Written by Robin E. Shea from Constangy Brooks Smith & Prophete LLP on Oct 30, 2025
That’s why they didn’t apply, duh.
Happy Halloween, everybody!
Today’s case ought to be a horror for employers who don’t post their job openings.
Yes, it’s from the somewhat-employee-friendly U.S. Court of Appeals for the Ninth Circuit, but when you read the opinion, you’ll be surprised that this employer got as far as it did.
Three managers for a convenience store chain had exemplary records, and were all in their 50s. (I’ll call them Skeletor, the Mummy, and Vampira, in honor of the holiday.) A regional director (I’ll call him Casper) was in his mid-40s.
A vacant regional director position opened up. Although the employer had a general policy and practice of posting vacancies so employees could bid on them, it did not post this particular position. Instead, the employer offered the position to Casper.
It turned out that Skeletor, the Mummy, and Vampira all would have been interested in the position — and arguably qualified — but, of course, they didn’t apply for the position BECAUSE IT WASN’T POSTED.
Skeletor, the Mummy, and Vampira sued the employer for failure to promote, contending that they were not selected for the position because of their age(s).
A federal judge in California granted summary judgment to the employer. According to the judge, the plaintiffs couldn’t get anywhere with their lawsuit because (among other things) they didn’t apply for the position that Casper got.
Not surprisingly, the plaintiffs appealed. Also not surprisingly, they got a reversal, which means their age claims will now go to a jury.
You gotta apply . . . usually.
Normally, to even get out of the starting gate on a failure-to-promote case under the age discrimination laws, the plaintiff has to show that he or she (1) was 40 or older, (2) was qualified for the position, (3) didn’t get the position, and that (4) the position went to a “substantially younger” person.
Then the employer gets the chance to explain the non-age-related reason for the selection it made, and then the plaintiff gets a chance to show that the employer’s stated reason is bogus and that the real reason is an unlawful one.
The employer argued that it should win because the plaintiffs never applied for the position that Casper got. Normally, you have to apply for a job to even be considered for it. That means if you don’t apply, you are not “qualified.”
But in this circumstance, no, the Ninth Circuit said. In this case, the plaintiffs didn’t apply BECAUSE THE EMPLOYER DIDN’T POST THE POSITION.
There were a few more complications. Some employees testified that the regional director’s boss (we’ll call him “The Great Pumpkin”) had made statements indicating that he had what we lawyers call “age-based animus.” In plain English, that means he didn’t like older people. Allegedly.
The Great Pumpkin allegedly “disparag[ed] older employees because of their age and push[ed] them to retire.” Specifically, after Skeletor told the Great Pumpkin how old he was, the Great Pumpkin allegedly told him that he was “out of touch,” “too old for this business,” and “encouraged him ‘to start thinking about retiring.'”
The plaintiffs also presented evidence indicating that Casper was a lousy regional director and didn’t deserve to get the lateral position. Allegedly.
This is the point where I was thinking, “No jury trial for this? What the heck?” And I represent employers!
You’re not legally required to post, but you should
Back to the job posting. The employer had valid reasons for not posting the position. Since Casper was already a regional director and the others were not, it made sense to move him laterally into the position without giving those holding lower-level positions a chance to be promoted into it.
But the Ninth Circuit panel said it didn’t matter that the employer’s reason for not posting might have been legal. True, there is no law requiring employers to post vacant positions. And a bare-minimum requirement for being “qualified” is that the plaintiff applied for, or otherwise expressed interest in, the position. But if the employer chooses not to post the position and as a result you don’t know about it and can’t apply for it, then your failure to apply is not going to be used against you.
Makes sense to me.
And, again, apparently there was no dispute that Skeletor, the Mummy, and Vampira were outstanding employees only one level below the regional director level. In other words, they were all logical candidates for promotion to regional director.
So a jury will decide whether Skeletor, the Mummy, and Vampira were discriminated against because of their age. They may win, or they may lose, but the employer is sure to be dealing with the stress, uncertainty, and expense of litigation for months to come.
Employers, post those jobs!
You really should make it a practice to post your vacant positions and let employees bid for them. Failing to post is not illegal in itself, but posting is a very good legal-defensive move. If this employer had posted the position, one of these things could have happened, all good for the employer:
- Neither Skeletor, nor the Mummy, nor Vampira might have actually applied. Case closed.
- At least one of Skeletor, the Mummy, or Vampira might have failed to apply. Case closed as to the ones who did not apply.
- Some or all of the three might have applied, along with Casper, which would force the employer to review and compare/contrast all the candidates. And after doing so, the employer might have said to itself, “Darn! That Skeletor looks great. I was ready to offer the position to Casper, but I think we need to offer it to Skeletor.” Case never filed.
- Casper might not have applied, in which case the employer would have had no choice but to offer the position to Skeletor, the Mummy, or Vampira. Case never filed.
Also, although it wasn’t an issue in this case, posting internally can help you justify going with an outside hire because you’ll (I hope) be able to establish that the internal candidates who applied were not as qualified as the outside candidate you chose.
You get the idea. Post, employers, post!
“Pleasant nightmares . . .”
