Employers that post job openings and then track the response they get to their advertisements will discourage frivolous lawsuits.
Would-be applicants can’t say they tried to apply or were discouraged from doing so because of discrimination if the company can show how it routinely handles all job openings and applications.
Note: Those who never apply for jobs because they think they won’t get them for discriminatory reasons have to show that their beliefs are based on known discrimination. That’s hard to do if the employer can show how it handles all applications.
Recent case: Rosemary McCullough, who is black, worked for the Houston County district attorney’s office. She sued for age and race discrimination after she was not rehired to her position when a new district attorney was voted into office. What made her case odd was that she never applied for the job and has previously made it clear she did not want to work for the DA. McCullough took a job elsewhere.
When she sued anyway, she alleged that she hadn’t applied because she thought it would have been futile.
The county said the new DA never had a chance to either rehire or refuse to rehire McCullough because she never showed any interest in keeping her job. It said it offered interviews to those who said they were interested in retaining their jobs, which McCullough said she was not.
The 5th Circuit Court of Appeals agreed with the county and dismissed the claim. (McCullough v. Houston County, No. 07-40949, 5th Cir., 2008)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- How you can be sued for bias even if you don't discriminate
- Beware! Now it's even easier for disabled employees to sue
- The key is consistency: Similar wrongdoings deserve similar discipline
- United Airlines to pay $850,000 settlement for disability bias