It’s never too late to check an applicant’s qualifications

by on January 20, 2012 · 4 Comments POSTED IN: HR Cafe
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If a rejected applicant sues you for discriminatory failure to hire, you may be able to strengthen your case by rechecking his or her qualifications.

That surprising point emerged from a case in Alabama. A woman who wasn’t hired for a truck driver’s job sued for sex discrimination. The employer won by showing that she wasn’t qualified because of two recent speeding tickets.

She wasn’t qualified
The counterintuitive part: The employer didn’t know about the tickets when it decided not to take her on. It found out later, during the lawsuit.

The frustrated applicant said the employer couldn’t use material it discovered after the fact to prove she wasn’t qualified. But the court disagreed. What mattered was the existence of the speeding offenses, not the employer’s state of knowledge, the court said. The hiring supervisor testified that he would have rejected the applicant on the basis of her driving record if he’d known about it. Indeed, the employer had never hired a truck driver who had a speeding ticket.

So suppose you consider, and reject, a candidate for sales manager, and in the process contact only her latest employer. Then the applicant comes back at you with a discrimination suit. You might want to call another couple of references to check her qualifications. If they’re lacking, you have additional fodder for your defense.

Cite: Underwood v. Perry County, No. 04-11713, 11th Cir.

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photo credit: wwworks

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4 Comments on This Post

  1. Kimmichael363
    January 20, 2012 - 7:07 pm

    One word:  RISKY!!!!!!!!

  2. Benjamin G. Lipman
    January 20, 2012 - 8:21 pm

    I have to disagree with the analysis offered in this post.  I have been a Philadelphia attorney for 35 years practicing mostly in the area of employment law – on both sides – representing  employees and employers.  Although I have not read the court’s opinion in the Underwood case, to which you make reference, I respectfully suggest that the case could not have been decided as you suggest.  In 1995 the U.S. Supreme Court considered in McKennon v. Nashville Banner whether an employer can defend against the claims of  a plaintiff alleging discriminatory discharge by advancing evidence discovered after the discharge which, if known, would have provided a non-discriminatory justification for the discharge.  The court ruled that the employer cannot rely on such evidence to defeat liability, but only to reduce damages.  Thus, for example, if ex-employee sues employer alleging that he was fired because of his race, if after the termination the employer discovers that the employee lied on his resume when applying for the job, and if the employer has a clear policy of terminating employees whenever it discovers lies in the application process, the employer will still not be permitted to argue to the jury at trial that the falsified resume should be considered as evidence of non-discriminatory termination.  The employer did not know about the resume falsification when it fired the employee.  The resume falsification has no bearing whatsoever on whether the employer’s decision to terminate was or was not discriminatory.   On the other hand, the jury may consider the resume falsification as evidence to reduce damages.  The employer’s attorney argues to the jury, in effect, even if you find that my client discriminatorily terminated the plaintiff, you can only award him lost wages until the day we discovered the resume fraud.  On that day he would have been fired anyway for clearly non-discriminatory reasons.

    Notwithstanding my disagreement with this one, I generally find your posts to be informative and helpful.

    Benjamin G. Lipman 

  3. Sherry Cornwell
    January 23, 2012 - 2:26 pm

    This feels like sloppy hiring – hiring for a driving position but not checking a person’s driving record??  Quite suspect – I am curious what the “real” reason was for this woman not getting hired?  Seems to me this employer had better work on its hiring process – they lucked out on this one.

  4. Sherry Cornwell
    January 23, 2012 - 2:26 pm

    This feels like sloppy hiring – hiring for a driving position but not checking a person’s driving record??  Quite suspect – I am curious what the “real” reason was for this woman not getting hired?  Seems to me this employer had better work on its hiring process – they lucked out on this one.

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