Employees win failure to hire cases - even though they didn't apply for the jobs 08-06-02
- By Rita Risser

Does your company have clear policies for making hiring and promotional decisions? "Of course," you say. Well, that's not enough to protect you in a discrimination lawsuit. If you don't follow those policies, you can be sued for discrimination, even if the employees suing did not apply for the jobs.

In one case, the employee had applied for promotions in the past, but had been denied. When a new promotion became available, he did not apply. His boss asked him if he was going to apply for the job and he said no. After the position was filled, he turned around and sued.

The President of the employer testified that sometimes the promotional policies were followed, and sometimes not. The evidence showed that many positions were filled by individuals who had not applied for them.

In another case, a company hired 108 people over a four-year period, all of whom were men. The Equal Employment Opportunity Commission filed suit on behalf of four women, none of whom had applied for the jobs.

In both of these cases, the Courts of Appeals ruled in favor of the employees. The first court held that where an employer fails to follow its own procedures, and instead uses a process that is subjective, that is evidence of discrimination. In the second case, the court held that it would have been futile for the women to apply, since the employer never hired women in those positions.

What this means to you: Always follow company procedures and policies. If you only hire people of one gender or race for particular positions, actively recruit others for those jobs.

Lockridge v. Bd of Trustees of University of Arkansas (8th Cir 06/24/2002)

EEOC v. Joe's Stone Crab (11th Cir 07/12/2002)

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Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.