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Defending Discrimination Claims in Regards to the Hiring Process

By on August 16, 2017 in Discrimination with 0 Comments

Hiring new employees tends to be tricky for employers because there are so many employment laws that must be abided by in regards to the hiring process.   Often applicants who have interviewed for the open position, but are not hired, feel disappointed and rejected. It is always possible that the applicant may claim that he/she was not hired based upon a discriminatory reason.  In a recent Third Circuit case, Bulifant v. Del. River & Bay Auth., No. 16-3899, 2017 WL 2894388 (3d Cir. July 7, 2017), the Third Circuit provided some guidance to employers as to how to defend against discrimination claims based upon the hiring process.

Facts of the Case

Shawn Bulifant, Gary Hughes, Daniel Loper, James McClintock and Christopher Vernon (hereafter referred to as the “Employees”) were seasonal crew members who worked for Delaware River & Bay Authority’s ferry services at various points between 2006 and 2017.  The Employees applied for various full time positions with DRBA in response to job postings. Each time, the Employees received interviews but they were not selected for any of the full-time positions.

In making hiring decisions the DRBA employed a standardized approach in which the same panel of four DRBA employees interviewed every candidate using the same pre-set questions that focused on four competencies – functional and technical skills, safety, customer service and peer relationships. Based upon the candidate’s responses, each panel member assigned the candidate a numeric score. The scores of the panelists were then added together and then the rankings and comments were sent to human resources.

Here, the Employees filed suit, claiming that they were not hired for the full time positions with the DRBA due to their age in violation of the Age Discrimination in Employment Act.  Moreover, the Employees claimed that because they submitted complaints to the DRBA regarding alleged age discrimination after their first round of unsuccessful applications, the Employees were not hired for the later positions in retaliation for their complaints.  The District court granted summary judgment in favor of DRBA and this appeal followed.


To establish a claim of age discrimination, the complainants must show that their age was the “but for” cause of the DRBA’s decision not to hire them.  Although the Court found that the Employees were able to satisfy a prima facie case of age discrimination, they could not dispute DRBA’s legitimate non-discriminatory reason for failure to hire – low interview rankings.  To the extent that DRBA followed its own ranking system, the Court found that the process was “formal, open, objective, and documented.” The Employees could not demonstrate that strict adherence to this system was a pretext for discrimination.  Despite this, the Court did find that in cases where DRBA did not hire according to the numerical rankings and did not document reasons regarding the deviation from its policy, there was enough evidence that a reasonable jury may find pretext.  Thus, the Court decided that only situations where the ranking system was not followed would be presented to a jury. In regards to retaliation, the Court found that the Employees were unable to establish that a causal connection existed between their protected activity and DRBA’s decision not to hire them.

What does this mean?

In order to avoid possible lawsuits later, it is in an employer’s best interest to create a “formal, objective and documented” interview process.  The easiest way to do this, although not the only way, is to have each interviewer rank the candidate based upon set (and written) criteria. It is best that an employer hire according to the grading system (highest grade = getting the job) and if the employer decides to deviate from the system, notes should be kept as to why.  The grading sheets and any comment sheets should be retained by the employer to use later as a tool in defending against claims of discrimination.


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