The more subjective factors you use to set one applicant apart from another, the more likely a court will challenge your decision-making.
The best approach to hiring is to consider as many objective factors as possible—experience, education, training, sales numbers and other easily measured characteristics and talents.
That’s because some judges and juries may see subjective judgments such as “aggressive” or “confrontational” as code for some form of discrimination.
Recent case: Todd White, who is black, was passed over for a promotion he claimed he was best qualified to fill. He was the only employee in his division at Baxter Healthcare who held an MBA. But following a round of interviews, Baxter executives rejected White in favor of a woman with no graduate degree and less specific experience.
White sued, alleging race discrimination. He pointed out that the hiring committee members had noted that they felt White did poorly in the interviews. Committee members called him “aggressive” and “confrontational,” and noted that he was not a “team player.”
The trial court dismissed the case, but the 6th Circuit Court of Appeals reinstated the lawsuit. It noted that “interview performance is an inherently subjective determination, and thus easily susceptible to manipulation in order to mask the interviewer’s true reasons for making the promotion decision.” Assessments such as calling the applicant “aggressive and lacking in vision” may be self-serving and conclusory. (White v. Baxter Healthcare Corporation, No. 07-1626, 6th Cir., 2008)
Advice: As much as possible, base hiring and promotion decisions on concrete skills and experience.
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