Mindy Chapman, Esq., Mindy Chapman & Associates

Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law monthly newsletter. She is highly regarded for her workplace compliance training that “clicks and sticks,” because it is practical and memorable. She is also the coauthor of the American Bar Association’s bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."

The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the workforce—from boardroom executives to managers and supervisors and to hourly employees in union and non-union environments.

View all articles by Mindy Chapman, Esq., Mindy Chapman & Associates

Have you ever felt that punch-to-the-stomach feeling of clicking “Send” and realizing you sent an e-mail to the wrong person? That usually causes only mild embarrassment. But as the CEO in the case below 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 an operations manager position at a financial services company in Idaho. He e-mailed his cover letter and résumé. Within 10 days, Wold heard back from the company, 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 in the office. In the e-mail, the CEO referred to Wold’s résumé by stating, “Damn … Check it out—I don't know what I think. He must be old—and just looking for something to do.”

Wold never heard anything else about his application after that and inferred his application was rejected because of his age. Wold filed a lawsuit under the Age Discrimination in Employment Act (ADEA).

The company tried to argue that it didn’t discriminate because Wold’s application mistakenly never reached the hiring coordinator because it was misrouted and, in any event, his “application materials suggested aggressiveness.”
Wold said the smoking-gun e-mail was all the evidence he needed to bring his case before a jury. (Wold v. El Centro Fin. Inc., 6/16/09)

What happened next and what lessons can be learned?

The court rejected the company’s defense and sent the case to trial. It cited the misdirected e-mail as the key piece of evidence, saying, “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.”

The court also noted this contradiction in the company’s defense: While the company claimed to never have considered the application, it must have considered it in order to claim it rejected him due to his application’s “aggressiveness.”

3 Lessons Learned Without Going to Court

1. Use tape. Tape your mouth, tape your hands. Never say or write anything that is discriminatory or that you wouldn’t want shown in front of 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.
3. Use a new lens. Look at it this way, there’s a “new normal” going on. Older workers can bring great value to an organization because of the experience that comes with them. Don’t discount them, interview them.