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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 19169
Experience:  Employment/Labor Law Litigation
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Is it discrimination if the job opening was not listed

Customer Question

is it discrimination if the job opening was not listed openly/transparently, but filled based on an internal list of applicants? The RN position in a NC DPS prison was not listed in the NC State HR website that purports to ensure all openings will be made available to those who subscribe to the HR notification service. The position was not made known to me and I discovered today that the prison management interviewed last week. I am currently employed by the state DPS.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 1 year ago.

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

Just the use of an internal list of preferred employees alone is not legally discrimination. Nothing in employment law mandates open job postings. Now certainly, with specific employers they may be under laws that require them to have open job listings, like unions and government employers. However, it isn't considered discrimination when they don't list the job openly. For it to be discrimination, you'd need evidence suggesting that they made their decision based on race, religion, gender, age, disability or recent medical leave use (FMLA leave). Then the EEOC or Department of Labor could get involved, as it would properly be referred to as a discriminatory decision.

Instead, this is a matter of breach of contract (if it is a union requirement for open job postings) or a procedural failure (if the government position requires that they list all jobs openly), and any suit based on that first requires the use of any internal grievance or protest mechanisms that might be available. So, you'll have to protest this issue with the employer first, through whatever method they have, and only after that is complete would you then be able to take that determination of that protest (assuming it came back not in your favor) to a local attorney to pursue litigation.

If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a top-three rating so that I receive credit for working with you today. Please rate me based on my service and not on your satisfaction with the law, which I am not in control of and I am just reporting to you. Also, feel free to request me in the future, if you have questions concerning a different matter.

Expert:  Allen M., Esq. replied 1 year ago.

Hello, I wanted to check in and make sure that there was not any additional information that you required after the response I previously provided to you. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.