Judges rarely second-guess the decisions of employers that use reasonable methods to hire or promote the best candidates.
By using objective criteria and documenting the selection process, savvy employers win most cases. That’s because courts require people who didn’t get a job to show they were clearly better qualified than the winning candidate. That’s tough to do when candidates were fairly equally qualified—and the employer used objective selection standards.
Recent case: Josephine Rose and a much younger male co-worker both applied for a promotion to food supervisor at a Department of Veterans Affairs facility.
Both ranked as well-qualified candidates, based on experience, training and other objective factors. Thus, VA hiring officials had a tough choice.
Their boss then carefully observed them both at work and asked each a series of questions designed to determine who would do a better job. The supervisor concluded that Rose wasn’t as strong a candidate as the man because she didn’t have as much food safety knowledge.
When the supervisor picked the man, Rose sued, alleging sex and age discrimination.
The court dismissed her case. It reasoned that Rose had to show she was clearly the better candidate. She couldn’t do that. (Rose v. Shinseki, No. H-07-366, SD TX, 2009)
Advice: Objective criteria include tangibles such as education, experience, training and test scores based on knowledge. The more objective criteria you use, the better. Intangibles (such as attitude and interactions with co-workers or subordinates) can be tiebreakers if you’re careful to use clear examples—and you’ve already applied objective measures.
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