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Pros and cons of creating applicant ‘blacklist’

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in Discrimination and Harassment,Employment Law,Hiring,Human Resources

Employers typically don’t want to hire applicants who haven’t succeeded elsewhere. So they sometimes create a blanket “no-hire” rule for applicants who aren’t eligible for rehire by their former employers.

Such a policy can give you cover against possible retaliation complaints. But if you’re tempted to draft such a policy, be careful: Make sure you enforce the rule uniformly and don’t make exceptions.

Recent case: Harold Cornish had a history of suing employers. After he was fired due to alleged misconduct, his former employer put him on a “do not rehire” list.

Cornish then applied for a position with the Dallas Independent School District, which had a rule that automatically rejected any applicant who was not eligible for rehire by former employers.

When his application was rejected, Cornish sued. He claimed he had been retaliated against because of his prior lawsuit history.

The court concluded otherwise.

It said the school district had a legitimate reason not to hire Cornish—namely that he wasn’t eligible for rehire by his former employer. The school district also proved that it had refused to hire many other applicants under the same circumstances and had never made an exception. The case was dismissed. (Cornish v. Dallas Independent School District, No. 3:08-CV-1968, ND TX, 2010)

Final tips: Consult your attorney before implementing a “blacklist” policy for any category of applicants. Make sure your policy won’t have a disparate impact on a protected class.

For example, refusing to hire anyone who has been arrested may discriminate on the basis of race or ethnicity. The EEOC is currently looking at whether policies banning hiring of applicants with arrest or conviction records may disparately impact black and Hispanic applicants, given the percentage of those protected classes who have had run-ins with the law.

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