Can You Justify That Hire?

When minimizing the chance for reverse discrimination claims, employers should remember the old World War II saying, “Loose lips sink ships,” said R. Lawrence Ashe Jr., an employment attorney and senior counsel at Parker Hudson Rainer & Dobbs LLP in Atlanta.

“I have not infrequently seen reverse discrimination claims sparked by somebody doing something dumb — and not only dumb, but sometimes false,” said Ashe. “In a wildly misguided effort at consoling an unsuccessful white male candidate, the person making the selection decision tells the white male that he was the best candidate, but that they had to pick a minority or a female.”

However, in a number of these cases the minority or female candidate was actually better qualified than the white male, he said. “The person was just trying to be nice and make the white male feel better, but in fact, caused him to go see a lawyer.”

Reverse discrimination claims often occur in layoffs, terminations or failures to promote. In most hiring situations, people don’t know who got hired, only that they didn’t.

“Employers are smart if they simply say, ‘Thank you for your interest in our company. We had many qualified applicants, and unfortunately you were not chosen,’” Ashe said.

Employers also should make sure their assessment or strength tests are relevant. For example, for a firefighter job, fire departments should not test to see if candidates can run a mile and a half in 12 minutes. Few, if any, firefighters have to do that as part of their job, and women typically would not be able to pass that test. Instead, fire departments should test if candidates can lift 170 pounds up and down a ladder — something they might have to do if someone is overcome with smoke inhalation in a real fire.

To minimize discrimination claims related to a layoff or failure to promote, employees should consider making the decision based on seniority, Ashe said. Another strategy would be to withhold from the ultimate decision-maker the name, gender and race of each employee considered; just list their competing qualifications. Above all, document every decision.

“If a white male with a higher performance rating than a minority or female was laid off, the employer needs to be able to justify keeping the minority or female,” he said. “Perhaps they had skills that were going to be needed, such as the ability to speak Spanish or Japanese.”

Kathleen K. Lundquist, president of APTMetrics Inc., a human resource consulting firm, said employers need to develop rigorous and structured selection procedures that could test or simulate the actual job. To demonstrate each candidate’s ability to perform that job, conduct unstructured interviews, rely on a candidate’s experience or where he or she went to college. Employers want to evaluate whether that person truly understands the job requirements and whether the organization is consistently and accurately measuring that person against the job requirements. “By making the selection process clear and transparent, there should be less perception of discrimination of any type,” Ashe said.

Organizations should routinely test their procedures to see if there is an adverse impact against protected classes or white males. They should be look at hiring rates for whites or males, and how those rates compare to hiring rates for African-Americans, women or other protected groups. “When they make these comparisons, they generally find that reverse discrimination does happen at times, even though the organization might be [making] significant efforts toward diversity,” Lundquist said.