The asking is generally done via subpoena – there are court penalties for saying “No” .
Given that in this scenario there’s already been a charge of discrimination filed against the employer and the employer is being asked to present its defense to the prima facie case of discrimination the would-be employee has raised, saying “no” is an option, but not a good one.
It’s not like a criminal case, right to remain silent, and all that. If they don’t have anything to say, and the other side has given any reason at all to believe discrimination occurred, employer’s going to lose.
I asked a similar question and there is a legal standard that I’d have to look up in that thread.
Basically, it is near impossible to prove YOU were discriminated against but if you can show systematic discrimination and that it is reasonable to believe they applied it to you then you have a chance.
Mrs Cad works in a field where there are two de facto qualifications for hiring/promotions:
- Be ex-military or ex-LEO
- Have a penis
Bonus points if you’re part of the old-boys network.
Luckily for them, she changed jobs because the provable anti-woman bias (like them having to do the work the men didn’t want to do for no extra pay) and the fact that she was clearly the gender-neutral on paper best qualified candidate for a promotion saved them the lawsuit when (not if) she wouldn’t have gotten the job.
Incorrect. Well, partially correct.
Who has the burden when is determined by a Supreme Court case called McDonnell-Douglas v Green. That case sets out the so-called burden shifting procedure.
First the plaintiff must show 4 elements: he is in a protected class, he was qualified, he didn’t get the job, and the circumstances lead to an inference of discrimination. If any element is missing, the plaintiff has no “prima facie” case and loses.
If plaintiff meets this burden, the burden shifts to the defendant employer, to provide proof if a legitimate nondiscriminatory reason (LNDR) for their decision. If they do this successfully the burden shifts again, back to the plaintiff to prove the stated LNDR is a pretext.
In a civil case, neither side has the overall burden of proof or presumption. The decision is just based on the “preponderance of the evidence”, not “beyond a reasonable doubt”, and the threshold is just at 50%.
Well, making sure that the company is secure against claims of discrimination is an important part of protecting the company in this way, and most HR departments devote at least some effort to it - convincing executives that they need to have legitimate reasons for hiring/firing/promotion decisions, and documenting those reasons, lest the company be opened up to a lawsuit.
You are quite mistaken. The percentage of the burden refers to how onerous it is. In a civil case it’s by preponderance. Employment discrimination has it’s own rules that reflect the fact that there is rarely if ever direct proof of discrimination. WHO bears the burden WHAT they have to show specifically, and WHEN they have to do it follows rules stated explicitly in the Supreme Court case of McDonnell-Douglass v. Green.
I’m a professor and our hiring procedure is to first read papers, the cv, letters of recommendation submitted in a package. Next we interview candidates at the annual meetings, then some are invited to campus, and finally offers may be made.
We are (or at least were I haven’t been in charge in a number of years) required to fill out forms stating racial, gender, and foreign status of all the candidates. One year I got a letter asking me how could it be I was unaware of the race of such a large fraction of the candidates. I explained I’d only seen about 15 of the more than 100 who had applied and I wasn’t going to guess. I thought for a while, there might be some trouble, but there never was.
What job posting asks about your GPA in certain types of classes? If the job posting said “Bachelor’s degree preferred, with at least 2 years in field, but 4 years or more of experience in the field may apply,” and the black guy has a BA, in the field, which wasn’t stated in the posting, just that any BA was preferred, and the Black guy has the requisite 2 years. White guy has four years of college, but didn’t complete his degree, because he changed majors, and is missing a general requirement, and some of the classes for his major. He points out that he is currently enrolled in the one last general requirement he needs, and will apply for graduation in “general studies” just to get the degree, if it’s really required, but he has 3 years and 9 months in the field, and would prefer to finish his degree with his major. His grades in some computer classes come up, because one part of his job would be training other people in using some software.
Whoever is doing the interviewing thinks he can fudge the requirements enough to make it look like the white guy is equally qualified, but the truth is, that he isn’t. Interviewer wants to hire white guy, because he just likes him better. Maybe it’s a white thing, or maybe it’s because the black guy is younger and less at ease during the interview. Or maybe they both have tattoos, and they had some kind of brief “ink” discussion that made the interviewer feel like they could be buddies. The black guy may have a tattoo as well, but it didn’t come up in the interview.
If the black guy never finds out that the person who was hired wasn’t actually as qualified as he was, nothing may come of it, but if he does, he probably has a good case. The thing is, the chances are that he’ll never find out. And the HR person may not think he’s doing anything wrong.
