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Changing hiring criteria in midstream: Legal, if done right

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in Discrimination and Harassment,Hiring,Human Resources

Sometimes, employers receive a far greater number of qualified applicants for an open position than they expected.

If that happens, take note: You don’t have to start over with a new, more specific job announcement. Instead, you can narrow the applicants down by a new set of more specific requirements and then select among those who meet your higher threshold. Applicants who sue because they met the first set of requirements but not the second probably won’t win a discrimination lawsuit.

One key point: Don’t tailor the new job requirements to a particular candidate. That could be seen as preferential treatment.

Recent case: Estaban Sarmiento, a Hispanic male, sued a state university after he was rejected as an associate professor. Sarmiento held a Ph.D. in biological anthropology and applied for a tenure track position in the field.

The university’s initial job announcement sought someone with success in teaching, research and professional activities. A revised posting added that the applicant should be prepared to teach applied medical anthropology.

The announcements netted 52 applicants. The selection committee selected three women whose area of expertise was the relationship between human society and disease. Sarmiento’s expertise was in apes.

Sarmiento sued, alleging that the school changed the requirements so he wouldn’t be one of the candidates. The 3rd Circuit Court of Appeals dismissed his case, seeing no evidence that the school created the requirement to eliminate him as a viable candidate, but that the selection committee added the additional requirement because it fit the organization’s needs. (Sarmiento v. Montclair State University, No. 07-2475, 3rd Cir., 2008)

Best bet: To avoid such disputes, be as specific as possible when writing initial job ads. It may lead to fewer applicants, but they’ll be more qualified.

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