(Published September 29, 2008)
Maybe you saw the same article I did — a man applied for a job and was well on his way to getting it. Then he sat down with the hiring manager and explained that he was a transsexual; while David had applied for the job, Diane would be reporting to work. The job offer was withdrawn using the ubiquitous "not a good fit" reasoning. The applicant sued for sex discrimination under Title VII, and a court ruled in Diane's favor a couple weeks ago.
We've all rejected job applicants where our reasoning was intangible but our gut reaction is that this is not the right person for the job — "not a good fit," in other words. It's a legitimate reason — sometimes. But in this case, the person appeared to be a good fit until an aspect of her personal life was revealed to the manager. It appears that had David reported for work, or, alternately, had Diane applied for the job, the fit would have been just fine. It was only when she notified the employer of her transsexuality that she suddenly became "not a good fit."
The court ruled that this was a clear case of discrimination based on sex — the first clear indication that transsexuality is protected under Title VII so far. (I've mentioned this case to a few non-HR people in the last couple of days, and have yet to find one who didn't, before I even mentioned the results of the case, say something like, "Isn't that sex discrimination?") What with this and another court decision not long ago making it easier for employees to claim age discrimination, it's pretty clear which way the courts are leaning.
Since the courts are making it easier for employees to sue for discrimination (and I am not saying that this is either a good or a bad thing — that's another column), it is all the more important that we have documentation for the choices that we make and can show clear evidence of why we make them. While I don't think we have to be able to show, "I did not hire this person because..." I think we do need to be able to show, "I did hire this other person because.…" More and more people are making discrimination claims and we in Human Resources need to have our ducks in a row when they happen. The more justification for our choices we can provide, the better.
If we have tangible evidence that the person we hire was the best fit for the job, we can use that to defend against claims that we "discriminated" against someone else. In David/Diane's case, discrimination clearly occurred; the court confirmed that it was illegal discrimination. With the publicity discrimination cases are currently getting, any one of us will be lucky if we don't get hit with a claim at some point in our careers, justified or unjustified. The more we do to protect ourselves and our employers, the better.
Catherine Bannon is an HR consultant in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting practice.
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