Suits In The WorkPlace

Law firm hiring is coming under some scrutiny, as the cost of bringing in a single summer intern approaches $250,000 for some firms. Add to that the starting salary of first-year associates in places like New York and Chicago ($165,000) and you start to realize the stakes that are involved for firms as they compete to bring in the talent that management hopes will be worth the price.  It's not too much of a stretch to say that most employment lawyers would not recommend that their clients use the same hiring practices that the lawyers' law firms follow.

A recent article in law.com highlights the ineffective systems used by many law firms to bring in students who will work there for the summer, and, it is hoped, ultimately accept a position with the firm. The ugly reality is that only 28% of the students offered a job by a major law firm will accept, and of that group, 40% will leave by the end of their third year and 62% by the end of their fourth.

The biggest problem is lack of contact with the applicants. My own firm is guilty of this to a certain extent, we rarely have more than 30 minutes to talk to applicants in our offices, and even less time for the in-school interviews. As a result, most law firms begin to fall back on things that don't require a lot of time to assess, such as grades. Unfortunately, as the article points out, grades are not a particularly good indicator of anything other than success in law school. Moreover, the kinds of relatively superficial and repetitive questions that are asked during the actual face-to-face interviews aren't really designed to provide much guidance either to the law students, or the lawyers interviewing them.

Other high-end white-collar professions, such as banks and accounting/consulting firms don't engage in this kind of "through a glass darkly" evaluation process. Frequently, these outfits begin recruiting at the undergraduate level, and follow potential recruits through their advanced degree schooling. They spend enough time with the individual to know whether that person has the temperament for their practice, and they simply don't interview everyone who walks in the door, unlike the typical law school interview processes. Finally, a number of these companies use personality assessments in order to find out whether the person who looks good for 45 minutes in an interview will be able to hold up to months of stress in a corporate financial setting.

Clearly something will have to change--firms can't afford to spend 6000 hours of attorney time to recruit 57 law students for a three-month summer internship, as an Atlanta firm did this year. With increasing recruiting costs, and rising salaries, firms will have to develop some type of mechanism to hire people who are able to pay for themselves in the short run-- firms simply cannot tolerate the numerous false starts that the current system produces.

It seems that the EEOC sometimes operates just like a private sector, plaintiff's law firm, notwithstanding its charter to fairly enforce federal antidiscrimination law. A recent case before the Seventh Circuit shows EEOC litigation at its games playing best.

A male employee filed a charge of discrimination against his employer after he discovered his supervisor and a female employee were having an affair, and the supervisor was giving his paramour preferential treatment because of the relationship. After the plaintiff reported the situation to his company's management, he was fired, allegedly for disclosing the relationship.

For some reason, the EEOC decided this was a case worthy of attention, and brought a civil action against the employer on behalf of the plaintiff. The Commission alleged that the employer retaliated against the employee because the plaintiff opposed an unlawful employment practice, i.e. the favoritism given to a female coworker because of her sexual relationship with the supervisor.

Unfortunately, this is not a claim under Title VII. The district court recognized this immediately, and granted the employer's motion to dismiss the case, noting that such favoritism, and retaliation for reporting it, does not constitute a violation of the law.

The EEOC promptly turned around and filed an amended complaint, this time making its allegations much less specific, and leaving out the fact that the retaliation claim was based on a report of an affair between supervisor and subordinate. This was an obvious attempt to prevent the court from dismissing the case, notwithstanding that there was no additional evidence to support the litigation. The district court would have none of this, and noted that even though the Commission failed to list the conduct that the plaintiff believed violated Title VII, the court could and would look to the original charge of discrimination, which it found deficient, again. The district court dismissed the case again, noting that the EEOC, again, pleaded itself out of court.

The Seventh Circuit disagreed with the district court's opinion, but not with the result. The Court found that there was no basis to look back to the charge and include it as a factual support for the litigation, but at the same time determined that the EEOC's complaint was procedurally vague and did not meet the requirements of a properly pled cause of action. The Court noted that what the Commission accomplished with its amended complaint was to file a lawsuit in which "the plaintiff withholds the basis upon which she suspects her employer acted..." The court would not allow this, and dismissed the claim, this time with prejudice.

I don't know why this particular case attracted the EEOC's attention. Typically the Commission does not litigate individual employment cases except in the most egregious of circumstances; it properly focuses its efforts, and its limited resources, on systemic cases of discrimination or potential class actions. It's disappointing, however, to see a government agency engage in this type of semantic gamesmanship. Presumably the Supreme Court's recent decision in Bell Atlantic Corp. v. Twombly (which the Seventh Circuit quotes extensively in this case) will act as a further brake on this type of nonspecific litigation.

A very useful and commonsense opinion from the DC Circuit shows how employers should handle job selection criteria in promotion (and presumably hiring) cases.

The case involves an a claim of race discrimination in a promotion decision involving two federal employees. As with many federal employee decisions at this level (a move from a GS-13 to a GS-14 position), there was a formal evaluation of the job applicant's "knowledge, skills, and abilities", as well as an evaluation of the applicant's competence against the new job description. The ultimate choice for the position, a white female, scored significantly better than the black applicant on the knowledge skills and abilities portion of the process, and had substantially more experience in the executive agency's main data management tool, known as the "Key Indicators" system. It was undisputed that there was no specific reference in the new position's job description that called for a Key Indicators expert, or even particular knowledge of the Key Indicators system. However, the generic job description did call for a person with the ability to use statistics to describe and predict trends in the executive agency's performance data.

The court took a very straightforward analytical route in affirming the grant of summary judgment to the employer. The Court first noted that when an employer makes a hiring decision based on relative qualifications of the candidates, the Court assumes that a reasonable juror who might disagree with the employer's decision, but would find a question to be a close one, would not usually infer discrimination on the basis of a comparison of qualifications by themselves. However, if a jury could conclude that a reasonable employer would have found the plaintiff to be significantly better qualified for the job, a jury can properly infer the employer consciously selected a less qualified candidate, a typical marker for something such as discrimination entering into the decision-making process.

In other words, in order to justify an inference of discrimination, the court stated that the qualifications gap between the applicants must be great enough to be "inherently indicative" of discrimination. The Court went on to state that the fact that the Key Indicators were not specifically mentioned in the job description was not significant- reasonable employers do not ordinarily limit the evaluation of applicants to a mechanistic checkoff of qualifications required by a written job description, but take additional credentials into account if those credentials could prove useful in performing the job.

The advice here is fairly clear--the more clarity an employer can use in evaluating applicants' job qualifications, the more likely it will prevail in a discrimination claim if it applies those qualifications consistently. Moreover, it is not necessary for a job description to contain every single attribute sought by the employer; generic skills listings, or even an ability to clearly articulate why a particular qualification or credential would be helpful, can be enough to support a proper choice.