Tenth Circuit Refuses to Meddle in Employers' Legitimate Hiring Decisions

In a recent decision in Turner v. Public Service Co. of Colorado (d/b/a Xcel Energy, Inc.), the U.S. Court of Appeals for the Tenth Circuit affirmed a lower court's finding that Xcel Energy did not engage in sex discrimination when it refused to hire a woman for an entry-level power plant position at its Comanche plant. The court's decision reiterated the limited relevance of past litigation and employment statistics in employment discrimination lawsuits, and provides helpful guidance to employers regarding hiring practices.

Testing and Interview Procedures

Xcel Energy used a three-step process to interview for its entry-level power plant positions, including a standardized test, resume screening and an interview with a panel of four Xcel Energy employees. Turner argued that this interview process was purely subjective, and an attempt by Xcel Energy to disguise its discriminatory hiring practices. In rejecting Turner's arguments, the court noted that only when employers ultimately rely on criteria which are "entirely subjective in nature" will a court infer that a hiring process is a pretext for discrimination. The court found Xcel Energy's interview process was not excessively subjective because each applicant received the same questions, the questions inquired into job-related areas, and the interviewers were not given discretion to determine the scope of the interviews.

Relevance of Past Litigation and Employment Statistics

Turner attempted to support her discrimination claim by arguing that Xcel Energy had a history of sex discrimination as demonstrated by a sexual harassment lawsuit in 1991 for conduct that took place at the Comanche plant during the 1980s. The court recognized that, in some circumstances, evidence that decision makers have a general bias against a protected class may support an inference of individual discrimination. But for such general bias to be relevant, it must play "a direct role in the adverse employment decision" at issue. Because Xcel Energy's prior lawsuit involved different individuals and different conduct which occurred more than 15 years earlier, the prior sexual harassment did not have a sufficient connection to the challenged hiring actions to warrant an inference of sex discrimination.

The court also disposed the employment statistics that Turner presented to support her claims. Turner pointed to several different statistics showing a gender imbalance at the Comanche plant. For example, only one of 115 workers in production positions was a woman. And from 1992 to 2005, 20 men and zero women were hired for entry-level positions. In rejecting Turner's theory, the court emphasized that a statistical disparity alone may not support an inference of discrimination where an employer has a legitimate, nondiscriminatory reason for its actions.

Practical Advice for Employers

In light of the court's decision, employers should re-evaluate their hiring practices to ensure that they are not overly subjective. The following are some tips on how to limit subjectivity in hiring practices:

• Prior to starting the hiring process, identify criteria pertinent to an open position—such as education level, work experience and skills—to use in screening applications and resumes.
• Consistently apply the criteria in the screening process, prior to extending invitations to interview.
• Prior to interviewing, develop a set of questions about job-related information to elicit from applicants, and ask the same questions of all applicants for a particular position.
• Take affirmative steps to prevent interviewers from having absolute discretion to determine the scope of interviews, to inject their own subjective criteria into the interview process, or to alter the interview process for different applicants. One means of doing so is to conduct interviews by a panel rather than one individual.
• Rank qualified applicants through application of objective metrics prior to extending employment offers, and be prepared to demonstrate that only those applicants who ranked highest received offers.