Avoiding litigation in the hiring process: You're not hired . . .don't sue me!

Avoiding litigation in the hiring process: You’re not hired ... don’t sue me!

It’s 4:30 p.m. on a Friday afternoon, and the knock on the door is a surprise; you answer it.  It’s the corporate lawyer.  The company’s being sued because you didn’t hire Ms. Jane Doe.  She’s suing for discrimination. But she was unqualified, you insist.  You confide in the attorney that of the twenty or so resumes you had read, you narrowed it down to seven candidates who were invited in for the formal interview process.  Of the three short-listed candidates, Ms. Doe possessed the least expertise in a number of required skill areas.  The candidate that was finally selected most closely matched the position requirements in terms of both related job experience and technical/application knowledge – and seemed to be a good fit, given the corporate culture.

Ms. Doe just was not a good match for the position, you tell the attorney.  You explain that you informed her of this once a final decision had been reached.  You assure the lawyer that you were tactful and courteous during the phone conversation with Ms. Doe, politely telling her that we elected to hire someone who was better qualified for the job and wishing her well in her career endeavors.  You also tell the attorney that you hated having to keep her dangling as long as you did, but, well, you had to do it because of company policy. 

In frustration, you ask the attorney how this could be happening.   Why is Ms. Doe suing us, and what are her grounds for the suit?  How could this lawsuit have been avoided, and what can we do differently in the future?

Candidates are increasingly frustrated when rejected and are no longer accepting the vague “we’ve found someone who is a better fit” reason of rejection.  Recruiters and hiring managers are coming under fire from candidates who demand reasonable explanations as to why they weren’t picked for the job; and if they don’t like your reasons, they’re often threatening to sue. 

In an era where perception is reality, some candidates perceive biases that may not be there, and they’re suing to make sure they don’t fall victim to these biases.  The most common reasons for discrimination suits are gender, age, race, and virtually anything else that falls within the protected classifications.  To complicate this matter even more, what the potential employer may often perceive as a mismatch between his or her corporate culture and the candidate could easily be viewed as a potential discrimination claim on the part of the candidate.

The Solution
There is a solution that you can readily adopt and use to reduce the likelihood of litigation during the hiring process.  You can very effectively and seamlessly integrate a graded interview and hiring process approach within your organization.  This type of approach to the overall hiring process is highly structured in that for each candidate applying for a specific position, every step, movement, action, or reaction in the various interview stages is awarded a score which is recorded on a uniform scorecard.  As each candidate moves through the various individual components of the interview and hiring process, he or she receives a grade based on the scores awarded during each stage of the interview process.  After the candidates have completed the interview stages, scores are tallied, final grades are determined, and the candidate with the highest grade moves forward, or gets the offer.

How to Begin
As you embark on any hiring opportunity, it is essential that you, the hiring manager, have a structured and documented hiring plan in place.  In developing your plan, make sure that it clearly reflects the parameters of the position that is currently open to candidates and that it includes the concise documentation of the following components:

«    an accurate job description for the position
«    related BFOQ’s [bona fide occupational qualifications]
«    required skill assessment [if applicable]
«    required travel [if applicable]
«    number of required interviews
«    identification of interviewer[s]
«    educational requirements
«    salary considerations
«    reference / background checks [as applicable]
«    other
 
The most significant end product of this documentation process will be the scoring mechanism, or scorecard, in which you may record the scored components of each candidate interview.  This scorecard can be as simple or as complex as you need it to be.  It is essential, however, that the scorecard be used consistently for all candidates vying for a particular position.  The following is an example of a scorecard. 
 
Each of the skills critical to the position need to be identified, included on the scorecard, and awarded an appropriate number of points by the hiring manager for each position being filled.  The amount of points awarded for each of the various skill areas will be left to the discretion of the hiring manager.  Typically, the more critical a skill area is for any given position, the higher the number of possible points.  If you require a certain number of years experience in a particular skill area, the number of years could equal the number of points; for example, 5 years equals 5 points.  You may have as many or as few of these scored components as you deem necessary for the interview process to produce a suitable candidate. 

