HR Specialist: Employment Law

Clear, common-sense employment law advice that cuts directly to the bottom line. An attorney may say what the law is – but the monthly issues of HR Specialist: Employment Law and its related weekly e-letters explain what managers and human resource professionals should do that is both safe and practical in the real world of business. Learn more about HR Specialist: Employment Law and the two free reports you'll get when you subscribe...

When a University of Arkansas dean position was advertised on campus and statewide, Howard Lockridge, an African-American department chairman, told his supervisors he wasn't planning to apply for the job.

He never did apply, but that didn't stop him from suing the college for racial discrimination under Title VII when a white male filled the job. A lower court said Lockridge could take his case to a jury, and a federal appeals court agreed.

Why? In typical failure-to-promote lawsuits, employees must show they were qualified for the job and formally applied. But in this case, the college used a "seemingly random and subjective" promotion process, the court said. The head of the college had the authority and discretion to choose the hiring and promotion procedures he wished.

The problems: 1) Vacant jobs weren't always announced; 2) it wasn't always made clear whether a formal application was required; and 3) deadlines for applications weren't firm.

A jury could conclude that the subjective hiring method "is direct evidence of discriminatory practices," the court said, and that alone made the employee's claim valid. (Lockridge v. Board of Trustees, University of Arkansas, No. 01-1472, 8th Cir., 2002)

With this ruling, the 8th Circuit joins a growing list of courts allowing nonapplicants to sue for jobs they didn't get or even pursue. (YATL, January 2001) A formal application isn't required to file a lawsuit, and that means virtually every one of your employees is a potential plaintiff in failure-to-promote actions.

Advice: To avoid liability, have a clear, consistent and well-documented promotion process. Require that only applicants submitting written applications will be considered. Communicate job opportunities to reach the widest possible pool of candidates, internally and externally, and instruct managers never to discourage any candidate from applying.

Be prepared to explain and document why the person selected was most qualified. You'll get into trouble by relying on a "gut feeling," "word of mouth" or other informal criteria. Also, in at least one recent federal case, a court said an employer can't use race as a tiebreaker, even in the name of affirmative action.