlines.

Walsh selected Timmons, along with five other candidates, for a formal interview. After completing the interviews, Walsh used a mathematical formula to rank each applicant.

Timmons, who was African-American, was not selected for the position. He believed he was more qualified than the white applicant selected. So he marched into court, arguing race discrimination. Walsh defended her decision by pointing out that the selected applicant was better prepared for the interview, knew more about the position in question, and spent more time and was better able to address the position’s requirements.

A court decided these were legitimate and non-discriminatory reasons to not hire Timmons.

Manager kudos for...not letting race play a part in the analysis of subjective criteria. While Walsh’s reasons for her decision were based on personal characteristics, they were not based on protected characteristics. I DESERVE IT!

Leon Peron accepted the position of janitor in hopes of working his way up to Quality Control Inspector. In his quest to achieve his goal, he applied for the Inspector position a total of 10 times. Each time, however, the position went to another applicant. And each time, supervisor Shawn Hardlow explained that the applicant chosen was better qualified.

Frustrated, Peron took his employer to court, where he claimed that he was the victim of race discrimination. To support his claim, Peron pointed to negative, subjective comments Hardlow had written about him, such as “poor communication skills.” The employee also pointed to notes Hardlow wrote regarding other African-American applicants, including: “shows no real interest,” “no skills experience pertaining to this position,” and “gave poor and incomplete answers to questions.”

An appeals court, however, ruled that there was absolutely no evidence that the subjective criteria Hardlow used in evaluating Peron and other candidates served as a “mask for discrimination.” While the specific comments Peron pointed to were negative, they were race-neutral. Not only that, but the manager’s notes also went on to explain his comments. For example, he concluded that Peron had poor communication skills because he failed to make eye contact and was not confident in his answers.

Manager kudos for...having written documentation of the subjective — but job-related — criteria that he used to make his hiring decisions, plus specific facts supporting his evaluations of the candidates.


Courts don’t examine close calls; neither do they fix wrong decisions. What they look for are disparities in qualifications that “jump off the page and slap you in the face” (as one court put it). When applicants are equally qualified, take these steps for making sure you have non-discriminatory, legitimate business reasons for choosing one over another.


Verify that job descriptions reflect desired characteristics.

Besides establishing criteria for determining whether applicants meet the minimum qualifications for the job, create interview questions that can help you further distinguish among candidates. Examples: How has your Master’s degree specifically come in handy in your job? Give me an example of how you appeased a dissatisfied customer. What steps have you taken to work with a co-worker you weren’t particularly fond of? When under a tight deadline, how do you react?
Note: Steer clear of improper questions. Never ask about an applicant’s organization memberships, religious affiliations, or attitude about labor organizations, to name just a few.

Use skills testing when practical.

Document all qualifications and weaknesses, both objective and subjective. Be sure that they are related to the ability to do the job and never to a protected characteristic.

Treat all applicants consistently. If, for example, applicants must receive a certain test score or have a particular degree in order to qualify for an interview, every interviewee should meet this criterion. If you allow one candidate to slip in, you can expect that others will be asking why they were rejected.


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