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Pick qualification standards and stick with them

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in Discrimination and Harassment,Hiring,Human Resources,Leaders & Managers,Management Training

Sorting through candidates for promotion? Make sure you apply the same education and experience standards to all of them. If you don’t, chances are at least one spurned candidate will consider a lawsuit—especially if he or she is a member of a protected class and the candidate you eventually select isn’t.

Why? There are two ways for an attorney to prove discrimination was the real reason you picked someone else:

  1. The candidate who wasn’t selected can prove that he or she was clearly more qualified than the one you picked.
  2. The reason you gave for hiring the other person was false and “unworthy of credence.”

The first approach is a tough one for a candidate to win. The second is much easier—especially if the employer tells one candidate it's looking for specific experience and then picks someone who doesn’t have that experience. It’s the setup for a perfect lawsuit.

Recent case: Darry Burrell, who is black, was rising through the ranks as a corporate purchasing manager at Dr. Pepper until his boss resigned. She recommended Burrell for her position. But upper management rejected his application even though he had stellar reviews. The reason? Management said Burrell didn’t have enough “purchasing experience.”

Dr. Pepper then hired a white male for the job who had even less purchasing experience than Burrell. Dr. Pepper explained its selection by pointing to the other candidate’s superior “bottling experience.”

After working with the new boss for several months, Burrell was fired for alleged insubordination. He sued, alleging that the purchasing experience criterion was just an excuse not to promote him and to cover up race discrimination.

The lower court dismissed the case, but the 5th Circuit ordered a trial. It pointed to the inconsistent and shifting reasons Dr. Pepper gave for not hiring Burrell and hiring the white candidate. The court said the inconsistencies were enough to raise discrimination as the possible real reason. (Burrell v. Dr. Pepper/Seven Up Bottling Group, No. 06-10267, 5th Cir., 2007)  

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