Under limited circumstances, a job applicant might be able to win a discrimination lawsuit without actually applying for a job. For example, someone could conceivably prove that it would have been be futile to even bother filling out an application.
Fortunately, such cases are rare.
Recent case: Two years after Giovanni Pelaez was released from prison, he sought a position as an independent contractor selling Life Alert alarm devices to senior citizens. He learned that the company planned to conduct background checks on all contractors and ask applicants to reveal any crimes committed in the past seven years. Technically, Pelaez’s crime was older, but he asked someone at Life Alert if having any criminal history would prevent hiring. He claims he was told that was the case.
That’s when Pelaez decided to sue, alleging the company was discriminating against all applicants with criminal records.
Life Alert argued that since he walked out without giving it a chance to review his criminal record or explain why he should still be hired, he couldn’t sue. It said that, in effect, he never applied.
The court agreed after distinguishing this case from one where it would be futile to apply. It dismissed Pelaez’s case without having to decide whether a ban on applicants with criminal records was legal. (Pelaez v. Life Alert, No. 09-CV-1668, ED NY, 2011)
Final note: The court also said it would likely have held that the company’s ban on ex-cons was valid, given the job involved door-to-door sales.