Legal Memorandum: Review of Subjective Hiring Criteria

Issue: How does the Ninth Circuit review subjective hiring criteria in an employment discrimination case?

Area of Law: Employee Law, Litigation & Procedure
Keywords: Employment discrimination case; Subjective hiring criteria; Subtle discrimination
Jurisdiction: Federal
Cited Cases: 729 F.2d 1229; 431 U.S. 324; 150 F.3d 1217; 810 F.2d 1477; 113 F.3d 912
Cited Statutes: None
Date: 08/01/2005

Over twenty years ago, the Ninth Circuit Court of Appeals expounded on the importance of thoroughly scrutinizing subjective hiring criteria.

In today’s world, racial discrimination sometimes wears a benign mask.  Current practices, though harmless in appearance, may hide subconscious attitudes, and perpetuate the effects of past discriminatory practices.  Although subjective employment criteria are not illegal per se, courts should examine such criteria very carefully to make certain that they are not vehicles for silent discrimination.


EEOC v. Inland Marine Indus., 729 F.2d 1229, 1236 (9th Cir. 1984).  The court’s admonition remains valid and important today.  The Inland Marine court’s holding followed the court’s decision in O’Brien v. Sky Chefs, Inc., 670 F.2d 864 (9th Cir. 1982), overruled on other grounds, Atonio v. Wards Cove Packing Co., 810 F.2d 1477 (9th Cir. 1987), in which the court discussed the possibility of such subtle discrimination where the plaintiff alleges a pattern or practice of discrimination.

[I]n this case the prima facie showing of discrimination against the individual plaintiffs rests in part upon proof that there was a pattern or practice of discrimination.  A prima facie case that there was such a pattern or practice rests in part upon a statistical showing on the theory of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977).  The district judge did not reach the question of whether the defendant […]


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