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Asking applicants about prior lawsuits is asking for trouble

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in Employment Law,Hiring,Human Resources,Maternity Leave Laws

It may be natural to want to know whether an applicant has sued former employers. After all, if past performance predicts future behavior, you probably don’t want to end up with a serial litigator on your payroll.

But asking about prior lawsuits may be hazardous: You can’t refuse to hire someone just because they sued for discrimination in the past.

Recent case: Mariamar Masso applied to work at the Miami-Dade County Police Department and filled out a questionnaire asking whether employers always treated her fairly. She responded that she had once filed discrimination charges because she felt a former employer had tried to pressure her into signing a memo she didn’t agree with.

The police department got a copy of her EEOC complaint and saw that she actually had filed suit over sex and pregnancy discrimination. The department decided not to hire Masso. The stated reason? She had falsified her application by not stating outright what her complaint had been about.

Masso sued, alleging retaliation for engaging in a protected activity—filing the prior EEOC complaint. The court dismissed the lawsuit, but only after concluding that the falsifying charge was a legitimate nondiscriminatory reason for not hiring her, and not a pretext for discrimination. (Masso v. Miami-Dade County, No. 06-16611, 11th Cir., 2007)

Advice: Review your employment applications to make sure they are up to date. Make sure they include, for example, a statement that says providing false or misleading information is grounds for disqualification or dismissal. You also may want to include a separate acknowledgment—signed by the applicant—indicating that he or she understands his or her employment will be “at will.”

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