Maslanka on the "Face-Slap Standard" in Failure to Hire / Promote Cases
My good friend Mike Maslanka has an excellent post up this week analyzing the Fifth Circuit's stringent standard in failure-to-hire/promote cases. Most recently, in Moss v. BMC Software, Inc., the Fifth Circuit rejected the age-based failure-to-hire claim of a 68-year-old applicant who was passed over for a job in favor of a less-qualified younger substantially younger applicant.
As is often the case, the Court starts out by denying that it requires the plaintiff to show that "the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face." It then uses precisely this standard in upholding summary judgment against the plaintiff - thus preventing this case from ever being heard by a jury. The court even goes so far as to stated that it doesn't matter if the plaintiff was clearly better qualified. What matters is whether the applicant's background "was a better fit for what the employer was looking for in the job."
Obviously the Fifth Circuit's opinion in Moss is a thinly-veiled end-run end-run around the U.S. Supreme Court's 2006 rejection of its "Face-Slap" standard and reinstituting the same (or arguably an even harsher) standard again.
Check out Mike's entire post here.
It is unfortunate that the Fifth Circuit is so recalcitrant.