Date: December 2019
MCIT coverage provides for the defense of Minnesota Department of Human Rights (MDHR) and Equal Employment Opportunity Commission (EEOC) complaints made against members, including claims that allege discrimination in hiring. These claims are often brought by applicants who did not receive a job offer.
To successfully defend against discrimination in hiring claims, MCIT provides the following risk management advice:
- Determine the essential functions of the position and other nonessential hiring criteria prior to posting an open position. Set forth the criteria in the written job description and job announcement.
- To comply with requirements of the Veterans Preference Act, ensure that the application evaluation process is set up on a 100-point basis to enable allocation of veterans preference points. Remember to add an additional 10 points for an applicant who is a veteran and 15 points for a disabled veteran.
- Determine the point values for the various hiring criteria categories prior to reviewing the applications.
- If feasible, determine how many individuals will either be interviewed or the minimum points needed to obtain an interview prior to reviewing applications.
- Draft a standard set of questions to ask during the interview process. Make sure that each interviewee is asked the same questions. Consider reviewing the questions with legal counsel to ensure the questions are not discriminatory in nature. During the interview process, document all answers and any additional questions and answers.
- When interviewers write identifying information (words, doodles, pictures) to trigger their memory about a candidate, ensure that the identifying information is not of a protected class, such as gender, age, race, etc.
- Have more than one person present during the interviews of candidates. If discrimination in hiring claims are made against a member, it is advantageous to have several individuals who can speak to what occurred during the interview process.
- Train all interviewers on what may and may not be asked during the interview process to avoid discrimination in hiring claims. Also train interviewers about how to handle a situation when an interviewee offers improper and/or illegal information. Remind interviewers to be cautious of small talk that may occur before or after the interview, which may illicit inappropriate or illegal information.
- Send a prompt but polite rejection letter to all unsuccessful applicants. The Veterans Preference Act requires that veterans who received preference points be advised of the reason(s) they were rejected for the job. This applies to all veteran applicants regardless of whether they were interviewed.
- Keep all applications, evaluation sheets and interview notes for at least 18 months (longer if required by an entity’s retention schedule). Interview notes of the successful applicant, who is now an employee, should be retained indefinitely in the personnel file.
Documentation Is Critical in Discrimination in Hiring Claim Defense
When responding to a discrimination in hiring claim before the Minnesota Department of Human Rights and/or the Equal Employment Opportunity Commission, documentation is key to demonstrating that the employer did not engage in discriminatory practices during the hiring process.
Accordingly, members should document when job descriptions, qualifications, ranking systems and interview questions were drafted. It is important to show that these items were prepared prior to the hiring process, rather than during it (where it could be argued that the qualifications, questions, etc. were written in a manner to benefit certain applicants).
Members who have further questions or concerns, are encouraged to contact their legal counsel for further information. Members who have received notice of a Minnesota Department of Human Rights or an Equal Employment Opportunity Commission complaint should immediately report the claim to MCIT. The claim may be submitted through the member portal.