Here’s a simple way to keep many disappointed applicants from filing needless lawsuits: Make sure someone removes any application or résumé information that indicates race, national origin or other characteristics belonging to a protected class before the information is passed on to whoever makes the initial screening decision.
That way, no applicant can argue he was turned away because he belonged to a particular protected class.
Recent case: Bernard applied for a clerical position with the New York Department of Taxation and Finance in Albany. He listed his race as Asian and his national origin as Philippines on his résumé and in the applicant history part of the application.
When he wasn’t selected, he sued, alleging race and national-origin discrimination. He argued that the agency had to know what groups he belonged to since he listed the information.
That was enough for him to get beyond the first point where the case could have been dismissed. Since Bernard is representing himself, the court appears to be giving him every benefit of the doubt. The case will now continue, and Bernard will have a chance to prove his race or national origin was the reason he wasn’t hired. (Idlisan v. NYS Department of Taxation, No. 1:12-CV-1787, ND NY, 2013)
Final note: You may assume that everyone is honest, but the world is full of people only too willing to set up potential employers for a lawsuit. In fact, some lawyers make their livings pursuing such cases.
Don’t help them! Scrub out protected-class information so they can’t claim you singled them out for discrimination.
Also, be aware that anti-discrimination agencies sometimes use “testers” with apparently sterling credentials who clearly belong to a protected class. If you reject them, that could trigger a more thorough investigation into your hiring practices.
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