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What you don't know can hurt you—issues with subjective performance standards

July 2020 employment law letter
Authors: 
Kacy Flaherty, Davis Brown Law Firm

Any time someone walks in for a job interview, both sides have expectations of how the interview will go. From skillset to personality fit, every HR manager is looking for the perfect solution to their hiring needs.

When we can't clearly and consistently articulate what success looks like, however, problems occur. One clear issue is subjective interviewing standards. Undisclosed standards can create liability for employers.

Recent Iowa example: Watkins v. City of Des Moines

Recent Iowa case law demonstrates the need to use objective measures to support HR decisions whenever possible. This is especially true when decision makers in charge of hiring or promoting employees have made prior discriminatory comments, which is what happened in a recent Iowa case.

In Watkins v. City of Des Moines, the Iowa Court of Appeals addressed a scenario where the city of Des Moines decided not to promote an employee based on subjective scoring measures made by an interviewing panel.

After more than 20 years of service to the city, African-American employee Clifford Watkins III sought a promotion. The promotion process consisted of objective measures to evaluate candidates, including a written test and evaluation of their education and experience.

Along with the objective measures, a three-member panel also interviewed applicants and scored their responses from zero to five for each question. The subjective portion of the employer's promotion criteria was called into question by Watkins when racially offensive comments made by multiple panelists surfaced.

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