When it comes to documenting employment actions, what you do write can be just as damning as what you don’t write. Advice: Refrain from scribbling margin notes on employment applications, résumés or tests. Since you need to retain those documents, making notations of any kind, including “secret codes” that identify or categorize recruits, could create a dangerous paper trail that could be tough to explain later. Consider two cases.
Case #1: A female applicant for a refinery position cried sex discrimination when she didn’t land the job.
She pointed to notes such as “pink glasses” and “short brown hair” which one evaluator had scrawled in the margin of his form.
His sexist attitude, plus the low scores he gave her, cost her the job, she claimed.
No it didn’t, the court ruled. All the evaluators gave the applicant a low score; all expressed concern about her ability to perform a physically demanding job.
As for the margin notes … the evaluator explained they were an attempt to remember which applicant went with which form. (Davis v. Chevron U.S.A., Inc.)
Case #2: After a farming-supply company gave applicants written tests, it noted the applicants’ race and sex on the test. Its well-meaning goal: Assess whether the test had a disparate impact on minority hiring.
A group of applicants sued for hiring bias, saying the practice amounted to an illegal, pre-offer inquiry. The company argued that it merely “observed” the applicants’ race and sex, but didn’t require applicants to disclose the information.
A district court didn’t buy it. While the company didn’t formally request the data, it still technically required the information for employment.
As a result, the court let the applicant group pursue a class-action suit. (Modtland v. Mills Fleet Farm Inc.)
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