Question: We want to create a new senior accounting position for an employee who has demonstrated skills and abilities beyond their current role. Normally, we post open positions internally before taking applications from external candidates. Can we skip the application process altogether if we already know who we want for the job?
Answer: Yes, but proceed with caution and consult with legal counsel first. Bypassing other employees for a promotion may invite discrimination claims if they believe they were denied the opportunity to apply based on a protected status. To successfully defend a claim, the company must have a legitimate, nondiscriminatory business reason for deviating from its normal hiring process and the evidence to prove it. However, if the hiring team intends to select a predetermined candidate and is unable to give every qualified candidate true equal consideration, we certainly don’t recommend conducting a sham hiring process, which might be worse than skipping the job posting altogether.
In addition to legal risks, consider how potentially qualified employees will feel if they are passed over for a promotion without notice of the opportunity or a chance to apply. It may be difficult to overcome the perception of bias or favoritism among employees who feel overlooked, which has a ripple effect. Employees who believe they have no fair opportunity for advancement have little incentive to meet and exceed performance expectations, which may affect retention. To put your organization in the best position to defend legal claims and ensure fairness, we recommend following a consistent hiring process in every case and keeping an open mind throughout the interviews.
To prevent missteps that could lead to lawsuits, supervisors and managers who make hiring decisions should be trained to avoid bias and discrimination in their decision-making process. Vigilant offers attorney-led training, Preventing Discrimination & Bias for Supervisors, designed to help leaders make fair and legal decisions based on work history, skills, and performance. Members, please contact your Vigilant Law Group employment attorney if you are interested in training or if you need specific legal advice.
If you’re not a member yet and need help with hiring, discrimination bias or more, contact us about Vigilant membership today. With a Vigilant Law Group employment attorney who gets to know your business and culture, you’ll have peace of mind knowing you’ve got a partner you can count on.