These laws are not purely remedial. Most of their impact comes from motivating Legal and HR departments to institutionalize fair hiring practices. There isn’t much the government can do to prevent individual hiring manager bias, but within a company there is a lot that HR and Legal can do to identity problems and apply pressure from within.
And companies are motivated to do the right thing…hiring discrimination lawsuits are hardly rare. And as said elsewhere, HR is looking to protect the company…from litigation and lawsuits.
Obviously it would be discrimination if somebody was stupid enough to come right out and say “Hey, let’s not promote any women in this company.”
But you can have discrimination even if nobody talks about it. If you have a company that doesn’t have an official policy of not promoting women - but does have an unofficial practice of not promoting women - it’s just as liable.
yeah - this pretty much covers it…
while HR might be there to “protect the company” -
Most normally “protecting the company” comes from fair and transparent hiring processes that give all employees equal chance of success.
And, by and large - those that deliberately discriminate don’t tend to be the sharpest tools in the box and will often say or do something stupid that is found out.
Yeah, that’s true. It doesn’t have to be explicitly stated. Still, there’s nothing wrong with favoring a trait like “loyalty” when considering who to hire. The laws only protect certain classes of employees and still permit quite a bit of arbitrariness.
Businesses that want to be successful have a stronger interest in hiring the competent than they do in rejecting highly qualified applicants because of bias.
One strategy often used–particularly by high tech or professional fields–is the use of quantifiable pre-employment evaluations such as competency or psychometric exams. While the purpose of these employment screens is to ferret out the best, they have a secondary benefit of making a charge of inappropriate arbitrary bias more difficult to stick.
Anti-discrimination laws are written to try and prevent these types of exams from having a bias against (for example) gender or race, and in general companies that create them spend a great deal of effort making sure they are neutral in that regard.
I have been at two places now where there is a diversity committee that looks at all DNMQs (does not meet min reqs) from applicant pools. It would be difficult for any hiring manager to just DQ someone without that person actually missing a req.
The same way an employer disputes ANY civil employment action. LIES.
Review this case I have in my head, although the Hospital admitted the “mooning” was an actual event and that Catherine did NOT participate, but her termination, of course was not about that, yeah right.
WAGENSELLER v. SCOTTSDALE | 147 Ariz... | ariz3701445 | Leagle.com.
The HR department where I work makes hiring a very complicated process just to avoid an unfair selection process or allegations thereof. For each full-time position, there is a hiring panel, comprised of three or more people, that is tasked with reviewing applications and evaluating interviewees. The questions are written up beforehand and the hiring panel takes turns asking a question (with no deviations from the script). Everyone on the panel is required to take notes of the interviewee’s answers. After the interviews are over, the panel convenes and deliberates. Each panelist scores each interviewee and then the scores are ranked. The panelists’ notes from each interview are submitted to HR, where they are kept on file just in case there is a question about the interview process.
Last year there was a mini-scandal at my workplace when a hiring manager declined to interview someone who had exhibited a slip of professional etiquette shortly after the job announcement had gone out. The hiring manager was so pissed off that she refused to interview her. But since the pool of candidates was so small, HR told her she had to grant the interview, even though she (the hiring manager) had already called the person and told her she was SOL. Talk about awkward! I felt sorry for the poor sap, who no doubt felt it was all a giant waste of time. But the manager wasn’t the only one evaluating her since there were two other people on the panel. The interviewee hadn’t done anything to piss them off. So at least she had an opportunity to wow them, despite any prejudices the hiring manager might have had.
She didn’t get the job, though. I did.
I equate “perceived loyalty” with “disguised discrimination” due to two reasons :
-
I have never seen a job description with loyalty as a requirement. If it is a deciding criteria between Bob and Fred - then it needs to be in the job description and Fred should be allowed to prove his loyalty or withdraw his application.
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The measurement of loyalty is subjective, and resides entirely in the head of the hiring manager. An objective criteria is - candidate should be able to lift 50 lbs. or candidate should have a PhD in Chemistry.
There can’t help but be some subjective measures when choosing whom to hire. As any career advisor will tell you, hiring managers want to know three basic things of any candidate:
- Can you do the job?
- Will you do the job?
- Do you fit into the company’s culture?
The last two questions can only be answered subjectively. A loyal person is more likely to actually do the job than a disloyal one, even if they are equally capable.