Applicant Who Rejected Job Offer Entitled to Trial

By Nate Bailey September 26, 2018
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Despite rejecting an employer's job offer, a female applicant could proceed to trial with her sex-discrimination failure-to-hire claim when the hiring manager allegedly stated a preference for hiring a man and ultimately hired a man at a higher salary, according to a federal district court in Virginia.

The plaintiff owned and managed a successful spa for eight years before selling it in 2015. In 2016, she applied to be spa manager at a luxury resort owned by Primland Ltd. After several interviews, the company offered her the job at a $48,000 salary and $5,000 potential bonus. After some back and forth about the offer, the plaintiff failed to respond to the company's efforts to determine her decision about the job and the company concluded that she had rejected the offer. Thereafter, the company interviewed and hired a man as spa manager at a $68,000 salary and $10,000 potential bonus.

The plaintiff filed a charge with the Equal Employment Opportunity Commission and then a lawsuit alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964. In support of her claim, she alleged that during the interview process the general manager had treated her poorly and had stated a preference for hiring a man for the role "to control this mostly female staff." When the plaintiff spoke with the HR coordinator about the interview, the HR coordinator allegedly confirmed the general manager's preference for hiring a man but encouraged the plaintiff to continue the interview process.

Based on how the general manager had treated her during the interview process, the plaintiff concluded that the general manager wanted her to reject any job offer so a male spa manager could be hired instead. The plaintiff also alleged that the HR coordinator told her if the general manager offered her the job, the general manager would continue treating her poorly so she would quit.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

In moving to dismiss the plaintiff's claim, the company argued that her rejection of its job offer precluded her from proving an essential element of her claim—that "she was rejected for the position based on circumstances giving rise to an inference of discrimination." In response, the plaintiff asserted that she had received a sham offer the company wanted her to reject. Regardless, accepting the offer would have been a futile gesture because she knew she would be the recipient of unfair and unreasonable demands designed to force her to quit so a man could be hired for the position, she added.

Although the "futile gesture" doctrine is more typically invoked when a plaintiff alleges that she did not apply for a position because the employer's discriminatory policies would have meant certain rejection, the court nevertheless denied the company's motion, thus allowing the case to proceed to trial. In so doing, the court explained that the general manager's alleged preference for hiring a man and the HR coordinator's alleged statement confirming the general manager's preference, coupled with the alleged more favorable treatment during the interview process of the man who was hired and the higher compensation he was offered, created issues for a jury to decide.

Majure v. Primland Ltd., D. W.Va., No. 4:17-cv-00033 (July 13, 2018).

Professional Pointer: This case illustrates that, under certain circumstances, a candidate can refuse a job offer and yet still assert a failure-to-hire discrimination claim. Employers should thus ensure that no opportunity is presented for a candidate to conclude that unlawful discrimination is occurring in connection with the hiring process or to perceive that he or she would encounter unlawful discrimination upon acceptance of a job offer. In connection with this, employers should recognize the potential risk in offering different candidates significantly different compensation for the same job absent a sound explanation for doing so.

Nate Bailey is an attorney with Winterbauer & Diamond PLLC, the Worklaw® Network member firm in Seattle.

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