If your organization has created standardized, objective processes for hiring or promotion, make sure you deviate from them as little as possible. Doing so without a good, contemporaneous explanation may result in expensive litigation.
Recent case: A group of men who had been seasonal employees for a ferry boat service all applied for full-time, regular positions.
The ferry authority used an objective, standardized application process that focused on asking every candidate exactly the same questions and then ranking each candidate numerically based on their answers. This generated a hiring list; generally, hiring started at the top of the list and worked down. The authority did allow for deviations from the list, but any deviation was supposed to be accompanied by an explanation.
Based on the interviews, two of the men—age 53 and 61—ranked fifth and sixth. The authority hired the first four applicants on the list, but skipped the two and hired the seventh-, eighth- and ninth-ranked applicants. They were 35, 33 and 26 years old.
The two men sued, but the trial court dismissed the lawsuit. However, the 3rd Circuit Court of Appeals reinstated the litigation.
It reasoned that since the ferry authority didn’t provide a contemporaneous explanation for why it short-cut its usual objective process, age discrimination may have been a factor. The case was sent back for trial. (Bulifant, et al., v. Delaware River & Bay Authority, 3rd Cir., 2017)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Three cases form basis of EEOC's stance on transgender bias
- Internal report of wrongdoing not enough to trigger whistle-blower protection
- Fired for sexual harassment: Do you disclose it?
- Court limits reach of obscure bias law: Discrimination case must stay in state court