You might assume that, before suing for failure to hire, job seekers and employees going for promotions would have to actually apply for the jobs they didn’t get. Unless your company has a robust, easy-to-use posting and application process, you could be wrong.
Here’s why: Word-of-mouth hiring and promotion notices aren’t transparent. Courts view them suspiciously, on the assumption that such informal processes are designed to handpick favorites and discriminate against members of protected classes.
Large corporations such as Walmart and Costco have been successfully sued over so-called “old boy” promotion practices, even when the people filing those lawsuits never applied.
The best way to protect the company is to be completely upfront about job openings and your hiring process.
Recent case: Annie Howell, who is black, worked for MorrisonSpecialists. She sued after she was not offered a promotion, claiming she was passed over for the job because of her race or age.
But Howell never applied, although she did print out the job announcement. Her copy clearly showed that applicants were to apply online by clicking a tab that read “Apply Now.” Howell tried to argue that she wasn’t informed the job would be posted. She claimed the position was essentially saved for another employee who got a heads up it would be posted.
The company said Howell clearly knew how to apply. Therefore, she couldn’t use ignorance about the opening as an excuse. There was plenty of evidence that her employer routinely posted jobs online and expected employees to look there to learn of openings. (Howell v. Compass Group, et al., No. 10-11487, 11th Cir., 2011)
Final note: Howell still walked away with $50,000. She claimed that after she complained about not getting the promotion she never applied for, her supervisor put her on a performance improvement plan (PIP). She told the jury that the PIP so embarrassed her that she had to retire. The jury decided the PIP amounted to retaliation for complaining, and awarded $50,000 in damages. The 11th Circuit Court of Appeals let the award stand.
Advice: Warn supervisors against any sort of retaliation. If a jury believes the employer’s action would dissuade a reasonable employee from complaining, that’s retaliation.