Oops! Boss sends biased e-mail to applicant
July 13, 2009 by Sam NarisiPosted in: Age discrimination, Hiring, Special Report - Tech
Whenever you send an e-mail, it’s a good idea to double check it’s going to the right address. Especially when the message could have legal ramifications.
One executive recently got his company in big trouble by accidentally sending a message meant for HR straight to a job applicant. Here’s what happened:
A 46-year-old applying for a job as an operations manager at a financial services company sent his resume to the employer’s CEO. He didn’t get any response until he got a message that was meant for the HR manager but sent to applicant by mistake.
“Check it out — I don’t know what to think. He must be old — and looking for something to do,” the CEO wrote, apparently referencing the applicant’s many years of experience in unrelated fields.
After he didn’t hear back, the applicant assumed he was rejected. He sued the company, believing his age was the reason.
Defenses couldn’t hold up
In court, the company claimed the applicant wasn’t hired simply because his resume never reached HR. Also, the CEO said he made his remarks because, given the applicant’s past experience, he thought his interest in the position was “odd.”
But that wasn’t enough for the court. The e-mail was the applicant’s trump card — the company’s defenses couldn’t hold up against the CEO’s negative characterization of older applicants.
The obvious lessons for managers: Don’t discriminate, and don’t write discriminating e-mails.
But even beyond those simple tenets, managers should approaching electronic communication with care.
Given the way e-mails will be interpreted in different ways by different people, managers need to be careful even when they’re writing something innocuous. Bosses should be careful to keep information confidential — and aware that some topics are better addressed with HR in person.
Cite: Wold v. El Centro Finance, Inc.
Tags: Communication, e-mail, Hiring, job applicant
July 14th, 2009 at 12:56 pm
Sending the e-mail wasn’t the mistake – referencing age was. Even though it seems pretty obvious that this was not a basis for any employment decisions.
I completely disagree with the author on one point – The author states that some topics should be done in person – in this instance the topic of age should not be even considered in the first place – much less discussed.
July 14th, 2009 at 1:29 pm
I do agree that some topics should be discussed in person…and also that age…and other protected class information should not be in a consideration. However, if there are concerns…for instance about his stability in the job he applied for…that should be discussed in a way that is not documented (ie; email). This holds true for investigations as well. Regardless of intention, the party reviewing the information on the resume is forming an opinion about the candidate who submitted the resume. We all know that what seems like innocent words to us can be percieved as wrong from another view point. We judge ourselves by our intentions. We judge others by their actions.
July 14th, 2009 at 2:45 pm
I have two things to relate:
1. I found myself interviewing an obviously unqualified candidate for a position recently, and was about to cut the interview short. Then I thought better of it — the candidate was a member of (at least) two protected classes. So I actually let the interview ramble on, painfully, just to make sure I couldn’t be cornered later.
2. There are plenty of “politically-correct” keywords that everyone who deals with hiring / firing know in common, and which can not be used as descriminatory evidence. If the CEO had said: “He seems to be overqualified for available positions”, or “farther career progression than other candidates”, these are signals to HR that BOTH sides interpret appropriately, but that won’t get the company in trouble.
July 14th, 2009 at 3:07 pm
This is why it is very important to add to your employee training a section on appropriate email usage. We have a monthly compliance training and employees are required to attend on their birth month. Emails are kept on record for seven years and are considered a record. In this fast paced and convenient world of electronic interaction there are times when a face to face discussion is better. If you do not want it published, do not write it, if it can be perceived in another way, do not write it, if you hesitate before you hit the send key, stop and reconsider. We do a complete email etiquette section with new hires. As CEO his statement was wrong and cannot be explained away, it should have never happened. BIG OOPS, that was costly.
July 14th, 2009 at 3:12 pm
Better yet, CEOs should stop thinking neanderthal, then their emails would not create problems. And who are you calling “simple tenants?” (I think you mean “tenets.”)
July 14th, 2009 at 3:28 pm
I agree with the author regarding addressing HR in person, because HR can, and should, use this as a teaching moment to explain how wrong the thinking is and the legal liability of using age, or any other non-merit factor, as a basis for taking personnel actions.
July 14th, 2009 at 3:38 pm
I agree that sending the email was a mistake. I further agree that it would have been better for the CEO to discuss the matter in person. What I don’t agree with is that age, sex, race, economic or cultural background are excluded from any discussion. Granted, employment decisions cannot and should not be made on the basis of prejudice, however, there are specific concerns that may arise with each group that should be addressed. The idea of a reasonable accommodation is normally only talked about in medical disability cases, however, accommodations may be needed to develop diversity. If management fails to anticipate and plan for problems, then they are negligent. Hiding behind the concept of not talking about race, gender, religion, etc. is a cop out and similar to hiding one’s head in the sand. (My apologies to the ostrich lovers in the audience). Further, it is in the discussion that boorish attitudes like that the CEO displayed in his email can truly be corrected.
