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When hiring, prepare for frivolous lawsuits

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in Discrimination and Harassment,Hiring,Human Resources

It’s sure to happen: Eventually, a disgruntled applicant or employee seeking promotion will sue you for discrimination in the hiring or promotion process. And that lawsuit may lack any kind of merit. These days, desperate applicants may feel they have nothing to lose by suing.

That’s why you should plan ahead. Document every decision to show it was fair, impartial and devoid of even arguable prejudice.

Recent case: Octavia Anaya, a Hispanic man, worked for the U.S. Postal Service for 40 years before retiring. But before leaving the job, Anaya sued, alleging age and national-origin discrimination dating to the last time he was passed over for a promotion. He named all the members of the selection committee.

Under oath, Anaya admitted he had no age discrimination evidence and that his only evidence of national-origin discrimination was a “feeling” that two committee members were biased. That feeling was based in part on his perception that he was being ignored and given the cold shoulder.

He even admitted that national-origin discrimination was the only discrimination claim he could “come up with.”

The Postal Service showed the court the applicant scores, which demonstrated that Anaya scored low, while the successful candidate scored much higher. The court tossed out the case. (Anaya v. Donahoe, No. 08-CV-3842, ED NY, 2011)

Final note: Remind everyone involved in hiring or promotions that they must save all notes and candidate rankings. Have them forward the material to HR for safekeeping. Then do a regular audit of the documents to make sure everything looks appropriate and the files are complete.

Finally, remember that you have recourse in cases like this one, which obviously lacked merit. In a clearly frivolous case, consider seeking sanctions against the attorney.

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