At some point, an unsuccessful job candidate may challenge your decision not to hire him. Then you will have to justify your selection process.
The more objective criteria you use, the more likely a court will agree not to second-guess your decision.
But if you add subjective elements to the process, you may end up being charged with discrimination—especially if a simple glance at the makeup of your workforce reveals an apparent lack of diversity.
Recent case: David Torgerson and Jami Mundell wanted to work as firefighters for the city of Rochester. Torgerson is a member of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians. Mundell is a woman.
Both passed an objective, oral skills test. They both had taken the appropriate minimum training in firefighting and passed a challenging physical agility test required of all candidates for firefighter positions. They were placed on the city’s eligibility list.
The next step for all applicants who made the list was a subjective interview. Hiring officials asked each candidate the same questions and then ranked their responses. None of the interviewers, however, kept notes.
After the interviews, the relative positioning on the hiring list changed dramatically, with Torgerson and Mundell moved toward the bottom.
The final step was an interview with the fire chief. Torgerson and Mundell were allowed an interview under the city’s diversity plan even though they were not at the top of the list. They competed for one slot out of seven openings. Neither was selected and both sued.
The chief testified that for the top candidates, he was looking for a reason not to hire them, while for Torgerson and Mundell, he was looking for a reason to hire them.
But, at one point, the chief had railed against the conditions of the federal grant funding the seven positions after learning that one of the goals of the grant program was to increase the number of minority and female firefighters.
The 8th Circuit Court of Appeals said there was enough indication of possible bias in the process to warrant a jury trial.
It pointed out that all the candidates had been closely ranked after the objective tests and then reshuffled after the more subjective interview process. The court said that could be an indication of bias, as was the lack of note-taking. Plus, the chief seemed less than enthusiastic about diversity. (Torgerson, Mundell v. City of Rochester, No. 09-1131, 8th Cir., 2010)
Final note: One reason the court was suspicious of hidden motivations in this case was hinted at in a footnote in the opinion. The court observed that the city of Rochester had hired only three nonwhite firefighters in its recorded history. Those hires included one Native American, one Asian and one black. Only the black firefighter still worked for the city. Of the 105 employees at the time of the appeal, only two were female.
The court contrasted that with Rochester’s population of 18-to-39-year-olds: 45% are women and 14% are minority.
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