On September 23, 2009, the Sixth Circuit Court of Appeals issued its decision in Risch v. Royal Oak Police Department, Sixth Cir. Case No. 08-1883, reversing an award of summary judgment to the employer.

Karyn Risch is a female police officer who worked for the Royal Oak Police Department for 17 years. On several occasions, Ms. Risch applied for promotion, but was passed over in favor of male candidates. Royal Oak used a weighted scale to evaluate candidates for promotion, assigning values for written examinations, performance reviews, and seniority. From 2002 to 2004, Ms. Risch placed second or third on the promotion list. In 2005, Ms. Risch was ranked third, but males scoring second, fourth and fifth were promoted instead. The police chief indicated by affidavit that he did not promote Ms. Risch because the males who were promoted had better test scores, better performance evaluations, and demonstrated more initiative and leadership qualities.

Ms. Risch filed a charge of sex discrimination with the Equal Employment Opportunity Commission in October of 2005 and subsequently a lawsuit under Title VII in the U.S. District for the Eastern District of Michigan. The district court granted the employer’s motion for summary judgment and Ms. Risch appealed to the Sixth Circuit Court of Appeals.

Royal Oak conceded that Ms. Risch was able to establish a prima facie case of sex discrimination under Title VII. Ms. Risch in turn conceded that her employer had articulated a legitimate, nondiscriminatory reason for not promoting her. The sole issue before the Sixth Circuit was whether Ms. Risch had produced sufficient evidence to raise a genuine issue of material fact as to whether Royal Oak’s explanation was a pretext for discrimination. The majority held that evidence that Ms. Risch was more qualified than the successful applicants can in some circumstances be sufficient to raise a genuine issue of material fact that the employer’s proffered reason is pretextual.

In reviewing the evidence, the majority found that those circumstances may exist and a question had been raised for the jury. It held that Ms. Risch had demonstrated a genuine issue of material fact as to pretext, emphasizing that Ms. Risch had “arguably superior qualifications” when seniority was considered. The majority also found evidence of discriminatory remarks made by several male officers who were not decision makers to be relevant.

What can employers take from this decision? Reliance on objective, documented factors in considering candidates for hire or promotion is the best avenue. Reliance on such “soft” factors as initiative, leadership qualities, and ability to work with others can be problematic. Those factors are often subject to the bias of the decision maker, which may or may not turn out to be a discriminatory bias. While such factors may be important to an employer, it is crucial to remember that you must be able to document and provide concrete examples of such criteria should you wish to rely on them.