Is “Poise” a Qualification or a Subjective Assessment Prone to Bias?

Qualifications normally are an  important consideration in discrimination cases.

In recent weeks, however, the EEOC has ruled in two age discrimination cases that subjective assessments  outweigh objective qualifications.

In both cases, Carlton M. Hadden, Jr. director of the EEOC’s Office of Federal Operations, held that federal agencies did not engage in age discrimination when they ignored the superior qualifications of older applicants and hired younger, seemingly far less qualified workers. The EEOC, which has declined to comment, upheld both decisions.

In one of the cases, Hadden ruled that an African-American female in her 20s was more qualified for the position of lead police officer at a veteran’s center in Dallas than a 48-year-old white male who was then serving as lead police detective at the center.  The male had 20 years of high-level experience in policing; the female had served a stint in the Army military police.

Hadden said the female candidate “arguably has more experience in the intangible areas sought by the (hiring panel), such as poise, compassion, leadership, and the ability to cope with stress…” But are “poise” and “compassion” really “qualifications” or are they subjective assessments that are subject to cultural bias? And why doesn’t an officer who is in a leadership position show more leadership potential than an individual who is not? These decisions raise questions about whether the EEOC is implementing its own vision of affirmative action rather than federal law.

In the past, courts have looked skeptically at subjective assessments in hiring  because research shows that hiring managers often harbor subconscious bias.

An older candidate may not seem poised if members of the hiring panel harbor bias that older people are ugly, sickly or lacking in enthusiasm.

The issue is important because today there is rarely direct evidence of  discrimination. Plaintiffs must show that the employer’s non-discriminatory explanation for a negative employment action was a pretext for discrimination.  It’s hard to disprove an employer who says the other candidate had more poise and compassion.

The U.S. Supreme Court in 2006 discussed how courts should assess  “plainly superior qualifications”  in the  case of  Ash, et al. v. Tyson Foods, Inc. The U.S. Supreme Court clearly was not talking about  the employer’s subjective assessment of the candidates – that’s what the Court was concerned about.

In the Ash case, the plaintiffs, two African-Americans, argued that Tyson used job qualifications that were not required by company policy to exclude them and justify promoting two white males. The 11th Circuit Court of Appeals in Atlanta dismissed their complaint, ruling they had ailed to raise an inference of discrimination.

The 11th Circuit ruled that a plaintiff must show the disparity in qualifications was “so apparent as virtually to jump off the page and slap you in the face.”  The Supreme Court rejected this standard, calling it “”unhelpful” and “ambiguous.”

In the Ash decision, the U.S. Supreme Court referred approvingly to far less stringent standards than the one articulated by the 11th Circuit. The Court noted a federal appeals court in California ruled  that a pretext of discrimination can be found where a candidate was not hired despite  “clearly”superior qualifications.” The Court cited a ruling by a federal appeals court in the District of Columbia that a fact-finder might infer pretext if a “reasonable employer would have found the plaintiff to be significantly better qualified for the job.”

Hadden did not cite any legal authority to justify equating subjective assessments with objective qualifications. The EEOC has declined to comment.

The EEOC routinely rejects subjective assessments in race and sex discrimination cases. Why is there a different standard for age discrimination?

The other age discrimination case dismissed by the EEOC in August condoned hiring workers based on “cultural fit.” This concept is so widely regarded as an invitation for bias that it is now considered taboo even in the business community.

The bottom line is that the EEOC is locked in a time warp, despite the fact that it was designated by Congress to implement the Age Discrimination in Employment Act and should be in the forefront on the issue of equal rights. And, since EEOC cases are secret, we have no way of knowing how many older workers have had their cases dismissed on the basis of reasoning that follows no legal precedent and appears to be the equivalent of a whim.

Behavioral Design Algorithms Show Promise and Peril in Hiring

A new technology has the potential to both reduce and exacerbate illegal bias in hiring.

The New York Times has reported that two start-up hiring platforms, Applied and Pymetrics, have created algorithms using  artificial intelligence and neuroscience games that can level the playing field for gender, ethnic and socioeconomic representation.

Age discrimination also is illegal but it was not mentioned. This despite considerable evidence  showing that employers currently are systematically discriminating against older workers by using computer software to screen out their resumes and divert them to a digital trash can.  Research shows that older women are the most severely affected by hiring discrimination.

Spokespersons for Applied and Pymetrics said behavioral design algorithms  are capable of analyzing hiring factors that are more predictive of performance and less biased than traditional resume screening tools. The algorithms are tweaked until men and women and people of different ethnic backgrounds get similar scores to qualify for hire. A spokesperson for Applied cited a large test in which over half of the people that were hired would not have been were it not for the platform. A  Pymetrics spokesperson said the company has been highly successful in improving gender, ethnic and socioeconomic representation for clients like Accenture and Unilever.

The behavioral design companies say the technology is equally capable, in the wrong hands, of magnifying hiring bias.

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