Employers can ask questions about candidates’ subjective qualities, especially when many applicants are objectively qualified. But don’t risk a discrimination lawsuit by carelessly documenting how you arrived at ways to distinguish applicants.
For example, applicants who will work with the public might need that go beyond the nuts-and-bolts qualifications necessary to perform the work. All things being equal, most employers would rather hire people who are good at dealing with the public.
Qualities such as empathy and friendliness may be difficult to measure, but former supervisors and co-workers can often be able to offer valuable input. Feel free to use those perspectives, but make certain you carefully document the information and its source.
Here’s why: If the employee sues, she’ll try to show that she actually has in abundance a quality you claim she lacked. That could cast doubt on the real reason you rejected her, opening the door to a discrimination finding. However, courts don’t care whether the input you got was accurate—just that you genuinely relied on the input to make your decision.
Advice: Keep notes on whose input you got and what they said.
Recent case: Cynthia Warren, a black physician assistant, applied for a position in the orthopedics department at North Shore Hospital. The hiring manager spoke with two surgeons who had worked with Warren. Both said she did not work well with patients.
The hospital hired a white candidate who had an “enthusiastic, pro-patient attitude.” Warren sued, alleging racial bias. She presented solid evidence that she was, indeed, “good with patients.”
But the 2nd Circuit Court of Appeals said the test was not whether she had the qualities that the hiring manager believed she lacked, but whether the hiring manager had believed the reports he got from the two surgeons who had worked with Warren.
The hospital didn’t have to prove the surgeons were right. Warren had to prove they hadn’t said what they said. She couldn’t do that. (Warren v. North Shore Hospital, No. 06-4980, 2nd Cir., 2008)
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