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5 tips for minimizing litigation risks in the hiring process

by Brendan Gooley and John Herrington

As many employers know, the list of potential plaintiffs who may sue an employer for alleged employment discrimination extends beyond current and former employees and includes rejected job applicants. We want to take the time to remind you of that unfortunate fact and offer five easy steps to minimize the risks associated with the hiring process

Uncle Sam says . . .
Before we turn to the steps you can take to minimize the risks associated with interviewing, here’s a quick refresher on the major antidiscrimination laws that could be implicated during the hiring process.

Title VII. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination across a wide range of categories. Title VII makes it unlawful for employers with 15 or more employees to “refuse to hire . . . any individual . . . because of [that] individual’s race, color, religion, sex, or national origin.” The Equal Employment Opportunity Commission (EEOC) has issued guidance stating that certain preemployment inquiries, including questions on applications and questionnaires, are illegal because they tend to reveal applicants’ race or other protected characteristics and can be used to screen out applicants based on protected traits.

ADEA. The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against employees who are at least 40 years old in the terms and conditions of employment, including hiring, firing, compensation, job assignments, shift assignments, discipline, and promotions. The Act applies to private employers with 20 or more employees.

ADA. The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability. More important, it explicitly prohibits employers with 15 or more employees from asking interview questions regarding the existence or severity of an applicant’s disability. Thus, employers can’t ask applicants whether they have a particular medical condition. If an applicant says he has a medical condition during the hiring process or it is patently obvious he has a condition, the employer can’t ask him how bad it is. Doing so not only could result in a lawsuit from a rejected applicant but also could strengthen an applicant’s claim by removing the defense that the employer was unaware of his disability.

Many states and localities also have laws prohibiting employers from refusing to hire an applicant because of her race, color, religious creed, age, sex, marital status, sexual orientation, national origin, ancestry, present or past history of mental disability, mental retardation, and learning disability or physical disability, among other things.

In sum, federal and state law establish a number of protected classes and allow members of those classes to sue employers for alleged discrimination that occurs not only in the course of employment but also during the hiring process. Thus, employers may face lawsuits from rejected applicants who are members of a protected class and suspect their rejection was the result of their status as members of a protected class.

Minimize your risks
While there is no way to guarantee you won’t be sued by a disgruntled applicant, there are certainly steps that can help you minimize the risks associated with a lawsuit. Here are a few ideas that may be beneficial.

Tip #1: Know the law. At the risk of stating the obvious, know what you can and cannot ask on an application and during an interview. More important, take steps to ensure your interviewers have a basic understanding of the law. It’s great that your HR director knows which types of questions are illegal and inadvisable, but that doesn’t mean Joe from accounting, who is interviewing 15 applicants for a job, is aware of what he cannot ask. A quick phone call to Joe may save a lot of heartache down the road.

Tip #2: Don’t break the law. Continuing with the theme of obviousness, you must not ask impermissible questions during the application process. Unsurprisingly, an applicant who can’t prove an employer knew he was visually impaired will have a hard time establishing the employer discriminated against him because of his impairment. There’s not much you can do if an applicant blurts out information about a disability, but there’s no need to invite a lawsuit by soliciting the information.

Furthermore, asking such a question could be seen by an applicant as a predisposition to discriminate. The fact that you would inquire about his disability could suggest to the applicant (who is now more likely to sue) and a jury (which is now more likely to believe the applicant) that you based your hiring decision on the answer.

Tip #3: Make a record. Eighteen months from now, are you really going to remember why you rejected every applicant? Compare the following two statements:

  1. “I didn’t select Johnny for an interview because there was a typo in the first line of his résumé. I know because I circled it.”
  2. “I can’t recall why I didn’t give Johnny an interview. It may have been because there’s a typo on his résumé.” Johnny’s lawyer will respond, “Do you remember seeing the typo when you first reviewed Johnny’s résumé? How can you be sure after all this time?”

Which statement sounds more convincing? Investing in red pens and using them to mark up résumés is not a bad idea.

Generally, it is a good idea to make sure there is a record from interviews. If Johnny sues, you can bet Joe from accounting, who interviewed him, will be asked some questions. At that time, Joe (and your lawyer) will want to review any interview notes (and perhaps a nice interview evaluation form) to remind him of key facts regarding Johnny’s interview and provide a nondiscriminatory reason for not selecting Johnny.

Tip #4: Keep good records. All those obnoxious typos you found on Johnny’s résumé aren’t going to do you any good if you don’t have a marked-up copy 12 months from now when he sues. Importantly, some laws require you to retain application records. Title VII, the ADEA, and the ADA require employers to keep hiring records for at least one year after the hiring decision.

Additionally, it is good practice to keep detailed records for applicants who are hired. Often, applicants are passed over not because something was wrong with them but because there was someone better. That’s OK! However, if you have to convince a jury that the applicant who was hired was better than those who weren’t hired, detailed records supporting your decision can be invaluable.

Tip #5: Don’t force a reason that isn’t there. When faced with a lawsuit from a rejected applicant, resist the defensive impulse to go too far in identifying why the applicant wasn’t selected. While evidence of a legitimate reason for your hiring decision can be immensely helpful in refuting a discrimination claim, in many cases, “reaching” for a weak explanation that isn’t really supported by the evidence can be harmful to your defense.

In the absence of evidence of discriminatory conduct, the fact that one applicant was simply a stronger candidate is a perfectly acceptable reason for a hiring decision. However, a claim that a member of a protected class wasn’t selected because of a single typo on her résumé that you may not have even noticed will often be more damaging than the truth. Tell the truth!

Bottom line
These steps may not prevent discrimination lawsuits, but they can certainly help you dispose of them in a quick and cost-effective manner. Thus, consider incorporating these measures into your hiring practices.

John Herrington is an attorney with Carlton Fields Jorden Burt. He may be reached at

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