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Prepare for lawsuit if you change hiring criteria in middle of selection process

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in Discrimination and Harassment,Hiring,Human Resources

Employers, beware! If you ignore your posted job requirements to hire one applicant when another candidate meets all the minimum qualifications, you may find yourself being sued. Courts may conclude that you “pre-rejected” the most qualified candidate.

Recent case: James Kimble, who is black, worked for the Wood County Sheriff’s Office as a patrol officer. An opening for an environmental sergeant came up, and Kimble met all the basic job requirements posted in the announcement. In fact, he was the only applicant who did.

There was just one other candidate, a white patrol officer who lacked two of the minimum requirements. Still, he was selected, based on a newly announced preference for an officer who had written large numbers of traffic tickets and had a high arrest rate.

Kimble sued, alleging he had been “pre-rejected” because of his race. He argued that he was the only ­candidate who met all the announced minimum requirements—and that adding new requirements while waiving some of the original ones amounted to manipulation designed to keep him from being selected.

The 6th Circuit Court of Appeals said Kimble’s case should go to trial. It viewed the changing criteria with much suspicion. (Kimble v. Wasylyshyn, et al., No. 10-3110, 6th Cir., 2011)

Final note: Changing the job requirements midstream is asking for trouble if one candidate already meets the requirements and another does not. It doesn’t pass the smell test.

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