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Litigation News

Litigation News | 2023

Discrimination Claim Viable Even When Position Not Filled

Mark Anthony Flores


  • A federal court of appeals ruled that a plaintiff can sue an employer for gender discrimination in a failure-to-hire case, even without another candidate being hired.
  • The court held that canceling a job posting based on discriminatory intent can be considered a discrete harm, allowing the discrimination claim to proceed.
  • The court recognized that the traditional prima facie elements for failure-to-hire cases may vary under particular factual circumstances despite not meeting the typical requirements.
Discrimination Claim Viable Even When Position Not Filled
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A federal court of appeals has held that a plaintiff can sue an employer for gender discrimination for failure to hire, even when no other candidate is hired for the position. In Charlton-Perkins v. University of Cincinnati, a male research scientist applied for a position as a university researcher. The male plaintiff was not hired because a university dean allegedly wanted to hire a woman. Rather than hire the male candidate recommended by the search committee, the dean terminated the job posting. Reversing the lower court, the appellate court permitted the discrimination claim to go forward on the theory that ending the hiring process might itself be discriminatory.

The Best Qualified Plaintiff

In Charlton-Perkins, the university established a search committee which had the authority to determine the best candidate based on a collective bargaining agreement between the faculty and the university. The committee narrowed the field of candidates from 62 to nine, including the male plaintiff. A member of the search committee initially raised a potential conflict of interest concerning her past collaboration with the candidate. After discussion among the committee, however, the plaintiff’s candidacy continued, despite the committee member’s prior relationship with him. The committee eventually rated and recommended the plaintiff as its favorite candidate.

After the committee selected the plaintiff, the department chair allegedly informed the committee that the dean thought the committee should focus on women candidates. The dean later allegedly met with a member of the search committee and stated the search “had been tainted by [the committee member’s] past collaboration” with the plaintiff. The dean then informed the faculty that “he believed an ‘equitable search’ was impossible under the circumstances and thus that he ‘was cancelling the search in its entirety.’” The male researcher sued the university for a failure to hire claim under Title IX and for violation of his equal protection rights and gender discrimination under 42 U.S.C. 1983.

The university asserted that the researcher did not have a ripe claim, or any claim, because the university did not hire anyone for the position in question. The university argued that the researcher could not allege that the university hired a female instead of him based on the gender of the applicants, thus failing to allege a prima facie element. The U.S. District Court for the Southern District of Ohio agreed and dismissed the complaint for failure to state a claim and lack of subject-matter jurisdiction. The U.S. Court of Appeals for the Sixth Circuit reversed and permitted the claim to proceed, finding it both ripe and cognizable.

Irrelevant No Other Candidate Was Hired

The court of appeals rejected the university’s argument that the researcher did not suffer a “discrete harm,” a basic requirement to state a ripe claim, because the university never hired anyone for the position. While a prima facie case for discriminatory failure to hire typically requires the hiring of another person outside the discriminated class, the appellate court held the district court erred in its prima facie and ripeness analysis.

This case harkens to situations that arose during integration more than 50 years ago. “My mind goes back to the public pool closures in the 1950s and 1960s where the decision was made to close the pool instead of integrating it,” offers David E. Gevertz, Atlanta, GA, cochair of the ABA Litigation Section’s Employment & Labor Relations Committee. “I think a kid denied the opportunity to go into the pool would have a ripe claim and standing to make a claim.”

The court of appeals similarly recognized that the university’s denial of the job to the male researcher constituted the “discrete harm” necessary to make the claim ripe, reasoning that the harm would still exist even if he eventually got the job. As a result, the court of appeals held that the male researcher had standing to bring his claim.

Prima Facie Elements Not Required

The appellate court also found the male researcher’s claim for gender discrimination could proceed despite the fact that he could not make a typical prima facie case for failure to hire. The appellate court recognized “when an employer discriminatorily cancels a position to avoid hiring an applicant of a disfavored class, the applicant need not establish that somebody else filled the position.” The appellate court suggested that the university could have possibly avoided the claim by re-running the search in a non-discriminatory fashion. The court of appeals recognized “that the prima-facie-case requirement is not ‘an inflexible rule’ and instead may vary under particular factual circumstances.”

Although the plaintiff’s failure to make a traditional prima facie case for failure to hire was not fatal to his claim, the question turns on the intent of the employer in deciding to terminate the candidate search. “A fundamental prima facie case requires that the job be filled by someone who is not in the protected category,” explains David B. Seserman, Denver, CO, cochair of the Litigation Section’s Solo & Small Firm Committee. “In this case, the allegations were that the elimination of the job was done with discriminatory intent and discriminatorily motivated, and the plaintiff therefore has the opportunity to go forward and prove his case at trial.”