Decision, Decisions: Choosing the Better Applicant
AHI Manager's Legal Bulletin
When you have the opportunity to hire or promote someone, you’d feel lucky to have numerous qualified applicants from which to choose. But you may not feel so lucky once you make your decision, if a passed-over applicant believes that he/she was the best person for the job. And then goes to court to prove it.
One federal circuit court defined equally-qualified candidates as those who possess the objective qualifications for a position when neither individual is clearly better qualified. Which means subjective criteria typically come into play to help you make a hiring decision — and to help an applicant file discrimination charges.
I’M BETTER!
Luke Timmons inquired about an open position, which would be a promotion from his current status. Manager Kelly Walsh explained that candidates would be ranked according to written responses to various questions based on job duties and would also be required to provide written explanations of their ability to communicate orally and in writing, deal positively with co-workers, work without direct supervision, and meet deadlines.
Walsh selected Timmons, along with five other candidates, for a formal interview. After completing the interviews, Walsh used a mathematical formula to rank each applicant.
Timmons, who was African-American, was not selected for the position. He believed he was more qualified than the white applicant selected. So he marched into court, arguing race discrimination. Walsh defended her decision by pointing out that the selected applicant was better prepared for the interview, knew more about the position in question, and spent more time and was better able to address the position’s requirements.
A court decided these were legitimate and non-discriminatory reasons to not hire Timmons.
Manager kudos for...not letting race play a part in the analysis of subjective criteria. While Walsh’s reasons for her decision were based on personal characteristics, they were not based on protected characteristics. I DESERVE IT!
Leon Peron accepted the position of janitor in hopes of working his way up to Quality Control Inspector. In his quest to achieve his goal, he applied for the Inspector position a total of 10 times. Each time, however, the position went to another applicant. And each time, supervisor Shawn Hardlow explained that the applicant chosen was better qualified.
Frustrated, Peron took his employer to court, where he claimed that he was the victim of race discrimination. To support his claim, Peron pointed to negative, subjective comments Hardlow had written about him, such as “poor communication skills.” The employee also pointed to notes Hardlow wrote regarding other African-American applicants, including: “shows no real interest,” “no skills experience pertaining to this position,” and “gave poor and incomplete answers to questions.”
An appeals court, however, ruled that there was absolutely no evidence that the subjective criteria Hardlow used in evaluating Peron and other candidates served as a “mask for discrimination.” While the specific comments Peron pointed to were negative, they were race-neutral. Not only that, but the manager’s notes also went on to explain his comments. For example, he concluded that Peron had poor communication skills because he failed to make eye contact and was not confident in his answers.
Manager kudos for...having written documentation of the subjective — but job-related — criteria that he used to make his hiring decisions, plus specific facts supporting his evaluations of the candidates.
ACTION TIPS
Courts don’t examine close calls; neither do they fix wrong decisions. What they look for are disparities in qualifications that “jump off the page and slap you in the face” (as one court put it). When applicants are equally qualified, take these steps for making sure you have non-discriminatory, legitimate business reasons for choosing one over another.
Verify that job descriptions reflect desired characteristics.
Besides establishing criteria for determining whether applicants meet the minimum qualifications for the job, create interview questions that can help you further distinguish among candidates. Examples: How has your Master’s degree specifically come in handy in your job? Give me an example of how you appeased a dissatisfied customer. What steps have you taken to work with a co-worker you weren’t particularly fond of? When under a tight deadline, how do you react?
Note: Steer clear of improper questions. Never ask about an applicant’s organization memberships, religious affiliations, or attitude about labor organizations, to name just a few.
Use skills testing when practical.
Document all qualifications and weaknesses, both objective and subjective. Be sure that they are related to the ability to do the job and never to a protected characteristic.
Treat all applicants consistently. If, for example, applicants must receive a certain test score or have a particular degree in order to qualify for an interview, every interviewee should meet this criterion. If you allow one candidate to slip in, you can expect that others will be asking why they were rejected.
Articles
Finding Candidates
- 10 Reasons to Hire Vets
- Hire Older Workers
- Improving Candidate Quality
- Sourcing 101
- Sourcing Candidates Well
- Tips for Building Employment-Related Websites
- U.S. Employ of People with Disabilities: Free Workshops
- Virtual College Recruiting
Interviewing Basics
- 10 Commandments of Recruiting
- 5 Keys to Successful Hiring
- 7 Tips for Successful Phone Interviews
- Behavioral Interviewing Basics
- Contrary Evidence Questions
- Interview Questions: Do's and Don'ts
- Interviewing Opening and Closing Remarks
- Interviews: Common Weaknesses
- Mistakes Amateur Interviewers Make
- Phone Screen Interview Mistakes
- Probing Techniques Explained
- Screening Interviewing: Top 10 Red Flags
- Strengthen the Validity of Your Interviews
- Telephone Interviews: Basics
- Ten Bad Listening Habits of Interviewers
- Types of Interviews
- Typical Probes and Follow up Questions
- What Do Interviewers Need to Know to be Effective?
