Here’s an easy way to prevent a failure-to-hire lawsuit: Routinely advertise all open positions and let employees and applicants know how to look for opportunities.
Otherwise, you could be sued by an employee or potential applicant, alleging that she would have applied if she had only known about the opening.
Such a litigant will still have to show that she was qualified for the job, and that you had some reason to know of her interest. However, that can be as simple as proving that she applied for a similar job recently or had told her supervisor she was interested in going for a promotion.
Recent case: LaTanya McCaslin sued the Birmingham Museum of Art, claiming that it had failed to advertise an opening for a curator, and that she would have applied had she known.
Seven years earlier, McCaslin had applied for another position with the museum.
The 11th Circuit Court of Appeals dismissed her case for two reasons: (1) too much time had passed since McCaslin’s first application for the museum to assume she was interested; and (2) it turned out that McCaslin didn’t have an undergraduate degree, while the job required a master’s degree. (McCaslin v. Birmingham Museum of Art, et al., No. 09-13505, 11th Cir., 2010)
Final notes: The court took pains to remind employers that if they don’t post jobs, then they have some obligation to let applicants or potentially interested employees learn about the opening.
In this case, it appears that the museum practically created the position for a candidate it wanted who was completing a master’s degree. It should at least have opened the position to other qualified candidates. Had it done so, it could easily have rejected McCaslin’s would-be application based on education qualifications.