What is the most frustrating aspect of defending discrimination cases for employers? The list of possible answers is long, but one answer that is at or near the top is defending business judgment. A recent unpublished decision of the Michigan Court of Appeals will make employers happy.
In Cooper v. Department of Corrections, No. 292852 (10/14/10), a panel upheld the circuit court's granting of summary disposition in an age discrimination case. Plaintiff applied for a parole officer position.
She was not selected. Plaintiff had more experience than most of the employees hired but scored slightly lower than the other applicants in the interview. The court noted that there had been some concerns with plaintiff' resume and that the position did not require any specific work experience.
The court reaffirmed its prior statement that the soundness of an employer's business judgment may not be questioned as a means of showing pretext. The trier of fact cannot second guess whether the hiring decision was wise or sound. The court stated that it was reasonable for an employer to value communication skills and knowledge demonstrated during interviews. In the absence of biased comments or a pattern of discrimination, the plaintiff could not rely on guesses or suspicion regarding the employer's actions.
To take advantage of the court's deference to its legitimate business judgment, an employer must be able to defend and to articulate the basis for its action. Obviously, consistency of actions with words is important as is recordkeeping. An employer must recognize that by establishing criteria for a position, it must apply them in a non discriminatory manner. The court's deference to business judgment will not save an employer who acts inconsistently with its stated standards and policies.