Control the Damage, Then Get on with Training

02/27/07

The Case
“I’ve got to talk to you,” said Denise, an HR Manager.

“What’s up?” asked Brian, her boss.

“Last month we hired a new graphic artist,” said Denise

“I know,” Brian responded. “I hear Julie’s turned out to be a wonderful pick.”

“She is wonderful. She’s also thirty. And one of the people who interviewed was a guy named Rudolph Schmidt. He’s fifty-two. He called me yesterday and complained about the interview he had with Rob, who as you know is the department head. Schmidt said he referred to age a number of times. After he found out we hired a young woman, he said he might call a lawyer.”

“Did he give any real evidence of age discrimination?”

“He said Rob asked him questions like, ‘We work long hours around here. Are you up to it?’ and ‘We use the latest programs. Can you still learn a few new tricks?’”

Brian grimaced; Denise continued. “I pulled the interview form. Rob had written comments like, ‘Not much energy,’ ‘Seems stuck in his ways,’ and, in the left-hand corner, he’d written ‘Age?’”

“Was Julie the best choice?”

“You bet,” said Denise. “But if Schmidt’s lawyer looks at that interviewing form, we’re dead meat.”

Brian sighed. “Maybe not. Let me call our lawyer to see what we should do.”

The Analysis
Pointing out the mistakes this employer made is so easy it’s like shooting fish in a barrel. What will be harder is undoing the damage that the department head, Rob, has done—specifically his comments both in his interview with Rudolph Schmidt and on the interview form. A court could find that such comments constitute direct evidence of age discrimination. Because of the way this evidence would look to a jury, the employer would have an uphill battle convincing a court that its failure to offer Mr. Schmidt a position was based on legitimate, nondiscriminatory criteria.

Saying to a candidate, “We work long hours here, are you up to it?” isn’t necessarily an indication of age bias. However, this question, combined with Rob’s other verbal and written comments, could enable a plaintiff’s attorney to argue that the overall picture reflects age bias.

Train Well
What’s the lesson here? Train managers and supervisors on what questions to ask in interviews and what not to ask. It’s important for managers and supervisors to understand that while there are very few pre-employment questions that are literally unlawful, many areas of inquiry can create the inference of discrimination. This is the situation in which Rob has placed the company. In fact, supervisors and managers should understand that certain areas of inquiry are virtual “landmines” at the pre-employment stage.

Don’t Comment on Forms
Additionally, it’s somewhat risky to write comments about an interviewee directly on an employment application or interview form. I generally advise employers to tell their employees who conduct interviews to use scrap paper or sticky notes for their comments on interviewees, and to discard them when they’re no longer needed. This way, a “stray” written comment that could potentially be harmful can’t come back to haunt the employer.

Control the Damage
What can this employer do for damage control? It can take no action, assume the risk that Mr. Schmidt will not sue, and hope he goes away. Sometimes people threaten to sue and you never hear from them again, so it’s an option worth considering. What I would probably recommend, however, is to have someone from the HR department contact Mr. Schmidt to give him objective reasons why another candidate was chosen for the position. If Julie’s background and work experience were objectively a better “fit” than Mr. Schmidt’s, I would tell him as much in hopes of making clear to him that age was not a factor in the decision. I might also suggest that HR tell Mr. Schmidt that the company is willing to consider him for other positions for which he might be qualified, and invite him to apply for any such openings.

This would be a way the company could show that it does not discriminate in its hiring practices—that while it decided not to hire Mr. Schmidt for a particular position, it has expressed willingness to consider him for other vacant positions.Finally, to the extent that the company has records relating to its hiring process for the graphic artist position (e.g., classified ads, candidates’ resumés, applications, reference checks, etc.), it should make sure these records are retained. This way, if Mr. Schmidt eventually does file a charge, the company will have documentation to substantiate its hiring procedures and the legitimacy of its hiring decision.