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Can telling applicant he’s ‘overqualified’ trigger a lawsuit?

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in Discrimination and Harassment,Firing,Hiring,HR Management,Human Resources

The unemployment rate rose to 8.1% in February, the highest since late 1983, the Department of Labor announced today. Desperate people are applying for anything that resembles a job. 

As a result, HR pros are forced to sift through hundreds more résumés and applications than normal. As Pete Ronza, an HR manager at a Minnesota college told CNN, “We could write the ad in Russian and it wouldn’t matter.”

However, many of those applicants have far more experience and education than what’s required for the job.

You and your hiring managers are probably wary of hiring such people, figuring that once boredom sets in and the job market improves, those overqualified hires will beat a path to more rewarding jobs elsewhere.

But be alert: Advise hiring managers to avoid using the term “overqualified” in front of job candidates or in any written description of them. Reason: Courts could view your use of the term as a code word for “too old,” sparking an age-discrimination lawsuit.

The federal Age Discrimination in Employment Act makes it illegal to discriminate against anyone age 40 and older in hiring, firing, promotions or pay. That includes making assumptions that an experienced older applicant wouldn’t have any interest in a lower-level job. A rejected applicant could view your use of the term "overqualified" as a way of saying he or she is simply too old.

That's what happened in a New York lawsuit a few years ago. A 49-year-old accountant sought an entry-level auditor's job in the New York City Audit Bureau. A manager refused to hire him, saying he was overqualified.

The accountant sued for age discrimination. The city tried to get the case tossed out on summary judgment, but the court let the case proceed to trial, saying “overqualified” could be considered “a code word for too old.” (Hamm v. New York City Office of Comptroller, S.D., N.Y.)

Bottom line: Using the “o” word won’t automatically trigger an age-bias lawsuit and it won’t mean you’ll lose one in court. But it could flip the “Hey, that’s unfair” switch in the person’s brain—which often leads to messy litigation. 


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