Before you reject a candidate who appears to meet the basic requirements for an open position, make sure you can explain your decision.
Then document your rationale in case he or she later claims the real reason for the rejection was some form of discrimination.
Never change the reason later—that simply looks like you are trying to cover up something.
Recent case: Michael Germano, who is deaf, has a law degree and an advanced degree from Georgetown University. He applied for a tax advisor position with International Profit Association, responding to an advertisement for tax advisors with at least a master’s degree and several years’ experience.
Germano got a response to his application and arranged for a phone interview. Because he is deaf, he uses a telecommunications relay service, which involves typing his part of the conversation into a device. The party on the other end reads the message, and any response comes back to Germano as text.
All appeared to go well during the phone call, and Germano was offered a face-to-face interview with another executive.
But shortly after the phone interview, International Profit Association revoked the live interview offer. The company told Germano it had hired a more qualified individual.
Germano sued, alleging he had been rejected because of his hearing loss. He suspected that the person who was going to interview him surmised that he was deaf. Then he found out the person the company hired because he was supposedly better qualified was actually hired before Germano’s phone interview. Later, the company tried to tell the court it hadn’t hired Germano because he didn’t have enough experience.
But then it turned out that it hired others with no experience for the same job.
The 7th Circuit Court of Appeals said the case should go to trial. It said the shifting explanations might be an attempt to cover up disability discrimination. (Germano v. International Profit Association, No. 07-3914, 7th Cir., 2008)
Final note: Many employers get into trouble because they feel compelled to explain to applicants why they were not hired, but don’t want to insult or offend the applicant. So they offer an explanation that they think is easier to take—that a more qualified applicant had been chosen.
The problem with that explanation is that it invites the question, “What made him more qualified?” And that can lead to trouble. Instead, simply state that another candidate was chosen. This simple declaration won’t trip you up later.
Meanwhile, document the selection process internally. Then stick with the reason if your decision is challenged.
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