If you’re hiring for a position with very specific requirements, you may get a limited number of applicants, maybe even just one. But take note: It’s perfectly legal to decline to hire—or, in this case, promote—somebody simply because he’s the only applicant.
If the lone applicant doesn’t fit the job description, it’s allowable—and may very well be a good business decision—to wait for more applicants or change your recruiting strategy.
Recent case: Darrell Poer worked as an attorney at a Social Security Administration office. When the office had an open position, it followed its standard practice of advertising the opening internally first to generate a list of qualified candidates. Poer and two other attorneys applied.
Because the budget was tight, the agency didn’t want to pay relocation expenses, so it eliminated two of the three qualified attorneys because they lived in other parts of the country. That left just Poer on the list.
The agency official in charge of the promotion process decided to close the listing rather than promote Poer. He sued, claiming the real reason he hadn’t been chosen was retaliation for his earlier participation as a witness in a co-worker’s race discrimination lawsuit.
The agency countered by saying it simply didn’t think it a good practice to choose from a field of just one candidate. Poer argued that the agency could have petitioned higher-ups to pay relocation expenses in order to widen the pool.
The court dismissed the case, saying nothing about the situation pointed to retaliation. (Poer v. Astrue, No. 09-3473, 7th Cir., 2010)
Final note: As long as you base your actions on sound business reasons, courts are unlikely to second-guess your motivations. Don’t create those reasons later—write them down right away at the time you make the decision.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Terminating smokers: Encourage lifestyle changes first
- Mayors' forecast: Miami job losses among nation's worst
- 'Same-actor' defense won't always work; establish unbiased reasons for firings
- Bias lawsuit alert: If you use job tests, your legal team better include statisticians, too!