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Court: Apply first, then sue for discrimination

by on
in Discrimination and Harassment,Human Resources

If you want a job, you have to apply for it. If you want a promotion, you have to apply for it. If you want to sue an employer for discrimination in hiring or promotions, you probably should have applied, too, right?

Yet that common-sense prerequisite doesn’t stop some workers from suing before they bother submitting an application or telling anyone they’re interested in a promotion. Fortunately, they rarely win their lawsuits.

Absent some direct evidence that an employer routinely rejects applications or promotion requests from members of a protected class, not filling out an application or expressing interest in a promotion bars a lawsuit over failure to hire or promote.

Recent case: Andrea Weathers worked as a nontenured professor at the University of North Carolina at Chapel Hill. She apparently believed that discrimination would prevent her from achieving tenure, so she never bothered to submit her application.

Still, Weathers sued. The university got the case dismissed because she missed the application deadline. She appealed, arguing it would have been futile to bother with getting her paperwork in. But she didn’t have anything but her own opinion to back up that conclusion. The 4th Circuit Court of Appeals threw out her case. (Weathers v. University of North Carolina at Chapel Hill, et al., No. 10-2379, 4th Cir., 2011)

Final note: It’s not at all clear what it would take for a worker to be excused from putting in an application. Certainly, a sign that read, “Irish need not apply” would work. So might blatant references to youth or “native English speakers” and other overt signs of discrimination. Review all hiring advertisements and corporate material for indications that you’re seeking only a particular kind of employee.

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