In a recent unpublished opinion,  the Fourth Circuit Court of Appeals held that a statement by a state agency director to a job candidate that people objected to her because of her gender and youth, was admissible as direct evidence of gender discrimination.  In Pitrolo v. Buncombe County, the retiring director of the Western North Carolina Regional Air Quality Agency, interviewed candidates for an interim director position.  During the interview, the retiring director told the applicant that his colleagues objected to her because of her gender and youth.  The plaintiff was the only female candidate interviewing for the interim director position.  When Ms. Pitrolo was not selected for the position, she sued for gender discrimination and retaliation.

The Fourth Circuit held that the director’s statement to plaintiff constituted direct evidence of gender discrimination and was sufficient to defeat the employer’s motion for summary judgment.  In reaching this determination, the Fourth Circuit looked to the Federal Rules of Evidence and determined that the retiring director’s statement constituted an admission of a party-opponent, not inadmissible hearsay.  Under Rule 801(d) of the Federal Rules of Evidence, a non-hearsay statement is a statement that is “offered against a party that is the party’s own statement, in either an individual or representative capacity,” or “a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment.”

Based on this definition, the Fourth Circuit concluded that the director was an agent of the Agency within the meaning of Rule 801(d).  This decision serves as a reminder to employers to ensure that they have well defined application procedures in place and that employees are trained in conducting lawful interviews of prospective employees.  Uninformed remarks or baseless opinions expressed during job interviews can come back to haunt the employer.