One of the many conventional wisdoms in HR is that it is important to increase the diversity of the applicant pool by posting positions and recruiting externally. I could not agree more, except when I disagree.
Let’s look at the case of the vacant Marketing Director position of Company ABC. Renee is a Vice President of Marketing and wants to promote Alexa into the vacant position.
Following the conventional wisdom relative to increasing diversity, HR strongly encourages Renee to post internally and to recruit externally. Renee reluctantly agrees in response to HR’s persistent encouragement.
There are three (3) very strong final candidates. Ultimately, Renee goes with her first choice, Alexa, and promotes her.
Alexa is a white woman. One of the unsuccessful external candidates, Max, is a man of color.
When Max looks at Alexa’s credentials as she has described them on a social media profile, he concludes he is more qualified than she and files a charge of discrimination with the EEOC alleging race and gender bias and ultimately sues in court.
When deposed, Renee admits, as she must, that she really knew whom she wanted to hire before opening up the position to internal posting and external recruiting. As a result, a number of candidates invested time and emotional energy on an opportunity that was an oasis.
How do you think a jury will feel about applicants being played this way? In this case, I am with the plaintiff and not the defendant.
What would have happened if the position has not been posted internally and externally? Alexa would have gotten the job but there probably would not have been a charge, let alone a lawsuit.
When the deal is effectively sealed, the posting has a fraudulent feel to it and does nothing more than create a pool of potential litigants. Legal and fairness considerations argue against posting in these circumstances.
Some employers still post or recruit in these circumstances but add something to the effect “strong internal candidate identified.” This is not transparency but a transparent hedge that may invite attack.
I don’t foresee it. I have seen it. So let’s go back to the general recommendation of not posting when you know who you are going to hire.
Of course, make sure your policy on posting does not lock you into posting all vacant positions. If the policy states or suggests that you will post in all circumstances, then your failure to post may be used as evidence of discrimination.
HR policies need to be drafted to allow for exceptions to general rules to reflect the need for agility in the business world. But let’s not stop there.
Where an exception is made, document contemporaneously the legitimate non-discriminatory reason for the exception. This will mitigate, not eliminate, the risk of not posting.
Yes, in the case of the vacant Marketing Manager position, there are risks no matter what you do. That’s why HR needs to think more about managing as opposed to avoiding risk.
It’s a bit uncomfortable. Once we accept this, we can get more comfortable with it.