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An employer can use objective criteria or subjective criteria to determine whom to employ or promote or terminate. An employee’s failure to meet the objective criteria generally terminates claims of discrimination and can result in summary dismissal of the plaintiff’s claims. However, the failure to meet subjective criteria is generally not fatal to the plaintiff’s claims. In such a case, the jury or judge is free to consider the employer’s subjective hiring or promotion criteria in the mix of plaintiff’s circumstantial evidence of discrimination, but is not required to accept the employer’s version of its motivation.

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