Discrimination And "Do Not Hire" Lists

Written exclusively for My Community Workplace for Government

The U.S. Forest Service agreed to a settlement in a retaliation lawsuit filed by a former seasonal firefighter.

In the case, the plaintiff accused the employer of placing him on a "do not hire" list in retaliation for posting on social media his concerns about the employer's inadequate Covid-19 protection policies, which he says risked the health of his son.

After an administrative judge ruled the plaintiff could proceed with his claim, the employer reached a settlement with the former firefighter. They agreed to pay the plaintiff $115,000; to offer him his same position; and to remove him from any "do not hire" lists. Michele Chandler "Former California firefighter settles whistleblower lawsuit against US Forest Service" www.redding.com (Apr. 25, 2022).

Commentary and Checklist

A “do not hire” list is a denial of employment opportunity, and a decision to place an individual on such a list must be based on nondiscriminatory reasoning.

Examine all related employment risks before choosing not to rehire. Considering only objective and valid reasons for placing an individual on a “do not hire” list is a best practice and will help you avoid employment litigation. For example, a former employee who violated a confidentiality agreement and failed to protect sensitive, proprietary information might be placed on a “do not hire” list.

Here are some further suggestions to help avoid liability risk when deciding to deny employment opportunities:

  • Make certain that you have a management consensus that denying employment to an individual is in the best interest of the organization and is legally motivated.?
  • Carefully document the reasons for a denial.
  • Always have an attorney review the reasons for denying employment and discuss the potential risks involved if you do proceed.
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