Not ‘Smoking Gun’ … But Nearly As Bad

The worst-case scenario in defending against discrimination claims is the “smoking gun.” (“Too old for this job” written on a candidate’s resume, for example.) In today’s CED, several of the less outrageous mistakes that can still shoot your defense to pieces.

Smoking gun evidence is rare, fortunately. What is common, however, is the type of evidence that, on its face, doesn’t destroy the case but hurts your ability to defend yourself.

While not as bad as the smoking gun, this type of evidence does allow the employee to draw inferences and moves him or her closer to proving that you made an improper employment decision.

Here, courtesy of HR Hero, are some of the common mistakes:

It Starts with the Interview

The interviewing process is rife with opportunities for problems. For example, it’s important to avoid certain subjects, such as conversations about the applicant’s spouse or children.

Some brief “small talk” at the beginning of an interview about the applicant’s child playing in the local soccer league may seem harmless, but it can quickly turn into evidence that you didn’t hire the applicant because you were worried she would need to leave work early because of her child’s extracurricular activities.

If the applicant voluntarily injects her spouse or children into the conversation, you should quickly and politely turn the conversation back to the matter at hand.

Another danger spot is interview notes. Remember that any notes you take during the interview could become evidence at trial if the applicant files a lawsuit over your decision not to hire. Therefore, you must be cautious about the types of notes you take and how they relate to the applicant.

That’s not to say that you shouldn’t take notes. It simply means you should make notes with the understanding that they could appear in letters six inches high in front of a jury.

Missing a required posting? It’s a seemingly “small” omission that can cost you big in the event of a surprise audit. Don’t let it happen to you.

Evaluations Are Too Often the Culprit

At some point, evaluations and appraisals also can become a trial exhibit in a lawsuit. Therefore, any notation or comment included in an evaluation must be made with the view that a jury may one day look at the evaluation during a trial.

It’s also important that employee evaluations be done consistently. Inconsistent evaluations can cause problems and create situations that may be difficult to explain.

For example, let’s say you have two supervisors, and each evaluates his own group of employees. Assume that one supervisor is demanding and expects a lot out of the employees he supervises. Because he tends to rate employees on a tougher scale, employees in his group tend to be rated low.

The other supervisor, however, is more forgiving and rates his employees on an easier scale. As a result, his employees tend to receive higher ratings. Now, assume that you give raises based on their ratings.

Using a typical range/performance grid to award raises, you’ll give a greater raise to the people who work for the second supervisor. This will happen even though you know that the first supervisor’s people do a better job than the second supervisor’s do.

When someone sues, that may be hard to explain.

All of your required state and federal postings, in one place – including the new mandatory NLRB poster.

Similarly, if employees from both supervisors apply for the same promotion, you may encounter some difficulty. Whichever employee gets the promotion, the other one will feel wronged.

Because this type of situation is likely to develop when supervisors aren’t consistent, you must strive for consistency across departments and functions.

In tomorrow’s CED, more “almost smoking gun” mistakes – plus a surefire way to avoid a common open-and-closed compliance trap for employers.

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