Q&A: Altering usual hiring process could lead to retaliation charge

Answer: It depends. It is illegal to retaliate against an applicant by not hiring the individual because she filed a prior discrimination claim against your company. You should go through your normal hiring process and determine the best candidate based on non-discriminatory factors. Depending on the job, you may want to consider experience, skills, ability, education, etc. when selecting your best candidate. It’s okay to also consider intangible factors such as attitude—as long as that’s not a code word for “doesn’t file discrimination complaints against us.”

If you follow your standard hiring procedures and the former employee isn’t the best candidate for the position, then you wouldn’t have to hire her. You should maintain all of your hiring documentation that shows why you hired another person and that you followed your standard hiring process.

Avoid Employment Discrimination

A recent case will be allowed to go to a jury where a former employee who had filed race discrimination charges with the EEOC five years ago, wasn’t rehired even though she had more experience than the successful candidate. The company appeared to have veered from its normal hiring practices when a district manager, with knowledge of the prior EEOC charges, inserted himself in the hiring process and the applicant’s interview and assessment records went missing (Baines v. Walgreen Co., 7^th Cir, July 2017).
 

Tips for Employers

Follow Standard Hiring Procedures and Maintain Documentation

When hiring, always follow your standard hiring procedures and maintain all documentation pertaining to the hiring process for a period of at least one year (or two years if you are a federal contractor with at least 150 employees and $150,000 in federal contracts).

On our blog last fall, we published a post about the EEOC’s updated guidance on retaliation claims. Review this post for additional information on the guidelines.

For more information, see Vigilant’s Legal Guide, “Record Retention”, and Model Form, “Applicant Comparison.” Not a member? Check out our options for flat fee employment law advice.