Here’s a tip that can make the difference between winning and losing a discrimination case: Insist that all those involved in the hiring process document why they chose the candidate they did. That way, if a hiring manager inadvertently used hiring criteria that may have had the appearance of being biased, you can use those alternative reasons to defend against a discrimination lawsuit.
Essentially, if you can prove you would have hired the same individual for reasons having nothing to do with discrimination, you will probably win the case. But you can’t come up with alternative reasons later. You have to prove you considered them at the time.
Recent case: Harold Piatt sued, claiming he lost out on a promotion because the Austin police chief allegedly selected candidates based on their race or ethnic background. Piatt believed that was the case because the chief assigned officers to serve in certain precincts based on the apparent ethnic and racial demographics of each neighborhood. For example, Hispanic officers patrolled predominantly Hispanic neighborhoods.
The city argued that the chief relied on other, nondiscriminatory factors when he decided to promote someone other than Piatt. The chief had retained notes describing how the successful candidate had managed an angry crowd at a community meeting and calmed them down enough to avoid a potentially violent protest. The chief testified he would have hired the candidate for that reason alone.
The court dismissed the case. It said the city had proven it would have made the same decision at the time based on the candidate’s performance at the meeting. Since that was a legitimate reason, it didn’t matter whether there may have been a discriminatory preference for the candidate at play, too. (Piatt v. City of Austin, et al., No. 10-51049, 5th Cir., 2011)