Employers have long known about being careful when it comes to appropriate non-discriminatory hiring practices and the legal risks involved when they are not.  Interview notes can become problematic when they contain inappropriate comments or evidence that potentially discriminatory hiring practices may have been used.  The restaurant chain Texas Roadhouse has found out the hard way how something as simple as a Post-it® could become key evidence in an age discrimination lawsuit.

In 2011, the EEOC filed suit against Texas Roadhouse accusing the restaurant change of engaging in a pattern of age discrimination, allegedly rejecting job applicants age 40 and older for certain positions such as hosts, servers and bartenders.  Reportedly, the case was initiated after one of the agency’s officials had dinner at a Texas Roadhouse and began asking about its hiring policies.  Covering almost 500 stores and thousands of workers, it is the largest age discrimination case the EEOC has brought to trial in more than three decades. 

Part of the evidence the EEOC presented were job applications from 38 restaurants in 20 states on which company officials attached yellow Post-it® notes with comments such as “48 years old, looks 38,” “Older,” “Old chick,” “Older guy, seems nice,” “A little old, but says she can hang,” “Older, doesn’t fit the Texas Roadhouse culture,” “OLD,” “Super old, nice guy,” “Middle age, doesn’t really fit our image,” and “Mature... loves to dance.”

Also included as part of the evidence were statistics showing that, of the almost 200,000 people Texas Roadhouse hired over the years for front-of-the-house jobs, fewer than 3,000 employees were over age 40. This was a disparity so great the government’s expert witness estimated the odds of it happening absent discrimination at one in 781 billion.

Texas Roadhouse has vehemently denied the EEOC’s age bias allegations and claims that the evidence and statistics used do not hold up to scrutiny.  The trial began in January 2017, though a mistrial was declared after the jury was unable to reach a unanimous decision.

When it comes to creating legally compliant interview best practices, the goal is to collect accurate information in a consistent manner from all applicants.  Tips for creating such a process include the following:

·       Interview questions should be developed ahead of time and should be based on skills and qualifications necessary to perform the job.

·       Individuals interviewed should be asked the same questions in the same way.  This will help to later objectively compare and evaluate candidates and allows for easier comparison.

·       Don’t try to evaluate interviews based on memory alone.  Interviewers should take notes in order to remember applicant answers to interview questions and to use in discussions with others who interviewed the same individual.  Candidate responses should be evaluated against established criteria, skills, and qualities desired.

·       Interview notes should be factual in nature and concern only those areas the employer should lawfully consider in making an employment decision.  Good notes will help to minimize interview bias or subjectivity and will make it easier to evaluate who is the best candidate to fill the job opening.  Interview notes will also help to create a “paper trail” which may be used to later to defend a hiring decision in the future.

·       Interview notes should be kept in writing on a separate document and not on the candidate’s application or resume. Documentation and interview notes should provide evidence to support why a candidate was or was not selected to receive an offer. 

·       Interviewers should not document anything that is not pertinent to how the candidate meets the desired criteria, skills and qualities required of the position.  Questions that relate to an individual’s protected characteristics are not permissible and are inappropriate. Notes that capture information regarding the attributes of a candidate that are not job related or based on a protected category may create an appearance of bias that is not intended and may be difficult to explain. Interviewers should not document any information a candidate volunteers regarding their protected characteristics.  A common mistake many managers make is to document a candidate’s physical characteristics to as a way to help jog their memory.

·       Interview notes may be reviewed as part of an investigation or audit and their meaning can be questioned. 

·       While there is no required format to document interviews, creating  an interview summary sheet that captures the date, time, place, length of interview, interview questions asked and who conducted the interview are helpful items to capture in order to defend a hiring decision.

·       Ensure all interviewers are knowledgeable and are trained regarding the appropriate interview process including effective questioning, interview documentation, and how to evaluate interview answers.

When it comes to where and how to keep interview documentation, the best practice is to maintain a separate file for each position that is filled.  This file should be able to support and provide evidence that the employer hired the most qualified candidate.  All documents related to filling that position and making an offer should be kept in that file, including items such as job postings, applicant resumes, applications and reference checks.  Once the position has been filled, the hired employee’s application, resume, and cover letter should be moved to their personnel file.

Following these interviewing best practices will help employers stay out of legal hot water.

Source: Pro Publica 1/31/2017