You know you aren’t supposed to consider race in hiring decisions. And ideally your organization takes steps to ensure the hiring process is as color-blind as possible—perhaps by removing any reference to race or ethnicity from applications and by using a standard form for applicants to fill out instead of relying on traditional résumés.
But let’s face facts: Sometimes the person screening applications is going to know the job-seeker’s race (especially when a current employee seeks a promotion). Denying that fact won’t help you if an applicant who doesn’t get the job decides to sue—and it may actually hurt. The applicant can raise the denial as evidence of illegal motive or intent.
Recent case: Lashawn Barefield, who is black, was a tenure-track counselor at the California State University at Bakersfield. She applied for a position as director of student services, and her supervisor informally told her she was a shoo-in for the position and would be interviewed. She wasn’t.
Barefield sued, alleging race discrimination and intentional infliction of emotional distress. That’s when the university provided an explanation of the selection process that sounded disingenuous to the court: It insisted that the person who did the initial review didn’t know Barefield was black. The court found that suspicious because Barefield’s résumé showed that she had taught a course called “The African-American Experience.”
The court said Barefield should have a chance to have a jury decide whether the denial of race knowledge was evidence of the intent to discriminate. (Barefield v. Board of Trustees of the California State University, No. CV-05-00633, ED CA, 2007)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Track contracts for bias against black-Owned firms
- If you don't have a policy, you don't have a defense
- What legal hoops must we jump through if we conduct background checks on applicants?
- Firing harasser is necessary, even if long-ago age comment could spark lawsuit