Before you authorize hiring or promoting a candidate who doesn’t meet the minimum requirements for the position, consider the potential for litigation.
The fact is, if an employee or applicant who does meet the requirements belongs to a different protected class than the worker who got the job, you could wind up facing a lawsuit. That’s true even if some of those requirements aren’t written down.
Recent case: John Hinton, who is black, worked for Tyson Foods and had many years of experience in all aspects of working on a chicken processing line. He had a solid performance record with no disciplinary problems and great reviews for 13 years.
When a lineposition opened up, Hinton was interested in the job. The written job requirements said applicants needed “three to five years’ experience”—far less than Hinton already had.
But he didn’t get the job. Instead, it went to a white employee with less than three years of experience.
Plus, there was an informal requirement that line managers had to have experience working on the poultry line—something the white employee didn’t have. Instead, he had worked in HR management.
Adding insult to injury for Hinton, the new supervisor told him that he was going to be “a monkey on your back,” sucking up all Hinton’s knowledge. In short, Hinton had to train his new supervisor.
Hinton sued, alleging race discrimination.
The case dragged on for many years and included two separate jury trials and appeals.
Tyson argued that it chose the white employee because the company needed someone who could turn around an underperforming plant.
Hinton managed to persuade two juries that he had been discriminated against in favor of the white employee. First, he argued that Tyson Foods’ stated reason for preferring the white employee was, in fact, false. It turned out that the last plant where he had worked was actually closed for poor production. Plus, Hinton persuaded the jury that Tyson ignored both its written and unwritten minimum job requirements to promote the white employee when Hinton clearly had the experience and good employment record to exceed all minimum requirements.
When Tyson appealed, the 11th Circuit Court of Appeals upheld a jury award of $35,000 in back pay, plus $29,000 in interest (the promotion happened in 1995) and $300,000 for mental anguish. It said Hinton had shown that the company’s stated reason for promoting the white employee was an excuse to pass over Hinton, the better qualified employee by far. (Ash, et al., v. Tyson, et al., No. 08-16135, 11th Cir., 2011)
Final note: Fortunately for Tyson, the appeals court did refuse to accept the jury’s punitive damages award of $1 million. It did so because Hinton couldn’t prove that Tyson discriminated based on race across all its locations.
Tyson had an anti-discrimination policy, trained employees on that policy and encouraged employees to report discrimination. Hinton never complained beyond management at his plant before launching his lawsuit. The court said he had failed to take advantage of company policies and denied Tyson Food a chance to fix problems at a rogue plant.
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