July 14th, 2009 at 4:50 pm
Anyone in the workforce who is nearing or has passed the 50 year mark assumes age discrimination if a less qualified and very much younger individual is selected.
July 14th, 2009 at 5:04 pm
To Essie-
“Anyone in the workforce who is nearing or has passed the 50 year mark assumes age discrimination if a less qualified and very much younger individual is selected.”
I would hope that if a less qualified and younger individual is selected that EVERYONE would see that as age discrimination.
July 14th, 2009 at 5:15 pm
Number one rule in recruiting/HR is to follow the basic guidelines and keep comments directed about whether the candidate meets or does not meet the job requirements. Period!
Had he simply forwarded the resume to HR with a non-biased comment like, “I am forwarding a resume that I received and would appreciate it if you would review to see if he qualifies for any current openings.” If the applicant read this he would feel that it was headed in the right direction providing some hope. Sending it directly to the CEO was his way of trying to get someone to pay attention to him which I’m sure a lot of job seekers are feeling with so much competition in the market. Even if he didn’t qualify, at least he would have felt an effort was made in his behalf and he wouldn’t have been disgruntled and taken the company to court.
I’m astonished that a CEO would step over boundaries – a huge mistake that he would not tolerate if the error had been made by one of his reports. Sometimes upper management thinks they are exempt from the rules and this is what happens. Don’t do what HR wouldn’t do.
July 15th, 2009 at 8:11 am
Our management refuses to put ANYTHING in email because so much of what they do is questionable. Since I work in HR and a lot of this comes from our director on up, there’s not much we can do unless it is obviously illegal. The problem is that we have all sorts of inconsistent decisions made on a person-by-person basis that have no (business need) documentation for why a certain person was treated differently. I agree that if we could get managers that don’t think like Neanderthals, that would definitley help all around.
Also, please note that just because a less qualified and younger employee is hired, this may not necessarily mean it is due to age discrimination. Often more experienced workers have higher salary requirements. Perhaps they don’t need an expert in this particular position and based on position funding/requirements they can get by with a less experienced person who may have lower salary requirements.
July 15th, 2009 at 8:29 am
As convenient as it has made our business lives, email is the source of so many of today’s litigation issues. Yes, we all agree that there are laws that say bias can not be used in the basis of hiring, firing, promotion or any other employment practice. That being said, I believe that anyone who does not admit to thinking the thoughts is being dishonest. Example: You have a company which provides fair and decent health insurance. The demographics of the employees over the past several years have shown that the health insurance is getting used a lot – - which correlates to higher rates and higher deductibles at the renewal of the policy – - (don’t get off on the tangent of “that’s what insurance is for”). Enter a new applicant for an administrative assistant position – middle aged, obese, coughing, smelling of cigarette smoke. The interviewing manager is nothing but polite and professional.
Regardless of how the applicant scores on the caliper test, regardless of how nice and bubbly the applicant’s personality, regardless of thw salary range requested, this applicant is viewed as a very likely drain on the group benefits policy, not because of discrimination, but because historically, this is shown to be true.
Federal laws prohibt any discussion of these factors for the basis of hiring. But who can honestly say that the thoughts don’t occur?
Now, let’s flip the coin – the applicant knows that he or she is obese, knows that obesity and smoking are causing health problems, knows that the company most likely has benefits – there is no federal law that prohibits an applicant from seeking a position solely for the insurance benefits. If the applicant makes it through the 90 day probation period, they become eligible for the insurance benefits, FMLA benefits, etc. Is that not just as dishonest as an employer who would decline the applicant?
Not say what is right or wrong – just playing devil’s advocate here…
July 15th, 2009 at 9:10 am
Keith –
A problem with not having solid documentation (something in writting) leaves you without proof of the basis for your decisions. Otherwise its he said – she said.
Then add the inconsistency behind the decisions at your company and it screams bias – even if this is not the case.
Not treating everyone the same and then not having any documentation to back up decisions could be a potential issue.
July 15th, 2009 at 9:37 am
Trust me…age discrimination is alive, well, and growing. However, it becomes very sticky when the best candidate happens to be older, but the reason for hiring is to be part of a succession plan and the candidate is older than the person he/she is to replace. Certainly does not solve the company’s need.
July 17th, 2009 at 2:48 pm
Jeanette,
This seems like an odd problem. If the only reason to “succeed” the existing employee is age, then of course you are on thin ice. But if there is another reason, the question then becomes, “does the prospective employee have the same issue?”
Or do I misunderstand?