When blind-sided by a discrimination complaint, don't be caught without records

by Jim Castagnera

October 2006

As they like to say in the movies, this scenario is inspired by actual events.

Jim Castagnera

An academic department of a private university advertised a tenure-track, assistant professor position. The ad listed an assortment of required and desired qualifications. Some 200 applications were received. The department's faculty reviewed the applications, each professor noting the 10-12 aspirants he or she found noteworthy. Those faculty then met, compared notes and produced a consensus list of 15 semi-finalists to be interviewed by telephone.

All 15 applicants were interviewed via conference calls, after which the department reconvened and settled on four finalists to be invited to campus for day-long, face-to-face interviews. After that, another round of wrangling produced a top choice. The name was conveyed to the dean, who extended the job offer. The candidate accepted, and joined the department in the fall. Her students love her.

In accord with university policy and practice, the HR department sent each unsuccessful applicant a letter advising that "While your credentials are excellent, blah, blah, blah…. We wish you every success in your career, blah, blah, blah."

Everyone agreed this was a textbook search brought to a happy conclusion.

Two months later, the university's attorney was served with a discrimination complaint from the Equal Employment Opportunity Commission on behalf of an African-American applicant who was never even interviewed. Preparing the university's response, general counsel requested the notes of all faculty members who participated in the search.

Whoops, he's told by half the faculty members; nobody told us to keep notes as we reviewed the applications. We just wrote down the names of our preferences. Ouch, responds the other half. Were we supposed to save those jottings? We thought they were only for intra-department discussions. Bottom line: nobody remembers this guy or why they didn't give him a second look.

The plaintiff's discrimination case may be flimsy. But with no bona fide business reason for passing him by, the university's attorney is hard pressed to handle this throw from left field, other than by settling it out of court.

Jim Castagnera is a Philadelphia lawyer and writer, who is the associate provost and associate counsel for academic affairs at Rider University.