It seems like such a simple rule. Never comment on an applicant’s age or other protected characteristics.
But managers and supervisors who should know better often ignore that basic directive. That’s why HR professionals must be proactive—carefully monitor your hiring processes to make sure they’re not tainted by discrimination.
And remind managers it takes just one stupid comment to provoke a lawsuit. Emphasize that refusing to interview a qualified candidate because of a stated prejudice almost automatically qualifies as an adverse employment action. That makes it almost certain you will lose.
Recent case: John Van Voorhis applied for a job piloting a helicopter to spray insecticide as part of Hillsborough County’s mosquito control patrol. The county civil service solicited applications and forwarded to the hiring manager a list of nine candidates who met the minimum requirements, including at least 100 hours of crop spraying experience. All the candidates were over age 40.
When the manager saw the list, he commented to another manager that he did not want to interview any of the applicants because he didn’t “want to hire an old pilot.” An employee whose office was next door overheard his comment.
The manager then asked the civil service to drop the 100-hour requirement, opening the way for younger applicants without as much experience. The nine earlier applicants weren’t informed that the position had been relisted. The county hired a pilot younger than 40 from an applicant pool smaller than the original nine.
Van Voorhis sued, alleging age discrimination.
A trial court dismissed his case, reasoning that he had not proven direct age discrimination.
But the 11th Circuit Court of Appeals reinstated the lawsuit. It said the comment about not wanting to hire an old pilot was direct evidence of discrimination. Plus, the court said the initial application rejection was an adverse employment decision. Now Van Voorhis will have a chance to persuade a jury that the age comment was connected with the rejected application. That should be an easy task. (Van Voorhis v. Hillsborough County Board of County Commissioners, No. 07-12672, 11th Cir., 2008)
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