Can you sue an employer because you weren't hired – or because of things the employer said or did during the hiring process? In some situations, the answer is "yes." However, these claims can be tough to win. This article summarizes some common legal claims based on hiring and outlines some steps to take if you believe you were treated unfairly in the hiring process.
Most hiring lawsuits boil down to one of these two scenarios: The employer relied on information that was legally off-limits in making its decision, or the employer misled (or outright lied to) the applicant during the hiring process. In some situations, an applicant might even have a legal claim against a former employer who is illegally hindering the job search.
There are a number of factors that employers are legally prohibited from considering when they decide whether to hire an applicant. Some of these claims are recognized in every state; others are not.
If an employer makes intentional misrepresentations to convince an applicant to take a job, and the employee takes action in reliance on those statements (for example, by quitting a secure position to take the new one), the employee may have a fraud claim. These claims often come up if the new job either doesn't materialize – leaving the applicant out of work and out of luck – or lasts only for a short time.
Example: Bob was recruited for a job in San Francisco. After he was promised a starting salary of $150,000 and a three-year job contract, he quit his job in Arizona, put his house on the market, and put a down payment on a condominium in the city. On his first day of work, Bob was told his salary would start at $90,000 and was handed an at-will employment agreement to sign. Because California recognizes fraud claims, Bob might have a pretty good case against his new employer.
An employee might also have a wrongful termination claim based on statements made during the hiring process. For example, if an employer promised that the applicant would have a six-month probation period to learn the job, during which the employee could not be fired, the employee could have a breach of contract claim if the employer ended the relationship sooner.
In some circumstances, a rejected applicant might have a legal claim against a former employer for preventing the applicant from getting a new job.
Despite all these potential legal theories, there aren't many hiring lawsuits filed – and even fewer are won. There are a few reasons for this, but it mostly boils down to proof. It's hard to know – and harder to prove – why an employer turned down a particular applicant. Often, an applicant is left with strong suspicions but little hard evidence, particularly if the applicant doesn't have any personal contacts within the company.
As a result, applicants who believe they were passed over unfairly have a particularly tough road ahead – and can really benefit from legal advice. A lawyer can help you figure out whether it's worth pursuing a legal claim for failure to hire. And, if you pursue an administrative charge or a lawsuit, you'll be able to use the discovery process to gather evidence that might support your claims.
If you are considering a lawsuit, you should talk to a lawyer right away. There are time limits for filing an administrative charge (which you must do before you can bring a lawsuit for discrimination or retaliation) or a lawsuit.
To assist the lawyer in assessing your chances, bring every document you have relating to the hiring decision. If you responded to an online post, print out a copy. If you have an offer letter, rejection letter, copy of your application and resume, or any other paperwork, bring that along as well. And make notes of any conversations you had, such as your initial contact with the employer, your interview, or a call to tell you that you didn't get the job.