The Jewish Ethicist: Hiring Miring
How fair does fair consideration have to be?
Q. Last week you wrote that it is improper to advertise a position if you have already decided on the person to fill the job and have no intention whatsoever of hiring other applicants. What about government requirements that require advertising a job?
A. Last week we discussed a Talmudic passage which forbids gratuitous shopping, when it wastes the time of the seller and exploits his desire to make a sale. The mishna states:
Just as there is exploitation in commerce, so is there exploitation in speech. Don't say to [the seller], "how much does that item cost?" when you don't want to buy. (1)
The subsequent Talmudic passage adds:
Rabbi Yehuda says, Also don't set your eye on a deal when you don't have any money. (2)
The conclusion: if you advertise a position, you are obligated to give serious consideration to all applicants, in order to give them the fair chance they are promised when the position is advertised.
The column generated an unusual degree of reader mail. Most people asked the question above: What about the many cases where soliciting applicants is a requirement? The implicit question is: Should these regulations be changed, or perhaps flouted?
Some asked the opposite question. They complained about workplaces where hires are made by fiat, without giving even minimal consideration to other applicants.
Regarding the first question, it is important to note that the conclusion of the column was not that soliciting applicants when you have a hire in mind is improper. Rather, other applicants deserve to have their applications given serious consideration. That is exactly what the government regulations require. In the case of hires where government aid is given or some kind of government permit is required, the government sees a valid public interest in providing equitable opportunity for jobs. The meaning of the requirement is not merely to advertise the position but also and primarily to give due consideration to all applicants. This is no different than the requirement that multiple bids be solicited for government contracts in order to prevent favoritism (giving the contract to someone you know) and laziness (taking the first supplier who comes along).
This also gives the answer to the second question. Soliciting applicants is not an unfair practice; on the contrary, in many cases it is the fairest practice. But the solicitation has to be sincere.
One way to maximize the effectiveness of the application process and minimize wasted effort on the part of the employer and interviewees alike is to make the original advertisement as transparent as possible. The object is to select specifically the people who truly have a reasonable chance of being the best person for the job. There are various ways of doing this. One is to be as specific as possible regarding the qualifications being sought, so as not to waste the time of over- or under-qualified applicants. Another is to specify if the ad itself results from some policy or regulation. For instance, the ad could mention that it is being publicized in accordance with regulation so-and-so, or "ABC corporation's policy is to open new positions to all qualified applicants." This can tip off people whose time is valuable that there may be a preferred applicants waiting in the wings.
Obviously there are other and competing considerations at work, including the desire to be discreet about the nature of job openings and to save money in ads, which are billed by the word. But to the extent they are practical these measures can save time and aggravation for all concerned.
Opening up new positions for general consideration, even when a qualified applicant is known, can be a fair and effective way of guaranteeing the best hire and avoiding favoritism and laziness, or it can be a colossal waste of time for employer and applicants alike. One way to tip the scale is in the right direction is to advertise the position in the most informative way practical. Above all, once applications are submitted it is necessary to give fair consideration to each one.
SOURCES: (1) Mishna Bava Metzia 4:10 (2) Babylonian Talmud Bava Metzia 58b