(407) 205-2330
J. Allen Law, P.L.
Employment Law
Business Law
Orlando - Central Florida

Tampa and Orlando Discrimination Attorney

Can You Be Discriminated Against If You Express An Interest In a Job Position But Fail To Apply? Maybe

"Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." Vance v. Ball Sate Univ., 133 S. Ct. 2434, 2440 (2013) (quoting 42 U.S.C. §2000e-2(a)(1)). For instance, if the reason that your employer passes you up for a promotion or job transfer is based on your race, color, religion, sex, or national origin your rights have been violated pursuant to Title VII. But what happens if you express an interest in a job position or job transfer but never formally apply?

This issue was presented to the United States Court of Appeals for the Eight Circuit in Equal Employment Opportunity Commission ("EEOC") v. Audrain Health Care, Inc., No. 13-1720 (8th Cir. June 30, 2014). In Audrain, a male registered nurse was working at Audrain Health Care, Inc. ("Audrain") in the Post Anesthesia Care Unit ("PACU"). In March of 2010, Audrain posted vacancies for nursing positions in the Operating Room ("OR") and the Critical Care Unit ("CCU"). On March 22, 2010 the nurse completed a "Request for Transfer" form requesting a transfer from PACU to CCU. The request was approved and the nurse was scheduled to start in the CCU on April 22, 2010.

However, prior to transferring to his new unit, the nurse asked his supervisor if she would consider him or train him for the OR position. His supervisor told him that she wanted to fill the position with a woman in order to have the right mix of patients to staff based on gender. The nurse did not complete any transfer forms for the OR position.

In August of 2011, the EEOC brought a lawsuit against Audrain alleging that Audrain violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq., and Title I of the Civil Rights Act of 1991, 42 U.S.C. §1981a, by refusing to consider the nurse for the OR position that he expressed interest in on the basis of his sex. Audrain argued that it did not discriminate against the nurse because, among other things, he did not apply for the OR position. The district court agreed with Audrain and the EEOC appealed to the U.S. Court of Appeals for the Eight Circuit.

The EEOC's main argument was that the nurse's failure to apply for a transfer is excused because, when his supervisor told him that she wanted to fill the position with a woman, she made it clear to him that applying for the OR position would be futile. However, the Eight Circuit found that the EEOC had not shown that Audrain fostered an atmosphere of "gross and pervasive discrimination" so that it would have deterred the nurse from formally applying for the OR position. The Eight Circuit further held that "an employee who does not formally apply must make ‘every reasonable attempt to convey his [or her] interest in the job to the employer' before he or she may prevail on a discrimination claim." Here, the Eight Circuit reasoned, the nurse did not make "every reasonable attempt to convey" his interest by: not applying for the OR position, by only having one conversation with his supervisor about the OR position and expressing his interest in the position nearly one month after he requested, and was approved, to transfer to CCU. Therefore, the Eight Circuit concluded that the district court did not err in concluding that the EEOC did not establish a claim of employment discrimination.

The Eight Circuit's decision in Audrain should serve as a cautionary reminder to employees that, if they are interested in a job position or job promotion, they should make all reasonable attempts to express their interest in the job position or job promotion including, but not limited to, formally applying for the job position or promotion. Even if you feel that you are being discriminated against, and that you will not get the job position or job promotion, it is important that you still apply for the job position or promotion. It will also be helpful to your case, if you eventually bring a lawsuit against your current or former employer, to document the steps you took to express interest in the job position or job promotion including applying for the position or promotion.

Contact our Orlando and Tampa Discrimination Attorney

If you feel that you are being discriminated against, or were denied a job position or job promotion because of your race, color, religion, sex, or national origin call the Orlando discrimination attorney at J. Allen Law P.L. to obtain advise and course of action against your employer. You can reach us at (407) 205-2330 or you may also fill out the online form provided on this page and we will contact you shortly. Your privacy is important to us and we will keep your information confidential.


Featured Article



Email Address


Legal Issue


Please enter the text from the image:

390 N. Orange Ave, Suite 2300, Orlando FL 32801 * Main Phone: (407) 205-2330 * Direct Phone: (407) 205-2330 * Fax: (407) 442-0679

Disclaimer: This website is an advertisement by the Law Firm of J. Allen Law P.L. This advertisement is not intended nor shall it create an attorney-client relationship between you and this law firm or any attorney for this law firm. Nothing contained in this advertisement constitutes legal advice or guarantees any result. In addition, neither J. Allen Law P.L. nor its attorney(s) guarantee the accuracy or completeness of the information provided here, and shall not be liable for any errors or delays in the content, or for any actions taken in reliance of this information. Any content provided on this website is for informational purposes only and should not be relied upon and is not intended to be a ‘shortcut’ to replace the advice of a knowledgeable and experienced attorney. It is therefore strongly recommended that you consult with your legal counsel before making any decision. Finally, no tax advice or opinion has been intended, rendered or expressed on this website. Tax matters should be consulted expeditiously with reliable tax professionals. This firm has endeavored to comply with all known legal and ethical requirements in compiling this ad.