When it comes to hiring and retention decisions, make sure that everyone involved in the process is on the same page. Decide on the criteria and stick with them for all candidates.
Otherwise, shifting explanations about who is chosen and who is rejected can look like intentional efforts to manipulate the choice and hide underlying discrimination.
Recent case: Dale Houghton, who was 61 years old, worked on the automotive equipment sales staff for Sunnen Products. He held that job for over 20 years and was consistently rated better than average attime. Then came a reduction in force.
Houghton and another older salesperson were eliminated from the staff of four. The two youngest salespeople were picked to retrain for a different sales division. Houghton was not interviewed, while the younger men were.
He sued, alleging age discrimination.
Sunnen Products argued that one of the younger employees showed during his interview that he was capable of learning the skills required in the new job. Then the company argued that it didn’t interview Houghton because it was sure he wasn’t a good match.
The court questioned that inherent contradiction. How—based on performance in an interview—could the company see that the younger candidate could learn the new job, when Houghton was deemed not worth interviewing and thus unable to show he could also learn the job?
The court said that was enough to cast doubt on the company’s motivations and allowed the age discrimination case to go forward. (Houghton v. Sunnen Products, No. 08-2162, DC NJ, 2010)
Final note: Before making final RIF decisions, check for disparate impact. Then make sure there is a strong, nondiscriminatory reason for any disparities, such as seniority or some other neutral factor that explains the disparate impact.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- 10 Secrets to an Effective Performance Review
- Consider uniform, ADEA-compliant severance and rights-waiver releases--even if age isn't factor
- Your informal promotion process: A legal red flag
- Firing justified if employee tries to short-Circuit system
- When administering job tests, ensure they're job-related and fair to all employees