Colorblind ideology has hindered the purpose of Title VII, which declared it unlawful to refuse to hire a job applicant because of their race, sex, or other traits. Recent federal court decisions have continued this trend, diminishing legitimate discrimination claims by failing to properly recognize one manifestation of racism and sexism in hiring. This form of bias surfaces when employers adjust their stated hiring criteria, de-emphasizing certain job applicant traits, such as education, held by a marginalized candidate, while emphasizing other traits, such as relevant experience, held by a non-marginalized candidate. Robust empirical research supports that such criteria shifting is motivated by an applicant’s gender or race. In numerous studies, participants hire marginalized candidates when race and gender are concealed but fail to hire them when such traits are revealed. They often rationalize their discrimination, and thus maintain a self-image of fairness, by invoking hiring criteria that they, consciously or not, manipulated to benefit non-marginalized candidates.
Several federal courts have failed to properly recognize this manifestation of discrimination, despite its identification in the social science literature. This piece provides an analysis of these cases interspersed with empirical findings, which together illustrate how inconsistent hiring criteria unlawfully hamper marginalized candidates, leading to adverse employment decisions based on protected traits. Courts must improve their analysis of this form of evidence. When a Title VII plaintiff demonstrates the presence of inconsistent hiring criteria, and when an employer hires an applicant outside the plaintiff’s protected class, courts should rarely grant employer motions for summary judgment. Decisions to the contrary contravene summary judgment standards and the scope of Title VII.
