Tag Archives: Hiring Process


In a recent decision, the 5th Circuit noted that it was acceptable for an employer to rely on applicant scores on an interview, even though the process is inherently subjective.  Rodolfo Martinez sued the Texas Workforce Commission, alleging that he was passed over for a promotion in favor of an Anglo woman.  Mr. Martinez was able to establish what the courts call a “prima facie” case of discrimination.  To do this, all he had to show was that 1) he is a member of a protected class; 2) he sought and was qualified for the position; 3) he was rejected for the position; and 4) the employer continued to seek applicants with the applicant’s qualifications.  This comes from Haynes v. Pennzoil Co., 207 F.3d 296 (5th Cir. 2000).

Since Mr. Martinez passed this first test, the burden shifted to the employer to show that there was a legitimate, non-discriminatory reason for its decision to hire someone other than Mr. Martinez. The Workforce Commission asserted that Ms. Quesnel was more qualified for the job than Mr. Martinez, and on top of that, she gave a better interview.

The 5th Circuit agreed, and thus, upheld the decision in favor of the Workforce Commission.  For our purposes, the most interesting part of the decision is the discussion of interviews as part of the process.  After all, qualifications are often objective—one person has a Master’s while the other has a Bachelor’s.  Or one person has more relevant experience.

But an interview process inherently involves subjective judgment calls.  Is that OK?  Here’s what the 5th Circuit said:

An employer may rely on subjective reasons to select one candidate over another, however, “such as a subjective assessment of the candidate’s performance in an interview.” Alvarado v. Texas Rangers, 492 F.3d 605 (5th Cir. 2007). 

Here, the TWC asked the candidates an identical set of questions and scored them based on the similarity of their answers to a model answer.  Because the TWC has provided some evidence demonstrating how it scored the applicants in the interview process, we conclude that the subjective assessment may serve as a legitimate, non-discriminatory reason for its decision and the use of the subjective assessment does not serve as evidence of pretext.

When two people are qualified for the job and you have to choose one, you are making a difficult judgment call.  Judgment calls, by their nature, involve subjective judgments.  Here, the court recognizes that reality, but relies also on the fact that the employer provided some guidance for that judgment. There was a “model answer” that was used as a measuring stick of sorts.  The court seemed to like that.


The case is Martinez v. Texas Workforce Commission—Civil Rights Division, decided by the 5th Circuit on December 30, 2014.