Hiring Managers – Be Careful of What You Write Down


That was the lesson from a recent case from the U.S. Court of Appeals for the Eleventh Circuit, where a hiring manager’s written comment in connection with the selection of a new faculty member became an issue.

In Tolley v. Mercer University, an unsuccessful White applicant for a faculty position sued for race discrimination. Although his claims were dismissed because he could not show that the decisionmakers were, in fact, aware of his race (and therefore could not have made a decision based on that race), part of the evidence he offered in support of his contention of bias against White candidates was an e-mail from one of the search committee members to the others. The committee member stated about another candidate that she “like[d]  him very much.  But he is a white male . . . sigh!”

Even though the employer won its case, that statement is obviously problematic (beyond giving the plaintiff ammunition for a lawsuit that was undoubtedly expensive to defend). In the wake of the Supreme Court’s decision banning affirmative action in college admission earlier this year, much has been written about its implications on employment. This includes our firm, and in our June 29, 2023 E-lert on the decision, we noted that Title VII prohibits employers from making any employment decisions based on race, or any other legally protected personal characteristic – absent a legally implemented affirmative action plan under very limited circumstances. Thus, as a general matter and in the vast majority of situations, the race of any applicant should not be part of the decision-making criteria.

This leads to several recommendations for employers. They should keep in mind that employment decisions should not be based on race, even in the context of diversity/equity/inclusion/accessibility (DEIA) efforts. Employers must educate their managers – especially those involved in hiring – on these legal parameters. And certainly employers should train their managers what should and should not be written down.