Christian Persecution vs Persecuted Christians

[Maxperson]

Even if LiberalDarlingCorporateAngelCo proved that it hired a statistically demographically representative cross-section of personnel, it would still lose any case in which their interview process mirrored the one you stated. A "Shaniquas Need Not Apply" policy is going to be ruled improper discrimination. The judge's gavel would come down so fast on this case you'd hear 2 bangs; the one from the strike preceded by a sonic boom.

Every step of your hire/fire process has to be fair & non-discriminatory, and this isn't. I can't put it plainer than that.

As Wednesday's lecturer put it, ask yourself these questions when considering an employment policy:

1) how would a Judge see it?
2) how would a prosecuting attorney see it?
3) how would a jury see it?

Hint: you don't want a negative response for any of those questions.

From Lawyers.com:


Not interviewing based on names runs afoul of recruiting regulations.

First, no prosecutor worth a grain of salt is going to go after a business that hires all races equally and calls back all races equally. It's impossible to tell why Rhonda was called back instead of Shaniqua and prosecutors like to actually win cases. Second, no one named Shaniqua is going to make an allegation that a business didn't call her back over her name. She's going to make the allegation that it was her color. When an investigator sees that a business calls back all races equally and has all races represented equally, it's going to end there. Third, the press won't run the story and interviewing equally. Lastly, read the link below. There are many reasons why when interviewing races equally, some people of a given race won't be called back. The burden is on employee to prove that it was somehow the name, which is going to be nearly impossible to do.

http://www.americanbar.org/content/...law/meetings/2011/ac2011/033.authcheckdam.pdf

The complainant in a Title VII trial must carry the initial burden under the
statute of establishing a prima facie case of racial discrimination. This may
be done by showing (i) that he belongs to a racial minority; (ii) that he
applied and was qualified for a job for which the employer was seeking
applicants; (iii) that, despite his qualifications, he was rejected; and (iv)
that, after his rejection, the position remained open and the employer
continued to seek applicants from persons of complainant's qualifications.

Step 1 is by no means guaranteed, especially if I have other members of that minority that are qualified and hired.

The burden then must shift to the employer to articulate some legitimate,
nondiscriminatory reason for the employee's rejection.

If the defendant carries [its] burden of production, the presumption raised
by the prima facie case is rebutted, and the factual inquiry proceeds to a
new level of specificity. Placing this burden of production on the defendant
thus serves simultaneously to meet the plaintiff's prima facie case by
presenting a legitimate reason for the action and to frame the factual issue
with sufficient clarity so that the plaintiff will have a full and fair
opportunity to demonstrate pretext.

Step two is easy for the employer since there are many legitimate reasons why Shaniqua could be rejected.

In setting up this model, the Court articulated several methods of showing
pretext, including:

1. Instances in which persons outside the protected class were
treated better for offenses of comparable seriousness;
2. The manner in which the employee was treated by the
employer while employed;
3. The employer’s reaction to “legitimate civil rights activities”;
and
4. Statistics concerning the employer’s employment policy and
practice with respect to minority employment insofar as it
may suggest a general pattern of discrimination.

Numbers 2 and 3 flat out don't apply to what we're discussing. Number 1 is not going to fly since nobody outside the protected class are treated any better or worse. Number 4 isn't going to fly since the business hires and interviews the protected class equally with everyone else.

There aren't going to enough numbers of names I don't like from a given race not getting interviews vs. names I do like to establish a definitive pattern. Especially when there will be many other aspects of many of those applications that warrant refusal. Most of them probably aren't going to be both qualified and without errors in spelling, punctuation and grammar.

