Some jobs require a set of objective or “hard” skills, plus subjective or “soft” skills. As long as an employer can clearly articulate what soft skills an applicant or employee lacks, it can use the subjective reasons when making selection or retention decisions. Chances are, a court won’t second-guess the decision without compelling evidence that their use was a smokescreen for discrimination.
Recent case: Bradford Hicks, who is white, worked as the 5 and 10 p.m. anchor for a TV station in the Salinas/ Monterey market. A supervisor who evaluated his performance found him to be competent, but “aloof.”
Then NBC purchased the station and expanded its coverage into the San Jose/Oakland/San Francisco market, the fifth largest in the nation. New managers arrived and started revamping the station for the larger market.
Hicks found himself criticized by his new boss as “aloof, distant, standoffish, unapproachable, stiff and too anchor-like.” The boss told him to loosen up.
The station then decided not to renew Hicks’ contract. When a black anchor with less experience was hired a few months later, Hicks sued, alleging race discrimination.
The court looked at the station’s minority and white hiring practices, and didn’t find any alarming or disproportionate numbers. The court then explained that soft criteria are also important, and that Hicks simply couldn’t claim superior experience.
Hicks would have to show that cited his lack of on-air personality as a cover for race discrimination. He couldn’t. The evidence supported the station’s assessment that it wanted an anchor who could relate better to the new, expanded and diverse audience. (Hicks v. KNTV Television, et al., No. H030607, Court of Appeal of California, 2008)
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