Here’s one of the simplest ways to avoid failure-to-hire litigation: Adopt a uniform system for posting openings—and then stick with that system.
If you do, employees won’t be able to claim later that they didn’t know about an opening and would have applied if only they knew.
Plus, transparency protects you against claims you were trying to dissuade certain individuals—who happen to belong to a protected class—from applying.
Recent case: Mariah Scott worked for the Dallas County Hospital District and met the minimum qualifications to be promoted to director of contracts. However, she never applied for the open position.
That didn’t stop her from suing when a white man was selected. She claimed she didn’t know about the position and therefore didn’t apply.
The hospital said there was no reason for Scott not to apply. It had a policy to clearly post all openings in the Employment Services Office for at least three days. In this case, the job was indeed posted, and also appeared online. Therefore, the hospital argued, Scott could have applied for the job and it would have considered her.
The court agreed. It said Scott had no excuse for not applying and dismissed her failure-to-promote claim. (Scott v. Dallas County Hospital District, No. 3:08-CV-600, ND TX, 2009)
Final note: Develop a specific policy for announcing all job openings and follow that policy every time. Provide at least two ways for employees to check job opportunities—such as on a central bulletin board and also on the company intranet. Then make sure employees know where to look. Make sure postings are accessible to people with disabilities. Finally, make sure employees understand the application process—and that they must apply to be considered.
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