Employers have plenty of chances to get an idea of how prospective employees will perform. They might offer internships to college students. They might even keep an eye out for talent working for a competitor or another business in the same building.
That kind of insight gives potential supervisors the opportunity to see how well someone really works.
It’s legitimate to base hiring decisions on such observations. Just be sure supervisors document any observations they make. If the person in question later sues you for some reason, you’ll be able to use those observations as legitimate justifications for your decision.
Recent case: Caroline Cooper worked at a Connecticut courthouse and wanted a position with the public defender’s office. But while she was doing her job at the courthouse, potential supervisors with the public defender noted what they thought might be problems if they hired Cooper. On one occasion, they witnessed her ignoring a supervisor’s directive. In another instance, Cooper tried to intervene in a legal dispute involving her son.
When the public defender’s office declined to hire Cooper, she sued, arguing that what her would-be supervisors observed should not have played a role in their decision.
A lower court tossed out her case, a decision affirmed by the 2nd Circuit Court of Appeals. It said that what her potential employers had observed—insubordination—was a legitimate reason to reject her for a job. (Cooper v. State of Connecticut Public Defender’s Office, No. 07-1867, 2nd Cir., 2008)
Final note: Remember that interns and volunteers may be protected under Title VII and other nondiscrimination laws, too. If you use their services as a screening mechanism to hire future employees or if many employees come from their ranks, they can sue for workplace discrimination.
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