Save yourself lots of trouble by posting all open positions and telling employees exactly how to apply.
When jobs aren’t posted and a member of a protected class misses out on a job opportunity, he or she can argue that the employer purposely hid the opening in order to exclude some individuals. If there’s a lawsuit, the employee just has to show someone inknew he’d be interested in the opportunity.
But when jobs are posted, an employee who doesn’t apply has to show that it would have been futile to even try. That’s virtually impossible to prove unless the employer has a long history of discrimination.
Recent case: Keith Davis, who is black, worked for Waste Management. He claimed his supervisor knew he was interested in advancing his career.
When the company had a promotion opportunity, it posted the job for all employees to see. The posting specified that only those who officially applied would be considered. The announcement gave an application deadline. Davis didn’t apply.
Instead, he sued, alleging it would have been pointless to apply. Davis couldn’t explain exactly why he felt that way and didn’t point to any company practices that excluded black men from certain jobs.
The court tossed out the case. It reasoned that this was not one of the rare cases where employees can sue over promotion opportunities they didn’t apply for. Instead, it was clear to the court that Davis simply hadn’t followed directions and didn’t bother to apply. (Williams, et al., v. Waste Management, et al., No. 10-13121, 11th Cir., 2011)
Final note: Make sure employees know where jobs will be posted. If all employees have e-mail access, consider sending an all-staff e-mail.