Courts don’t want to be surrogate HR directors. That’s why they don’t insist that employers do everything exactly right. Courts understand that employers can and do make mistakes.
As long as those mistakes aren’t excuses to cover up illegal discrimination, they won’t be the basis for a successful lawsuit.
Recent case: Gene Van Antwerp was an officer in the Peoria Police Department, a job he had held for 18 years. He sought a promotion to crime lab technician, and was initially selected for the job because the preferred candidate was 26 days short of the seniority criteria.
But then the police department rescinded the promotion before it went into effect, saying that the job was no longer available. The department had posted the job anticipating that other personnel moves would create an opening for the lab tech position. When the other placements didn’t happen, the department withdrew the technician job posting.
Later, the department reopened the job—and selected the original first-choice candidate, who by then had met the seniority requirement.
Van Antwerp sued, alleging age discrimination. But he had no evidence pointing to age as a factor in the decision. Instead, it appeared the police department had simply made a mistake when it posted the job, based on who it thought would transfer to other jobs.
Employers, concluded the 7th Circuit Court of Appeals, make mistakes. That’s not grounds for a lawsuit. (Van Antwerp v. City of Peoria, No. 10-2455, 7th Cir., 2010)
- The HR I.Q. Test: October '10
- Look for hiring trends that could signal bias—you might just avoid a huge jury award
- Require everyone to report harassment—you'll be justified firing those who don't
- You'll need a calendar and a calculator: Track past service to check FMLA eligibility
- Treat all pregnant employees equally, regardless of race or ethnicity