Except in very limited circumstances, an individual must actually apply for a position before he can challenge the decision to hire someone else.
Recent case: Jeffrey Braithwaite worked for the U.S. Department of Homeland Security until his job was eliminated in a reorganization. He sued, alleging that age discrimination had caused him to miss out on a promotion to another position. His proof: A much younger applicant got the job.
But Braithwaite had never applied for the promotion, allegedly having heard that jobs only went to younger applicants.
That wasn’t good enough for the court.
If a worker knows there is a job opening and doesn’t apply, he can’t allege he was turned down in favor of someone outside his protected class. The case was dismissed. (Braithwaite, et al., v. Department of Homeland Security, No. 10-3508, 6th Cir., 2012)
Final note: There’s a simple way to win failure-to-promote lawsuits: Post all open positions, invite all qualified applicants and make the process transparent. However, if you make it hard for employees to learn about openings (or your supervisors actively try to handpick candidates), all bets are off.
The best approach is to discuss promotion during new-hire orientation and explain where employees should look for opportunities. Don’t make it hard. Post openings on the bulletin board and on the intranet if you have one. Remind employees that you encourage promoting from within. Open up training opportunities to all who qualify, not just select individuals.