Clear documentation saves employer from age discrimination liability

Thorough documentation of job requirements recently helped an Oregon employer win an age discrimination claim. A 61 year old welder filed claims of age discrimination and retaliation under the Age Discrimination in Employment Act (ADEA) after unsuccessfully applying for numerous higher paying welding positions with his employer, the U.S. Army Corps of Engineers. The final straw for the welder was being passed over for a sole welding position at The Dalles Dam. The Corps argued that the welder at the dam had to be skilled in stick welding, MIG welding, and TIG welding. The welder argued that the more difficult TIG welding wasn’t frequently performed at the dam, and the requirement was a pretext used to not promote him.

The court looked favorably at the well documented interview questions and the thoroughness of the hiring supervisor’s notes that he had taken during the interviews, which also captured the grievant admitting that his TIG skills were weak. The thorough records gave the court ample evidence to show that it was necessary for the successful applicant to be skilled in TIG welding. The court stated that the frequency with which the skill is used did not determine how important that skill was (Cramblett v. McHugh, D Or, May 2014).

Tips: When hiring, make sure you identify and document the skills that are truly necessary for a successful candidate, prepare your interview questions in advance, and take thorough notes during interviews. Make sure the questions you are asking are job-related and do not disproportionately affect applicants of a certain ethnicity, age, or gender. The key is to ask questions that are consistent with business necessity.

Vigilant has numerous resources that can help you with your hiring process, including our Model Forms, “Job Interview Questions” (990) and “Job Candidate Comparison” (922). Contact us to learn more about cost-effective unlimited counsel on employment issues.