Before you begin talking to candidates, make sure everyone you selected for an interview opportunity is among the best qualified, and that you haven’t passed over anyone who is obviously as well-qualified as other applicants.
That’s the best way to avoid a needless failure-to-hire suit.
Recent case: Sundersingh, who is of East Indian origin, lost his job with a state agency during a layoff. He had filed several internal discrimination complaints.
To get back on board, he applied for every open position for which he met the minimum qualifications. He was never interviewed for any of the jobs.
Sundersingh sued, alleging failure to hire in retaliation for earlier protected activity. He claimed that for one position, the employer selected 10 candidates to interview and that none of them was better qualified on paper than he was.
The court said that was enough to move the case forward. The state will now have to show it had another legitimate reason for not selecting Sundersingh for an interview. (Bala vs. Commonwealth of Virginia, No. 13-1127, 4th Cir., 2013)
Final note: Had the employer considered Sundersingh for the positions for which he clearly met the minimum requirements, it would have cut off one avenue for the lawsuit. Essentially, he was suing because he felt blackballed from open positions because of his past complaints. Had he been interviewed, he would not have been able to make that claim.