Can an employee who never applied for position succeed on failure to promote claim?


After your organization hired Edward, an openly gay supervisor, he learned that several women had complained that only gay men were hired into management positions. When a general manager, who was also gay, left the company, Edward expressed interest in the position. He was told by the regional director, however, that it was “not going to happen.” When he approached the director a second time about the job, he was told that the company had just gotten out of “a boiling pot of water,” that it was “not going to happen,” and that he should not waste his time. Over the next couple of years, several general managers were hired for the position. During each transition, Edward performed additional duties and filled in. Several more attempts to express interest in general manager positions were rebuffed. When a heterosexual male without prior experience was hired, Edward heard him tell a coworker that the office needed to “clean house” and that homosexuals are “an abomination in God’s eyes.” Edward subsequently resigned without ever having formally applied for a general manager position. He then filed a sexual orientation bias claim based on the company’s failure to promote him. Will he be successful?


Yes. In a case with similar facts, a jury verdict in favor of the employee was upheld. Although typically in cases of a claimed failure to promote, an employee must show that he applied for a position and was not hired, in this case, the supervisor's failure to apply for a general manager position was not fatal to his claim. Citing the U.S. Supreme Court’s decision in Int’l Brotherhood of Teamsters v U.S. for the proposition that “[w]hen a person’s desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting an application,” the court stated that the “futility exception” requires affirmative proof that application for a specific employment position would have been futile based upon the employer’s discriminatory actions or statements.

The supervisor in this case met this narrow exception. The evidence established that he was open about his sexual orientation and that when he discussed the vacant general manager position with the regional director, he was told that the company had just gotten out of “a boiling pot of water” — a likely reference to the complaint filed by three women alleging that only gay men were hired into management. Furthermore, the director told him that he would not get the position and not to waste his time trying to do so. Although a subsequent regional manager advised him that a company policy prevented him from being promoted directly to general manager, this alleged policy was unwritten and, even if it were in effect, exceptions had been allowed in the past. While the director guided the employee toward applying for two openings at other locations, when the employee followed through, he was advised that the positions were in fact not available. Accordingly, there was sufficient evidence to support the jury’s finding that the employer’s statements and actions made it futile for the supervisor to apply for the general manager position.

Source: Russell v ExpressJet Airlines, Inc (MeSCt 2011) 2011 Me. LEXIS 118.

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