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Minimize Employment Risks: Document

Council on Education in Management

Minimizing Your Risks When Making Difficult Hiring Decisions

Memory is notoriously fallible. That’s one reason documentation is so important. It provides a contemporaneous record of why an employment action was taken. Plus, you can’t write down your reasons for taking an action unless you’ve thought it through and can articulate your reasons, which leads to consistency. As one employer recently found out, consistency and documentation are essential in the hiring process.

Joyce Dennis worked as an emergency room registration clerk for Columbia Colleton Medical Center(Colleton). Dennis applied for the position of registration supervisor when it formally opened. She was passed over for the promotion in favor of an outside candidate, Johnny Bridge. Dennis sued, claiming that she had been denied the promotion because of her gender. A jury awarded her $32,302 in back pay and $104,765 in attorneys’ fees. Colleton appealed the award.

The appellate court pointed out that at his deposition, Jimmy Hiott, Colleton’s chief financial officer, testified that it was only Bridge’s managerial experience that made him a superior candidate. At that time, he was
unable to recall many details of the hiring process. However, when he testified at trial, over a year and one-half later, his memory of the details “seemed to dramatically improve, and he asserted that it was both managerial experience and computer knowledge that set Bridge apart.”

When defending against a discrimination lawsuit, the employer has the right to produce evidence that it had a legitimate nondiscriminatory explanation for the complained of employment action. If the employer produces such evidence, the plaintiff must then prove that the proffered reason was not the employer’s true
reason, but was a pretext for discrimination. As the Fourth Circuit Court of Appeals noted, giving inconsistent explanations for failing to promote an employee to an open position and using a “peculiarly informal” selection process may give the employee the ammunition necessary to prove that the employer’s stated reason is a pretext for discrimination.

The court held that Hiott’s inconsistencies, in concert with his failure to look at Dennis’ in-house work experience, training and evaluations, were sufficient for a jury to find that the reasons given by Hiott for not
promoting Dennis were a pretext for discrimination. Dennis v. Columbia Colleton Medical Center, Inc., (4th Cir. May 16, 2002).

Employer Tip: The moral of this story is that any “adverse employment action” should be taken only for a lawful reason, and the reason given for the action should always be the true reason. Inconsistent explanations of why an employment action was taken are evidence that the reasons given are a pretext for discrimination. Good documentation of its legitimate nondiscriminatory reasons for failing to promote Dennis, along with a more thorough selection process, might have saved this employer almost $150,000

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