Employers that develop clear, fair and transparent hiring processes seldom have to worry about losing a failure-to-hire lawsuit. That’s true even if they end up using so-called subjective reasons for not hiring a candidate.
Simply put, judges are impressed when it looks like a potential employer bends over backward to ensure it doesn’t discriminate. They’re inclined to grant a little leeway when subjective factors wind up being the difference between successful and rejected candidates.
Recent case: Hamid Amini, who has a college degree and law enforcement experience, applied to become an officer with the Minneapolis Police Department.
Amini revealed on his application that he attended high school in Afghanistan and lived for a while in India. The city separates background information from candidate files during the initial process. That way, no one involved in the first cut of the selection process has access to background information. All they know is that the candidate met the minimum qualifications for the job.
Officer candidates who clear the first hurdle then have to take a fitness test. Amini passed. Next up was abefore his file could be presented to the hiring committee. That committee includes an HR representative and high-ranking police department leaders.
Amini ran into trouble at the background-check stage. He filled out an extensive questionnaire that asked about past contact with any police department and disciplinary action at current or former employers. Amini said he had never been disciplined or had any contact with a police department.
During the background check, the investigator discovered that Amini had been named as a suspect in an assault case 12 years earlier. She also uncovered two reprimands he had received from his current employer.
The investigator confronted Amini with the information and didn’t like his response. She reported that he became argumentative, told her that the police report was “absurd” and that he didn’t remember any reprimands. He also said that none of the conduct was a “big deal.” The discussion was recorded.
Amini was not recommended for the opening because the city viewed his reaction to the background questions as an indication he didn’t have the temperament to become a good police officer.
He then sued, alleging that the real reason was his national origin. He argued that his behavior during the background interview wasn’t argumentative or out of line.
But the court said there was no evidence anyone in the selection process knew about his background, because of the way the information was segregated. Plus, it said subjective criteria, such as temperament, was a legitimate consideratio—especially in a case like this one, where the process was otherwise transparent and objective and Amini’s reaction to being questioned was clearly out of line. The court tossed out the case. (Amini v. City of Minneapolis, No. 10-2888, 8th Cir., 2011)
Final note: The city did a lot of things right. It made sure that sensitive information was not available to the selection committee. It used a multistep process to winnow the applicant pool. It kept careful track of the entire process, including recording critical interviews.
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