The scorecard should also note the minimum acceptable scores for a candidate to be considered viable for the position.  In so doing, you will be better able to identify those candidates who realistically don’t stand a chance of being considered for the position.  Additionally, all scoring must be consistently applied to all candidates in the interview process.  It would also be helpful to provide ample space for the interviewer to cite comments and/or rationale for “extremes” [very high or very low scores].  Keep in mind that the less vague you are with your requirements, the less likely you’ll be to go into litigation.  You will also want to ensure that all documentation from the interview process is retained and filed in an appropriate fashion. 

If you require a skills assessment for a position, there are many websites which offer uniform scoring mechanisms.  These websites, or assessment centers, are readily accepted by human resource managers, and by using them you can lower perceived bias in an employee’s comprehension of a needed skill.  By doing an internet search of “employee assessment,” you will find numerous websites dedicated to providing you with an accurate assessment of your potential employee.  A few examples include  www.brainbench.com,  www.stafftesting.com, or  www.eskill.com.  You will want to do a little research to ensure that the assessment center you pick is a good fit for your company. 

To see what a graded scorecard would look like as well as how effective it can be in your interview process, a series of three examples follow for your review.  Please note that these examples are fairly simplistic and that you would want to have greater detail if you were actually interviewing candidates for these positions.

Scenario #1:  HelpDesk Tier II
Prior to interviewing candidates for a helpdesk position, it is crucial that you identify up front the specific points of expertise you are requiring on the part of the candidate you will ultimately hire.  This could include points such as, “How many tickets, on the average, did you handle on a daily basis?”  If 50 is your break point, then a candidate who on the average closes less than 50 tickets per day would not be a viable candidate for the position.  Also, you will likely want to know which specific technologies the candidate has used and mastered.  If a candidate only knows XYZ technology and your company runs ABC technology, then he or she is obviously not a good fit for your position. 

The scorecard below depicts 3 candidates vying for a HelpDesk – Tier II position.  In this example, the scorecard represents the interview results of Interviewer B.  
 
In this scenario, Candidate C is the optimal candidate for the position.  Candidate C meets all of the requirements and has the highest number of points.  Candidate A does not meet two requirements:  (1) the minimum acceptable number of closed tickets per day, and (2) the minimum number of years experience with Windows 2003.  Therefore, Candidate A can be eliminated from consideration for this position.  Likewise, although Candidate B meets the experience and skill requirements, he or she did not arrive on time for the interview.  Additionally, Candidate B barely meets the years of Tier II experience requirement.

Scenario #2:  IT Supervisor
You need to hire an IT supervisor with experience in LAN engineering as well as the supervision of at least 5 people.  Several candidates apply who have both LAN engineering and some supervisory experience. 

The scorecard below represents the results of Interviewer A’s interviews with 3 candidates for the supervisor role.
 
In this scenario, Candidate B is the optimal candidate for the position.  Candidate A does not meet the supervision requirements and is therefore immediately out.  Both Candidates B and C have supervision and LAN experience, although Candidate B clearly leads with the required supervision skills.  The score of 5 that Candidate C received was for supervising less than the required 5 people.

Scenario #3:  .NET Developer
When your position requires highly specialized skills, such as a .NET developer, you can require that candidates complete a skills assessment to demonstrate competency.  As long as the method you use for assessment has a uniform scoring mechanism, it is an accurate indicator of the candidate’s skill level. 

For this particular role, the scorecard below represents three candidates who have taken the skills assessment and show the results of Interviewer D.
 
In this scenario, Candidate A is the optimal candidate for the position.  Candidate B is clearly out for not passing the skills assessment with an acceptable score.  Candidates A and C both passed the assessment and have the required experience in .Net.  Candidate A has the additional benefit of longer exposure to the skills and a bachelors degree. 

When Ruling Out Candidates
Once you determine that candidates are not viable for a position, you must ensure that you are ruling them out for reasons that are both appropriate and justifiable.  If you have diligently documented candidates’ interview results using the graded approach, there will be no need to resort to vague, “last-minute” excuses; nor will you have need to fabricate a flimsy excuse.  Well-prepared scorecards should provide you with ample reasons which you, in turn, can both articulate to the candidates and retain on file.

