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How to Know if you should File a Case of Discrimination-Part One:Non-Selection

Updated on August 2, 2012
This man is angry because he was not selected. He might try filing a case
This man is angry because he was not selected. He might try filing a case

Discrimination in Selection

Discrimination of one type or another takes place every day at work in all types of organizations. The EEOC office is charged with investigating allegations of discrimination against any of its protected groups, which now includes all minorities, all religious groups, women, the elderly and the handicapped.

For almost two decades as the owner of a management consulting firm I and my staff performed contracts from numerous agencies to investigate cases of alleged discrimination by the organization or individual supervisors and, based on our investigation and analysis, gave findings either for or against the employees that had filed the allegation. It is from this experience that I offer the following insights into when to file a case of discrimination for the best possibilities of success.

It should be mentioned at the outset that the number of cases of discrimination filed with the EEOC has grown steadily since I sold my business in the early part of this century. It has grown even now that the country has its first African-American President. Another thing that I must mention is the fact that most of the cases of discrimination filed by employees during the time that we handled investigations were actually lost by the employees. The same is true, so I am informed, today. This should tell you that, either most cases of discrimination are filed because of perceived discrimination, as opposed to real discrimination or that real discrimination is so cleverly hidden these days that it is difficult to prove by the employees making the allegations or by the investigators. My experience tells me that it is a combination of both.

But my experience al so tells me that, while there are many cases of discrimination filed that have little or no hope of being successful, either because true discrimination was not there or because the employee filed the case too hastily, there are many cases that could have been filed by truly victimized employees, but were not filed, either because the employee was too timid or did not realize that he or she could have won the case. The following are the most common kinds of cases of discrimination filed and the ones that have the best prospects of success:

Discrimination in non-selection

This is one of the most common types of cases filed: a member of one the protected groups applies for a position for which they feel they are highly qualified, but a white male was selected instead and because, so it is alleged, of discrimination. This is a common type of case filed, but, ironically, it is a type that is very difficult to win for the employee for two reasons:

1. Equal opportunity laws and regulations do not require that a minority applicant or a member of one of the other protected groups must be selected over other applicants. This would be reverse discrimination. The laws and regulations say that protected applicants must be given fair consideration, the same as all other applicants. While the employer often finds it difficult to prove that no discrimination was involved when a protected applicant is not selected, the employee often finds it more difficult to prove that discrimination was involved in his or her non-selection.

2. Contrary to the common myth about selection, the most qualified applicant is not always selected for the job. In fact, the most qualified candidate may be deemed over-qualified quite legitimately. Effective selection is picking the right person for the job, and that person usually has the right combination of paper qualifications and other qualities that can only be assessed through the job interview. A black or Hispanic applicant may hold an advanced degree when all other applicants have only an undergraduate degree. If the black or Hispanic applicant is not selected, he or she might file a case alleging discrimination because, although he or she was the most qualified, he or she was not selected. The employee’s case would probably be lost as long as the organization could show that it put more weight on factors other than a university degree in defining the best person for the job.

The basis of the alleged discrimination has to be specified in filing the case. The basis can be race, ethnicity, religion national origin, sex, handicapped or any of the bases specified by the EEOC. Specifying the basis is important for the case because it can determine the entire outcome of the case. For instance, if a black male file a case of discrimination in non-selection based on race and a black female is selected for the position, his case will be lost. But if he filed on the basis of sex and race, then he might have a chance of winning if he can prove that there was a preference for females in the selection, particularly black females.

From my experience, the types of situations that have the least chance of being successful in filing a case of discrimination, regardless of basis, for non-selection are:

· When the applicant for a job is not short-listed or granted an interview and when he clearly does not meet the minimum qualifications for the job.

· When the applicant meets the minimum qualifications and is granted an interview but not selected for the position, regardless of whoever is selected, as long as they meet the minimum qualifications for the job.

· When the applicant is short-listed and granted an interview but Is not selected and the one selected is a member of the same protected group as the applicant (black male selected instead of the applicant, who is also a black male).

From my experience, the types of situations that have a better chance of being successful in filing a case of discrimination, regardless of basis, for non-selection are:

· When the applicant meets or exceeds the minimum required qualifications for the job but is not given a job interview.

· When the applicant is given an interview, but it is shorter and more superficial than that of the other applicants. Short, superficial interviews usually mean that the selecting officials are not serious about considering the candidate for the position.

· When a white male is selected for a position that has never been filled by a minority member, a woman or a member of any of the other protected groups of the EEOC. No one can get inside the head of a selecting official and identify discriminatory intent. One can only reach conclusion from the effects of the supervisor’s or the organization’s actions. When a position has always been filled by a white male, despite always having EEOC protected members applying for the position, then apparent discrimination can be inferred.

Part two of this series of hubs deals with discrimination in performance appraisal.

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