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Don’t make juries use their imaginations! Tell decision-makers to keep interview notes

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in Discrimination and Harassment,Human Resources,Leaders & Managers,Performance Reviews

Months or even years after the fact, it can be hard for managers to remember what happened during a job or promotion interview. That can be a problem if they have to recall in court the interview and the decisions that resulted. And that can add up to unconvincing testimony, which can cause juries to doubt their sincerity and honesty—and therefore conclude the organization was discriminating.

To avoid this problem, remind anyone involved in the selection process to retain their notes and other materials. That way, they can easily explain exactly what happened and why a particular person was picked over another.

Recent case:
Howard Motley, who is black, worked for the Department of Housing and Urban Development (HUD). Back in 1999, he applied for several promotions to the position of community builder. Each time, HUD selected a white employee.

Motley sued for race discrimination.

HUD had the decision-maker testify about each promotion. He explained that each promotion was based on two things: the candidate’s latest performance appraisal and responses to forms sent to supervisors asking for an honest assessment of whether they could recommend the applicant for the job.

Each time, Motley had the lowest performance appraisal—rated “fully successful” instead of “highly successful” or “outstanding.” Plus, Motley was the only candidate whose supervisors wouldn’t recommend him for the job.

The court said HUD had shown it had good reasons for selecting the others and Motley hadn’t shown there was underlying discrimination at work. (Motley v. Donovan, No. 08-1712, 3rd Cir., 2009)

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