Unfortunately, the UI law school is learning this maxim the hard way. After securing a defense verdict last February in an age discrimination lawsuit an aspiring law professor filed, the same person has sued again. This time, Donald Dobkin alleges the UI refused to hire him because of his age and because of his prior lawsuit. Adding insult to injury, the second suit is based upon information the UI disclosed in discovery during the first lawsuit.
Dobkin filed his first lawsuit in 2009. Despite his pending claim, he again applied to the UI during the 2010 hiring cycle, and documents concerning the hiring decisions in 2010 were part of the discovery in the 2009 case. According to Dobkin’s attorney, the faculty committee interviewed a candidate in 2010 that scored 40 points below Dobkin on the law school’s preliminary screening tool that it uses to rank candidates. In the 2009 case, however, the UI claimed that Dobkin was not interviewed because the law school school interviews only the best candidates as shown by the preliminary screening. Whoops.
There was also evidence that a member of the hiring committee considered in deciding not to interview Dobkin that he had a pending discrimination case against the law school. Whoops again.
While a lawsuit contains only allegations, it should present a teachable moment to the professors on the faculty hiring committee.
First, it is important to remember that the stated reason you give for an adverse employment decision must be the real reason, and not appear to be a reason made up after the fact to justify the decision.
Second, when relying upon screening tools, it is important to apply them consistently. If there is a deviation from a standard practice in the case of a particular candidate, there should be a stated and documented rationale for the deviation.
Lastly, employers must remember that a pending discrimination claim creates an genuine risk of a subsequent retaliation complaint if the pending claims plays a role in an adverse hiring decision. Decision makers must remember that everything they write or put in a e-mail that refers to the pending claim, even if innocent or innocuous, is potential evidence in the next case. Even if you win the first case, it does not mean you are forever out of the woods.