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Odd applicant makes pre-Hire complaints? Proceed as usual

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in Employment Law,Hiring,Human Resources

Some applicants clearly have chips on their shoulders. Some go as far as to proclaim they think they are being discriminated against before they even have a chance to turn down job offers.

What do you do when applicants, for example, start sending letters or e-mails complaining that they just “know” you will reject them due to their age, sex, nationality or some other protected classification? Surprisingly, the answer may be to ignore their complaints and proceed as you would with any hiring decision.

As the following case shows, applicants can’t create retaliation cases simply by letting you know they think you are about to discriminate against them.

Recent case: William Whitsitt was 51 years old when he applied for a job with Vinoteque Wine Cellars as a cabinetmaker. It was a job he was qualified for. During the job interview, he revealed his age. Vinoteque told him the hiring process would take a few weeks and that he would be kept informed.

Whitsitt then went home and started penning letters to the company, reminding them that it is illegal to discriminate against applicants who are older than 40. By the third letter, which he captioned “Third Notice,” he was threatening legal action.

Although it had not yet rejected Whitsitt, Vinoteque decided to get its counsel involved. The attorney wrote back to Whitsitt, stating, “Vinoteque does not discriminate.” Ultimately, Whitsitt was not hired.

He sued, alleging retaliation for the letter writing campaign, which he called a “protected activity.” The court tossed out his claim, reasoning “a claim for retaliation should not be able to be manufactured by the person who alleged to be the victim of retaliation.” Otherwise, wrote the court, any applicant “could send a notice to an employer that it better not discriminate,” and have an instant retaliation claim when not hired. (Whitsitt v. Vinoteque Wine Cellars, No. S-06-2076, ED CA, 2007)

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