Set clear job requirements to stop bias claims

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in Discrimination and Harassment,Hiring,Human Resources

Employees who claim they were wrongly denied a promotion for some discriminatory reason (for example, based on race, age or some other protected characteristic) have the initial burden of proving they were qualified for the position they sought.

The best protection employers have against such claims: clear, concise and accurate minimum job requirements. Employees who don’t meet those requirements rarely get beyond first base in a lawsuit. And an early dismissal means less lost time and lower attorneys’ fees for employers.

Recent case: Terry Whitman, who is over age 40, worked for the Federal Aviation Administration (FAA) as a flight data specialist. When the agency posted an open computer-specialist position, he applied. When a student intern got the job, he sued for age discrimination.

The FAA said Whitman wasn’t qualified for the job, and provided the court with the minimum selection criteria. One requirement was one year of specialized experience, which the intern had. Since Whitman couldn’t show he had that experience, he never got to challenge his rejection based on age. (Whitman v. Mineta, No. 05-36231, 9th Cir., 2008)

Final note: Set the selection criteria before you post the job. Making changes during the process may look suspicious. And make sure everyone involved in the selection process uses those criteria. The objective is to make the process as clear as possible, so there is no doubt you are using objective, concrete job requirements as the basis for hiring decisions.

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