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Applicant who declined ‘unreasonable’ job offer can advance failure-to-hire claim

By Kathleen Kapusta, J.D.

Rejecting an employer’s “admittedly appealing argument” that an applicant’s discriminatory failure-to-fire claim could not lie because she was, in fact, offered a job, a federal district court in Virginia explained that “Just as a plaintiff is not required to subject herself ‘to the humiliation of explicit and certain rejection’ by engaging in the ‘futile gesture of formally applying for the position’ and being rejected for it, neither should Plaintiff be required to accept an offer meant to demean and demoralize her and subject herself to overbearing demands.” As she sufficiently alleged she was not hired because of her gender, the court denied the company’s motion to dismiss (Majure v. Primland, Ltd., November 2, 2017, Kiser, J.).

During the interview process for a spa manager position, the company’s general manager purportedly told the applicant she had given the interim spa manager position to a young male with no prior management experience. She desired a male for the position, she allegedly stated, because she felt a male could better control the mostly female staff.

Unreasonable demands. Although the applicant receive a job offer from the GM after five interviews, it was, she claimed, with a salary lower than the stated salary range. She was also told the offer “included greater demands on [her] than on others with more supervision planned for [her] than others.” Further, she alleged, the HR director told her that the GM did not want to hire her, was being pressured by the company’s owners to fill the position, and if she accepted the job, the GM “would apply unreasonable demands so that [Plaintiff] would leave,” as she had done to the previous female spa manager.

Declined. The applicant declined the offer, which was then filled by a male with less experience who was purportedly hired at a higher salary and “without the unequal terms and conditions of employment” offered to the applicant. She subsequently sued for discriminatory failure to hire.

Direct discrimination. Finding that she alleged a case of direct discrimination, the court noted that she claimed the GM expressed to her that she “would like a male in the role of Spa Manager because [she] felt a male could better control the mostly female staff” and the HR director also advised her that the GM “preferred hiring younger, less experienced staff.” Further, while she did receive a job offer, she alleged it was not in line with the advertised salary range, and that additional demands were placed on her than had been placed on previous spa managers.

But she refused. As to the company’s assertion that she could not claim she was not hired because of her gender when in fact she refused the job offer, the court pointed out that it is accepted that one need not actually apply for a job in order to state a claim for discriminatory failure to hire. “If one need not apply,” said the court, “then it follows that, in certain circumstances, one need not accept an offer.”

The court then offered an example of a hypothetical female neurosurgeon who turns down a job offer for minimum wage. If a male is then hired at $500,000 per year, “can it really be argued that the job offer makes a discriminatory failure-to-hire case untenable?” the court asked, suggesting that even the employer here would say no.

Perverse incentive. Moreover, the court pointed out, sanctioning the employer’s argument “creates the perverse incentive to employers to craft sham offers knowing an applicant cannot or will not accept. Then, having offered employment, they have immunized themselves against claims of discriminatory failure-to-hire.” There is no such immunity in the law, said the court, refusing to create one here.