If applicants believe an employer discriminates, they may be reluctant to even apply for a job, thinking it’s inevitable they will be passed over. That doesn’t mean they’ll hesitate to go ahead and sue anyway.
However, smart employers that let everyone know what jobs are open and how to apply will probably win those cases. That’s because courts won’t entertain lawsuits over missed hiring or promotions if the applicant or employee didn’t bother applying.
Recent case: Willa Bellard, who is over age 40, worked as a nurse for a health care facility. She was part of a team that included a doctor, scheduler, medical assistant and nurse.
When the doctor on her team moved, the facility concluded it should eliminate the team. It then informed the remaining team members, including Bellard, that they should apply for open positions or face potential discharge. Bellard didn’t bother, and she ended up unemployed.
She sued, alleging that the facility had filled a job she was qualified for with a younger employee.
But once the health care company explained its promotion and hiring process—and produced records showing that Bellard received written notice, but didn’t apply—the judge dismissed Bellard’s case. He reasoned that if she didn’t apply when she learned that was the process for getting another position, she had no one to blame but herself. Certainly, her age had nothing to do with her eventual termination. (Bellard v. JPS Network, No. 4:09-CV-693, ND TX, 2011)
Final note: Let all employees know exactly where job opportunities will be posted. Remind them from time to time by, for example, inserting a note in paycheck envelopes or via a companywide e-mail. Then make it easy for them to apply. If some of your employees don’t have access to your intranet, set up convenient kiosks for applications.
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- Asking applicants about prior lawsuits is asking for trouble