You may never see it coming: A disappointed applicant sues you after you give the job to someone else.
However, you can be prepared—if you have held onto all documents and materials related to the hiring process. If you wind up in court and need to show why you didn’t select an applicant, those records may provide the rationale.
Recent case: Roberta Hollins, who is black, sought a part-time job as a customer service rep at Con-Way, a shipping company. On her application, she revealed two convictions for misdemeanor shoplifting.
The hiring manager, Kenneth Gaffney, thought Hollins was perfect for the job and asked his regional manager to approve hiring her. However, when Gaffney revealed Hollins’ race, the regional manager allegedly said hiring her would be “opening up a can of worms.” He suggested hiring a different candidate.
Still, Gaffney told Hollins she had the job and should report for drug testing.
Then Con-Way fired Gaffney for short-circuiting the hiring process. When Hollins called to ask about drug-test results, she found out she hadn’t actually been hired. Later, a white male was given the job.
Hollins sued, alleging race discrimination.
Con-Way argued it wouldn’t have hired Hollins regardless of her race. The reason? It had a strict rule against hiring anyone with a theft conviction of any sort and had rejected countless applicants over the years for exactly that reason.
The 8th Circuit Court of Appeals sided with Con-Way. It said the company proved it had a rule that would have prevented hiring Hollins under any circumstance. The convictions alone were a sufficient reason. (EEOC v. Con-Way, No. 09-2926, 8th Cir., 2010)
Final note: The EEOC is cracking down on no-hire rules like Con-Way’s. Its position is that using criminal convictions to bar employment has a disparate impact on minority applicants.