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 filing hiring-bias lawsuits before they bother submitting an application or telling anyone they’re interested in a promotion.
Fortunately, they rarely win.
Absent some direct evidence that an employer routinely rejects applications of a protected class, failure to complete an application or express interest in a promotion bars such a lawsuit.
Recent case: Andrea Weathers a nontenured professor at the University of North Carolina at Chapel Hill, believed discrimination would prevent her from achieving tenure. So she never bothered to submit her application.
Still, Weathers sued, saying it would have been futile to apply. But she didn’t have any proof to back that statement. The university won a dismissal because she missed the application deadline. (Weathers v. University of North Carolina, No. 10-2379, 4th Cir., 2011)
Final note: Non-applying employees could still file hiring-bias lawsuits if they face blatant, overt discrimination. Examples: a sign reading “Women need not apply,” or a want-ad seeking “young, energetic” workers.
Review all hiring material for indications that you’re seeking only a particular kind of employee.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Job descriptions: Craft with precision to avoid bias risk
- Send the right vibe in that voice mail
- Exception to the rule: You can ask internal and external applicants different questions
- HR gossip girl: The risk of divulging employees' secrets