If you advertise job openings and someone does not apply, they’re going to have a hard time proving that you discriminated against them.
That’s one more reason to post all openings, specify exactly how to apply and carefully track who applies.
Recent case: Jerry, who is over age 40, sued the Department of Homeland Security for age discrimination. He claimed DHS wouldn’t hire him because of his age.
But DHS pointed out to the court that it openly posted the position and that Jerry had not actually applied.
The court tossed out his lawsuit. It said that if an older individual wants to sue over age discrimination, he must at a minimum show that he applied and was qualified for the position and that a younger individual was hired. Jerry couldn’t get past the second requirement—that he had in fact applied. (Hill v. Beers, No. 14-35388, 9th Cir., 2016)