Sex Discrimination Pinned On Job Posting

(Published October 1, 2008)

Reprinted from MANAGER'S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through scenarios based on real-life cases. Click here to view a sample issue, get more information, or sign up for a risk-free subscription.

It is one thing to use job postings to attract top-notch applicants to your organization.  It is quite another to change the posting process in order to bring aboard your personal preference.

PA Gets Cut Out Of Surgery

Lebron Johnson had been rejected for a position in the surgery department in favor of an outside candidate who happened to be female. The physician’s assistant complained to his employer that he was better qualified for the job. Although the complaint produced no result, Johnson was placed in one of three positions that opened up in the surgery department a year later. The other two went to women.

All was well, until the hospital decided to reduce the workload of interns in its medical residency program and hire more physician’s assistants, requiring them to be on-call at certain times. Johnson’s manager, Susan Richardson, gave him a clear ultimatum: Accept the on-call requirement or transfer out of the surgery department. Johnson chose the latter and transferred to a department that did not require on-call availability.

When Johnson discovered that one of his female colleagues had not been given the same ultimatum, he filed another complaint. But again, nothing came of his grievance. Both Richardson and the hospital insisted that there were no exceptions to the on-call requirement.

PA Loses His Patience

Shortly after Johnson’s transfer, he learned that the hospital had created a lead physician’s assistant position to manage the growing number of PAs in the surgery department. Although Johnson was interested in the position, he didn’t apply for it because the position required on-call availability. Or so he thought. Richardson promoted one of his female colleagues to the job. Because the woman expressed reluctance at accepting the position as posted, Richardson dropped the on-call requirement and allowed her to have a four-day workweek.

Johnson complained a third time because Richardson promoted his colleague under the new arrangement without reposting the position with the modified requirements. He argued that he would have applied for the position if it did not have the on-call requirement. When he again received no satisfaction, he resigned from his position and sued the hospital under Title VII for discriminating against him because of his gender.

A jury sided with Johnson, agreeing that his gender motivated the manager to appoint his female colleague to the lead physician assistant position. Its reasoning: The position offered to his colleague had not been posted; Johnson did not know that the position was available until after it was filled; he was qualified for the position; and he suffered damages as a result of Richardson’s actions. Cost to hospital: $250,000 in punitive and compensatory damages.

Action Tips

No law requires private employers to post job openings, either internally or externally.  But if you do post openings, prevent them from becoming fodder for a discrimination claim.

• Be consistent.  The posted job requirements should match the actual job requirements.  If the job requirements change during the hiring process, repost the position with the updated information.  Straying from the requirements posted in the job ad can be used by anyone who wasn’t hired to show that they were unfairly excluded from contention; a judge or jury may find it was unfair and illegal. 
  
  
• Be transparent.  An opening does not have to be posted if you’ve already groomed someone to fill it.  However, this can also spark a discrimination claim if there is a pattern of only women, for example, being groomed.  
  
  
  Instead, post all jobs and allow anyone who is interested to apply.  You might be pleasantly surprised by an unexpected candidate.  Include in the posting that there is a “preferred candidate” or that a “leading candidate has been identified,” but that all qualified applicants are given serious consideration. 
  
  
• Be patient.  If a job ad is supposed to be posted for a certain amount of time, or it states that applications will be accepted until a certain     date, do not make a hiring decision before that time is up.