Hiring: Subjective Criteria

Standardized and performance-based interviews sometimes stray from scripts because interviewers are distracted by a response they did not expect and, as all know, some interviewees are unpredictable, interesting or garrulous. A foolproof repellant to subjectivity does not exist. Some positions are filled based on test scores. Even then, is the test entirely objective?

Subjective criteria based on interviews includes appearance, assessments of motivation, “chemistry” and likability. Subjective criteria rely heavily on intuition, feelings and gut-reactions rather than systemic observations and measurements. Nearly all offers are based on some amount of subjectivity. Most work out. A downside is that they can be viewed as neutral requirements that have discriminatory effects.

Test scores can be challenged based on disparate impact. If the acceptance rate for a position is skewed based on protected class, it would be sufficient to establish a prima facie case alleging disparate impact.

Subjective claims about an interviewee not being a good fit or having a poor attitude can result in claims of discrimination. It is not the role of courts to second-guess employment decisions, but they will delve into whether an employer’s decisions were the true reason for an employment decision. Employers are advised to use objective criteria whenever it is feasible.