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2 tactics to prevent needless litigation: Online applications and blind screening

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in Hiring,Human Resources

Employers can’t discriminate against applicants based on a protected characteristic like age or race if they don’t know the applicant belongs to a particular protected class.

One way to ensure “blind” hiring is to create an online application process that doesn’t ask for protected-class information. Then perform initial screening without actually interviewing candidates. That way, only interviewed applicants can sue over not being hired—not everyone who filled out an application.

Recent case: Judy has extensive experience in HR management and is over age 40. She applied for a job as an HR generalist with Dow Chemical in Bristol.

Dow Chemical used an online application process. Judy’s application materials consisted of a cover letter, an application, a résumé and a prescreening questionnaire. Nowhere in the process did Dow Chemical ask for her age or race. Nor did she have anything on her résumé that indicated race or age.

As part of the screening process, Dow collected the online applications, including Judy’s, and made a preliminary phone call to confirm her availability for an interview and for the job if ever ultimately hired.

The individual who made the calls then passed on to the hiring manager a list of potential candidates. Nowhere in HR’s notes was there any indication of race or age. The hiring manager simply received a list of applicants who had indicated they were available for interviews and would accept a job if offered.

The hiring manager then reviewed the applications and picked candidates to interview. Judy wasn’t selected be­­cause she didn’t have the specific labor-relations background the company was looking for.

Judy sued, alleging race and age discrimination.

Dow Chemical successfully argued that the hiring process was designed so that the hiring manager didn’t know an applicant’s race, age or other protected characteristics and therefore couldn’t have discriminated based on Judy’s age or race. The court threw out the case. (Harris v. Dow Chemi­­cal, No. 12-3713, ED PA, 2013)

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