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I work for a small mechanical engineering company's IT department, which currently consists of my boss and me. I like my job as my boss gives me a lot of freedom and autonomy and I get to do a lot of things which I couldn't do in a larger IT company.

I do all the external software projects as well as internal desktop support. The company is now looking to hire someone to take over the internal desktop support to let me focus on the external software projects that bring in more revenue.

My boss has been bringing in people for interviews. He then hands me their resumes and asks if I want to bring any of them back for another interview. It would be much easier if I interviewed them in the first place, but this is not a big deal.

My problem is with the notes the boss makes on the resumes. He has written things like: too old, has children, pregnant, can't understand accent, and other things that are against the law. If I do tell HR, I could ruin my relationship with my boss and potentially lose my job.

Am I legally required to say anything? Could I get into legal trouble for not telling HR? What is the best way to go forward?

  • Comments are not for extended discussion; this conversation has been moved to chat. – Masked Man Jun 6 '18 at 7:54
15

We can't give legal advice here; whether it's legal is a question for an HR professional or lawyer in your jurisdiction. However, his behavior is affecting your ability to interview these candidates, so you can address that.

It's bad practice to get the "run-down" on a candidate from a previous interviewer before you interview the candidate yourself. The reason you have more than one person interview a candidate is to get independent assessments; your boss's notes are at risk of prejudicing your assessment. (Are you really likely to say "hire" to someone you already know your boss doesn't like?) As Joel Spoksky's famous Guerilla Guide to Inteviewing notes:

An interview is like a very, very delicate scale—it’s very hard to judge someone based on a one hour interview and it may seem like a very close call. But if you know a little bit about the candidate beforehand, it’s like a big weight on one side of the scale, and the interview is useless. [...] So: don’t listen to recruiters; don’t ask around about the person before you interview them; and never, ever talk to the other interviewers about the candidate until you’ve both made your decisions independently. That’s the scientific method.

Thus, you can start by asking your boss to give you a clean copy of the resume. Ask him to make a copy before his interview (if it came on paper) or print you a fresh copy, so that you can each be free to make your own notes -- which you'll compare later. This solves your immediate problem, but leaves the issue of his behavior in the first place.

If you feel comfortable addressing it with him, you could ask something like: "hey, are these comments on the right side of the HR rules we need to follow?". By asking a question instead of asserting anything, you're leaving open the possibility that the comments are benign. If you can't understand a prospective coworker, for example, it doesn't matter whether it's because of his nationality or because he's from a region of your own country with a very different dialect or accent; he might view it as notes about job function, not discrimination, and he might be right. A comment about a candidate being pregnant could signal discrimination or could be shorthand for "plan for extended leave early in her tenure". I'm not trying to dismiss his comments, some of which are definitely concerning; I'm suggesting a technique for bringing up the issue while minimizing your own risk. You didn't say anything bad about him, after all; you just asked a question.

10

The comments are problematic in many senses.

If a candidate got his resume from a company they applied for and with a comment "too old" and sued, they would have high changes of succeeding. Not to mention how much the image of your company would suffer if media learned about it.

Apart from the legal implications of the comments - which this forum isn't the best place to discuss, what he does is morally wrong. The comments are wrong since they skew your opinion about the people. E.g. most people at some point have a child or children. Why does he point it out only in case of this - I suppose - woman? Obviously, he does that because he thinks her having children makes her unsuitable to perform the job.

And if you select candidates based on the resumes with these comments on them, it seems as if you took them into consideration while deciding, which is a problem in itself. Is it even clear that he wrote the comments? If an external person, not involved in the recruitment, saw them, would it be clear to them you aren't responsible for them?

What you should do depends on what kind of communication/ rapport you have with him.

If you understand each other well you should alert him that his comments are problematic in both legal and moral sense.

If you don't have this kind of rapport with him, you could go to HR, but this is risky for you. Personally I would however ask the boss for clean copies of resumes, e.g. in the electronic forms, unless he also adds the comments in electronic versions. I would prefer making sure it would be totally clear to everybody I didn't make these comments. I would also prefer having the clean versions in order to prevent myself from being influenced by these comments.

Even if he also adds the comments in the electronic versions, you then have a proof you aren't the author. To get the electronic versions, you can explain your boss you just prefer electronic versions or come up with an excuse e.g. that you write the resumes on the go and it's more comfortable to have them on your screen, not in the paper version.

