Unfortunately, the accidental liability problem needs to be taken seriously -- mostly because of risk/reward. I try to write as nice and appreciative letter as possible.

1. I don't reject candidates -- I choose a different candidate.

2. The more they went through the process, the longer (and better) the letter. Rejected application, short thank you for applying. If you came for two interviews, but then we went with someone else -- I write a longer letter with references to the meetings.

3. Good candidates that we didn't hire (because another was better) are invited into my personal network. I recommend them to others, I invite them to dev events, etc. I give non-specific-to-our-interview job hunting advice. We'll have openings at some point.

4. I do the same for candidates that are just not a fit (they do X, we need Y). I might never hire them, but I have a personal goal to know every good developer within commute distance of my company (we live in a low population area).

I think 3 is a really great idea. Do you find that, in doing so, you get additional benefits yourself? I imagine you've already got places to look for new hires ect.

Absolutely. All of the benefits you'd get from knowing smart people. The biggest benefit has been recommending them to others.

Your approach sounds great!

If candidates know this is how you conduct the interview process, it seems very positive and always keeps the door open.

Avoiding a lawsuit is as easy as not citing illegal reasons for not hiring someone. E.g. “You’re a woman,” “you’re Indian,” “we’re uncertain how your disability will effect our workplace,” or “you’re too old.” (Or their codeword equivalents.) I think the author is just being civil and I commend him for it.

Point well made. Here is how I would weave in the legal concerns.

Back in the days of unrestrained freedom of association, employers could afford to be direct about their reasons for hiring decisions. A rejection (or any other employment-related decision) could be based on race, sex, age, ethnicity, disability, or even just disliking someone for no good reason. This changed with the federal Civil Rights Act of 1964, which made it illegal to make employment decisions based on any one of several prohibited bases, including race and sex. The effect of that Act and its progeny throughout the United States was to curtail freedom of association by declaring that public policy made it repugnant to allow individuals to engage in invidious discrimination against discrete and insular minorities who needed special protection to prevent their being abused. While this curtailed a form of unrestricted freedom that had theretofore prevailed in society, only a very few opposed it or saw it as anything other than a great social advancement.

Once the law began to govern such relations, however, formality inevitably took hold and never let go. Without formality, (a) people could say the wrong things, (b) people could say innocent things that could be twisted into seemingly wrong things, (c) people (following casual exchanges) could make things up about what was said, even if employer representatives had in fact acquitted themselves properly, (d) people could compile statistics and find discrimination in any form of pattern or practice used by an employer even in the absence of overt discriminatory intent by the employer's agents, making it perilous to document explicit reasons too explicitly as a matter of routine practice (e) and people could do wrong things in spite of company policies to the contrary and against the wishes of company management just because, people being people, they can do unpredictable things.

In addition to discrimination, the law expanded to further curtail the grounds upon which an employer could choose not to associate with any prospective employee. If an employer adopted policies that were deemed "against public policy" for any reason, or if an employer permitted its employees to sexually harass others, or to retaliate against a person who had complained of company wrongdoing, liability lay in wait for the unsuspecting employer.

Now take all this and throw it into a mix that depends on a standard of proof that something was "more likely than not" to have occurred, and leave it to a jury to weigh conflicting testimony and other evidence - a jury that may well have it out for big company defendants - and you are left with an existential mess for any employers who don't immediately and completely take serious control over employment procedures in their company. Throw in liability exposure arising out of class action as a vehicle for redress (also new to the mix since the 1960s), and you liability risks become paramount over all else. And so everything gets assigned over to HR, leaving it entirely impersonal and sanitized: all in writing, all vague or non-committal, all positively de-humanizing.

But what is a modern employer to do? Or at least a big company employer that cannot rely on the discretion of many hundreds or even thousands of individuals to know all the rules, to apply them consistently and correctly, and to avoid being set up legally by some who would attempt to ensnare them?

Society has gained greatly from its laws against invidious discrimination but such laws have come at a cost, and the cost is precisely that identified by the author of this piece. People no longer can just be themselves in relating to one another in many parts of the workplace but need instead to be hyper-cautious and impersonal. Whatever good may have come from the positive side of these laws (and this has been considerable), this is a real price to pay on the downside.

Fortunately, in most small company situations, people can afford to exercise much more discretion than they can in large corporations. I think this is where the author is coming from and I too commend him for it. Directness and transparency are outstanding qualities. If the situation is small and controlled, and the people involved have the wits and discretion to avoid obvious legal wrongs and traps, there is much to be gained in building the sort of goodwill that you do by treating people decently even as you might be rejecting them as part of the interview process.

No. All you have to do is interview someone in a protected hiring class, and then say something in the rejection that contradicts or is in any way inconsistent with anything you have said or the candidate can claim you have said. Litigious candidates don't have to play to win the lawsuit, either; they can play to settle.

Litigious candidates can sue regardless of what you do. I refuse to let shysters, either opposing or my own counsel, determine how I interact with people.

You're a braver man than I!

