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Avoiding Employment Litigation Can Be as Simple as a Job Posting

Old School Communications Still Important in Today’s Workplace.

Posting job openings and writing job descriptions may seem awfully old school but they can save some problems in communications and legal compliance. From a common sense perspective, they ensure that employees know what their job duties are, supervisors know what their subordinates’ qualifications and responsibilities are, and applicants know what a position they may be interested in requires.

However, job descriptions take effort to put together and keep up-to-date. The point person has to collect information from employees themselves, their supervisors, and possibly additional sources to have enough detail to draft an accurate description of the qualifications and primary duties of any single position. This same process should be undertaken each time the job description is updated. In the day-to-day of operations, it may be tempting to save that effort and time to focus on more immediate issues and use generic job descriptions, or not provide job descriptions at all.

Case law continues to show us that an accurate and current job description can pay for itself many times over when an employer faces employment-related litigation.

For example, in October of last year, the giant discount-retailer Target was unable to secure dismissal of an age- and race-discrimination lawsuit because, in part, it did not use job descriptions for the positions at issue. Brown v. Target Inc., No. 14-cv-0950, 2015 WL 6163609 (D. Md. Oct. 16, 2015). Target argued that the plaintiff’s allegations were too vague and conclusory to support a race- or age-discrimination claim where the plaintiff only alleged that she was “clearly more qualified,” had more experience, and had better performance and attendance records than the individuals selected for the promotions the plaintiff did not receive. The court disagreed with Target, holding that if the employer neglected to post job openings, the plaintiff did not need to specify how she was qualified for the positions at issue or more qualified than the people selected for those positions in order to state a claim.

As a result, instead of extricating itself near the complaint’s nascent stages, Target has had to proceed into costly discovery, which, under the court’s scheduling order, is slated to last well into the spring of 2016.  To date, there is no indication that the parties have settled the lawsuit.

Brown v. Target provides yet another reminder to invest in accurate and up-to-date job descriptions.  Job descriptions should be made available with all job postings, whether the postings are made in hardcopy on a cork bulletin board by a non-virtual water cooler or on a company’s intranet, through internal e-mail circulation, or on an online job search site.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.