Scenario #1: Let’s say you look at 20 resumes for a
position, sort the resumes from most qualified to least,
and decide to interview 5 candidates who rank somewhere in
the middle of this sorting.
And to make the situation even more challenging, let’s
assume that the 5 candidates selected for interviews were
all white men.
Is this proof of gender and/or race discrimination?
Scenario #2: Assume you interview 3 candidates for a
position and select the least experienced Hispanic woman
over the more qualified white male candidates.
Is this proof of gender and/or reverse racial
The answer to both questions is generally “no,” unless
there is proof of some discriminatory intent on your part.
There is an actual case that recently came from
Connecticut, Robert B. McKay v. Board of Trustees of
Community Colleges (BTCC), in which McKay claimed that he
was denied an interview even though (1) he was more
qualified than the 4 women and 2 men selected for
interviews and (2) more qualified than the woman who was
In reviewing the facts of the case, the BTCC considered
McKay’s resume to be “out of date based on his most recent
experience for the position,” which was over 20 years old.
In ruling against McKay, the court’s decision is most
notable because it contains language that is extremely
helpful for employers when it said, “There is no legal
requirement that the most qualified candidate be hired.”
Additionally, the court quoted a 1980 legal decision when
it stated the following:
“Title VII does not require that the candidate whom a
court considers most qualified for a particular position
be awarded that position; it requires only that the
decision among candidates not be discriminatory. When a
decision to hire, promote, or grant tenure to one person
rather than another is reasonably attributable to an
honest even though partially subjective evaluation of
their qualifications, no inference of discrimination can
be drawn. Indeed, to infer discrimination from a
comparison among candidates is to risk a serious
infringement of first amendment values.”
Having noted all of the above, a company must have SOME
rational basis for (1) selecting resumes for interviews
and (2) selecting a person to hire.
The rational basis can be subjective such as the
*Most recent experience.
*Worked for our largest competitor.
*Lives within a 45-minute drive of the office.
*Experience is out-of-date (as in the McKay case above).
For Offers of Employment:
*The person who was the friendliest.
*The person who was the most verbally expressive.
*The person who asked the most insightful questions.
*The person with the best responses during the interview.
*The person who displayed the most manners at a luncheon.
The important points here are:
#1 Even the most qualified candidate cannot overcome a bad
#2 The person hired must at least meet the minimum
qualifications for the position, which suggests a
well-written job description.
#3 The interview process must have been the same for all
candidates (e.g., all asked the same questions, all taken
to lunch, all given the same tour, etc.).
#4 Companies do not have to be perfect in their decision
process providing there is no bias.
#5 Companies must be able to identify a non-discriminatory
and rational basis, even if it is subjective, for
decisions to interview and decisions to hire.