Ultimately, proof of pretext is “not limited to presenting evidence of a certain
type.” The evidentiary theories available to a plaintiff in an attempt to establish that an
employer’s stated reasons for taking adverse action are pretextual “may take a variety of
forms.” Patterson v. McLean Credit Union, 491 U.S. 164, 187 (1989). The burden of
proof, however, will always lie with the plaintiff. See Texas Dept. of Cmty. Affairs v.
Burdine, 450 U.S. at 253 (citing Board of Trustees of Keene State College v. Sweeney,
439 U.S. 24, 25, n. 2 (1978)). So, while an employer has the slight burden of articulating
some legitimate reason for an adverse employment action, the plaintiff bears the
ultimate burden of persuading the trier of fact that the reason is a mere pretext for
discrimination. Id. This is a burden that remains with the plaintiff throughout.

The burden is on the plaintiff, not the employer.

Without a smoking gun, it's going to be nearly impossible to prove that the lack of callbacks was directed at a particular race via names.

 

[Cor Azer]

I've known Max for a while. He has many black friends!

Yeah, I may have been more accusatory there than I intended, and I apologize for that.

I wasn't trying to imply anything about Maxperson, just that the argument was similar to the type I indicated, in that just because someone has or something done has some good qualities, it does not mean that they/it can't also have some bad qualities.

 

[Dannyalcatraz]

First, no prosecutor worth a grain of salt is going to go after a business that hires all races equally and calls back all races equally.

You're simply factually wrong on this. As noted, you can be scrutinized over your recruitment practices, even if you ultimately hire equally.

In November 2010, a Chicago janitorial services provider agreed to pay $3 million to approximately 550 rejected Black job applicants under a four-year consent decree, settling the EEOC's allegations of race and national origin discrimination in recruitment and hiring. The EEOC had alleged that the provider had recruited through media directed at Eastern European immigrants and Hispanics and hired people from those groups over African Americans, and that the provider's use of subjective decisionmaking had a disparate impact on African Americans. As part of the decree, the provider also agreed to extensive changes in its employment policies, to engage in "active recruitment" of African American employees, to hire previously rejected Black applicants, to implement training on discrimination and retaliation, and to hire an outside monitor to review compliance with the decree. EEOC v. Scrub Inc., No. 09 C 4228 (N.D. Ill. consent decree entered Nov. 9, 2010).

(Emphasis mine.)

Yes, Scrub, Inc.- by not hiring equally- violated more than one aspect of EEOC statutes...but most cases involve multiple kinds of violations.

It's impossible to tell why Rhonda was called back instead of Shaniqua and prosecutors like to actually win cases.

It is not at all impossible to prove. I just showed you how they would- after the initial allegation and lack of proof in your records, they'd take out legal notices of a pending lawsuit, looking for people to come forward and join.

Second, no one named Shaniqua is going to make an allegation that a business didn't call her back over her name. She's going to make the allegation that it was her color.

You clearly don't know many Shaniquas. If she AND Tanisha AND her buddy Vlad AND Kamakawiwo'ole get turned down without a callback, her first instinct is that you didn't call back because of her race.

And because all she sent in was her resume, she's going to think you did it because of her name.

Trust me: this is going to be the first assumption based on what she will tell the investigators & prosecutors.

When an investigator sees that a business calls back all races equally and has all races represented equally, it's going to end there.

In reality, if you are winnowing the applicant pool based on names you don't like, you aren't calling back all races equally.

Third, the press won't run the story and interviewing equally.

Have you never seen "Community Action Reporters" at work? If it doesn't pass the sniff test, they WILL ambush you in your parking lot with a mic & camera.

Lastly, read the link below. There are many reasons why when interviewing races equally, some people of a given race won't be called back. The burden is on employee to prove that it was somehow the name, which is going to be nearly impossible to do.

While there are many reasons why an applicant may not be called back, the pattern you keep describing will result in disparate impact, and proving that is not impossible at all.

Especially with all kinds of social science studies out there documenting that kind of disparate impact.

http://www.americanbar.org/content/...law/meetings/2011/ac2011/033.authcheckdam.pdf

The complainant in a Title VII trial must carry the initial burden under the
statute of establishing a prima facie case of racial discrimination. This may
be done by showing (i) that he belongs to a racial minority; (ii) that he
applied and was qualified for a job for which the employer was seeking
applicants; (iii) that, despite his qualifications, he was rejected; and (iv)
that, after his rejection, the position remained open and the employer
continued to seek applicants from persons of complainant's qualifications.

