Soft Skills a “Good Fit” for 11th Circuit?

By Joshua B. Zugish

In a recent case before the11^th Circuit Court of Appeals, Martin V. Shelby County Board of Education, 2018 WL 6190366 (11th Cir. 2018), the Court affirmed summary judgment and dismissal of a Title VII race discrimination case brought by Sharon Martin against the Shelby County Board of Education and certain Board members. Martin, who is black, alleged the Board intentionally discriminated against her on the basis of race when it promoted a white candidate instead of her. While the decision provides an efficient and thorough recitation of a “failure to promote” legal analysis, of particular note was the “whole comprehensive approach” to vetting applicants that appeared to incorporate consideration of soft skills in the interview and selection process.

Failure to Promote Legal Considerations

In a failure-to-promote scenario, a plaintiff may establish a prima facie case of discrimination by showing that: (1) she was a member of a protected class; (2) she applied and was qualified for a position for which the employer was accepting applications; (3) despite her qualifications, she was not promoted; and (4) the position remained open or was filled by another person outside her protected class. If a prima facie case is presented, the burden shifts to the defendant employer to articulate a race-neutral basis for the employment action. This is a light burden that, if met by the defendant employer, returns the burden to the plaintiff to prove the employer’s stated reason for its conduct is a pretext for discrimination.

“People Skills” and a “Customer Service Mindset”

In this instance, Martin established a prima facie case of discrimination. However, the defendant employer met its burden of articulating a race-neutral basis for it hiring decision. Notably, the Court found the Board’s race-neutral reason to hire George instead of Martin adequate:

[T]he interviewers decided that they wanted someone with excellent people skills and a customer service mindset, and the ‘consensus among the interviewers was that Ms. George would have done the best job and was the best choice.

While subjective and open-ended notions of who may have “people skills” and a “customer service mindset” can lead to problems in the hiring process, in this case the Court found consideration of such traits to be an adequate, nondiscriminatory reason to choose one candidate over another, regardless of race. This sense of who may be the “best fit” commonly impacts the review of job candidates, yet it is a subjective concept that can lead to a variety of problems, including claims of discrimination.

Consistency is Key

At first glance, the Court’s affirmation of the interview process as nondiscriminatory suggests that soft skills may be considered in the hiring process with little risk. Further review, however, shows the Court’s holding is buttressed by other considerations of fairness and consistency in the hiring process. The Court took care to note the following occurred in the hiring process:

• The hiring panel asked all five candidates for the position the same questions;
• The panel made notes of each candidate’s answers;
• The panel did not use numerical ratings for any of the candidates which, despite being a deviation from the forms and usual process, was applied equally to all candidates regardless of race;
• The panel looked favorably on George’s prior experience as a substitute in the office, together with her “demonstrated organizational skills and ability to multitask” in recommending her for hire.

Martin, however, relied on the following evidence in support of her discrimination claim:

• Evidence comparing her qualifications against George’s;
• The panel’s focus on criteria not emphasized in the job description;
• The panel’s decision not to use a numerical rating system as provided on the interview forms and instead use a “whole comprehensive approach” to score the candidates.

Under this “whole comprehensive approach,” the panel discussed each candidate’s strengths and weaknesses, any personal knowledge the interviewers had of each candidate, and the “overall impression” of the candidate after each candidate’s interview. While this comprehensive approach was a deviation from the employer’s own standard procedures, the Court found it was not sufficient evidence of pretext when the comprehensive approach was used equally on all candidates, including a white candidate who arguably had superior qualifications over George. The Court noted:

Because applicants of all races – and specifically both a white and black candidate – were affected in the same manner by the panel’s choices during the interview process, we cannot say that this evidence creates a genuine issue of material fact about whether the panel’s process was ‘actually designed to conceal a racially discriminatory motive.

Lessons Learned from Martin v. Shelby County Board of Education

So what lessons do we learn from this case and its affirmation of a hiring process that relied, in part, on soft skills and a less technical approach than many?

First, even though the defendant employer successfully defended a discrimination claim in this case, the deviation from standard procedure and use of a “whole comprehensive approach” provided fuel for a legal claim from Martin. The more consistent the hiring process is, with established process and evenly applied standards for review, the less risk of a discrimination claim.

Second, the employer’s legal defense in this case benefited greatly from the panel asking the same questions of each candidate and reviewing each candidate similarly. Deviation from established process for one candidate over another enhances risk of a discrimination claim.

Third, it is important to ensure that hiring authorities, whether individuals or panels, are well trained in the employer’s established hiring procedures and the importance of following them to help avoid legal arguments from an applicant that does not get hired.

Lastly, if soft skills are important to the vacant position, consider how to articulate those skills as a qualification or essential duty in the job announcement and position description. This helps avoid arguments that an individual or panel has gone off script to consider subjective notions of being a “good fit” or “good with people” that may result in arguments of bias and enhance the risk of discrimination claims.