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OK to consider intangible qualities when choosing applicants

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in Discrimination and Harassment,FMLA Guidelines,Hiring,Human Resources

When it comes to hiring good employees, you know that experience and education aren’t everything.

As the following case shows, there is nothing wrong with considering such “soft” factors as loyalty and reliability when making hiring decisions. Just make sure you don’t consider things such as disability, FMLA absences or other protected characteristics.

Recent case: Robert Thomas, who is from India, worked for Trico as a toolmaker. He received multiple warnings about chronic, unexcused attendance problems and was warned that more unexcused absences would mean termination.

Then Thomas was jailed on child-custody contempt charges and resigned rather than be fired for missing work while imprisoned. When he got out of jail, he reapplied for an open position at Trico, thinking he was guaranteed the job.

But another qualified employee also applied. The hiring manager selected the other candidate, based in part on his perceived reliability. Thomas sued, claiming race discrimination.

On appeal, the 5th Circuit said the company had good reasons for its preference, including the other applicant’s reliability, loyalty, ties to the community and demonstrated longevity in the field without gaps in employment. Thomas’ employment history, on the other hand, was unstable, his attendance had been poor and he now had a criminal record. The court ruled those were legitimate ways to differentiate otherwise-close applicants. (Thomas v. Trico Products, et al., No. 07-40114, 5th Cir., 2007)

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