And as noted right after that, once the prima fact case has been made,

The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection.

And of course, the employer then gets a chance to prove they are not being discriminatory.

Step 1 is by no means guaranteed, especially if I have other members of that minority that are qualified and hired.

Simple English: if the investigation is about discrimination in your recruitment policies, it doesn't matter what your actual hiring practices are.

If you have four jobs that you fill with a white guy, a black woman, a gay Hispanic and a cross-gender Asian, that may look like a commitment to diversity...

Unless, for example, it is revealed that you interviewed 1000 white guys, 3 blacks, 2 Asians, and only that Hispanic.

Step two is easy for the employer since there are many legitimate reasons why Shaniqua could be rejected.

OMG, if you think it would be "easy" to explain why no Shaniquas, et alia get callbacks, your understanding of how courts look at "reasonable person" type standards is deeply flawed, again, especially in the context of repeated studies showing the prevalence of name-based discrimination.

And yes, those studies WILL get trotted out. Possibly all of them.

In setting up this model, the Court articulated several methods of showing
pretext, including:

1. Instances in which persons outside the protected class were
treated better for offenses of comparable seriousness;

And

4. Statistics concerning the employer’s employment policy and
practice with respect to minority employment insofar as it
may suggest a general pattern of discrimination.

BOOM! Your company has just taken a broadside shot below the waterline- people with "mainstream" names received a benefit that others did not, namely, an interview.

IOW, this analysis:

Number 1 is not going to fly since nobody outside the protected class are treated any better or worse. Number 4 isn't going to fly since the business hires and interviews the protected class equally with everyone else.

...is flawed.

Here are some guidelines from Iowa:

Adverse Impact
Another type of discrimination occurs when neutral conduct has an adverse impact on groups protected by law. An example would be when employers do not necessarily intend to exclude people of a particular race, sex, religion, color, age, national origin or disability, but they engage in practices that have the effect of doing so. Title VII and the IHRA prohibit employment procedures that have an adverse impact against members of a protected group. For example, requiring applicants to be at least 5’9" tall has an adverse effect against women, Asian Americans, and Hispanics who are generally shorter than white males. This means that a disproportionately higher percentage of applicants from these groups will be rejected from employment simply because they are too short. An employer engaged in this type of selection procedure is practicing discriminatory hiring practices, even if done unknowingly.

Such an employer is in violation of Equal Employment Opportunity (EEO) and IHRC laws unless the height requirement is a bona fide occupational qualification (which is discussed in the next section). The important lesson to learn from this example is that any selection procedure used by an employer must be carefully monitored for any adverse impact on applicants of a particular race, sex, religion, color, age, national origin or disability.

(Edit)

Having hiring standards that are not job-related will make your interview invalid.

(Edit)

For example, an employer may violate Title VII by rejecting job applicants because of their appearance or manner of speech if the applicant’s appearance and manner of speech is representative of a particular racial or ethnic group. The safest ground for an employer is to simply base all employment decisions upon the applicant’s qualifications and not on his or her appearance.

(All edits and emphasis mine.)

If the only "appearance" you can see is the name, you're on thin ice using that name as a basis for employment process decisions.

Here's more guidance from a HR-centric Employment Law resource site:

Legal issues in hiring
At every stage of the hiring process, employers must be careful not to illegally discriminate against applicants for the position. Since discrimination is prohibited on the basis of race, gender, national origin, age, religion, and disability – and by now most job applicants know that – any indication of bias in the hiring process might lead to serious legal repercussions.

http://blr-hrtopics.elasticbeanstalk.com/hiring-workers-employment-law-basics/#

There aren't going to enough numbers of names I don't like from a given race not getting interviews vs. names I do like to establish a definitive pattern. Especially when there will be many other aspects of many of those applications that warrant refusal. Most of them probably aren't going to be both qualified and without errors in spelling, punctuation and grammar.

