- The City of Houston's reasons for not hiring an Asian job applicant for one of the jobs for which he applied were legitimate and non-discriminatory, the 5th U.S. Circuit Court of Appeals has ruled (Chhim v. City of Houston, No. 19-20153 (5th Cir. Sept. 26, 2019)).
- After unsuccessfully applying for several positions with the city, Joseph Chhim sued the city for failure to hire based on his race, color and national origin, as well as retaliation stemming from the "numerous" complaints he filed against the city with the U.S. Equal Employment Opportunity Commission (EEOC). He was previously employed with the city and had been terminated, the court noted.
- The 5th Circuit upheld a district court's summary judgment ruling in favor of the city. Chhim couldn't establish a case for discrimination for one of the jobs because he was unqualified due to his lack of a driver's license. In another instance, the court said, an Asian applicant was hired for the mechanic position Chhim had applied for. Additionally, Chhim was not one of the 11 candidates referred to the hiring manager because his applicant and employment record disclosed that he had been let go from a previous position with the city. The court also ruled that Chhim's being let go from a previous position with the city was enough to defeat his retaliation claim.
This case illustrates the importance of documentation — the City of Houston was able to show that it refused to hire the plaintiff for nondiscriminatory reasons. Documentation can make or break an employer's defense in a lawsuit, experts have said. When facing a discrimination or retaliation claim, a lack of documentation can pose a significant problem for employers.
As such, Allison West, principal at Employment Practices Specialists, told attendees at a recent conference that HR should train managers and supervisors to:
- Document everything. Managers should document everything from the beginning and use bullet points in write-ups. Documenting a performance problem after a complaint has been filed doesn't look good, experts have indicated.
- Clearly state expectations. For example, "fails to produce deliverables" should be replaced with "failed to turn in annual report by March 21, as instructed by email" or something similar.
- Ask what's going on and what the employee needs from them — and document the question and the employee's response. It demonstrates two-way communication, experts say. This back-and-forth shows a jury that a manager was interested in what the employee had to say and took ownership of his or her coaching responsibilities.
- Watch out for discrimination red flags. Phrases like "bad attitude" and "not fitting in" should be avoided because they often lead employees to think their manager is unhappy about their age, race or other protected characteristic.
- Remember that electronic evidence can last forever. This includes emails, as well as exchanges in Slack and other instant messaging platforms.
HR can also make sure equal opportunity policies are in place, and that those policies are implemented and have an enforcement mechanism built in. Employers should also assess hiring criteria to make sure that it does not exclude workers on the basis of protected characteristics.