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Navigating the Gray: Exception Policies and Legal Defensibility

December 12, 2019

defensibility-2Following inconsistent selection practices, such as allowing certain candidates who do not meet the passing criteria of an assessment to move forward in the process while all other candidates cannot, limits the legal defensibility and fairness of the hiring practice. However, this does not stop certain assessment end users from requesting exceptions, especially when candidate pools are limited or time is tight. In some cases, an exception is even out of a hiring expert’s control – but, as a hiring expert, it is important to understand how to best advise those who request exceptions during selection processes and how we can prevent exceptions from becoming prevalent.  

In cases where an exception must be made or an exception is out of our control, one’s legal counsel should be consulted first. An organization’s legal counsel may demand or strongly consult against the exception, or at a minimum, make a larger impact on the end user in terms of the legal consequences for following inconsistent practices (e.g., the potential for being sued, fined, etc.). In any case, whether the counsel supports or disproves the exception, they can provide best practices for compliance and process going forward. 

If and when exceptions are approved, the leaders and stakeholders of those requesting the exception should be heavily involved. Accountability for requesting the exception policy should be taken by these individuals, along with any repercussions that may result. These individuals should be educated on the errors that following inconsistent selection processes let in – including the potential of more exceptions being requested. This alone could deter a hiring manager or recruiter, as examples, from going forward with the exception process. 

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Another best practice is to put as much consistency as possible in the exception policy processThis can be done by establishing a series of rules that ultimately allows the exception. For example, let’s say that your company is in need of Sales Managers, and an exception process has been approved. You have 10 candidates in the hiring process, and only 4 of them have passed the assessment. For this particular job, candidate X, Y, and Z, all who failed the assessment, are eligible to move forward to the next step in the process (a face-to-face interview) because they they meet an established set of criteria. These criteria are 1) they have 10 or more years of sales management experience, 2) the candidate was referred internally, and 3) an exception request was signed by the hiring manager and/or hiring manager’s leader.  This example is not provided to suggest that this is exactly how one should handle an approved exception. Simply put, this example is to enforce that rules and criteria should be in play for who actually receives the exception.  

Exception policies can be extremely tricky to navigate. Allowing exceptions in hiring processes goes against the core principle of a fair hiring process: consistency. When needed, consult with your legal experts and make sure all those involved in the request understand the limitations. Education is key to limiting exceptions and ensuring exceptions are being handled as consistently as possible. 

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Lindsey Burke Lindsey Burke is a Senior Consultant based in the Pittsburgh office of PSI. She is largely responsible for client support and managing clients in industries including manufacturing, sales, and healthcare. Lindsey completed her M.A. in Industrial and Organizational Psychology from Xavier University and earned a B.A. and B.S. in Psychology from Kent State University.