  • In the USA, discriminating on the basis of accent is likely to be illegal unless it materially interferes with job performance: americanbar.org/content/dam/aba/administrative/labor_law/… If the applicant's accent really is too strong to be understood, that would be legit, but from the other information given I wouldn't want to rely on the boss's assessment for that. – Geoffrey Brent Jun 3 '18 at 7:21
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Tricky situation. Here is probably your best course of action:

  1. Go look at your Employee Handbook and/or policies. Most employers are actually legally required to have a written anti-discrimination policy.
  2. Arm yourself with some official stuff like https://www.eeoc.gov/facts/qanda.html and https://www.dol.gov/oasam/programs/history/herman/reports/futurework/conference/staffing/9.7_discrimination.htm and perhaps a few horror stories of lawsuits https://www.eeoc.gov/eeoc/newsroom/release/
  3. Have a chat with your boss. Don't make it about him, make it about the behavior and the risk to him, the company and yourself. You want the behavior to stop and you can ignore everything else.

Here is an angle you could use:

"Hey boss, I really like working with you here but something has made me concerned. I have noticed that you write notes on the resumes. Given their nature I'm pretty sure some of these could be interpreted as discriminatory, which could have some non-trivial legal consequences for all of us. If I understand our policy correctly (shove it his face) we are not allowed to consider age, gender, religious affiliation, family status and a few other things. That's also what the law says (shove a law in his face), I think. It would probably be safer if there aren't any type of written or verbal comments around any protected topic."

1

You should consult a lawyer to find out if you're obliged to report this to HR. I highly doubt that is the case.

Regardless of the questionable, even potentially illegal comments you need to decide for yourself how uncomfortable these notes are for you and if it is worth risking your good relationship in your small office with your boss, potentially even your job.

If you'd like to hire one of those that your boss had negative notes about you could point out their qualifications / reasons to hire and if he mentions his notes at the same time slightly hint and argue that for example if that person is "too old" it means they are highly experienced etc. Depending on your relationship with your boss maybe this way you cold sway his opinion and possibly even steer him away from adding these notes if you decide your relationship will withstand his potential dismissal of your arguments and realizing you don't share his personal views regarding people or how to conduct one self in paperwork...

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Am I legally required to say anything?

In my brief review of EEOC discrimination cases, I found that the companies, not employees, were mentioned in cases - it appears that companies, not employees, are considered legally culpable in discrimination. You personally are not able to be sued for discrimination, nor is your boss. Your company is.

Could I get into legal trouble for not telling HR?

No, but your company may thank you for doing so. Or they'll retaliate against you and fire you for whistle-blowing if they support the bosses' practices. If they do that, you have legal remedies, but it's easier to keep your job in the first place, eh?

What is the best way to go forward?

Your company is likely legally required to not discriminate in hiring, but you should check here. Regardless of if they are required or not, you need to decide for yourself if you think you'll face retribution for reporting this, you have to decide if it's worth getting fired and then filing a wrongful termination lawsuit, which is a costly pain. If you think your employers will be glad that you've saved them from an eventual lawsuit, then the decision is a bit easier to make.

I'd start by testing the waters with HR, see where they stand on the EEOC. If you have a "good" HR department that really wants to avoid any liability, then you're probably best positioned to report. If you had a bad HR department that just wants to hire people and not be bothered, then you'll have to think hard about how useful reporting will be.

-10

I see nothing wrong with the notes.

Make your own recommendations based on the resume rather than the notes. Discriminating is a fact of life and business, it doesn't mean you have to discriminate as well.

  • 9
    @Kilisi, if that were true, you could also say that telling someone s/he's "too old for the job" isn't illegal. Not giving them the job based on their age is illegal. It doesn't work like this. Statements, written and verbal, prove intentions. – BigMadAndy Jun 3 '18 at 6:23
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    Dude, you normally give great advice, but you totally dropped the ball on this one. Let me put it this way - until today I thought that you were the sort of person I would like to work for, or with. Now, if I saw that you were interviewing me, I would walk out before it started. – Mawg says reinstate Monica Jun 3 '18 at 7:06
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    Possibly... I'm not infallible – Kilisi Jun 3 '18 at 7:06
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    I think I see what you're saying - "the boss is a discriminating jerk, but just because he made these offensive notes doesn't mean the OP should factor them into his hiring decision." While it's certainly true that he shouldn't let the notes influence him (and I don't think he would), that's not really the point of the question. The fact that the OP is involved in the hiring process might implicate him, should news of these notes somehow get out. It would be clear that someone was discriminating, and it might be difficult to prove in court that it was only the boss. – Steve-O Jun 3 '18 at 12:36
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    @Kilisi: this is very much illegal, since notes like "too old" clearly show intent to discriminate. It's also stupid since it actually documents the discrimination. Any lawyer would have a field day with that one. – Hilmar Jun 3 '18 at 16:43

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