EEOC investigators have a lot of skill in detecting sketchy employment practices. And the thing is, you don't have to be blatant- all it takes to lose one of these cases is detection of something that looks a bit off.

I'll fall back to the advice of the practicing Employment Law attorney I was getting a lecture from on Wednesday. Even in an employment at will jurisdiction, you want your processes to be immaculate.

If you cynically assume and then assert in court the defense that the applications with names you are biased against will contain simple spelling/punctuation/grammar errors, and this is sufficient to DQ the applicants, you can damn well bank on a request for all application process documents in your possession- including, but not limited to forms, resumes, etc. going back YEARS- for the prosecution to examine whether the same pattern exists in those who were granted interviews.

How much do you want to bet that they're going to be able to find enough documents with errors that were not rejected to bore the jury to tears with a litany of names?

And if you don't have said documents to support that position...well, the bald, unsupported assertion of the existence of such errors in those documents will probably just damn you as a blatant racist in the eyes of the trier of fact.

(All of this also assumes that your business insurance company wants to support your defense . Up if they just want to settle, you're a fool to continue fighting.)

Finally, regarding your pattern, I also wouldn't be surprised if the trier of fact found you liable if there were only one name on your list- a literal "No Shaniquas" only policy- if indeed the majority of Shaniquas denied were all of one ethnicity.

The burden is on the plaintiff, not the employer.

Without a smoking gun, it's going to be nearly impossible to prove that the lack of callbacks was directed at a particular race via names.

The initial burden is, yes, and it shifts back an forth through the trial.

But again, the studies about discrimination based on names WILL get before the trier of fact (judge or jury, depending).

While many cases the EEOC prosecutes have fact patterns that are truly egregious, they are not afraid to go after someone when only subtle patterns are immediately evident, or the harm alleged was actionable but de minimis.

I mean, the scary, high-profile cases hit awards in the millions, but I've seen awards as small as $7500.

 

[Maxperson]

Yes, Scrub, Inc.- by not hiring equally- violated more than one aspect of EEOC statutes...but most cases involve multiple kinds of violations.

Ahh, but part of what I am arguing is that I would be hiring equally, so that doesn't apply.

It is not at all impossible to prove. I just showed you how they would- after the initial allegation and lack of proof in your records, they'd take out legal notices of a pending lawsuit, looking for people to come forward and join.

So what. They had have some people complaining and that's it. What I would have is evidence showing very valid reasons for not calling those black people. In addition I would have evidence of not calling white people and hispanic people for valid reasons. Then to top it off, I'd be able to show evidence that I called black, white and hispanic people in for interviews and hired equal numbers of each. That beats the hell out of a few people with nothing but complaints.

You clearly don't know many Shaniquas. If she AND Tanisha AND her buddy Vlad AND Kamakawiwo'ole get turned down without a callback, her first instinct is that you didn't call back because of her race.

And because all she sent in was her resume, she's going to think you did it because of her name.

Trust me: this is going to be the first assumption based on what she will tell the investigators & prosecutors.

Okay. I'll concede that one. It still won't ultimately matter, though.

In reality, if you are winnowing the applicant pool based on names you don't like, you aren't calling back all races equally.

The first part is true. The second part of that is false. If I don't call 50 people of each race back based on name, and I do call a different 50 people of each race back based on name, all races were called back equally. Individuals were not called back equally, but races were.

Have you never seen "Community Action Reporters" at work? If it doesn't pass the sniff test, they WILL ambush you in your parking lot with a mic & camera.

I don't put much stock in what amounts to a tabloid.

If you have four jobs that you fill with a white guy, a black woman, a gay Hispanic and a cross-gender Asian, that may look like a commitment to diversity...

Unless, for example, it is revealed that you interviewed 1000 white guys, 3 blacks, 2 Asians, and only that Hispanic.

