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.
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