Make sure your job announcements list all relevant experience and educational requirements.
Why? Courts deciding whether to send a failure-to-hire case to trial won’t consider any qualifications you didn’t list in the job announcement.
Here’s how that could play out: Assume you list specific experience in your help-wanted advertisement, and then choose to interview two candidates with the skills you specified. Then during an interview you discover that Candidate A has specialized skills that would be especially helpful, which tips the scales in her favor. Candidate B sues, alleging some form of discrimination.
In court, Candidate B has to show he was clearly better qualified. You can’t argue that those specialized skills you so prized in Candidate A made her a superior choice. Instead, a court will decide whether you discriminated.
Recent case: Michael Moss, a 68-year-old intellectual property attorney, applied for a job with BMC Software after seeing a job announcement. He and a much younger woman were selected for interviews. During the interview, the company discovered that the female candidate had experience as in-house counsel. That experience didn’t appear as a job requirement in the announcement. Moss didn’t have experience as in-house counsel.
The woman got the job and Moss sued, alleging age discrimination.
BMC argued that the woman was better qualified because of her specialized experience. The court would not let the company use that experience to bolster its position that Moss was less qualified because it had not been listed in the announcement. (Moss v. BMC Software, No. 09-20488, 5th Cir., 2010)
Final note: Moss ultimately lost because he was unable to prove he was more qualified than the candidate who got the job.
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