Wow. I discriminated the hell out of the white guys. 1000 interviewed and only 1 hired. Oof! Of course, in my arguments the races were called back and hired equally, so it wouldn't be like that.

OMG, if you think it would be "easy" to explain why no Shaniquas, et alia get callbacks, your understanding of how courts look at "reasonable person" type standards is deeply flawed, again, especially in the context of repeated studies showing the prevalence of name-based discrimination.

Lots of them would be disqualified from being called simply on spelling and grammar. If they can't get the one page resume right after having had weeks to months to work on it, they won't be able to get the job right. For the rest, all I'd have to do is show that there were other roughly equally qualified individuals that I did call back. That the great thing about qualifications. There's a lot of subjectivity to them. If I prefer one college over another, that's enough to warrant a callback for one applicant and not the other. Since I would be interviewing and hiring races equally, I wouldn't even have to show that the qualified applicants I did call back were of the same race.

Here are some guidelines from Iowa:

(All edits and emphasis mine.)

If the only "appearance" you can see is the name, you're on thin ice using that name as a basis for employment process decisions.

That's all fine and good, but I would be able to show valid reasons for each denial. I can also see qualifications, set up of the resume, grammar, spelling, and so on. There is lots to judge with a resume that doesn't include names. I would never call in and interview someone of any race who made spelling and/or grammatical errors in the resume.

If you cynically assume and then assert in court the defense that the applications with names you are biased against will contain simple spelling/punctuation/grammar errors, and this is sufficient to DQ the applicants, you can damn well bank on a request for all application process documents in your possession- including, but not limited to forms, resumes, etc. going back YEARS- for the prosecution to examine whether the same pattern exists in those who were granted interviews.

How much do you want to bet that they're going to be able to find enough documents with errors that were not rejected to bore the jury to tears with a litany of names?

Sure, but how much do you want to bet that I would be able to show about 100x as many applications from applicants of all races, that were rejected for those sorts of errors. Nobody is perfect, so I would undoubtedly miss some mistakes and call those people in, but the number I miss would be dwarfed by those I didn't, so it would be clear how I do things.

(All of this also assumes that your business insurance company wants to support your defense . Up if they just want to settle, you're a fool to continue fighting.)

That's an entirely different issue. If the insurance company wanted to settle, it could settle. I'd never admit guilt, though, would insist on records being sealed, and have a clause in there preventing the plaintiff from talking about things.

Finally, regarding your pattern, I also wouldn't be surprised if the trier of fact found you liable if there were only one name on your list- a literal "No Shaniquas" only policy- if indeed the majority of Shaniquas denied were all of one ethnicity.

I mean, the scary, high-profile cases hit awards in the millions, but I've seen awards as small as $7500.

Me, too.

 

[Dannyalcatraz]

Ahh, but part of what I am arguing is that I would be hiring equally, so that doesn't apply.

You clearly didn't understand: I cited a case in which the company found guilty was investigated and found guilty of 2 different things, and got hammered. I was acknowledging the fact of the dual investigation.

But the thing is, the hiring and recruitment investigations are discrete. One does not affect the other. You don't need both- being guilty of either is sufficient to merit conviction.

IOW, the fact that you are hiring equally does not in any way absolve you of your duty to recruit equally, nor mitigate penalties for verdicts of illegal recruitment practices.

So what. They had have some people complaining and that's it. What I would have is evidence showing very valid reasons for not calling those black people. In addition I would have evidence of not calling white people and hispanic people for valid reasons. Then to top it off, I'd be able to show evidence that I called black, white and hispanic people in for interviews and hired equal numbers of each. That beats the hell out of a few people with nothing but complaints.

The counter evidence of ethnic names being used as a primary winnowing device is not so easily dismissed, and is still impermissible. Even if you do prove you called back equal numbers, you're still using a sorting method unrelated to job qualifications that has a disperate impact on protected classes.

