Why You Should Always Post Open Positions - Even If You Think You Know the Right Candidate
A recent Ninth Circuit decision is a stark reminder for employers: failing to post an open position can open the door to costly age discrimination claims.
The Case: Failure to Post Leads to Age Discrimination Suit
In this case, three longtime store managers in their 50s claimed they were passed over for a regional director position - one that was never posted internally, despite the company’s usual practice of doing so. Instead, the job was handed directly to a younger regional director - in a lateral move - without giving other qualified employees the opportunity to apply.
The employer argued that the plaintiffs couldn’t bring a failure-to-promote claim because they hadn’t applied for the role. But the Ninth Circuit disagreed, making a key point: if a job isn't posted, it’s unreasonable to penalize employees for not applying, especially when they never knew the opportunity existed.
Why This Matters
The court’s reasoning highlights an important legal principle: while employers aren’t legally required to post every job, not doing so can weaken your defense if someone later claims discrimination. Especially when the bypassed employees are qualified and fall into a protected class (in this case, workers over 40), the failure to provide a fair opportunity can be seen as exclusionary, even if unintentionally so.
In this case, the plaintiffs had strong performance records and were in a logical pipeline for promotion. They also presented evidence of age-related comments allegedly made by a supervisor, strengthening their claim. The court concluded that a jury should decide whether age discrimination played a role in the hiring decision.
Best Practice: Post Your Jobs
Even if you believe you have the ideal candidate in mind, posting open roles internally is still a best practice. Here’s why:
Transparency builds trust among employees and helps prevent claims of favoritism.
Posting creates documentation of the hiring process, which is helpful in defending against potential claims.
It gives your organization a chance to evaluate all potential candidates, and maybe discover someone more qualified than your original choice.
It shows fairness and consistency, especially if internal promotions are expected to follow a specific policy or past precedent.
What Employers Should Do
Always follow your internal job posting policies - and if you don’t have one, consider creating a simple process.
Review hiring decisions carefully and document legitimate, job-related reasons for your selections.
Be mindful of workplace comments that could be perceived as biased, even unintentionally.
Train managers on how to avoid discriminatory practices - including seemingly small ones, like informal promotions.
Posting a job might take a little more time upfront, but it can save a lot of time, money, and legal risk later. Need help navigating internal hiring practices or updating your promotion policies? Our HR experts can help you stay compliant, fair, and protected - reach out today.