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2 great candidates? Document why you chose 1

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in Discrimination and Harassment,Hiring,Human Resources

Competition is keen in today’s job market. Outside applicants are plentiful due to persistent unemployment that has left thousands of highly qualified individuals scrambling for any open jobs. Internally, incumbents jump on any opportunity for promotions—often the best way to gain a pay raise.

How you choose among the candidates may spell the difference be­­tween losing and winning a lawsuit.

Always document the decision-making process, especially when candidates are equally qualified. Later, you may have to explain the decision in court—and your reason had better be a good, business-related one.

Recent case: Christopher Broich worked as a police officer. He is white, of Germanic origins, single and has a Hispanic girlfriend. When he was passed over for a promotion in favor of a black candidate, he sued.

His original allegations included a veritable smorgasbord of allegations based on race, national origin, marital status and association with members of other races. Broich claimed he was as qualified as the black candidate; perhaps even more so, based on length of experience.

The police department got the case dismissed, but Broich appealed.

The 2nd Circuit Court of Appeals reversed the decision and re­­instated the case. It said that Broich met his initial burden by showing that he and the black candidate were at least equally qualified. That’s enough to shift the burden to the employer, which must show a legitimate reason for the decision. (Broich v. Village of Southampton, No. 11-467, 2nd Cir., 2012)

Final note: What are legitimate reasons to prefer one equally qualified applicant over another? It may be an additional skill, awards earned, ability to communicate well or any other qualification a rational employer would consider a plus for the job. Courts won’t second-guess the decision if they see evidence it was made without obvious bias.

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