“Hiring for fit” may cause you legal problems

by Michael Haberman on October 2, 2014 · 1 comment


Assessments can take the subjective out of cultural fit.

Assessments can take the subjective out of cultural fit.

Let me start off by saying that I believe that it is important for most people being hired into an organization have a “fit” with the culture of the organization. However, if the assessment of “fit” is just a subjective evaluation then you could be headed to court.

Background

Attorney Robert LaBerge, of Bond Schoneneck  & King PLLC, wrote about the court case of Abrams v. Department of Public Safety, in which a Second Circuit court in which “the court reversed a summary judgment decision granted to an employer based upon the hiring supervisor’s assessment that a non-minority applicant for a detective position in a special major crimes group would ‘fit in better’ than a minority applicant for that position.” The court decided, following a similar decision in the Fifth Circuit, that “this racially neutral statement was sufficient to create an inference of discrimination”, enough so that the court thought this case should be heard by a jury.

Where “fit” doesn’t work

When you use the term “fit” to match your subjective assessment of the likelihood that someone will mesh with your organization then you are “walking on thin ice.” Yet it is done all the time. Unfortunately your personal subjective assessment is influenced by your personal biases and these biases may be based on discriminatory factors. Yeah I know, you are saying “I am not biased”, but you are lying. We all have biases that manifest themselves when we make cultural decisions; this older candidate will not fit in with a younger group; this woman will not fit in with all these men; this white guy will not fit well with our all black staff; or whatever condition you consider. That is the major problem in a subjective evaluation of cultural fit, it is quite often based on a protected category.

Where “fit” does work

I started off by saying that I am a believer in the idea of “fit”. The kind of “fit” I am talking about involves a more objective assessment of what makes up your culture. Is your culture one of hard work, dedication, willingness to go the extra mile, an attention to detail, a passion for the job, innovation, teamwork or kindness and consideration? These cross protected categories, anyone of any race, age, gender, sex or national origin can have these cultural attributes.

What is needed is an objective assessment of the culture of your organization. This can be done. There are a number of assessments available on the marketplace that can provide you with a tool to determine how your culture is composed. You need to establish a baseline by having everyone in your organization taking the assessment or having a sample take the assessment. Once that baseline is established you can then use that assessment as a hiring tool as one of the decision making factors in your interview process. This will take the argument away that your “fit” decision was subjective and perhaps provide you with some defense of your decision if you end up in court.

Sometimes you need to ignore “fit”

There are times where you need to, or want to, ignore whether someone will “fit” with your culture. There are times you need to shake things up and “rattle the cages” of the rest of your employees by hiring a maverick or rabble-rouser. The assessment will provide you with that picture too. That decision will also be based on objective criteria rather than just being your subjective determination.

A final thought

Naturally in your hiring process you need to make your determination of a candidate based on “consistent, measurable, job-related criteria whenever possible”, as attorney LaBerge concludes. He ends with “This case plainly illustrates the vulnerability of employment decisions based upon ambiguous, subjective judgments and shows the ease with which these decisions can be attacked and challenged, even on appeal.” You can remove the subjective component with an objective cultural assessment and save yourself some trouble.

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