The first part is true. The second part of that is false. If I don't call 50 people of each race back based on name, and I do call a different 50 people of each race back based on name, all races were called back equally. Individuals were not called back equally, but races were.

That might mitigate the size of the penalty, but it won't eliminate it.

Wow. I discriminated the hell out of the white guys. 1000 interviewed and only 1 hired. Oof! Of course, in my arguments the races were called back and hired equally, so it wouldn't be like that.

It was just an example to illustrate that equal or even seemingly progressive hiring practices will not immunize you against liability for discriminatory interviewing prices. 'Cause it doesn't.

Lots of them would be disqualified from being called simply on spelling and grammar. If they can't get the one page resume right after having had weeks to months to work on it, they won't be able to get the job right. For the rest, all I'd have to do is show that there were other roughly equally qualified individuals that I did call back. That the great thing about qualifications. There's a lot of subjectivity to them. If I prefer one college over another, that's enough to warrant a callback for one applicant and not the other. Since I would be interviewing and hiring races equally, I wouldn't even have to show that the qualified applicants I did call back were of the same race.

Again with the grammar as a primary winnowing tool? Besides it being a rather trivial primary (as opposed to post-interview) winnowing standard, it also isn't necessarily a bona fide occupational qualification (BFOQ).

(It may also open you up for scrutiny under the ADA for being discriminatory against dyslexic applicants.)

The investigators will be looking through the demanded documents looking for resumes and documents of applicants who got callbacks or jobs that have typos & other errors that you claim to have used as a winnowing tool as opposed to the allegation of name-based ethnic discrimination.

What are the statistical odds that you were actually 100% perfect in culling all applications & other intake forms with typos, etc. that were submitted to you over a period of years?

That's all fine and good, but I would be able to show valid reasons for each denial. I can also see qualifications, set up of the resume, grammar, spelling, and so on. There is lots to judge with a resume that doesn't include names. I would never call in and interview someone of any race who made spelling and/or grammatical errors in the resume.

Formatting, grammar...that's a weaksauce defense to allegations of employment discrimination.

And "I would never..." Is awfully hard to back up. It is very hard to be perfect.

Sure, but how much do you want to bet that I would be able to show about 100x as many applications from applicants of all races, that were rejected for those sorts of errors. Nobody is perfect, so I would undoubtedly miss some mistakes and call those people in, but the number I miss would be dwarfed by those I didn't, so it would be clear how I do things.

But the damage will have been done: your criterion of grammatical errors will be shown to be imperfectly applied, with any actual hires showing that it was ungrounded in BFOQs.

What does that leave? The names.

That's an entirely different issue. If the insurance company wanted to settle, it could settle. I'd never admit guilt, though, would insist on records being sealed, and have a clause in there preventing the plaintiff from talking about things.

It IS a separate issue, but you're missing my point here.

If your InsCo decides it wants to settle, that means you're going into ADR (Alternative Dispute Resolution), which IS one of my fields.

While it is true that purely financial settlements could very likely be structured the way you describe, not all settlements are.

Sometimes- many times, in fact- the party claiming the harm in employment cases feel that they haven't just been harmed financially, but have been personally victimized. And one of the typical top-priority demands in such cases is a public admission of & apology for the wrongdoing, often partnered with concrete steps to prevent future occurrences of the harm they suffered. If this happens, that means they're going to negotiate hard to get that concession from you.

Now you're in a dilemma: settle and admit the problem and don't do it anymore, or proceed with the litigation.

But, if as I was stating, your InsCo wants to settle, the decision against settling and to proceed with litigation against their advice typically means that they will then consider you in violation of your liability policy.

That means:

1) they won't be representing you in the case, so you'll need a new lawyer.
2) the insurance policy will not be applied to any judgements levied against you
3) you may be exposed to PERSONAL liability. IOW, if you can't satisfy the judgement out of corporate assets, they may be able to seek satisfaction of the judgement by taking your personal property- bank accounts, cars, houses, jewelry, etc.

 

[Umbran]

Ahh, but part of what I am arguing is that I would be hiring equally, so that doesn't apply.

