Wednesday, November 17, 2010

Three steps to avoid a discriminatory hiring claim

Bartlett v. Gates (6th Cir. 11/16/10) [pdf] involved a plaintiff who claimed that he was passed over for a promotion because of his age and sex. The 6th Circuit Court of Appeals reversed a district court’s dismissal of the discrimination claims for the following three reasons:

  1. The plaintiff was objectively as qualified as, if not more qualified than, the successful candidate. He had 24 years of experience as compared to eight. In addition, he possessed superior educational credentials, including a bachelor’s degree, whereas the successful candidate had not graduated from college. There was also some evidence of superior communication skills and job-specific work experience.

  2. The hiring manager had not conducted any job interviews and lacked basic knowledge about the successful candidate. Despite the employer’s explanation that it had hired the best-qualified candidate for the position, the hiring manager was unable to describe her credentials. The hiring manager testified that she was able to making a hiring decision without holding any interviews because of her personal knowledge and familiarity with the job applicants’ experience, backgrounds, and competency. Yet, she did not know whether the successful candidate even had a prior experience related to the core functions of the job.

  3. There was some direct evidence of discriminatory animus. The plaintiff’s supervisor and hiring manager made comments to and about the plaintiff such as informing him that his 34 years on the job were “enough,” joking about whether he had taken up “antiquing or traveling or something like that,” and suggesting that the plaintiff should retire.

What lessons can employers take away from this case to avoid a discriminatory hiring claim? Here’s three:

  1. If you are not going to hire the most qualified person, at least know what you are getting yourself into. Perform a comparison of candidates, including their qualifications, relevant experience, and key demographics. Have objectively supportable reasons why you chose the 29-year-old over the 53-year-old.

  2. Meet the candidates. When you whittle the field down to the final few, meet and interview them. Do not rely solely on paper. If you know the candidates, do not rely solely on past experience. Talk to them, avoid illegal questions, and form reasoned, objectively supportable pros and cons for each.

  3. Finally, if you feel the need to make racial, sexist, or ageist comments in the months before and after a hiring decision, wait until you get home, make sure all your doors and windows are closed, and yell them into a pillow.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or

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