A recent federal court decision, EEOC v. JP Morgan Chase Bank, N.A., No. 09-cv-528-slc, 2010 WL 3910232 (W.D. Wis. Oct. 1, 2010), reminds employers that a prospective employee's superior qualifications or credentials may not necessarily constitute a legitimate, non-discriminatory reason for choosing that candidate over one with inferior qualifications or credentials. Specifically, when evidence suggests that the employer rejected the inferior candidate before anyone else even applied for the position, the superior qualifications of a later-selected candidate are not a legitimate, non-discriminatory reason for the rejection of the first candidate.

In JP Morgan Chase, a bank teller (Ms. McCurty) claimed that she was twice denied promotions to a vacant Sales and Service Associate position due to race and pregnancy discrimination. On the first occasion, her application for a promotion was denied before anyone else - including the outside applicant who was eventually selected - had even applied for the position. On the second occasion, there was conflicting evidence as to whether the plaintiff's application was again denied before the employer learned of the qualifications of other interested candidates. Although the employer argued that McCurty's application had not been rejected when it selected an outside candidate for the job, a computer software entry made by a recruiter indicated that McCurty had been "rejected" eight days before the employer had learned of the qualifications of others interested in the job. This entry in the database was sufficient evidence for the plaintiff to overcome a summary judgment motion.

There are at least two lessons to be gleaned from JP Morgan Chase. First, if a candidate satisfies the minimum requirements for a position, the candidate should not be rejected based on the employer's untested expectation (or hope) that superior candidates will apply for the vacancy. If and when other candidates express interest in the position, prior applicants may then be rejected based on the superior credentials of the new competitors.

Second, the recruiter's use of the computer software in JP Morgan Chase was awful. Under the most favorable interpretation of the evidence, the employer showed that - when the recruiter heard that more candidates were to be considered before any selection decision would be made - he proceeded to click a tab on the software indicating that McCurty had been "rejected." The hiring manager's adamant denial that McCurty had been "rejected" before other candidates' qualifications became known might eventually be believed by the jury, but the recruiter's software use created a serious fact dispute that precluded summary judgment.