Pre-Hiring Issues

In the not-so-distant past, applicants were happy to get an interview and disappointed if not offered a job. Today, unsuccessful applicants (and their lawyers) may also be on the lookout for an opportunity to cash in on the reasons they were not hired.

The answers to the questions in this section identify ways an employer may prevent unsuccessful applicants from becoming successful litigants. The answers also provide basic procedures, which may assist employers in defending “failure to hire” and “failure to promote” claims. 

Failure To Hire

Can an unsuccessful applicant sue an employer?

Yes. “Failure to hire” is an employment claim alleged when an applicant believes he/she was not hired due to some discriminatory reason (race, sex, color, origin, religion, gender, disability, age, etc.). A current employee may also bring a claim for failure to promote if he/she is not promoted to a position for which they applied. These claims often allege a violation of Title VII.  To reduce exposure to these claims, an employer should document the non-discriminatory reasons why the employer did not hire or promote the applicant. 

In 2015, the Supreme Court upheld a verdict against Abercrombie & Fitch in a lawsuit brought by an unsuccessful applicant who claimed she was discriminated against based on her religion. The company claimed that the applicant, who wore a headscarf, did not fit the “Look Policy” or dress code and that the company had no reason to know that she was Muslim.  In other words, the company attempted to present a non-discriminatory reason for not hiring the applicant.  The Court rejected this argument and held that the company could not make a religious practice (wearing a headscarf) a factor in the decision whether to hire, regardless of motive.

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The information herein is not legal advice. The information is in the form of legal education and is intended to provide general information about the matter discussed.  The above is not, nor is it intended to be, legal advice and does not create an attorney/client relationship.