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Applicant can sue only if there’s a true job opening

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in Discrimination and Harassment,Employment Law,Human Resources,Leaders & Managers,Team Building

Do you worry you may be courting a discrimination lawsuit when you turn away an applicant or toss an unsolicited résumé in the trash?

Rest assured that turning away applicants when you don’t have an opening isn’t likely to get you in trouble. Courts have followed the common-sense standard that applicants can sue only if they’re applying for a true job opening.

Recent case: Mike Adams worked as a school teacher and athletic coach until his contract wasn’t renewed because of complaints about his coaching skills. He sued and the school district settled the case.

Meanwhile, one of the other coaches couldn’t complete a year so the school district brought in volunteer coaches from another school to help temporarily. That’s when Adams submitted an application. When he wasn’t hired, he sued alleging retaliation because of his prior lawsuit. A jury sided with him.

The school district appealed and the 5th Circuit Court of Appeals threw out the case. Because the school district never said it had an opening, Adams hadn’t really “applied” for a specific position. Employers can be sued only by applicants who respond to an actual opening. There was no opening and, therefore, no retaliation or discrimination. (Adams v. Groesbeck Independent School District, No. 05-50362, 5th Cir., 2007)   

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