Question: I recently applied for a job that perfectly matches my qualifications and many years of experience in the same field of work. The interview went well, I had a good letter of reference from my last employer, and I’ve never been fired. My employment history is spotless, but the hiring employer rejected me without giving a reason. I have had some personal problems, thanks to trouble making my mortgage and some other things that never affected my job. I’m a 35-year-old Hispanic male. Is it possible that this hiring manager discriminated against me? Will a lawyer take my case?
Answer: The answer to the both questions is yes, it’s possible. But, there are several caveats that present challenges to your potential case.
What a Lawyer Can Do
As with any potential case, an employment lawyer analyzing your potential non-hire case will evaluate the strengths and weaknesses of your claims, usually based on the evidence you have that the non-hire decision was possibly in violation of the law. An employment lawyer will also evaluate you as your own most important witness. So, two things are very important during your meeting with an employment lawyer who is considering your non-hire case:
- Bring all of your evidence (in an organized fashion) to your meeting with the lawyer (any job postings, your resumé and application, reference letter, and anything else that may be relevant); and,
- Present yourself in a professional, credible way.
How a Lawyer Evaluates a Non-Hire Case
In addition to assessing your presentation as a witness for yourself, an employment lawyer will take a look at the facts of the situation, including:
- everything you and the hiring manager said during the interview
- your resumé, experience, and other qualifications for the job, and
- any information you have about the individual who was hired for the position.
The lawyer will also explore the “personal problems” you may have had at the time you applied for the job. This exploration will include questions about your credit rating and report, any arrests and/or convictions, whether the hiring employer had you take a drug test, and the like. The reason the lawyer will ask you about these things is that the hiring employer may have looked into things that it should not have or it may have used criteria for rejecting you that could violate state or federal laws.
Did the Refusal to Hire Violate the Law?
One of the main questions an employment lawyer will want answered is: Did the employer hire someone into the position you applied for. And, if so, what information do you have about that person, such as:
- What are the hired applicant’s qualifications for the job?
- What is the hired applicant's ethnicity (Hispanic or non-Hispanic in your case)? And,
- What is the demographic profile of the hiring employer (in other words, the number of Hispanics and non-Hispanics working there, and, especially, the number of Hispanics holding positions similar to that for which you applied)?
The reason that an employment attorney wants this information (which can be hard to come by, as discussed below) is to determine if there is evidence of discrimination in the hiring employer’s rejection of your application.
Consumer Information used to discriminate
Sometimes, a non-hire is discriminatory based on the information an employer seeks out about the applicant. Some states (and even counties or cities) prohibit employers from rejecting an applicant based on the applicant’s criminal record. These laws differ from state to state; an experienced employment lawyer can tell you what the law is in your area if you have a criminal record and believe that it may have played a part in the hiring employer rejecting your application. And, there are federal laws that limit what information about an applicant’s criminal record a hiring employer may seek and how they can use it. For more information about criminal records and employment, see Will a lawyer take my case if I wasn’t hired based on my criminal record?
Pre-Offer Drug Testing
Some states prohibit hiring employers from demanding a drug test before a conditional job offer is made. The employer can reject an applicant to whom it’s made an offer if the drug test is positive, but the employer cannot ask the applicant to submit to the test unless it makes the conditional job offer first.
You did not mention a drug test, but if the hiring employer had you take one, be sure to tell the lawyer you meet with about that. He or she can then explain the laws in your state on employer drug testing of applicants. For more information about employer drug testing of job applicants, see Drug Tests for Job Applicants: If You’re Asked to Take a Drug Test.
Challenges to Proving Illegal Refusal to Hire
Proving that a refusal to hire you is illegal is more challenging than proving an illegal termination or other action by an employer after hire. This is because evidence is necessarily limited, given that you haven’t even gotten a foot in the door, and applicants often have only the application and the interview on which to base an analysis of their claims. (Of course, if you have more evidence, such as information about the person hired instead of you, this increases the possibility that you have a claim that is worth pursuing in court.)
Another challenge is access to evidence that may support your claims. You may find it very difficult to even find out whether the employer hired anyone else, much less any personal information about the hired applicant.
And, the employer may be able to come up with reasons for choosing someone else over you that are credible, at least on the surface. An employment lawyer will be able to discuss these challenges with you and determine whether or not you have a case that can withstand them.