HR Manager’s Remarks Regarding Nature of Hiring Process May Help Employee Establish Discrimination Case

Article by Monica Rose Cafaro (Posted by Martha Zackin)

A recent decision by a federal appeals court underscores the need for HR mangers and other hiring personnel to watch what they say about job openings and the company’s hiring practices.

In Kidd v. Mando American Corporation, a white female employee who worked in the accounting department of a Korean-owned company was not considered for a promotion, despite her qualifications.  Instead, a Korean male was hired.  When the employee who was not hired – Leanne Kidd – complained to an HR Manager, Ms. Kidd alleges she was told that the Company’s predominately Korean management “refused to even consider an American candidate.”   Ms. Kidd also alleges that another HR employee told her that “no matter what . . . there would never be any American management in the company, it would always be Korean management . . . .”  Ms. Kidd relied on the HR employees’ comments to support her claim that that the employer engaged in discriminatory hiring practices by hiring the Korean male candidate over her and other qualified American candidates.

Finding that the company articulated a legitimate non -discriminatory reason for the adverse employment action, the lower court dismissed Ms. Kidd’s complaint.   In so holding, the lower court refused to consider the HR employees’ comments, finding that they were not admissible as evidence to show that the company’s articulated reason for denying Ms. Kidd a promotion was a pretext for unlawful discrimination.

The Eleventh Circuit overturned the lower court’s decision after analyzing various legal standards relating to hearsay.  That legal analysis is not relevant to the point of this blog entry- rather, the key point here is that HR employees, as well as other employees involved in hiring decisions, should avoid commenting on a company’s hiring practices or disclosing certain desired characteristics of an “ideal candidate.”  Periodic training, to educate and to reinforce good hiring practices and “common sense” principles, may help to remind hiring personnel and management employees of their obligations under the law.