Can’t Always Pick Employees Based On The Interview

Can a company give a job to a less qualified male candidate just because he did better in the job interview than the female candidate?  That was the issue facing a federal judge in Virginia recently.

On paper, the female candidate was far superior to the male candidate.  The posting stated a preference for a college degree, which the female candidate had but the male candidate did not.  The female candidate had nearly twenty years of relevant management experience, compared to the male candidate’s four years.  But when the two candidates were brought in for in-person interviews, the company found that the male candidate’s responses were much better than those given by the female candidate.  A panel of eight people from the company conducted the interviews, and their decision to give the job to the male candidate was unanimous.

The female applicant sued the company for gender discrimination.  The company moved to dismiss the case by arguing that performance in a job interview was a big component of the selection process, and it should be free to rely on the interviews in deciding whom to hire for the job even if another applicant looks better on paper.

The judge ruled against the company and refused to dismiss the female applicant’s gender discrimination case.  The judge called the company’s justification for hiring the male candidate over the female “meager” given the disparity in qualifications, and he was not persuaded by the company’s “subjective explanation” that the male did better in the interview.  The judge warned that allowing company’s to ignore qualifications in favor of the subjective interview process would “allow employers unchallengeable authority to explain away employment decisions.”  The judge noted that it is almost impossible to evaluate the “truthfulness” of how a company rates candidates during the interview process.

This case is a wake-up call for employers who think they are free to do whatever they want in making hiring decisions.  Companies should pay particular attention to what they include in job postings, to make sure that the qualifications listed are those that will actually be determinant in the job selection.  And from this case, companies may want to include a statement in the job posting stressing the importance of the interview process.

Declan Leonard is managing partner of the Washington, DC regional business law firm Berenzweig Leonard, LLP. He can be reached at DLeonard@BerenzweigLaw.com.

Employee’s Access of Company Computers Was Not Unauthorized

In the case of WEC Carolina Energy Solutions LLC v. Miller, employee Miller had access to his employer WEC’s computer files.  Miller accessed WEC’s files using his valid log-in rights, but then downloaded information in order to help another company compete against WEC.  WEC found out what Miller did and sued him for, among other claims, violation of the federal Computer Fraud and Abuse Act (CFAA).

The CFAA is often invoked by companies to sue employees who steal confidential information for use by competitors.  The law applies when someone accesses a computer without authorization, or when someone exceeds the level of authorized access to a computer.  So a big question faced by appellate courts in recent years is whether it is a violation of the CFAA if an employee uses his valid access to his employer’s computer files to download confidential information in order to compete against the company.

There is a split among the nation’s federal appellate courts on this issue, with some jurisdictions such as the 7th Circuit saying the above case is a violation of the CFAA because the access by the employee is being done to the company’s detriment, and therefore by definition is not authorized by the company.  But Miller’s case arose in the 4th Circuit, which covers Virginia, Maryland, West Virginia and the Carolinas.  The 4th Circuit opined that Miller did not violate the CFAA because he had valid log-in rights to WEC’s computer system at the time he logged on to download the confidential information.  According to the court, WEC has other tort claims it can bring against Miller, just not a claim under the CFAA.

Given the split among the federal appellate courts on this issue, it is likely to end up before the United States Supreme Court for final resolution, so stay tuned.

Declan Leonard is managing partner of Washington, DC business law firm Berenzweig Leonard, LLP.  He can be reached at DLeonard@BerenzweigLaw.com.