Poor Documentation In Hiring Process Could Support Claims Of Discrimination
Recruiting and hiring is a difficult, time-consuming, expensive process. It involves time away from operations to develop job descriptions, combing through resumes to determine whether applicants meet the hiring criteria, and comes with no guarantees that the candidate will work out. A company could easily invest months into a person only to have to start all over again.
As a result, I often see shortcuts taken. Applicants are not closely tracked. Some applicants don't receive an acknowledgement of their application. And, many times a company - once they've identified their preferred candidate - simply ignores all the other applications.
These are mistakes that could have serious consequences.
It is so important to accurately and carefully document the entire process, as evidenced by a recent decision from a federal court in Maryland. In that case, a deaf applicant sued Cracker Barrel Old Country Store after it failed to hire him as a dishwasher, alleging that Cracker Barrel discriminated against him under the Americans with Disabilities Act because he was deaf.
The Applicant's Perspective
One can understand the perspective of the applicant: he alleged that he had worked in the restaurant industry before and met the qualifications for a dishwasher job posted by Cracker Barrel. He applied online and was invited for an interview by email, which asked him to call the restaurant to set up the interview. He went through a lot to make that call - using a service that allows a caller to use sign language to communicate with an interpreter, who speaks via telephone to the recipient of the call. The recipient is informed that the caller is hearing impaired. Once the interview was set up, he showed up at the specified time. His lawsuit alleges that the person that he interacted with (by writing down a note saying that he was there for an interview) looked nervous and her body language was strange. After waiting around for a while, he was told that the person he was supposed to interview with wasn't there and didn't get to interview.
He later emailed and called about the missed interview. No one ever got back to him. About a month later, the documents produced in the lawsuit reflect that Cracker Barrel removed him from consideration for the position with a notation "not going to hire; reject; Do not hire. Incomplete data."
The Restaurant's Perspective
The restaurant said that it never heard from the applicant after it sent an email inviting him to interview. It said that it has no record of the phone call that the applicant alleged took place to set up the interview. It noted that when an interview is set up, it is written down on a sheet used to track interviews, and no such interview was recorded. It also noted that the email that was sent noted that it was from an unmonitored email address and that applicants should not respond to the email. At worst, the restaurant claimed, the whole dispute was a result of a delay in coordinating the interview and/or a disorganized schedule. It also pointed out that the restaurant offered him an interview after learning he was deaf - so no ill-intent should be attributed.
The Court's Decision
Cracker Barrel sought summary judgment, asking the court to dismiss the claims as a matter of law. The court declined to do so, noting that a jury could find that the circumstances supported a finding of discrimination, finding:
In a matter of days, Cracker Barrel went from responsive and eager to interview [the applicant], to radio silent upon learning that he is deaf. Its supervisors did not interview [the applicant] as scheduled, ignored his repeated efforts to reestablish communication, never attempted to reschedule the interview, and ultimately chose to close his application. That [the applicant's] experience deviated so significantly from Cracker Barrel’s routinized procedure for selecting its employees contributes as well to a genuine dispute as to whether its odd treatment of [the applicant] amounted to pretext.
Cracker Barrel had an applicant tracking system it used to track applications. It argued that the "not going to hire; reject; Do not hire. Incomplete data" notation in the system was simply an administrative error or entry, and not a reflection of a desire not to hire.
I don't think the court was buying that. Nor did the court seem to buy any of the other very good legal arguments that Cracker Barrel made as to why there was no discrimination. I believe that the documentation that Cracker Barrel had in its system was simply stacked against it.
What can employers do to try prevent a similar result? Especially when a company has a lot of applicants communicating via different methods such as in-person, by telephone, by email, and through a website, it's no wonder that sometimes communications get lost in the shuffle. Companies would be well-served to try to consolidate, if possible, application submission and tracking. If your website allows for applications to be submitted, consider making a rule that no applications will be accepted via email (but remember that you may have to make accommodations for an applicant that cannot use your preferred method).
After an application is received, if possible, have one point of contact within the company for each position for all communications with applicants.
And be very careful in documentation - the goal should be zero administrative errors. "Attention to detail" should be high on the list of qualifications for the person in charge of recruiting.