Take care if you run background checks as part of your job application process. Be sure to document how you handle reference check calls, and document requests. You may need the files later, especially if you don’t hire the applicant in the end and he claims discrimination.
You’ll likely be able to sink a discrimination lawsuit if your records show you asked reasonable and business-related questions aimed at making sure the applicant is qualified and trustworthy. Those records will provide contemporaneous evidence of your real motivations and make it less likely for a judge or jury to conclude that you’re trying to cover up an illegal motive such as race or national origin discrimination.
Recent case: When Kanal Gaston was rejected after applying to join the New Jersey State Police, he thought it had something to do with his ethnicity. Gaston hails from Haiti.
However, the letter Gaston got from the State Police made clear he was rejected because of the “totality of the derogatory information collected during your background information including two incidents of insurance fraud, work history and inability to interview any of your relatives.” Gaston thought the last reason was the illegal one—all his relatives live in Haiti and could not be reached because they have no phone service.
When Gaston sued, the State Police introduced a comprehensive file. It showed the court exactly why it had concluded Gaston was not trooper material—including extensive interviews that revealed possible spousal abuse.
The court dismissed the case. (Gaston v. State of New Jersey, No. 05-CV-03006, DC NJ, 2008)
Advice: We’ve said it before, and we’ll say it again: The best way to get rid of frivolous lawsuits is with solid, documented evidence showing why your organization did what it did. Courts seldom second-guess legitimate business decisions.
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