Sure, those reasons are pretty obvious. If you want to familiarize yourself with the main reasons, check out the Equal Employment Opportunity Commission's Q&A/FAQ page at http://www.eeoc.gov/facts/qanda.html

If you haven't read it, I really recommend spending a few minutes reading it. It doesn't just apply to the hiring process and there are cases for drug use, religious accommodations, acting on genetic information (really), etc.

I can certainly understand why people would prefer to send a generic rejection letter rather than list reasons, any of which may or may not trigger some clause in one of the relevant laws.

Thanks for the link. That was helpful.

A good lawyer can twist almost anything into an illegal reason.

Is there a way I can just waive my ability to sue? I would love to know my weaknesses in the eyes of others.

Not likely. Consider an extreme example where they admit they didn't hire you because you are black. They broke the law and cannot be protected.

In other words, your signature does not provide a lot of legal security

Reversed: Is signing an NDA which blocks your free speech valid?

NDAs are contracts between private entities. Freedom of speech is a protection against the government.

Because the default tends to be to say nothing, frequently if you just ask directly for feedback may get it. Its a bit of a back door to the policy.

When I worked for "MegaCorp" we didn't give any feedback voluntarily but if a candidate asked me directly I would let them know. I frequently hired junior engineers* and felt almost a responsibility to give them some input, particularly if their issue was technical. If they were just an ass, I'd likely stick to the company line and not say anything.

* I found most senior engineers are pretty well aware of their deficiencies and almost never would ask for feedback.

> Is there a way I can just waive my ability to sue? I would love to know my weaknesses in the eyes of others.

If you could (and it was binding), HR departments would try to require such waivers.

Indeed, no good deed goes unpunished these days.

This is indeed true, and I'll never fault anyone for it. Though rarely have I encountered a rejection in which I didn't feel the same way -- actually, if I have a sense that something is amiss I prod around for it rather deliberately to see what sort of answers I can get out of folks. Sometimes you get the obvious red flags you were looking for, complete with obvious body language and visible frustration.

Recently I quit my job and put myself out there again. One company employs headhunters and has a very well-known developer in their employ. So at the time I was pretty chuffed to line up an interview, figuring I had no risk of "slamming into the ceiling" at all. I already had two offers in front of me, but I figured it was worth pursuing.

The best way I could describe the interview is if you were walking about as a child and saw an action movie hero that your admired -- and watched him punch out a six year old that happened to be in his way. Before he interviewed me the group manager asked what blogs I read, and I rifled them off with my thoughts on them. One I had mentioned that I didn't read, but that I was aware that he was attempting to make a name for himself by making more complex topics accessible to Joe average. Before the manager left he sternly warned me that if I were to mention that name in front of this individual, the interview would end immediately.

The fellow himself was abrupt, intimidating, and rather smug. I've interviewed hundreds of people, so I can sympathize to an extent regarding the monotony of asking the same questions over and over, but I was able to gauge from other team members that he simply wasn't having a bad day, but that's how he is to folks outside of his circle.

The recruiter had me come back in person to say that I was considered brilliant technically, but they would pass. She couldn't figure out why, so I mentioned that he gave pretty clear feedback on twitter, and it's not the first time he's done it. I pulled out my phone to prove it.

The recruiter was a superbly nice person, the type that worries about and tries to take care of everyone. She was shocked to the verge of tears -- an opportunity she sells as manna from heaven, and those were the kinds of comments he'd pass on to thousands of people as opposed to delivering directly to the individual. I didn't consider his criticism harsh, as it was valid to pass on someone who wasn't a very assertive and confident Type A personality when your organization has invested decades in building up that specific culture. Not to mention it's difficult to seem eager when considering the prospect of working with an outright bully. She was upset enough that she had to leave the room, and the account manager and I spent the next hour dissecting the organization's culture.

I think that's the only time I can ever really consider a rejection to not be kosher. Fortunately, the universe has a way of balancing these things out. His group is now one of my clients. I can't wait to see the look on his face when I pop into the room.

A very interesting and useful post. It sounds like this guy wanted to keep some sort of reputation since he was so famous.

But it was confusing to read because it took me a long time and a lot of puzzling to figure out all the antecedents. It might be more accessible if you made up names for people instead of saying "this individual" and so on. Also, I would be interested in quotes or paraphrases from this guy's Twitter comments about you - do you remember any of them?

I wanted to simply bring up the story for anecdotal purposes, not publicly out someone. Everyone else I work with is an non-fan of the behavior, but this week I said that we should stop slamming his actions and instead try to find a way to get the message across in a positive way so he can be a better person and have impact without having to intimidate everyone.

I hope that eventually he'll learn that sort of behavior is counterproductive and simply not kosher. He's brilliant, just needs to go about sharing his knowledge in a more constructive manner. He'd benefit greatly in the long run.

The bargain being made here though is reduced liability in exchange for missing out on a chance to make a really positive impression with someone who has had a pretty serious and beyond-the-surface experience with your company. I think this is the primary point the blog author is trying to make.

That's a reason why it is better to tell the candidate on the phone instead of in writing.