Here’s one of the simplest ways to avoid failure-to-hire litigation: Adopt a uniform system for posting openings—and then stick with that system.
If you do, employees won’t be able to claim later that they didn’t know about an opening and would have applied if only they knew.
Plus, transparency protects you against claims you were trying to dissuade certain individuals—who happen to belong to a protected class—from applying.
Recent case: Dallas hospital employee Mariah Scott met the minimum qualifications to be promoted to director of contracts. However, she never applied for the open position.
That still didn’t stop her from suing when a white male was selected. She claimed she didn’t know about the position and therefore didn’t apply.
But the court tossed out her case. Reason: The hospital had a policy to clearly post all openings in the Employment Services Office for at least three days. In this case, the job was posted and appeared online. (Scott v. Dallas County Hospital District, No. 3:08-CV-600, ND TX, 2009)
Final notes: Develop a specific policy for announcing all job openings and follow it every time. Provide at least two ways for employees to check job opportunities—such as on a central bulletin board and also on the company intranet. Then make sure employees know where to look.
Make sure postings are accessible to people with disabilities. Finally, make sure employees understand the application process—and that they must apply to be considered.
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