I was relatively new to the human resources scene in the early/mid 90s, and I watched as my manager could have shrieked in horror, (Does an audible gasp count?), at the note a hiring manager wrote on an employment application. The applicant’s first name was Ebony. Noted. But, that manager in her efforts (giving her the benefit of the doubt) to remember the applicant wrote quite simply, “black girl.” Those two words, just screamed “discrimination” at my manager and she immediately took control of the situation.
Most HR professionals realize the implications of making descriptive notes on applications can be a double-edged sword. Nearly everything is fair game to a plaintiff’s attorney, even the notes we make to ourselves about who was who in our candidate pool. However, I learned that very day, in those very tense moments, that it is much better to write, “navy blue suit” as opposed to describing someone’s skin color. Better yet, write nothing at all!
Such was true for a manager involved in a recent case out of Texas in which two newly hired workers complained their wages were lower than other workers with the same or very similar jobs. After about three weeks of work for the company they were terminated on a trumped up reason.
The manager documented their personnel files after receiving a notice from the Equal Employment Opportunity Commission granting the two terminated employees the right to sue. He wrote:
“Please note he is not eligible for rehire ever. Tried to sue us. Simply tell him, ‘sorry but we have nothing for you at this time. Please try again. Have a nice day.’ Not for rehire. Per Ben G.”
Those words were enough to cause the Texas Court of Appeals to find for the two workers on the charges of retaliation and malice. They were awarded damages as well. (You can read the case here.)
So in every situation from hiring to firing – be careful and think before you document that!