Interviewing Best Practices
- 7 Keys to Effective Selection Interviews
- A Closer Look at Behavior-Based Interviewing
- Advantages / Disadvantages of Interviewing
- Applying Core Competencies to Selection Interviews
- Are You Really a Behavior-Based Interviewer?
- Assessing Speaking and Listening Skills
- Best Practices in Interviewing Candidates
- Deadly Interview Mistakes
- Death by Interview
- Ensure Hiring Success in Every Situation
- Executive Assessment Should Be Mandatory
- Generational Interviewing
- Hiring Interview + Strategic Applicant Management
- Hold Evening and Off-Time Interviews
- How to Interview a Top Performer
- Improve your Interviewing Techniques
- Interview Questions to Assess Soft Skills
- Interviewing for Ethics
- Interviewing Millennials
- Interviewing: Business or Psychology
- Metrics Interview
- Peeling Back the Onion
- The Positives of Panel Interviews
- Time for Candidate Advocacy?
- Tips for Conducting Successful Interviews
- Two Critical Interviewing Questions
Laws & Documentation
- Applicant Reference Release
- At Will Employment Release
- Avoid Negligent Hiring Mistakes
- Employee Referral Program Metrics
- Fair Labor Standards Act Information
- Four Interview Questions Never to Ask
- Giving Employee References
- Hiring Compliance Guidelines
- Hiring for Small Business
- Interviewing People with Disabilities
- Job Denial Letter
- Legal Issues in Interviewing
- Minimize Employment Risks: Document
- SAMPLE Employment Policy
- SAMPLE Letter: Educational Records Check
- SAMPLE Letter: Reference Check
- Ten Safe Hiring Tools
- What is Negligent Hiring
Line Manager / Recruiting Partnership
- Defending Candidates to Hiring Managers
- Interlocking Core Competency Interviews
- Internal Application Process
- Making Internships Work for You
- Making the Case for Behavioral Interviewing
- Non-Traditional Merit Pay Alternatives
- OFCCP Definition of an Internet Applicant
- Why Managers Shouldn't Do Most Hiring
- Workforce Planning: Strategic Staffing Strategy
Post-Interview
Pre-Planning & Retention
- Bonus or Incentive?
- Brand-Building on a Budget
- Build a First-Rate Hiring Process
- Closing the Deal
- Compensation Plans: An Overview
- Conducting an Exit Interview
- Good Hiring Starts with a Good Job Profile
- Improve the Quality of the Employment Function
- Interview Process Problems
- Interview the Job Before the Candidates
- Job Description Template-Link Pay to Performance
- Linking Pay to Company Performance
- Selecting and Using Salary Surveys
- Succession Planning
- Succession Planning: Identifying Top Performers
- Using a Pre-Interviewing Questionnaire
- Winning the War for Talent
- Worker Shortage by 2010: Preparation
Reading the Candidate
- Beware of Those Who Boast
- Blind Man's Bluff
- Decision, Decisions: Choosing the Better Applicant
- Detecting Deceit in Interviews
- Little White Lies on Resumes
- Suspend Judgment Until the Interview is Over
Recruiting Basics
- College Recruiting Basics
- College Recruiting Essentials
- Cut Down on Interview No Shows
- Discouraging Low Quality Applicants
- Don't Hold Too Many Interviews
- Job Descriptions: Why are they Important?
- New Strategies for Screening Job Candidates
- Preventing Resume Overload with Questionnaires
- Resume Review Basics
- Test Validation Explained
- The Value of Person-Organization Fit
- Three Companies Cut Turnover with Tests
Recruiting Best Practices
- 25 Telltale Signs of the Wrong Candidate
- 5 Overlooked Ways to Hire Winners
- Asking the Right Recruitment Questions
- Attracting Your Competitor's Employees
- BPR.......for Recruiters!
- Candidate Engagement
- Cloud Recruiting
- Evaluate Your Capture Strategy
- Hiring Best Practices
- How Do You Attract and Retain the Best People?
- How to Attract Applicants to Undesirable Jobs
- How to Attract, Develop and Retain Best People
- How to Find and Keep Valued Employees
- Ignorance and the Human Condition
- Onboarding Success Secrets
- Secrets to Non-Profit Hiring
- Selecting Top Management Talent
- Semi-Active Candidates are Best Bets
- Six Core Selling Principles
- Skills Based Recruiting: When, not How
- Smart Choices: How to Hire the Best
- Strategy for Hiring the Best This Year
- The Uses and Misuses of Personality Tests
- Top 10 Employee Selection Mistakes & Solutions
- Treat Candidates with the Carbon Rule