There are many different ways to discriminate against an employee or potential employee. Certainly, if a candidate applies for a job, interviews, and is ultimately denied employment because she was a member of a protected group, that is very likely illegal discrimination. However, what if the would-be candidate never applied at all because the employer engaged in deception to keep her from applying? According to a recent Court of Appeal ruling, that can still amount to illegal discrimination in violation of the Fair Employment and Housing Act. As this case reminds us, there may be many different actions or inactions that could constitute impermissible discrimination, so, if you think you were a victim of discrimination, take action. Talk to a skilled California employment attorney right away.
The would-be employee in that recent Court of Appeal case was Ada, who, in the spring of 2015, began an unpaid dental assistant externship at a dental office in Napa. Generally, the office hired its unpaid externs in paid positions after the conclusions of their externships.
At the time, Ada was pregnant, but she told no one at the office about this fact. The pregnancy was only discovered after Ada’s supervisor saw a bottle of prenatal vitamins in the extern’s purse. The supervisor allegedly told a different employee that, if Ada was pregnant, “it would not be convenient for the office.”
Eventually, the supervisor told Ada that there were no paid positions available at the Napa office, but possibly there were in the Fairfield or Vacaville offices. Since Ada wanted to live in Napa, she decided not to apply for employment.
Sometime shortly after that, Ada discovered that another extern had been hired as a paid dental assistant at the Napa office. Ada subsequently sued for pregnancy discrimination. In seeking to have Ada’s case thrown out, the employer’s argument was that the extern never applied for employment as a dental assistant, so the employer could not possibly have engaged in illegal discrimination by failing to hire her as a dental assistant.
The court of appeal concluded that Ada should be allowed to pursue her case even though she never submitted an application for employment. That court explained that discrimination cases based upon a “failure to hire” claim do not automatically fail just because the worker did not apply for the job. While a failure to apply is a very important (and often decisive) fact in certain types of discrimination cases, this set of facts was different. Ada “could not reasonably be expected to apply for a vacancy she was told did not exist.” If the employer actively discouraged the candidate from applying by lying about the lack of positions, the candidate could still have a case.
Illegal discrimination can come in many different varieties. Sometimes the misconduct may be what is said to you, while other times it could be what is not said, and, in still other circumstances, it is the falsehoods that an employer uses to advance its discriminatory objectives. If you think you have been targeted by impermissible employment discrimination, contact the Oakland employment attorneys at the Law Offices of Stephen M. Fuerch. Our team has been working hard for many years to protect the right of workers to be free of illegal discrimination. To learn more about how we can help you, contact us through our website or call our office at (925) 463-1073 to schedule your confidential initial consultation today.
More Blog Posts:
How Jury Mistakes May Allow You to Obtain a New Trial in Your California Discrimination Case, Oakland Personal Injury Attorney Blog, April 25, 2018
Timing Proves Critical to Failure of Employer’s Defense in California Woman’s Pregnancy Discrimination Case, Oakland Personal Injury Attorney Blog, Nov. 30, 2015