Failure to Hire Claims

When most people think about employment law, they do so in the context of an existing employment relationship. However, state and federal employment laws provide significant protection to job applicants as well as current employees. At The Nourmand Law Firm, APC, our Los Angeles employment lawyers represent employees and job applicants in a broad range of employment disputes. If you applied for a job and were not hired based on a suspect reason, our attorneys can help you understand your rights and pursue a claim against the company that failed to hire you.

As a general rule, employers have the ability to choose who they want to hire. However, an employer’s hiring decision cannot take certain things into account. For example, under the California Fair Employment and Housing Act (FEHA), it is against the law for an employer to base a hiring decision on any of the following:

• Age (for applicants over 40);
• Gender, sex, gender identity, or gender expression;
• Genetic information;
• Marital status;
• Medical condition;
• Physical or mental disability;
• Pregnancy or childbirth;
• Race, skin, color, national origin, or ancestry;
• Religious creed; or
• Sexual orientation.

Additionally, in 2018, California passed the Fair Chance Act. The Fair Chance Act prohibits employers with five or more employees from asking job applicants about their criminal history before making a job offer. Thus, employers must first make a decision whether to hire an applicant and only then can ask about their conviction record. The Fair Chance Act does not necessarily prevent an employer from taking back a job offer based on an applicant’s prior convictions, but before doing so, the employer must:

• Make an individualized determination that justifies denying the applicant the position;
• Notify the applicant in writing of the employer’s preliminary decision to take back the offer;
• Give the applicant an opportunity to provide additional information;
• Notify the applicant in writing of the employer’s final decision to take back the offer; and
• Inform the applicant of the right to complain to DFEH.

Further, employers cannot choose not to hire a job applicant because they are married to an existing employee. However, once two spouses are employed by the same company, the employer can regulate whether the spouses directly work together or elect not to have one spouse supervise the other spouse’s work.

When it comes to English proficiency, “English-only” policies are generally illegal. It is only if an employer’s decision to implement such a policy is based on a valid “business necessity” that it is valid. Additionally, the policy must be narrowly tailored to ensure that it is not broader than it needs to be to address the employer’s needs. To establish a business necessity, an employer must show that there is a legitimate overriding business interest in creating the policy, that the English-only policy addresses this interest, and that no other less discriminatory alternative would suit the employer’s needs.

Failure to hire claims can be proven through direct or circumstantial evidence. However, in most cases, direct evidence of an employer’s unlawful conduct is unavailable. Thus, many failure to hire claims proceed on circumstantial evidence. Circumstantial evidence is evidence that requires the fact finder to make one or more inferences before reaching the proposed conclusion. An experienced California employment law attorney can help job applicants understand what evidence is necessary to establish a claim.

If you recently applied for a job and were not hired, and you believe that the employer based its decision on an impermissible factor, reach out to The Nourmand Law Firm, APC. At The Nourmand Law Firm, APC, we have decades of experience representing employees and job applicants in a wide range of employment discrimination cases. We can help you understand your rights and effectively pursue a claim against the company that unlawfully failed to hire you. To learn more, and to schedule a free consultation today, call 800-700-WAGE (9243). You can also connect with us through our online contact form.