Want to avoid needless lawsuits from disgruntled applicants? Adopt some basic rules for handling the selection process, and pay special attention to the all-important job description and interview.
First, make sure the job announcement clearly states the minimum requirements for the job. Then interview only those individuals who meet the requirements. Don’t worry if applicants who seem overqualified make the list—you don’t necessarily have to hire them just because they may have more experience or education. Employers have the right to set minimum standards and can select any new employee who meets those requirements, even if others with ostensibly better qualifications applied.
Once you have selected the candidates to interview, make sure you ask them all the same questions so that you can truly compare their answers and responses.
As the following case shows, employers that follow these simple rules probably won’t lose a hiring discrimination lawsuit.
Recent case: Suresh Pathare and several other New York City Department of Education employees of Indian and Egyptian descent applied for promotions to newly created supervisory positions in the school facilities department. All of them had engineering degrees, although the job announcement did not require that credential.
All were selected for interviews, and had to answer the same general questions about—for example, “How would you address problems with an employee related to productivity?” Interviewers ranked all the applicants based on their responses, appearance, verbal skills, enthusiasm and job-related knowledge.
Six other candidates who scored higher than the Indians and Egyptians got the promotions. All were Caucasian. Pathare then filed an EEOC complaint, claiming she was better qualified and that the interview questions were irrelevant to the job.
After two of the new supervisors quit, the department posted the jobs again. Pathare and the others applied, and again went through the same process. This time, a candidate who happened to be of Egyptian origin was selected.
Pathare and the others then sued, claiming they were better educated and suited to the jobs, and that the employer had hired the other Egyptian in order to thwart their lawsuit.
The court threw out their case. The judge said applicants don’t get to set the minimum standards—the employer does. And the employer also gets to decide on the questions candidates must answer. Finally, the court said hiring a well-qualified Egyptian in the second round was not evidence that there had been discrimination in play the first time. (Pathare, et al., v. Klein, et al., No. 06-CIV-2202, SD NY, 2008)
Advice: Remember to keep good interview records. You want to be able to show you treated all interviewees the same. Develop an interviewer checklist to make sure they follow the rules.
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