Job postings go up … they come down. They go up … they come down. It all seems quite normal. That is, unless you pull down a job posting to avoid a specific type of candidate. As this new case shows, you can’t delist a job or try to “hide” the position when you don’t like who applies. Peek-a-Boo, the court will catch you!
Case in Point: Tanya Lewis had more than 20 years experience as an electrician and she'd supervised large groups of male electricians in the past. She eventually took a job as an acting electrical supervisor at the D.C. Department of Consumer and Regulatory Affairs.
Lewis, however, couldn’t shake the “acting” title.
Over the course of 13 months, and in response to job postings, she applied for a permanent electrician position five times. But each time she applied, the posting was quickly cancelled without being filled. Then, shortly afterward, the District posted a new job opening announcement. That happened five times.
The sixth time the job was posted, the District hired a male applicant who was less qualified than Lewis.
Lewis sued for sex bias, claiming she was discriminated against based on her gender. The District’s defense? It argued that it had the right to cancel the five postings. The District claimed it didn’t discriminate against Lewis because it did not hire anyone else during the five times Lewis applied. (Lewis v. District of Columbia, D.D.C., No. 07-429)
What happened next and what three lessons can be learned?
The court rejected the District's defense and sided with Lewis at the summary judgment phase. The court sent the case to a jury trial noting that city failed to give a good reason for playing hide-and-seek with the job posting. “The defendent offered no evidence indicating that external circumstances, such as the need to revise the terms of the vacancy announcement or budgetary constraints, rendered the position advertised in the vacancy announcement unavailable,” said the court.
3 Lessons Learned … Without Going to Court
1. No magic tricks. When it comes to job postings, don’t try to fool anyone. Your actions leave a record of when the job is posted and when it comes down. If you pull jobs down in an act of discrimination, you will come down, too.
2. Hire the best qualified. The court does not generally “get up in your business.” But it will if you hire less qualified applicants in an attempt to discriminate against others who are qualified but not of the sex, race or age you were looking for.
3. Watch for trends. Are there candidates who repeatedly are passed over for promotions in your organization? If so, do you see any trends here on who sues?
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