The full case caption appears at the
end of this opinion. Easterbrook, Circuit Judge. Rodney Scott lost hisjob as a social worker at Parkview MemorialHospital when the Hospital reorganized. Thenumber of nonsupervisory social workers droppedfrom nine to six; the survivors acquiredadditional responsibilities–principally dealingwith insurers and health maintenanceorganizations. The Hospital decided to make thetransition by requiring its existing staff toapply for positions as if all social work slotswere being abolished and new jobs created; thelosers at this game of musical chairs would belet go. Scott was not eligible for the newsupervisory positions, which required aregistered-nurse license, and thus was limited tothe six line jobs. The Hospital used a series ofinterviews to make its decision. Scott lost atthe second phase. A panel of interviewers scoredthe candidates’ answers and passed those whoachieved 39 or higher; with a score of 32, Scottwas filtered out. Five candidates made it to thethird round. Because only four of these passedthe third round, the Hospital ended up fillingtwo positions from outside; both of the new hireswere women. Scott filed this suit claiming to bea victim of sex and age discrimination. He loston summary judgment. Scott’s fundamental problem is that he has nodirect evidence that sex or age played a role inthe decisions. None of the stated criteria islinked to sex or age. None of the participants inthe process said that sex or age mattered.Although younger women seemed to do better in theprocess–three of the four people who flunked thesecond round of interviews are men, and all hadreached 40 (Scott himself was 46)–too few wereinvolved for the numbers to be significant. Theage differences also were slight; the candidateswho passed Round Two ranged from 32 to 46, whilethose who did not pass spanned 42 to 48. Thesemodest differences are not enough to imply thatthe Hospital was searching for a way to screenout people on the basis of preconceptions aboutage, especially when we add in the fact that oneof the persons hired from outside to make up thecomplement of six was 51 at the time. Fewconceive of people in their 40s as “old” inrelation to those in their mid to late 30s. Aninference of discrimination is appropriate onlywhen the employer favors “substantially” youngerpersons, a term we have defined operationally as”ten years or more.” See Miller v. Borden, Inc.,168 F.3d 308, 313 (7th Cir. 1999); Hartley v.Wisconsin Bell, Inc., 124 F.3d 887, 892-93 (7thCir. 1997). So the age-discrimination claim goesnowhere, and the sex-discrimination claim is onlyslightly stronger. Social work traditionally has been adisproportionately female profession. Thus it isnot surprising that most members (six of seven)of the interview panel that rated Scott and theother eight incumbents were women. He contendsthat their questions signaled favoritism towardwomen. One inquiry was: “Describe a situationwhere you went beyond your normalresponsibilities in order to meet a patient’sneeds.” Scott thinks that this indicates apreference for attitudes that he is surepredominate among women. Notes on anotherperson’s interview include “smiles warm,” anotation missing from Scott’s file; he is surethat this likewise shows how the panel favoredwomen. The interview process was subjective, sobiases could be both indulged and disguised,Scott insists. Let us suppose that women are more likely thanmen to display caring or generally warm-and-fuzzyattitudes– though this may be a stereotype aboutstereotypes, rather than an accurate descriptionof traits in the population. How would this implysex discrimination? Scott does not deny thatcaring about others’ welfare, and eagerness toassist strangers, are appropriate traits forsocial workers. They are appropriate even when,as at Parkview Hospital, social work is evolvingto include more emphasis on negotiations withthird-party payors. Questions about engagementwith clients’ needs are no less appropriate forsocial workers than questions aboutaggressiveness toward adversaries would be whenhiring trial lawyers. Subjective interviews couldbe smokescreens for bias, but in professions suchas social work (or law, medicine, architecture,and many others) they are also necessary; noformulary of approved answers can replace anuanced evaluation of candidates. Nor doesfederal law require private employers to behaveas if they were running bureaucracies, and toprefer paper-heavy evaluations over contextualassessments by knowledgeable reviewers, or toexalt an assessment of past conduct over aprediction of future performance. Unless theevidence demonstrates that an open-ended processwas used to evade statutory anti-discriminationrules, subjectivity cannot be condemned.Diettrich v. Northwest Airlines, Inc., No. 97-2831 (7th Cir. Feb. 16, 1999). Whatever potential for discrimination interviewscreate when hiring into a profession is unlikelyto continue after a person is in that profession.Suppose supervisory social workers routinelydisfavor aggressiveness and prefer warm smilesand going an extra mile. That might lead tounequal representation in the profession, iftraits such as empathy are distributed unequallyby sex. But it would not cause further disparateeffects when selecting from among social workers.Suppose more men than women have aggressive,competitive personas. That might explain why moremen than women choose to be professionalathletes, but it would not imply that maleprofessional athletes are more competitive thanfemale professional athletes, or that anevaluation of “competitiveness” would disfavorwomen seeking advancement (or longer careers) insports. Just so with social work. People enterthe field because they want to help others. Aselection process limited to social workerstherefore can ask about warmth or helpfulnesswithout predictably screening out men, just aslaw firms can screen their existing trial lawyersfor dogged combativeness without discriminatingagainst women. Discount the imprecations against subjectivescreening, and Scott has no significant evidencethat his sex played any role in the Hospital’sdecision. The ultimate decision may be good orbad, but the employment-discrimination laws donot allow judges to second-guess managers. Weinquire not whether the decision is right, or wasreached after the process judges would use werewe running the business, but whether thedefendants’ submission that sex (and otherforbidden characteristics) played no role ishonest. Evidence Scott has assembled could notsupport a conclusion that the Hospital’sdescription of the reasons for its selection isdishonest. The judgment therefore isaffirmed.
Rodney D. Scott, v.
Parkview Memorial Hospital, No. 98-3681 United States Court of Appeals for the Seventh Circuit Appeal from the United States District Courtfor the Northern District of Indiana, Fort Wayne Division. No. 1:97cv0355–William C. Lee, Chief Judge. Argued April 5, 1999–Decided April 23, 1999 Before Posner, Chief Judge, and Easterbrook andEvans, Circuit Judges.
