A federal court of appeals recently upheld a jury verdict for an employee in an age discrimination claim. The decision shows what happens when an employer explains a hiring or promotion decision by relying on a criteria not mentioned in the vacancy announcement.
National American University was hiring a director of admissions for its Rapid City, South Dakota campus. The employee worked for the university and sought the promotion. She was one of three finalists but was not offered the job when the two preferred candidates declined it. Instead, the university broadened its search ultimately offering the job to a substantially younger candidate.
At trial, the University explained its refusal to promote the plaintiff on the ground that she lacked management experience. While a director of admissions would seemingly need "management experience" the position vacancy announcements failed to mention it.
Worse, in its EEOC response, the University asserted the employee had "struggled" with her performance and had received "mediocre" ratings. Yet, at trial, the University abandoned this explanation and its witnesses praised the employee's performance.
The lessons from the decision are pretty basic. Make sure hiring or promotion decisions can be and are explained by reference to criteria stated in the job description. While employers are not rigidly bound by what is in the position vacancy, it is a mistake to explain a promotion decision by citing criteria that are not in the job description.
The decision also illustrates the importance of making sure the response to an EEOC charge will be the reason asserted at trial. It is often tempting, in responding to an EEOC charge, to "embellish" by asserting problems the employer had with the employee, even if the problems were not considered in reaching the decision at issue. If that is what the University did here, it backfired
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