Stop frivolous claims with solid hiring, promotion processes consistently applied
Smart employers have well-developed and organized hiring and promotion processes. Not only do they have them, they follow them carefully.
That’s critical because when people don’t get jobs they want, they often suspect discrimination. And then they sue, whether they have a good case or not.
You can stop those lawsuits fast by sticking with your equitable, consistent process. Courts will almost always look at the selection process and conclude it was fair and nondiscriminatory. That means fewer frivolous claims will end in a successful lawsuit.
Recent case: Gerdau Ameristeel employee Joseph Straszheim, who identifies himself as American, lost out on a promotion to another co-worker who he believed was not an American. He sued, alleging national-origin discrimination.
But Gerdau Ameristeel explained to the court exactly how it chose the candidate. It had an extensive selection process that began with posting job openings in a readily accessible location, followed by testing and interviews.
In Straszheim’s case, he learned about the job after reading a notice on the bulletin board that read “Anyone interested in bidding on this job should complete a Job Bid form and place it in one of the Job Bid Boxes by 4:00 p.m. on Thursday, 3/22/07.”
Straszheim was one of three candidates. They all took a written test, and Straszheim scored the highest. The next step was a panel interview, which asked all three candidates exactly the same questions. Each panel member then scored the candidates separately based on job-related knowledge, communications skills and initiative.
The scoring system ranked each candidate on each characteristic using three ratings: below expectations, meets expectations or exceeds expectations. Each of those factors were then assigned a numeric equivalent.
Straszheim apparently did poorly on some of the competence questions, and some of the panel members’ notes said he answered some questions incorrectly.
All the information was then sent to the HR office, which tallied the scores and ranked the three candidates. Straszheim scored last and the promotion went to the highest-scoring candidate.
Straszheim sued, alleging national-origin discrimination. He alleged that the chosen candidate was born in Portugal and was therefore not of American national origin and that Straszheim had been passed over because he was American.
The court tossed out his lawsuit. It pointed out that there was nothing in the promotion process that pointed to any possible bias. Plus, the panel members were all American and testified that they didn’t know anything about any of the candidates’ ethnic or national-origin backgrounds. (Straszheim v. Gerdau Ameristeel, No. 3:08-CV-602, WD NC, 2010)
Accounting for subjectivity
In this case, the employer used a mix of objective and subjective standards for choosing the candidate. Generally, the more objective criteria you use, the less likely an applicant or employee will be able to win a lawsuit that challenges hiring or promotion decisions.
If you use subjective criteria (as here, with the addition of questions on communications skills and initiative), make sure you can back up candidate assessments with notes that explain why each candidate was ranked the way he or she was.
Advice: Tell hiring managers to take notes on everyone they interview and then forward them to HR.