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Press ‘send’ for liability: The legal risk of misdirected e-mail

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in Discrimination and Harassment,Hiring,Human Resources

Have you ever felt that punch-to-the-stomach feeling of clicking “Send” and realizing you blasted an e-mail to the wrong person? As the CEO in the following case learned, one misguided e-mail mixed with some poor judgment can stir up a potent legal stew …

Case in Point: Kenneth Wold,46, applied for a manager job at an Idaho financial company. He e-mailed his cover letter and résumé. Within 10 days, Wold heard back, but not with the message he expected.

The company’s CEO had mistakenly sent Wold an e-mail that was intended for a co-worker. The CEO’s e-mail referred to Wold’s résumé by stating, “Damn … He must be old—and just looking for something to do.”

Wold never heard anything else. He assumed his application was rejected because of his age, so he filed a lawsuit under the Age Discrimination in Employment Act (ADEA).

The court sided with Wold and sent the case to trial, citing the smoking-gun e-mail. It said, “This broad, negative characterization of older employees is precisely the type of prohibited stereotype the ADEA seeks to remedy and gives rise to an inference of discrimination.” (Wold v. El Centro Fin. Inc., D. Idaho, 6/16/09)

2 Lessons Learned

1. Use tape. Tape your mouth, tape your hands. Whatever it takes, never say or write anything that is discriminatory or that you wouldn’t want shown to a jury. You create your own evidence against yourself.

2. Use procedures.
Follow your hiring and promotion procedures to be fair and consistent to all applicants. With the spike in layoffs and the flood of applicants for every open job, rejected applicants are more likely than ever to take action against you. So it will be critical to show you handled them consistently with your policies and procedures.

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