Often times, inappropriate reasons for ruling out candidates occur unintentionally with the inclusion of position requirements that aren’t warranted.  For example, if you have an open HelpDesk – Tier II position, require your candidates to pass a .NET competency assessment, and then reject them for not being able to pass the assessment, you’ve rejected candidates for an inappropriate reason due to an erroneous requirement.  In so doing, you have exposed both yourself and your company to potential litigation, and reasonably seasoned IT professionals can’t help but notice this fallacy.

In the previous helpdesk example, Candidate C was clearly the optimal candidate.  However, when using the following interview scorecard with the erroneous requirement, all candidates are eliminated based on a skill/bias that should have not been a requirement for the position.
 
You also want to avoid being evasive when you rule out candidates. The more detailed you are in the components of the scorecard, the less likely you will say “you’ve got the skills and experience, but you just don’t seem to be the type that would fit into our corporate culture.”  Doing that is a sure way to set yourselves up for litigation.

Why it Works
In an economic downturn, companies often look to find cost-saving measures, usually resulting in layoffs.  A frequent occurrence in those layoffs is that companies let go of the higher-paid, but lesser-skilled or less productive employees.  While these candidates are interviewing and possibly are being passed over, they might consider that they are being rejected due to an age bias when in actuality they are being rejected because they refuse to budge on their salary requirements or some other component of the position. If you follow the graded interview process for the position, this point will be documented.  Additionally, you can proceed to tell the candidate that, “Based on your salary requirements, you are not being moved forward in the process as there is no flexibility in the position for an increase of salary.”

Using factual, legitimate reasons based on your company’s interview and hiring process to decline a candidate allows no wiggle room as to why a candidate was passed over.  You will ensure that declinations are polite and just, thereby lowering your company’s litigation opportunities.

You’re Not Hired
Many companies have a policy of not telling a candidate they are out until after the entire interview process has been completed.  Depending on the position, this can be a lengthy time frame, and it’s not a good idea in this current marketplace to keep candidates in the dark.  You want to let candidates know as soon as possible when they are no longer in contention for the position and why.  This gives them the freedom to continue looking and you the relief of not having to continue to brush off those candidates that you virtually have no plans to hire. 

Once the search is complete, it’s time to inform your final active candidates that they will not be hired for the position.  While speaking to these candidates, have your interview scorecards in front of you; know what you are going to say, and specifically cite the reasons why they were not selected. Be polite but firm during the conversation.  Also, be sure to retain all related documentation for at least 1 year past each candidate’s date of declination.

Conclusion
The slowing national economy is going to force more rejections on candidates as they compete with one another for the fewer jobs that are projected to be available.  Increasingly stressful competition for jobs could pave the way for increased threats of litigation, especially on the part of those candidates who, frustrated, are repeatedly being rejected by potential employers.  Companies will be looking to hire the best and the brightest, not the loudest and most persistent. 
 
To decrease your chances of facing litigation from disgruntled, frustrated job-seekers, be prepared.   Make the time up front to clearly define and articulate the requirements of your open position, use the scorecard approach as you proceed through the various interviews, and when you are done, know what you are going to say to the candidates. By following these straightforward guidelines, you can expect to hire the best fit for your open positions, and, at the same time, be prepared to justify your actions should a rejected candidate cry foul. 

About the Author
Erika Strom, PHR
With the combined experience of over 15 years in office administration and human resources, Erika handles a variety of responsibilities at JDA including the design and implementation of HR programs and policies, the recruitment and training of internal employees, and supervising a group of human resources and administrative professionals.

JDA Professional Services, Inc. is a Houston-based IT staffing firm specializing in the recruitment of strategic-technical to executive-level professionals.  We provide staffing solutions through full-time, contract, and project-based placements.  Since 1981, we have been helping companies build great IT departments while helping IT professionals find the right career opportunities.