Pregnant Woman Told That Business Wasn’t Hiring Gets Trial


By Joanne Deschenaux, J.D. June 22, 2018

Although a plaintiff claiming hiring bias is generally required to show that he or she applied for the job at issue, a potential employer can be held liable under the California Fair Employment and Housing Act (FEHA) for preventing a pregnant woman from applying for a job by falsely telling her that no position is available, the California Court of Appeal ruled.

Western Dental operates dental offices and clinics throughout California, including one in Napa. The company accepts student externs from schools that have dental-assistant programs. The plaintiff began a college dental-assistant program in July 2014. To obtain her certificate, she was required to complete 180 hours in an unpaid externship with a dental office.

The following spring, she successfully applied for an externship in Western Dental's office in Napa. She began the externship on May 18, 2015. At the time, she was pregnant, which she did not disclose to anyone at Western Dental.

At some point during the plaintiff's externship, her supervisor became aware of her pregnancy and allegedly expressed her unwillingness to hire a pregnant dental assistant. That supervisor later told her that there were no openings in the Napa office, although that was not true.

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After she completed her externship, the plaintiff did not apply for a dental-assistant job in Napa, believing that there were no positions available there.

She subsequently sued Western Dental, claiming she was denied a job because she was pregnant, in violation of FEHA. Western Dental moved for dismissal of the claim before trial, and the trial court ruled in the company's favor because it was undisputed that the plaintiff had not submitted a job application.

The plaintiff appealed, and the appellate court reversed, holding that she was entitled to a trial on her pregnancy-discrimination claim.

Failure-to-Hire Claims Under FEHA                 

The court first noted that, in most cases that allege a failure to hire for discriminatory reasons, the plaintiff must show that he or she applied for the job. However, the court added, this is not a requirement when the plaintiff presents enough other evidence to demonstrate that an employment decision was discriminatory.

In this case, the plaintiff was not required to show that she submitted an application in order to be entitled to a trial on her pregnancy-bias claim, because Western Dental allegedly prevented her from applying by falsely telling her that no position was available. Courts must be sensitive to the myriad ways an inference of discrimination can be created, the court said. Courts have applied this principle in other cases when, as a result of discriminatory acts, plaintiffs were unaware of job openings, the court noted.

The plaintiff could not reasonably be expected to apply for a vacancy she was told did not exist. In addition, she presented significant evidence that Western Dental acted with "discriminatory animus" by telling her there was no opening for a dental assistant in the Napa office. Her supervisor made several remarks suggesting she did not want the plaintiff to work in Napa because she was pregnant. In addition, the position was publicly posted, and the position was filled shortly after the plaintiff finished her externship.

As a whole, the court said, this evidence satisfied her burden of demonstrating triable issues as to whether Western Dental intentionally discriminated against her by discouraging her from applying to become a dental assistant.

"Employers who lie about the existence of open positions are not immune from liability under FEHA simply because they are effective at keeping protected persons from applying," the court concluded.

Abed v. Western Dental Services Inc., Calif. Ct. App., No. A150933 (May 23, 2018).

Professional Pointer: The court noted that a jury might eventually agree with Western Dental that it did not intentionally discriminate against the plaintiff. But its ruling that she presented enough evidence to proceed with her FEHA claim means, at a minimum, the employer will be faced with the monetary expense and time commitment of a trial.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 


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