Pregnant, Seeking Work, but Not Applying? The “Futile Gesture” Doctrine

Suppose a woman is finishing a degree program at about the time she becomes pregnant. She’s been externing in a dental office— a fancy term for on-the-job training, no pay, but a real possibility of being hired.

Her job prospects look good until co-workers notice her open purse has prenatal vitamins. The gossip mill cranks up the news that the extern is pregnant. The main point is that these future co-workers and the office manager say they don’t to hire someone who is about to take pregnancy leave and create a scheduling strain on them.

If there is a job opening, keep it available for someone who is not pregnant.

This happened to Ada Abed. She heard all this. She asked if a job would open after she completed her externship and was told “no.” But a job did open. She did not apply for it, claiming it was futile to do so—she’d never be hired.

Does she actually have to apply as a condition for her pregnancy discrimination lawsuit?

A trial court in California said yes and dismissed her case.

In 2018, an appeals court said the lower court misapplied the “futile gesture” doctrine.

Here is what the court said:

As the Supreme Court recognized, an employer can discourage a potential applicant not just by making explicitly discriminatory statements but also “more subtly by its consistent discriminatory treatment of actual applicants, by the manner in which it publicizes vacancies, its recruitment techniques, and its responses to casual or tentative inquiries.” (Ibid.) Abed has presented evidence that because she was pregnant she was falsely told that no position was available in the Napa office. In our view, this is enough to support a claim under the FEHA (Fair Employment and Housing Act, a discrimination law). Employers who lie about the existence of open positions are not immune from liability under the FEHA simply because they are effective in keeping protected persons from applying.