Lawyers in my field preach the importance of having good documentation. Not any documentation, but properly prepared documentation. That intimidates some employers who launch into a diatribe about those members of my profession who twist the meaning of words to suit their own purpose. I can't disagree with the latter assertion but it is no excuse for failing to documentation the facts on which an employment decision is based.
A recent district court decision involving the electric power distribution cooperative that services the countires surrounding Carthage, Tennessee, demonstrates what can happen in litigation when an employer refuses to document job interviews to avoid them being discovered in litigation. With the current purchasing agent deciding to retire, the employer interviewed several people, including the plaintiff, to replace him. Ultimately, the employer chose someone who had strong computer skills but who other had less qualifications for the job than did the plaintiff (so the court found in ruling that a jury had to sort out the facts).
It is well-settled that absent an unlawful motive or effect, courts don't decide what skills are necessary for any job. That is for the employer. In fact, court usually defer to an employers' decision comparing whether one applicant or another best satisfies the needed skills. We have even successfully defended a case in which the employer hired employees based on the high-technology skills it believed the employees would need to have to perform subsequent jobs.
The problem here was that not only had the job been done without a computer for decades, the available documentation said nothing about computer skills and the retiring employee had avoided using a computer for the 40 years he had performed the job. That in itself might not have been a problem because courts recognize that in selecting applicants, an employer is not rigidly bound to evaluating only the skills set out in the job description.
Here, however, the plaintiff argued, she was never asked her about her computer skills (which she admitted she didn't have) in the job interview. That left the employer defenseless because, as you might guess from the title, the interviewer said "that he does not take notes of employment interviews because such notes 'are discoverable . . . and can be used against [the company].'"
This was not the only reason the court refused to dismiss the case but it was the primary one. Had the employer been able to provide documentation showing computer skills were considered in evaluating employees for the promotion, the claims stood a much better chance of getting dismissed. Bear in mind that in this case, the employer made the successful candidate's computer skill a primary reason for her selection and the plaintiff seemed to be much better qualified on the other criteria. Other cases, as I have said, have made it clear not every selection criterion must be in the position announcement or job description. The more important the selection criterion, however, the more an employee will argue its absence is conspicuous.
The lesson is hopefully obvious. Not only should interviewers take notes, they should be trained to take proper notes. In a job or promotion interview, the questions should be listed ahead of time and asked to each candidate. The responses should be noted. The questions should encompass all of the relevant criteria or considerations the employer will use to decide who should get the job. These notes should be kept for at least 4 years.
I can't link to the decision as it is not easily available on the internet. The official name of it, for now, is Wright v. Upper Cumberland Electric Membership Corp., 2008 U.S. Dist. Lexis 54331 (M.D. Tenn. July 15, 2008). Anyone who wants a copy can e-mail me or leave me a comment.
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