A plaintiff alleging employment discrimination based on a failure-to-hire must, of course, show that she "actually applied" for the position. Thomas v. Tregre, 913 F.3d 458, 463 (5th Cir. 2019). However, this week, the Fifth Circuit held that in certain scenarios the position sought by the plaintiff need not have been available to support a failure-to-hire claim. Paugh v. Lockheed Martin Corp., No. 21-50472, 2023 WL 417648, at *4 (5th Cir. Jan. 26, 2023). Following a series of opinions from sister circuits in "comparable situations," the court recognized that a "relaxation of the application element of the prima facie case is especially appropriate when the hiring process itself, rather than just the decision-making behind the process, is implicated in the discrimination claim." Id. at fn. 5.
In Paugh, the plaintiff was a female employee of a U.S. Army sub-contractor, Tapestry Solutions, that serviced a live-fire training range at the Army's Fort Bliss. Id. at *1. In 2018, Lockheed Martin was awarded a follow-on service contract which subsumed Tapestry Solutions' servicing of that range. Id. An executive order required Lockheed Martin to "hire qualified incumbent employees displaced by the new contract." Id. The plaintiff applied for nine positions with Lockheed Martin, but seven of those positions were ultimately canceled by Lockheed Martin and the other two positions went to incumbent male employees. Id. at *1-2. The plaintiff sued for sex discrimination and retaliation under both federal and Texas law based on failure-to-hire. Id. at *2. The district court dismissed all plaintiff's claims on summary judgment. Id.
The Fifth Circuit affirmed the dismissal of claims concerning Lockheed's failure-to-hire plaintiff for the two available positions that went to her male counterparts. Id. at *6. However, the court reversed the dismissal of her claim concerning the seven unavailable positions. Id. at *4-5. In support of that claim, plaintiff alleged that "she was kept in the dark about which positions Lockheed Martin actually intended to fill, with the result that she applied for" and the court found that she had "created a genuine issue of material fact as to whether critical hiring information was meted out discriminatorily in violation of Title VII." Id. at *4. The plaintiff did so by presenting evidence that her male counterparts were informally given a "helpful tip-off" by Lockheed's hiring manager at a "meet-and-greet" that they need not apply to certain positions as they were being cancelled, while plaintiff was never provided the same information. Id. at *5.
The key takeaway for employer-contractors in similar situations is this: the need for formality and uniformity in providing information to applicants in mass-hiring scenarios is paramount. But a claim based on a person being "left in the dark" about available positions could occur in other scenarios, such as in the context of a "failure-to promote" claim or even when an employer participates in a job fair. In those scenarios, employers may want to provide written notice of all potential opportunities to best avoid any disputes about applicants being "left in the dark."
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