But that's pretty hypothetical. How can you *prove* you "would be" hiring equally?

Do you already have a specific list of names, and can prove that they are equally distributed across all races and nationalities or something?

Mind you, even that doesn't actually save you, because frequency of name distribution will still hit you. If you dislike "Shanequa" and "Gilbert", and there's more Shanequas in the world than Gilberts, the effect still lands more heavily on the African American community.

But, all legality aside, I maintain that failing to investigate a qualified candidate based on their name is dumb, from a "get the best resources for your business" standpoint. Their name is not an indication of their skill, ability, or how well they would perform, and so should not be part of a hiring decision.

 

[Maxperson]

The counter evidence of ethnic names being used as a primary winnowing device is not so easily dismissed, and is still impermissible. Even if you do prove you called back equal numbers, you're still using a sorting method unrelated to job qualifications that has a disperate impact on protected classes.

It has to get past the the very, very reasonable and valid other reasons for not calling those people back.

Again with the grammar as a primary winnowing tool? Besides it being a rather trivial primary (as opposed to post-interview) winnowing standard, it also isn't necessarily a bona fide occupational qualification (BFOQ).

(It may also open you up for scrutiny under the ADA for being discriminatory against dyslexic applicants.)

So companies have to call back every single applicant for interviews because they might have some sort of disability which prevented something on the application? They're no longer allowed to insist on a college education, because an applicant might have had Down's Syndrome and been unable to go farther than high school. Clearly that's not that case. I don't have to assume that someone who has a screwed up application might have Dylexia. If someone with Dyslexia doesn't have someone without it helping the on the resume, that demonstrates poor judgement, something else generally not wanted in a company.

The investigators will be looking through the demanded documents looking for resumes and documents of applicants who got callbacks or jobs that have typos & other errors that you claim to have used as a winnowing tool as opposed to the allegation of name-based ethnic discrimination.

What are the statistical odds that you were actually 100% perfect in culling all applications & other intake forms with typos, etc. that were submitted to you over a period of years?

I don't need to be 100% perfect. If I can show overwhelming evidence that I do in fact use those tools, all that those relatively very few resumes show is that I'm not perfect. Sure the investigator will be able to show a small number of mistakes on my part, but I will be able to show so many more that were not called back for those reasons that my intent will by crystal clear.

But the damage will have been done: your criterion of grammatical errors will be shown to be imperfectly applied, with any actual hires showing that it was ungrounded in BFOQs.

What does that leave? The names.

No. Imperfection does not invalidate my methods. It just shows that I'm human, something every person on the jury can understand. I doubt there's a single person who alive who has never had some method for doing something and who also also never made some mistakes in execution.

If your InsCo decides it wants to settle, that means you're going into ADR (Alternative Dispute Resolution), which IS one of my fields.

While it is true that purely financial settlements could very likely be structured the way you describe, not all settlements are.

Sometimes- many times, in fact- the party claiming the harm in employment cases feel that they haven't just been harmed financially, but have been personally victimized. And one of the typical top-priority demands in such cases is a public admission of & apology for the wrongdoing, often partnered with concrete steps to prevent future occurrences of the harm they suffered. If this happens, that means they're going to negotiate hard to get that concession from you.

I don't admit wrongdoing for things I don't do wrong.

But, if as I was stating, your InsCo wants to settle, the decision against settling and to proceed with litigation against their advice typically means that they will then consider you in violation of your liability policy.

That means:

1) they won't be representing you in the case, so you'll need a new lawyer.
2) the insurance policy will not be applied to any judgements levied against you
3) you may be exposed to PERSONAL liability. IOW, if you can't satisfy the judgement out of corporate assets, they may be able to seek satisfaction of the judgement by taking your personal property- bank accounts, cars, houses, jewelry, etc.

