These days, employers get many more applications for open positions than they can possibly interview. But each of those applicants is a potential litigant.
If you use a complicated hiring process with two or more steps, be sure you can explain how each step relied on objective, unbiased assessments of applicant qualifications.
Otherwise, someone who didn’t make it to the interview stage may be able to sue over alleged bias—even if the candidate ultimately selected was by far the best qualified of all applicants.
Recent case: Charles, who is black and over age 67, worked as a firefighter his whole career. He had already won one lawsuit against his employer when he applied for the ultimate firefighter position: Houston fire chief.
Charles did not make it to the second phase of the interview process. He sued, alleging retaliation and age and race discrimination.
The city argued that it was clear that the individual ultimately hired was far better qualified than Charles.
The court said that it wasn’t looking at the final selection process, but at the step where Charles was eliminated from the running. There the court found some problems. Missing were detailed and specific notes on how the evaluators chose the final candidates.
While the initial round listed 12 criteria, the city explained that the hiring committee had arrived at a “consensus” score for how well each candidate met the criteria. However, it was unable to provide any detailed notes from the committee. Without those, it was possible in the court’s view that bias could have crept into the process. The lawsuit can proceed. (Julian v. City of Houston, No. 4;12-CV-2973, SD TX, 2014)
Advice: Retain all search committee notes.