The key issue in most race discrimination cases: different treatment for people of different races. A court recently ruled that it wasn’t protected activity when a black employee complained that one black job applicant had been subjected to greater scrutiny than another black applicant.
Recent case: Caroline, a black HR professional in a police department, complained when a black applicant for a job was singled out during a job interview. She was asked questions about her personal experience with the police department. Caroline thought this bordered on illegality, since the applicant was black.
Shortly after, Caroline was fired. She sued, alleging retaliation for engaging in protected activity (complaining about the interview).
The police department argued that while the applicant was indeed black and had been asked about her experience with the police department, the other applicant was also a black woman.
The court dismissed the case. It reasoned that Caroline hadn’t engaged in protected activity because both applicants were black and only one had been asked about racially sensitive police interactions. Race couldn’t have been a factor. (Eldridge v. Norristown, No. 12-2882, 3rd Cir., 2013)
Final note: In most cases, you should ask the same interview questions of all job applicants. But sometimes an answer reasonably prompts follow-up questions. You are free to ask such questions as long as they are job-related and consistent with business necessity. Use common sense and document everything said at the time or shortly after the interview. That way, you can later explain exactly what happened.