In a Jan. 3 ruling, a unanimous, three-judge panel of the 7th U.S. Circuit Court of Appeals upheld the interview process the U.S. Department of Defense used to promote a male employee instead of a female employee to a newly created GS-13 position in the DoD’s Defense Finance Accounting Service.
“DFAS encountered a common HR dilemma: whether to prioritize subject matter expertise or the difficult-to-measure intangibles, such as skilled customer service, familiarity with process improvement, and passion for the position evinced by thorough interview preparation,” the court wrote in Cunningham v. Austin.
“DFAS chose the intangibles, and we will not second-guess its decision,” the judges said.
The female employee sued the DoD for alleged sex discrimination in violation Title VII of the Civil Rights Act of 1964. A lower court rejected her claim, and the 7th Circuit upheld pretrial judgment for the DoD.
According to court documents, the woman worked in a GS-12 job as the supervisor in charge of DFAS’s benefits team. After her manager, the chief of the benefits division, was promoted to run an HR services center, DFAS converted a vacant GS-12 job into a new GS-13 supervisory position that would oversee both the benefits and the workers’ compensation teams.
The new benefits division chief, a man, along with the DFAS supervisor of talent supervision, reviewed resumes and began interviewing for the new GS-13 job, court records reflected.
For the interviews, they developed four categories on which to evaluate the candidates and created six standard questions to ask each of them. Four of the questions were behavioral.
Two employees emerged as the top candidates: The female employee in charge of DFAS’s benefits team and the male team leader of DFAS’s customer care call center, also a GS-12 position.
In upholding judgment for the DoD, the 7th Circuit explained that DFAS provided a legitimate, nondiscriminatory reason for selecting the male worker: The division chief concluded that his skill set and strategic vision made him more suitable for the job.
Although the division chief praised the female candidate for her subject matter expertise, he was concerned that her resume reflected only five years of relevant experience.
In comparison, the male candidate had 23 years of military service in the U.S. Air Force and had worked for a private corporation handling workers’ compensation issues and training more than 1,000 employees, according to the record. He also had familiarity with federal benefits through his leadership at the customer care center, the 7th Circuit noted.
Additionally, the division chief’s interview notes described some of the woman candidate’s answers as “tactical,” rather than “strategic,” meaning her answers reflected short-term thinking, the court said.
The female worker’s belief the division chief preferred working with a man and that she was more qualified fell short of showing pretext, especially in light of her own admission that the division chief “wanted something different organization-wise” and felt he “could do that with someone other than myself,” the panel pointed out.
Courts have generally accepted interview performance as a legitimate reason to choose one candidate over another — with a caveat.
“Employers may use interviews so long as they assess relevant criteria and are not ‘entirely subjective,” the 3rd Circuit explained in a November ruling. The case involved a worker for the Port Authority Trans-Hudson Corp. who sued for discrimination after she was passed over for promotion several times.
In upholding a district court ruling against her, the 3rd Circuit described how the interview process shielded the Port Authority from the worker’s claims. For instance, similar to the DoD case, the interview questions were job-related, and the candidates were asked the same questions and ranked according to the same criteria.
Importantly, the worker’s interview performance was captured in written documentation and reflected that her answers lacked “cohesion and organization,” the 3rd Circuit noted.