I really doubt that refusing to admit wrongdoing to something I didn't do wrong would allow the insurance company to abandon me. Forcing someone to admit wrongdoing when they did nothing wrong is inherently unfair and sounds very much like bad faith on the part of the insurance company since it is obligated to defend me completely and an attempt to force me to admit to something I didn't do isn't defending me. Besides, I'm not refusing to settle. I'm refusing to admit wrongdoing which is different. I'm still open to settling.

 

[Dannyalcatraz]

I'll break this out separately:

I really doubt that refusing to admit wrongdoing to something I didn't do wrong would allow the insurance company to abandon me. Forcing someone to admit wrongdoing when they did nothing wrong is inherently unfair and sounds very much like bad faith on the part of the insurance company since it is obligated to defend me completely and an attempt to force me to admit to something I didn't do isn't defending me. Besides, I'm not refusing to settle. I'm refusing to admit wrongdoing which is different. I'm still open to settling.

That isn't what I'm saying. I know it sounds like semantics, but they're not dropping you because you are refusing to admit wrongdoing. They are dropping you because you are refusing to accept the settlement negotiated for by the counsel they provided by contract. IOW, they have done their job. The fact that the REASON for your rejection of the settlement is your desire to not admit wrongdoing (whether you are correct or not) is immaterial as long as they have represented you to the best of their ability.

And it's 100% legal. In fact, it's a pretty standard clause in liability insurance contracts.

So, if the main major demand of the other party in a settlement negotiation is that you publicly admit and apologize, you will have a devil of a time getting a settlement agreement offer that doesn't include that.

If it is the case that all the offers include such a condition, and the InsCo agrees and wants to settle, as their client you then have a decision to make- approve the settlement with the term you dislike or return to the court action. If you reject the settlement, they no longer have to represent you in this case.

Even if you actually did nothing wrong. Seen it more than once.

 

[Kramodlog]

Yeah, I may have been more accusatory there than I intended, and I apologize for that.

I wasn't trying to imply anything about Maxperson, just that the argument was similar to the type I indicated, in that just because someone has or something done has some good qualities, it does not mean that they/it can't also have some bad qualities.

You must have misunderstood me. I was agreeing with you when you said it was similar to the type of argument you were indicating. He actually said it a few times. Like I said, I've known him for a while on the WotC forums. Your instincts are right.

 

[Dannyalcatraz]

It has to get past the the very, very reasonable and valid other reasons for not calling those people back.

You haven't provided one yet.

So companies have to call back every single applicant for interviews because they might have some sort of disability which prevented something on the application? They're no longer allowed to insist on a college education, because an applicant might have had Down's Syndrome and been unable to go farther than high school. Clearly that's not that case. I don't have to assume that someone who has a screwed up application might have Dylexia. If someone with Dyslexia doesn't have someone without it helping the on the resume, that demonstrates poor judgement, something else generally not wanted in a company.

No.

But using grammar/spelling errors as a primary winnowing tool for jobs that don't require excellence in those areas- IOW, not journalism, editing, PR, etc. type jobs- DOES expose you to ADR claims by dyslexics because it isn't a BFOQ.

And your assumption that it displays a lack of judgement is flawed- there are many reasons why someone may not have help besides "lack of judgement". They may not have known they were dyslexic, for one. (I have 2 dyslexic cousins- the younger of whom wasn't diagnosed until he was in his late 20s.)

I don't need to be 100% perfect. If I can show overwhelming evidence that I do in fact use those tools, all that those relatively very few resumes show is that I'm not perfect. Sure the investigator will be able to show a small number of mistakes on my part, but I will be able to show so many more that were not called back for those reasons that my intent will by crystal clear.

That the rejected applications all have ethnic names and the accepted ones don't, despite having similar errors, will damn you.

No. Imperfection does not invalidate my methods. It just shows that I'm human, something every person on the jury can understand. I doubt there's a single person who alive who has never had some method for doing something and who also also never made some mistakes in execution.

Which is it: "I would never call in and interview someone of any race who made spelling and/or grammatical errors in the resume." or the above statement?

Both can't be true.