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Top 3 Ways to Get Sued

February 8, 2011
One of the most frequent questions I come across when telling people I specialize in helping companies establish ‘legally defensible hiring practices’ is “…why do companies get sued?”  If you scour legal texts, you’ll see that lawsuits have been filed for anything and everything under the sun, most of which get defeated.  However, if you want to make people like me pull my hair out, there are certain procedures that almost certainly result in a successful claim.  So with this, I give you the Top 3 Ways to Get Sued.

#1 Inappropriate Interview Questions

Go ahead; let your curiosity run wild.  Probe their personal history.  Make attempts to focus questions on demographic characteristics such as age, gender, and race.  Example: “You look a bit older, are you sure you think you can do this job?” Does the applicant have any kids?  Health issues?  Is a female applicant planning on getting pregnant in the future?

#2 Inconsistent Processes Across Applicants

You just conducted a phone screen and you loved the candidate so much you just know they would be great at the job.  You proceed to bypass the assessment and second round interview, and move straight to offer, even though every other applicant before has been through the entire process.  But this one is ‘special,’ and ‘special’ applicants get special treatment.

#3 Non-Valid Tools

Throw steps into the hiring process that don’t relate to the job to be hired.  Time candidates as they recite the alphabet backwards while standing on their head.  Pass on anyone who has a shoe size less than 7.  Use the circumference of the candidate’s head, or better yet their hair color as a marker for how smart they are.

This is the big one that will sneak up on you.  My examples here are farcical, but oftentimes companies put practices in place because they ‘feel’ like an ideal employee would do well on the test.  However, certain processes, like an improperly structured interview (see above), have little to no relationship with predicting job performance.  To paraphrase The Uniform Guidelines (the legal code on selection), a procedure is legally defensible if it is valid (aka predicts job performance), with appropriate considerations for being fair across all groups.  Most companies that make these mistakes are sincere in their intentions.  Unfortunately it is our burden as hiring professionals to make sure we are hiring people the right way, and no legal claim has ever been defeated because the company “didn’t know any better.”  As is the case for many things, putting extra effort in on the front end to do something right will almost always save you these types of headaches later.

Adam Hilliard