Courts give employers the benefit of a doubt when it comes to the qualifications they seek in job candidates, and the questions they ask during interviews. As long as the criteria and questions are job-related and not otherwise illegal, courts grant wide latitude.
But once you decide on hiring criteria and use them to rank candidates, resist the temptation to go back and tinker with the rankings. That’s especially true if it would result in bypassing members of a protected class who outscored others. Even if the protected-class candidate who was directly passed over doesn’t sue, other candidates belonging to the same protected class could. And that can be costly.
Recent case: George Abraham, who is a brown-skinned Asian of Indian national descent, applied for one of six open positions. He met the minimum qualifications. He and 25 others were interviewed and asked the same questions.
The interview panel then ranked the candidates based on their responses and other factors such as . The top 13 candidates were told they were the ones from whom the selection would be made. Abraham was ranked 24th. Five of the initial six hires were Caucasians of American national origin.
Abraham sued, alleging that by the time the employer filled all the spots, it had passed over another candidate of Indian national origin who had ranked higher than two of the white candidates who got jobs. He argued that was evidence of discrimination.
The judge agreed, concluding that if someone who belonged to the same protected class as Abraham had been passed over after earning a higher ranking, that was indeed evidence of discrimination. In the end, the court dismissed the case, but only after the employer spent thousands on legal fees and lost time. (Abraham v. New York City Department of Education, No. 06-cv-1053, ED NY, 2009)
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