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Can an “Applicant” Be Discriminated Against When She Hasn’t Applied for the Job?

Under the California analogue to Title VII, the California Fair Employment and Housing Act (FEHA), it is unlawful for an employer to refuse to hire someone based on their “sex,” which includes a woman’s pregnancy status. Normally, to be eligible for protections under discrimination statutes like Title VII and FEHA in the hiring context, an individual needs to have at least applied for an open position. However, one California court of appeals indicated that, at least in some situations, FEHA sex discrimination may occur even when the plaintiff never applied for a position.

 In Abed v. Western Dental Services, Inc., the plaintiff worked as an extern for a dental practice and inquired about open dental assistant positions shortly after learning she was pregnant. She was informed there were no open positions. She later found out that the dental practice listed an opening on its website and hired a dental assistant shortly after her externship ended. The plaintiff sued, claiming the practice had falsely told her no position was open because she was pregnant. The employer argued that her claim must fail as a matter of law because she had not actually applied for any position. In denying the employer’s motion for summary judgment on her discrimination claim, the court held that submitting an application was not required to make out a prima facie showing of discrimination and that the employer’s actions in falsely communicating that there were no openings interfered with her right to apply.

This is a tough decision for California employers to guard against because any miscommunication to potential applicants might give rise to a discrimination claim. Employers should consider ways to mitigate this risk by instituting tight controls on who is allowed to accept applications and who has authority to speak about whether an opening exists. Also, employers should consider posting all job openings in the workplace, not just on the company’s website. Ensuring that all employees are made aware of any opening and that everyone is on the same page about the hiring and application process — including making it clear to everyone that only certain individuals have authority to accept applications — could help prevent the types of miscommunications that led to the claim in the Abed case.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.