Specific baseline objectives help defend a discrimination charge

While sitting with a client reviewing resumes and pre-employment test results, the manager turned to me and said, "this guy looks pretty good."  After glancing at the resume, I pointed out that his highest completed level of education was high school.  The manager responded, " but that's okay as long as he has the experience." 

"But I thought you said a '4-year degree' was required," challenging him.

"Yes, but..."

I can't tell you how many times I hear the "yes, but..." from managers.  The 4-year degree requirement is not really a requirement at all but a preference.  This seemingly innocuous difference can have grave ramifications if a business is ever put in the position of defending a discrimination charge, according to a recent ruling, Makky v. Chertoff, in the Third Circuit Court of Appeals.

A recent post on the PA Labor and Employment Blog offers an excellent piece of advice:

When a position requires a baseline objective qualification, like a license or degree, make sure it is expressly stated in all hiring materials including: (1) job advertisements; (2) position descriptions; and (3) application materials. Notably, if the degree or license it is merely the company's "preference" for someone in the position, it is important to consider whether making the "preference" appear as a "qualification" may lead to problems in the future. For example, suppose that Company X states that a sales position requires a Bachelor's Degree. When Company X interviews its two top choices, however, the female candidate who possess a Bachelor's Degree has the personality of dry toast, while the male candidate who has waitered all his life and does not have a Bachelor's Degree has a dynamic sales personality and will surely do well with Company X. If Company X believes that the male applicant is better suited for the position than the female applicant, should the Bachelor's Degree have been a required qualification in the first place? Probably not. Accordingly, it is important to have a process in place to review your company's job advertisements and position descriptions before posting for openings. While certain baseline objective qualifications can often be beneficial in refuting a prima facie discrimination claim, turning a mere "preference" into a "qualification" can have the opposite result because it may be used as evidence of a discriminatory motive.

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Comments

[HROplus]

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Thanks,
Mike Bell
http://www.hroplus.com/

[Ankur]

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Rgds,
Ankur
http://managehrnetwork.blogspot.com/