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No job application needed to sue for hiring bias

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in Discrimination and Harassment,Hiring,Human Resources

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.

{ 1 comment… read it below or add one }

Kevin Stone December 22, 2016 at 5:34 pm

I just recently applied for a position at my new job, I got a phone call saying I had the job and would recieve a offer letter. A week later after calling to follow-up after never recieving the letter I was told that the position was no longer available because the property didn’t fall through. I was hired for another position and observed a new hire in the position I applied for the same week I started. Do I have a case?


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