When an Employee Can (and Cannot) Win a Georgia Discrimination Case Based Upon Not Receiving a Job for Which She Didn’t Apply

As employers, most businesses are concerned about treating employees in a manner that could give rise to a discrimination lawsuit. This includes how the employer handles the filling of open positions. However, what happens when an employee raises a claim of discrimination based upon not receiving a job that you, as an employer, did not even know that she was interested in? A recent 11th Circuit Court of Appeals ruling in a case that began here in Georgia explored that question, which is just one of many scenarios in which experienced Georgia racial discrimination attorneys can help you in a discrimination case.

The case involved Olivia, a customer service worker, and her employer, a chemical and scientific laboratory supplies company. Olivia sued her employer for racial discrimination under Title VII. The basis of that legal claim was the employer’s failure to promote her from her customer service job to a higher-ranking tele-sales position in the employer’s sales department. (The employer filled the tele-sales position with a white worker.)

What made this case somewhat more complicated was the fact that Olivia never actually applied for the tele-sales job. It is important to note that, in some situations, an employee can still have a potentially winnable case for impermissible discrimination in violation of Title VII even if she didn’t apply for the job in question. One of those scenarios occurs when the employer fills the position through an “informal process” in which it never formally announced the opening but instead used an informal process and subjective methods to fill the job.

Olivia tried to advance her case under this “informal process” standard. That effort didn’t work, however, because of two problems. The first was that the employer had evidence that its process was not an informal one. Although it may not have posted the tele-sales job to its internal intranet available to existing employees, it did post the job to its external website available to anyone. It also had evidence that it posted the job to third-party online job boards. The employer received 33 applications and had proof that it conducted formal interviews with the candidates. This evidence was good enough to refute the notion that the tele-sales position was filled through an informal process.

Another problem for Olivia’s case was that the informal process exception requires the employer to have “some reason to consider her for the position.” In this case, the employer had proof that none of the people responsible for making the hiring decision for the tele-sales job had any knowledge that Olivia was interested in it. The employer had evidence that Olivia never spoke to Robert, the man who made the hire, and that she believed that Robert had no knowledge of her interest in the job. Olivia’s evidence about a program that allowed employees to be considered for advancement without making an actual application for a promotion didn’t count in her favor because that program only allowed for advancement within one’s current department, and Olivia’s desired promotion would have moved her from the company’s customer service department to the sales department.

Whether you are an employer who is facing what you believe to be an unjustified discrimination claim, or you’re an employee who has suffered from discrimination at work, the skilled Georgia racial discrimination attorneys at Parks, Chesin & Walbert are here to help. Our team has many years of experience effectively representing both employees and employers in racial discrimination and other Title VII cases here in Georgia.

To speak with one of our lawyers about your case, call 404-873-8048.

More blog posts:

Eleventh Circuit Allows Deputy Who Was Passed Over for Promotion Despite Higher Exam Score to Maintain Race Discrimination Action, Atlanta Employment Attorneys Blog, July 21, 2017

African-American Workers Pursue Case Alleging Rampant Racism at Georgia Farm, Atlanta Employment Attorneys Blog, March 28, 2017


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