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Newsletter Issue 1

Practical Approaches
to Resolving EEO/AA Problems
Issue #1
Non-Discriminatory Reasons for not Hiring Candidates
Hiring/Selection is the single most important employment action process. Almost equal to that status is the reason for which applicants are not hired since this could become a source of complaints against the company. A hiring manager or supervisor must be able to identify a non-discriminatory reason for each candidate that applies for a job and is not hired. It is important to be as specific as you can because you must be able to demonstrate, hopefully with documentation, the reasons for which candidates were not hired were not discriminatory. The following are some non-discriminatory reasons for non-selections.
a.Job was not open when the candidate applied.
a.Did not have the required degree or educational level, or certificate or license to hold the job.
a.Did not have the required skills or skills level.
b.Did not have the necessary type of experience, or the necessary length of time experience (e.g. years of experience).
4.Essential Functions of the Job:
a.Did not have the necessary ability to perform the essential functions of the job. Could not stoop, bend, turn, reach, etc. (Remember the obligation to accommodate the disabled).
b.Job location unacceptable
c.Could not or would not work the scheduled hours, days, shift work, split shifts, overtime, etc.
d. Would not accept the salary
e. Would not travel, use company car
f. Does not have own tools to do the work, etc.

There are probably dozens of reasons for not hiring candidates. The important point to remember is that the reason for non-selection cannot be because of a protected factor, such as race, color, religion, sex, national origin age, disability or veterans status.

Douglas v. Swift & Sons

The only Black Machinist at a Connecticut stamping plant was fired after a year and replaced with a white applicant. Swift & Sons advertised the job saying that the company wanted to hire a machinist who could also assist with maintenance work. Douglas applied and was hired in December of 2000. The head machinist never gave Douglas a machinist job and assigned him only to menial tasks. He continually complained to management but during the entire year was only given two machining tasks. In November of 2001, with no prior notice, Douglas and three white women were laid off because of lack of work. Two months later the company advertised for an experienced machinist. Douglas called and asked for his job back but was not rehired. Subsequently, the company hired a white male for the position. Douglas filed a complaint of discrimination under Title VII of the CRA of 1964.

The company took the position that Douglas was laid off because business was slow and was he was not rehired because the candidate hired was more qualified. Judge Arterton found in favor of Douglas because there was enough evidence to support Douglas's position. She referenced the head machinist's refusal to give Douglas machining tasks despite his persistent requests. He preferred to have the white electrician assist him with machining work. Judge Arterton found that the company's position was not credible. The head machinist's refusal to give Douglas machining tasks "harbored discriminatory animus against Douglas" and she concluded that a jury could potentially find Douglas's terminations was motivated by racial bias. She wrote that even if a reasonable jury did not find "discriminatory animus" toward Douglas, a reasonable jury could find the company terminated him for race-based preference or recommendation.

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