Employees who don’t apply for a job or promotion generally can’t sue over the lost opportunity. On the other hand, if promotions are never announced and there’s no process to apply, employees and applicants can sue.
That’s why it is crucial to have some sort of application process in place that allows you to track applications and prove who applied—and by default, who did not.
Recent case: Lisa Bell, who is black, worked for a food service company. When a supervisor was hurt in an accident, the company asked interested employees to apply for a temporary promotion. It posted a sign-up sheet on the bulletin board. Bell never put her name on the sheet, but sued when a Hispanic co-worker got the promotion.
The court tossed out the case, reasoning that Bell never applied. (Bell v. Son’s Quality Food, No. 7:10-CV-165, ED NC, 2011)