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The legal danger of playing ‘peek-a-boo’ with job postings

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in Discrimination and Harassment,Employment Law,Human Resources,Leaders & Managers,Management Training

by Mindy Chapman, Esq.

Job postings go up … they come down. They go up … they come down. It all seems quite normal. That is, unless a job posting is pulled down to avoid a specific type of candidate. As this new case shows, you can’t delist a job or try to hide the position when you don’t like who applies. Peek-a-boo, the court will catch you!

Case in Point: Tanya Lewis had more than 20 years’ experience as an electrician and she’d supervised many male electricians. She took a job as an acting electrical supervisor at the D.C. Department of Consumer Affairs.

Lewis, however, couldn’t shake the “acting” title.

Over the course of 13 months, she applied five times in response to job postings for a permanent electrician position. But each time she applied, the posting was quickly canceled without being filled. And each time, shortly afterward, the District would post a new job-opening announcement.

The sixth time the job was posted, the District hired a male applicant who was less qualified than Lewis.

Lewis sued for sex discrimination. The District’s defense? It claimed that it didn’t discriminate against Lewis because it never hired anyone else during the five times Lewis applied.

Result: The court saw through the city’s hide-and-seek game. It sent the case to a jury trial, saying the city failed to give a good reason for pulling down the job posting each time Lewis applied. (Lewis v. District of Columbia, D.D.C., No. 07-429)

2 lessons learned

1. No magic tricks. When it comes to job postings, don’t try to fool anyone. Your actions leave a record of when the job is posted and when it comes down. If you pull jobs down in an act of discrimination, you will come down, too.

2. Hire the best qualified. The court doesn’t generally “get up in your business.” But it will if you hire less qualified applicants in an attempt to discriminate against others who are qualified.

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Author: Mindy Chapman is an attorney and  president of Mindy Chapman & Associates LLC. She is a master trainer, keynote speaker and co-author of the ABA book, Case Dismissed! Taking Your Harassment Prevention Training to Trial. Sign up to receive her blog postings at BusinessManagementDaily.com/Mindy.

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