You don’t always have to promote the best educated or most experienced employee—but you must at least have a good explanation why you chose another candidate.
Here’s why: To get over the first hurdle in a discrimination lawsuit, the spurned applicant has to show he had more experience or education than the other candidate. Then the employer has to show why other characteristics were important to it. Finally, the experienced candidate has to counter with evidence of discrimination. That’s hard to do—and such cases are often tossed.
Recent case: Alton Hurd, who worked for the New York City Health and Hospitals Corporation, applied for a promotion to coordinating manager in the managed-care department. He had a college degree, good and had worked longer than the woman chosen for the position. Therefore, he argued, he was better qualified—and discrimination had to be the reason he wasn’t promoted.
But the hospital countered that the candidate it chose had five years of actual managed-care experience, while Hurd had just three months. Plus, Hurd interviewed poorly.
The court dismissed Hurd’s case because he was unable to point to anything specific that indicated any sort of discrimination. Thus he couldn’t cast doubt on the very logical explanation that showed the hospital valued the specific experience over education and . (Hurd v. New York City Health and Hospitals Corporation, No. 07-1250, 2nd Cir., 2008)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- 10 Secrets to an Effective Performance Review
- The HR I.Q. Test: May '09
- Merely transferring employee to same or similar position isn't grounds for lawsuit
- Repeating sexual harassment training
- Single comment doesn't justify hostile environment case