Interview notes defeat worker’s retaliation claim, appeals court rules

Dive Brief:

The 3rd U.S. Circuit Court of Appeals upheld a district court’s ruling against a worker who charged her employer, the Port Authority Trans-Hudson Corp., with discrimination and retaliation after she was passed over for at least four promotions (Glaesener v. Port Authority of New York & New Jersey; Port Authority Trans-Hudson).

The worker, a Black woman, lost out on two roles to White men and two to the same person, another Black woman. The 3rd Circuit found no evidence of discrimination, noting that while one worker had been at the employer for less time, he had more experience in the areas the role demanded. 

The court similarly dismissed the worker’s argument that she had been retaliated against when she was given a “subjective” lower interview score. “Poor interview performance is a legitimate, non-discriminatory reason for employment decisions,” the 3rd Circuit said. “Thus, employers may use interviews so long as they assess relevant criteria and are not ‘entirely subjective.’”

Dive Insight:

The court made several observations about the interview process that shielded the employer from the worker’s claims.

The interview questions were job-related, for one, touching on interviewees’ technical knowledge, general competency and communications skills. There was no evidence the interviewers “injected their own additional subjective criteria into the evaluation process,” the court said; on the contrary, it found candidates were asked the same questions and ranked according to the same criteria. 

In addition, the court noted that in one interview, the worker had a score of only 18, compared with the successful candidate’s score of 44. During the interview, the worker cried, was “emotional” and “very flustered” and even “slapped the table a few times out of maybe frustration,” the court noted, referencing documents the Port Authority submitted in its defense upon the worker’s appeal. 

Those documents show there were three interviewers for that role, all of whom testified to the lower court and at least one of whom — the executive HR business partner — submitted typed notes. All three portrayed the worker as nervous and uncomfortable during the interview. 

“[The worker] claims that the interviewers’ notes omitted some detail, but nothing casts doubt on their explanation that the successful candidate did far better,” the 3rd Circuit wrote.

Attorneys have long emphasized the importance of documentation when it comes to HR compliance — and when it comes to successful documentation, the more objective, detailed and specific, the better, they’ve said. 

Court documents show that in the Port Authority case, the HR interviewer documented specifically what the worker did and said during the interview. For example, in noting that the worker’s answers lacked “cohesion and organization,” she noted that the worker “kept stopping in the middle of her sentences and would ask the question again” during the interview.

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