A nationwide restaurant chain is in a “sticky” situation, and not because of the barbeque sauce on its ribs. Rather, it faces a trial in a lawsuit filed by the U.S. Equal Employment Opportunity Commission, alleging years of pervasive age discrimination in its hiring of hourly, “front of the house” employees. The EEOC alleges that the company failed to hire applicants over 40 for public, visible positions such as servers, hosts, and bartenders, and instead instructed managers to hire younger applicants for those positions at its hundreds of locations.
The restaurant chain denies the claims, pointing out its proper corporate policies and how the applicant pool for these often part-time, evening shift jobs may well appeal more to younger applicants. However, one bit of information from the case is worth examining: according to reports, sticky notes that were placed on unsuccessful applications included comments such as “Old.” Along with purported evidence that managers were sent pictures of “ideal employees” for the positions (photos which all depicted young people) and alleged comments confirming the hiring practice by company officials, this information led the EEOC to assert that the case included the rare “smoking gun” evidence of discrimination, especially unusual in company-wide failure-to-hire cases.
While the claims have yet to be decided at trial, the allegation of sticky notes on employment applications – especially with comments like “Old” – is a strong reminder of what employers should not do with job applications. Applications are not the place to write or attach comments, especially anything that might be construed or interpreted to relate to an applicant’s race, gender, age, religion or other legally protected status. (This is doubly true for directly referring to an applicant’s protected status, as is alleged by the EEOC in this case. ) While using sticky notes or writing on an application may seem convenient, employers must retain job applications, so notes or comments on those documents that do not comply with the law or corporate policies can be damning evidence. Notes written in the margins or on sticky notes may be unclear, misunderstood or just misinterpreted reminders of more legitimate descriptions of a candidate’s strengths or weaknesses. An interviewer once wrote “butter knife” on an application, and when asked about it, had to explain that it was a shorthand reference for “a useful tool, but not very sharp.” While not discriminatory, that type of blunt assessment (pun intended) might not be well-liked by jurors, who themselves have likely been job applicants at some point and wondered what interviewers were writing about them.
Not only can sticky notes and comments in margins seem improper or suggest discrimination, but a later review of applications may not show who wrote the notes, when they were written, or why they were attached to the applications. These issues are in fact disputed by the restaurant chain. In contrast, where an interviewer creates separate notes that clearly delineate their appropriate impressions of a candidate, and then takes the time to formalize them for keeping for any future challenges or comparisons, that employer will be much better off in defending itself against claims of discriminatory hiring. Which would you rather explain to a judge or jury – notes created, formalized and saved as part of a regular practice and corporate policy, or notes scribbled on an application or jotted down on a sticky note? No doubt this restaurant chain is wishing sticky notes were never part of its case.