Judges and courts enforce anti-discrimination and retaliation laws, but are they ever accused of violating those laws themselves? That is exactly what was alleged in a recent Tenth Circuit case that offers helpful takeaways for all employers.

Michele Brown, an African-American woman in her 60s, and her husband, Andrew Maikovich, sued the Colorado Judicial Department, of which the Colorado Supreme Court is part, for unlawful discrimination and retaliation. Their discrimination allegations stemmed from Ms. Brown being rejected for a position as a staff attorney at the Colorado Supreme Court. At the time, Mr. Malkovich also worked for the State Court Administrator’s Office, a branch of the Colorado Judicial Department. When the Colorado Supreme Court hired a younger Caucasian woman instead of Ms. Brown, both Ms. Brown and her husband made complaints of discrimination.

The claims and the court’s decision

Mr. Maikovich alleged, in part, that the State Court Administrator’s Office retaliated against him when his supervisors forced him to participate in an interview about his discrimination claim, while Ms. Brown alleged she was discriminated against on the basis of age and race. The trial court dismissed Mr. Maikovich’s claims early in the case, holding that the requirement to participate in an interview was not an adverse employment action that could support a retaliation lawsuit. In a later ruling, the trial court dismissed Ms. Brown’s claims, holding that she could not show that the selection of a more qualified individual was pretext for discrimination. The Tenth Circuit Court of Appeals recently upheld both decisions. Each claim provides helpful guidance.

The Tenth Circuit decided that a request for an employee to participate in an internal investigation interview was not an adverse employment action, which is required for a valid retaliation claim. Mr. Maikovich argued that it was an adverse employment action because the requirement for him to give an interview would have dissuaded a reasonable employee from reporting discrimination.  He specifically alleged that it was an adverse employment action because confidentiality promised by supervisors was violated, and that he was forced to violate the testimonial marital privilege (that is, discussing marital conversations with his wife). Moreover, after making his complaint, Mr. Maikovich insisted that he did not want any internal investigation.

Fortunately, the Tenth Circuit agreed with the state that it was entitled to investigate and interview claims of discrimination, even when Mr. Maikovich insisted otherwise. The court further said that there was not sufficient evidence to suggest that that any of the questions asked of Mr. Maikovich as part of the investigation violated the spousal privilege. More still, Mr. Maikovich never claimed he was asked any intrusive questions.

As for Ms. Brown’s claims, she argued that the Colorado Supreme Court’s decision to hire a younger Caucasian woman was discriminatory because the hired individual did not meet the written minimum qualifications for the job because she did not have an active law license at the time. She also argued she was a better candidate and that the state gave inconsistent and inaccurate explanations to the Equal Employment Opportunity Commission about the interview process or questions.

Again, the Tenth Circuit rejected these claims. It held that everyone on the hiring panel agreed that the minimum qualification for the job included someone who could reactivate their license upon hiring. Further, it held that the selected candidate had a skill set better suited to the job. While Ms. Brown may have had more experience drafting and editing, the job required high-level research skills. The selected candidate had worked as a law librarian and had a master’s degree in library science – skills the employer reasonably believed were better suited for the duties.

Finally, the Tenth Circuit held that even though the state gave some inconsistent information to the EEOC about the interview process or questions asked, it did not provide any inconsistent reasons for its hiring the decision. In other words, there was no evidence that the employer acted in bad faith or dishonestly regarding its reasons for not hiring Ms. Brown.

Takeaways for employers

This case offers a double dose of takeaways: how and when to do interviews and how to make hiring decisions:

1. Employers can and should reasonably investigate claims of discrimination and retaliation. Employers may even investigate claims when the complainant does not want any investigation.
2. Employers should fairly focus the investigation on the complaint. The court ruled that requiring an interview was not an adverse employment action and that there was no evidence of any intrusive or privileged questions. Employers should be careful to focus questions on the complaint and not ask unrelated and intrusive questions.
3. When advertising for positions, employers should make sure the minimum qualifications are accurate and understood by all decision-makers. The requirement here for an active law license caused confusion; however the court was persuaded that all members of the hiring team understood that as someone who could reactivate their license upon hiring was qualified. Employers can avoid potential issues such as this by clearly communicating the minimum job requirements — both externally and internally — in such a way that they are understood by applicants as well as those making the hiring decisions.
4. Court will give deference to employer’s reasonable decision as to who is a better candidate. Here, the court did not second-guess the state’s decision that the other candidate had better skills for the job. To get the same deference, employers should document and be able to clearly articulate why one candidate is better than other. Subjective terms like a candidate being a better “fit” may receive less deference.
5. Employers should be careful to provide accurate and consistent information regarding the reasoning behind their employment decisions. Even though the state gave minor incorrect or inconsistent factual information to the EEOC about the interview process, it never changed the reason for its decision not to hire her. A more significant inaccurate statement could have changed the case. Employers should be careful to be consistent and careful when filling out internal employment forms, responding to EEOC charges, and discussing the reasons for their decisions with any employee.

Michele Brown; Andrew Maikovich v. Colorado Judicial Department, No. 22-1065 (10th Cir. 2023)